Exhibit
10.3


 


CREDIT AGREEMENT,


 


dated as of
December 17, 2003,


 


among


 


ALIMENTATION COUCHE-TARD INC. (“ACT”), 

as a Guarantor,


 


CERTAIN OF ACT’S
CANADIAN SUBSIDIARIES,

as the Canadian Borrowers,


 


CERTAIN OF ACT’S
U.S. SUBSIDIARIES,

as the U.S. Borrowers,


 


VARIOUS FINANCIAL
INSTITUTIONS

FROM TIME TO TIME PARTIES HERETO,

as the Lenders,


 


NATIONAL BANK OF
CANADA,

as the Canadian Administrative Agent,


 


and


 


CANADIAN IMPERIAL
BANK OF COMMERCE,

as the U.S. Administrative Agent.


 












 


NATIONAL BANK
FINANCIAL,

as Sole Lead Arranger and Book Runner in respect of

the Canadian Term Loans and Revolving Loans,


 


and


 


THE BANK OF NOVA
SCOTIA

and CIBC WORLD MARKETS CORP.,

as Joint Lead Arrangers and Book Runners


in respect of the
U.S. Term Loans


 

















 


	
  ARTICLE I

  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  
	
  SECTION 1.1.

  	
  Defined Terms

  	
   

  
	
  SECTION 1.2.

  	
  Use of
  Defined Terms

  	
   

  
	
  SECTION 1.3.

  	
  Cross-References

  	
   

  
	
  SECTION 1.4.

  	
  Accounting
  and Financial Determinations

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  
	
  SECTION 2.1.

  	
  Commitments

  	
   

  
	
   

  	
  SECTION
  2.1.1.

  	
   

  	
  Revolving
  Loan Commitments and Swing Line Loan Commitments

  	
   

  
	
   

  	
  SECTION
  2.1.2.

  	
   

  	
  Letter of
  Credit Commitment

  	
   

  
	
   

  	
  SECTION
  2.1.3.

  	
   

  	
  Term Loan
  Commitments

  	
   

  
	
  SECTION 2.2.

  	
  Reduction of
  the Commitment Amounts

  	
   

  
	
  SECTION 2.3.

  	
  Borrowing
  Procedures

  	
   

  
	
   

  	
  SECTION
  2.3.1.

  	
   

  	
  Borrowing
  Procedure

  	
   

  
	
   

  	
  SECTION
  2.3.2.

  	
   

  	
  Swing
  Line Loans; Participations, etc

  	
   

  
	
  SECTION 2.4.

  	
  Continuation
  and Conversion Elections

  	
   

  
	
   

  	
  SECTION
  2.4.1.

  	
   

  	
  Converting
  Canadian Prime Rate Loans to, or Continuing Canadian BAs as, Canadian BAs

  	
   

  
	
   

  	
  SECTION
  2.4.2.

  	
   

  	
  Converting
  Canadian BAs to Canadian Prime Rate Loans

  	
   

  
	
  SECTION 2.5.

  	
  Funding

  	
   

  
	
  SECTION 2.6.

  	
  Issuance
  Procedures

  	
   

  
	
   

  	
  SECTION 2.6.1.

  	
   

  	
  Other Lenders’ Participation

  	
   

  
	
   

  	
  SECTION 2.6.2.

  	
   

  	
  Disbursements

  	
   

  
	
   

  	
  SECTION 2.6.3.

  	
   

  	
  Reimbursement

  	
   

  
	
   

  	
  SECTION
  2.6.4.

  	
   

  	
  Deemed
  Disbursements

  	
   

  
	
   

  	
  SECTION
  2.6.5.

  	
   

  	
  Nature of
  Reimbursement Obligations

  	
   

  
	
   

  	
  SECTION
  2.6.6.

  	
   

  	
  Deemed
  Utilization

  	
   

  
	
  SECTION 2.7.

  	
  Register;
  Notes

  	
   

  
	
  SECTION 2.8.

  	
  Canadian BAs

  	
   

  



 


i

















 


	
   

  	
  SECTION
  2.8.1.

  	
   

  	
  Funding
  of Canadian BAs

  	
   

  
	
   

  	
  SECTION
  2.8.2.

  	
   

  	
  Execution
  of Canadian BAs

  	
   

  
	
   

  	
  SECTION
  2.8.3.

  	
   

  	
  Special
  Provisions Relating to Acceptance Notes

  	
   

  
	
  SECTION 2.9.

  	
  Increase in Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

  	
   

  
	
   

  	
   

  
	
  SECTION 3.1.

  	
  Repayments
  and Prepayments; Application

  	
   

  
	
   

  	
  SECTION
  3.1.1.

  	
   

  	
  Repayments
  and Prepayments

  	
   

  
	
   

  	
  SECTION 3.1.2.

  	
   

  	
  Application

  	
   

  
	
  SECTION 3.2.

  	
  Interest
  Provisions

  	
   

  
	
   

  	
  SECTION
  3.2.1.

  	
   

  	
  Rates

  	
   

  
	
   

  	
  SECTION
  3.2.2.

  	
   

  	
  Post-Maturity
  Rates

  	
   

  
	
   

  	
  SECTION
  3.2.3.

  	
   

  	
  Payment
  Dates

  	
   

  
	
   

  	
  SECTION
  3.2.4.

  	
   

  	
  Interest
  Act Provision

  	
   

  
	
  SECTION 3.3.

  	
  Fees

  	
   

  
	
   

  	
  SECTION
  3.3.1.

  	
   

  	
  Commitment
  Fee

  	
   

  
	
   

  	
  SECTION
  3.3.2.

  	
   

  	
  Administrative
  Agents’ Fees

  	
   

  
	
   

  	
  SECTION
  3.3.3.

  	
   

  	
  Letter of
  Credit Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 4.1.

  	
  Fixed Rate
  Lending Unlawful

  	
   

  
	
  SECTION 4.2.

  	
  Deposits
  Unavailable; Circumstances making Canadian BAs Unavailable

  	
   

  
	
  SECTION 4.3.

  	
  Increased
  Loan Costs, etc

  	
   

  
	
  SECTION 4.4.

  	
  Funding
  Losses

  	
   

  
	
  SECTION 4.5.

  	
  Increased
  Capital Costs

  	
   

  
	
  SECTION 4.6.

  	
  Taxes

  	
   

  	
   

  
	
  SECTION 4.7.

  	
  Payments, Computations, etc

  	
   

  
	
  SECTION 4.8.

  	
  Sharing of
  Payments

  	
   

  
	
  SECTION 4.9.

  	
  Setoff

  	
   

  
	
  SECTION
  4.10.

  	
  Account
  Debit Authorization

  	
   

  



 


ii

















 


	
  ARTICLE V

  CONDITIONS TO CREDIT EXTENSIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 5.1.

  	
  Initial
  Credit Extension

  	
   

  
	
   

  	
  SECTION
  5.1.1.

  	
   

  	
  Resolutions,
  etc

  	
   

  
	
   

  	
  SECTION
  5.1.2.

  	
   

  	
  Closing
  Date Certificate

  	
   

  
	
   

  	
  SECTION
  5.1.3.

  	
   

  	
  Consummation
  of Transaction

  	
   

  
	
   

  	
  SECTION
  5.1.4.

  	
   

  	
  Payment
  of Outstanding Indebtedness, etc

  	
   

  
	
   

  	
  SECTION
  5.1.5.

  	
   

  	
  Delivery
  of Notes

  	
   

  
	
   

  	
  SECTION 5.1.6.

  	
   

  	
  Financial Information, etc

  	
   

  
	
   

  	
  SECTION 5.1.7.

  	
   

  	
  Compliance Certificate

  	
   

  
	
   

  	
  SECTION
  5.1.8.

  	
   

  	
  Solvency,
  etc

  	
   

  
	
   

  	
  SECTION
  5.1.9.

  	
   

  	
  Guarantees

  	
   

  
	
   

  	
  SECTION
  5.1.10.

  	
   

  	
  Security
  Agreements

  	
   

  
	
   

  	
  SECTION
  5.1.11.

  	
   

  	
  Intellectual
  Property Security Agreement

  	
   

  
	
   

  	
  SECTION
  5.1.12.

  	
   

  	
  Closing
  Fees, Expenses, etc

  	
   

  
	
   

  	
  SECTION
  5.1.13.

  	
   

  	
  Filing
  Agent, etc

  	
   

  
	
   

  	
  SECTION
  5.1.14.

  	
   

  	
  Insurance

  	
   

  
	
   

  	
  SECTION
  5.1.15.

  	
   

  	
  Mortgage

  	
   

  
	
   

  	
  SECTION
  5.1.16.

  	
   

  	
  Opinions
  of Counsel

  	
   

  
	
   

  	
  SECTION
  5.1.17.

  	
   

  	
  Information
  pursuant to Terrorism Laws

  	
   

  
	
   

  	
  SECTION
  5.1.18.

  	
   

  	
  Process
  Agent

  	
   

  
	
   

  	
  SECTION
  5.1.19.

  	
   

  	
  Perfection
  Certificate

  	
   

  
	
   

  	
  SECTION
  5.1.20.

  	
   

  	
  Joinder
  Agreement

  	
   

  
	
  SECTION 5.2.

  	
  All Credit
  Extensions

  	
   

  
	
   

  	
  SECTION
  5.2.1.

  	
   

  	
  Compliance
  with Warranties, No Default, etc

  	
   

  
	
   

  	
  SECTION
  5.2.2.

  	
   

  	
  Credit
  Extension Request, etc

  	
   

  
	
   

  	
  SECTION
  5.2.3.

  	
   

  	
  Satisfactory
  Legal Form

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  
	
  SECTION 6.1.

  	
  Organization,
  etc

  	
   

  
	
  SECTION 6.2.

  	
  Due
  Authorization, Non-Contravention, etc

  	
   

  



 


iii

















 


	
  SECTION 6.3.

  	
  Government
  Approval, Regulation, etc

  	
   

  
	
  SECTION 6.4.

  	
  Validity, etc

  	
   

  
	
  SECTION 6.5.

  	
  Financial Information

  	
   

  
	
  SECTION 6.6.

  	
  No Material
  Adverse Change; Solvency

  	
   

  
	
  SECTION 6.7.

  	
  Litigation,
  Labor Controversies, etc

  	
   

  
	
  SECTION 6.8.

  	
  Subsidiaries

  	
   

  
	
  SECTION 6.9.

  	
  Ownership of
  Properties

  	
   

  
	
  SECTION
  6.10.

  	
  Taxes

  	
   

  
	
  SECTION
  6.11.

  	
  Pension and
  Welfare Plans

  	
   

  
	
  SECTION
  6.12.

  	
  Environmental
  Warranties

  	
   

  
	
  SECTION
  6.13.

  	
  Accuracy of
  Information

  	
   

  
	
  SECTION
  6.14.

  	
  Regulations
  U and X

  	
   

  
	
  SECTION
  6.15.

  	
  Issuance of
  Subordinated Debt; Status of Obligations as Senior Indebtedness, etc

  	
   

  
	
  SECTION
  6.16.

  	
  Real
  Property

  	
   

  
	
  SECTION 6.17.

  	
  Obligors

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  COVENANTS

  	
   

  
	
   

  	
   

  
	
  SECTION 7.1.

  	
  Affirmative Covenants

  	
   

  
	
   

  	
  SECTION 7.1.1.

  	
   

  	
  Financial Information, Reports, Notices,
  etc

  	
   

  
	
   

  	
  SECTION
  7.1.2.

  	
   

  	
  Maintenance
  of Existence; Compliance with Laws, etc

  	
   

  
	
   

  	
  SECTION
  7.1.3.

  	
   

  	
  Maintenance
  of Properties

  	
   

  
	
   

  	
  SECTION 7.1.4.

  	
   

  	
  Insurance

  	
   

  
	
   

  	
  SECTION
  7.1.5.

  	
   

  	
  Books and
  Records

  	
   

  
	
   

  	
  SECTION
  7.1.6.

  	
   

  	
  Environmental
  Law Covenant

  	
   

  
	
   

  	
  SECTION
  7.1.7.

  	
   

  	
  Use of
  Proceeds

  	
   

  
	
   

  	
  SECTION
  7.1.8.

  	
   

  	
  Future
  Guarantors, Security, etc

  	
   

  
	
   

  	
  SECTION
  7.1.9.

  	
   

  	
  Rate
  Protection Agreements

  	
   

  
	
   

  	
  SECTION
  7.1.10.

  	
   

  	
  Real
  Property

  	
   

  
	
   

  	
  SECTION
  7.1.11.

  	
   

  	
  Senior
  Secured Bank Debt Rating

  	
   

  
	
  SECTION 7.2.

  	
  Negative
  Covenants

  	
   

  



 


iv

















 


	
   

  	
  SECTION
  7.2.1.

  	
   

  	
  Business
  Activities

  	
   

  
	
   

  	
  SECTION
  7.2.2.

  	
   

  	
  Indebtedness

  	
   

  
	
   

  	
  SECTION
  7.2.3.

  	
   

  	
  Liens

  	
   

  
	
   

  	
  SECTION
  7.2.4.

  	
   

  	
  Financial
  Condition and Operations

  	
   

  
	
   

  	
  SECTION
  7.2.5.

  	
   

  	
  Investments

  	
   

  
	
   

  	
  SECTION
  7.2.6.

  	
   

  	
  Restricted
  Payments, etc

  	
   

  
	
   

  	
  SECTION
  7.2.7.

  	
   

  	
  Capital
  Expenditures, etc

  	
   

  
	
   

  	
  SECTION
  7.2.8.

  	
   

  	
  No
  Prepayment of Subordinated Debt

  	
   

  
	
   

  	
  SECTION
  7.2.9.

  	
   

  	
  Issuance
  of Capital Securities

  	
   

  
	
   

  	
  SECTION 7.2.10.

  	
   

  	
  Consolidation, Merger, Permitted
  Acquisitions, etc

  	
   

  
	
   

  	
  SECTION 7.2.11.

  	
   

  	
  Permitted Dispositions

  	
   

  
	
   

  	
  SECTION 7.2.12.

  	
   

  	
  Modification of Certain Agreements

  	
   

  
	
   

  	
  SECTION 7.2.13.

  	
   

  	
  Transactions with Affiliates

  	
   

  
	
   

  	
  SECTION 7.2.14.

  	
   

  	
  Restrictive Agreements, etc

  	
   

  
	
   

  	
  SECTION 7.2.15.

  	
   

  	
  Sale and Leaseback

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  
	
  SECTION 8.1.

  	
  Listing of
  Events of Default

  	
   

  
	
   

  	
  SECTION
  8.1.1.

  	
   

  	
  Non-Payment
  of Obligations

  	
   

  
	
   

  	
  SECTION
  8.1.2.

  	
   

  	
  Breach of
  Warranty

  	
   

  
	
   

  	
  SECTION
  8.1.3.

  	
   

  	
  Non-Performance
  of Certain Covenants and Obligations

  	
   

  
	
   

  	
  SECTION
  8.1.4.

  	
   

  	
  Non-Performance
  of Other Covenants and Obligations

  	
   

  
	
   

  	
  SECTION 8.1.5.

  	
   

  	
  Default
  on Other Indebtedness

  	
   

  
	
   

  	
  SECTION
  8.1.6.

  	
   

  	
  Judgments

  	
   

  
	
   

  	
  SECTION
  8.1.7.

  	
   

  	
  Pension
  Plans

  	
   

  
	
   

  	
  SECTION 8.1.8.

  	
   

  	
  Change in
  Control

  	
   

  
	
   

  	
  SECTION
  8.1.9.

  	
   

  	
  Bankruptcy,
  Insolvency, etc

  	
   

  
	
   

  	
  SECTION
  8.1.10.

  	
   

  	
  Impairment
  of Security, etc

  	
   

  
	
   

  	
  SECTION
  8.1.11.

  	
   

  	
  Failure
  of Subordination

  	
   

  
	
   

  	
  SECTION
  8.1.12.

  	
   

  	
  Event
  Of Default Under Material Sale Lease-Back Documents

  	
   

  



 


v

















 


	
  SECTION 8.2.

  	
  Action if
  Bankruptcy

  	
   

  
	
  SECTION 8.3.

  	
  Action if
  Other Event of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  THE ADMINISTRATIVE AGENTS AND THE COLLATERAL AGENT

  	
   

  
	
   

  	
   

  
	
  SECTION 9.1.

  	
  Actions

  	
   

  
	
  SECTION 9.2.

  	
  Funding
  Reliance, etc

  	
   

  
	
  SECTION 9.3.

  	
  Exculpation

  	
   

  
	
  SECTION 9.4.

  	
  Successor

  	
   

  
	
  SECTION 9.5.

  	
  Loans by
  National Bank of Canada and Canadian Imperial Bank of Commerce

  	
   

  
	
  SECTION 9.6.

  	
  Credit
  Decisions

  	
   

  
	
  SECTION 9.7.

  	
  Copies, etc

  	
   

  
	
  SECTION 9.8.

  	
  Reliance by
  Administrative Agents and Collateral Agent

  	
   

  
	
  SECTION 9.9.

  	
  Defaults

  	
   

  
	
  SECTION
  9.10.

  	
  Information
  to the Canadian Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  GUARANTY PROVISIONS

  	
   

  
	
   

  	
   

  
	
  SECTION
  10.1.

  	
  Borrower
  Guaranty Provisions

  	
   

  
	
  SECTION
  10.2.

  	
  Borrower
  Guaranty

  	
   

  
	
  SECTION 10.3.

  	
  Guaranty Absolute, etc

  	
   

  
	
  SECTION 10.4.

  	
  Reinstatement, etc

  	
   

  
	
  SECTION 10.5.

  	
  Waiver, etc

  	
   

  
	
  SECTION 10.6.

  	
  Postponement of Subrogation, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  
	
  SECTION 11.1.

  	
  Waivers, Amendments, etc

  	
   

  
	
  SECTION 11.2.

  	
  Notices;
  Time

  	
   

  
	
  SECTION
  11.3.

  	
  Payment of
  Costs and Expenses

  	
   

  
	
  SECTION
  11.4.

  	
  Indemnification

  	
   

  
	
  SECTION
  11.5.

  	
  Survival

  	
   

  
	
  SECTION
  11.6.

  	
  Severability

  	
   

  



 


vi

















 


	
  SECTION
  11.7.

  	
  Headings

  	
   

  
	
  SECTION
  11.8.

  	
  Execution
  in Counterparts, Effectiveness, etc

  	
   

  
	
  SECTION
  11.9.

  	
  Governing
  Law; Entire Agreement

  	
   

  
	
  SECTION
  11.10.

  	
  Successors
  and Assigns

  	
   

  
	
  SECTION
  11.11.

  	
  Sale and
  Transfer of Credit Extensions; Participations in Credit Extensions Notes

  	
   

  
	
  SECTION
  11.12.

  	
  Other Transactions

  	
   

  
	
  SECTION
  11.13.

  	
  Forum
  Selection and Consent to Jurisdiction

  	
   

  
	
  SECTION
  11.14.

  	
  Service
  of Process, Appointment of Process Agent

  	
   

  
	
  SECTION
  11.15.

  	
  Waiver of
  Jury Trial

  	
   

  
	
  SECTION
  11.16.

  	
  Judgment
  Currency

  	
   

  
	
  SECTION
  11.17.

  	
  Tax
  Matters Disclosure

  	
   

  
	
  SECTION
  11.18.

  	
  Patriot
  Act Notification

  	
   

  



 


vii

















 


	
  SCHEDULE I

  	
  -

  	
  Disclosure
  Schedule

  
	
  SCHEDULE II

  	
  -

  	
  Percentages;
  LIBOR Office; Domestic Office

  
	
  SCHEDULE III

  	
  -

  	
  Permitted
  Sale-Leaseback/Permitted Store Closure Sites

  
	
  SCHEDULE IV

  	
  -

  	
  Fiscal Quarter
  End Dates and Quarterly Payment Dates

  
	
  SCHEDULE V

  	
  -

  	
  Fiscal Year End
  Dates

  
	
  SCHEDULE VI

  	
  -

  	
  Existing Letters
  of Credit

  
	
  SCHEDULE VII

  	
  -

  	
  EBITDA

  
	
  SCHEDULE VIII

  	
  -

  	
  Borrowers Under
  Credit Agreement

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
  -

  	
  Form of Canadian
  Revolving Note

  
	
  EXHIBIT A-2

  	
  -

  	
  Form of U.S.
  Revolving Note

  
	
  EXHIBIT A-3

  	
  -

  	
  Form of Canadian
  Term Note

  
	
  EXHIBIT A-4

  	
  -

  	
  Form of U.S.
  Term Note

  
	
  EXHIBIT A-5

  	
  -

  	
  Form of Canadian
  Swing Line Note

  
	
  EXHIBIT A-6

  	
  -

  	
  Form of U.S.
  Swing Line Note

  
	
  EXHIBIT A-7

  	
  -

  	
  Form of
  Acceptance Note

  
	
  EXHIBIT B-1

  	
  -

  	
  Form of Canadian
  Term Loan/Revolving Loan Borrowing Request

  
	
  EXHIBIT B-2

  	
  -

  	
  Form of U.S.
  Term Loan Borrowing Request

  
	
  EXHIBIT B-3

  	
  -

  	
  Form of Issuance
  Request

  
	
  EXHIBIT C-1

  	
  -

  	
  Form of Canadian
  Term Loan/Revolving Loan Continuation/Conversion 

  Notice

  
	
  EXHIBIT C-2

  	
  -

  	
  Form of U.S.
  Term Loan Continuation/Conversion Notice

  
	
  EXHIBIT D

  	
  -

  	
  Form of Closing
  Date Certificate

  
	
  EXHIBIT E

  	
  -

  	
  Form of
  Compliance Certificate

  
	
  EXHIBIT F-1

  	
  -

  	
  Form of ACT
  Guaranty

  
	
  EXHIBIT F-2

  	
  -

  	
  Form of Canadian
  Subsidiary Guaranty

  
	
  EXHIBIT F-3

  	
  -

  	
  Form of U.S.
  Subsidiary Guaranty

  
	
  EXHIBIT G-1

  	
  -

  	
  Form of Québec
  Security Agreement

  
	
  EXHIBIT G-2

  	
  -

  	
  Form of Canadian
  Borrower Pledge and Security Agreement

  
	
  EXHIBIT G-3

  	
  -

  	
  Form of Canadian
  Subsidiary Pledge and Security Agreement

  
	
  EXHIBIT G-4

  	
  -

  	
  Form of U.S.
  Borrower Pledge and Security Agreement

  
	
  EXHIBIT G-5

  	
  -

  	
  Form of U.S.
  Subsidiary Pledge and Security Agreement

  
	
  EXHIBIT H

  	
  -

  	
  Form of Lender
  Assignment Agreement

  
	
  EXHIBIT I

  	
  -

  	
  Form of Solvency
  Certificate

  
	
  EXHIBIT J

  	
  -

  	
  Form of Joinder
  Agreement

  
	
  EXHIBIT K

  	
  -

  	
  Form of Offer to
  Prepay

  



 


viii

















 


CREDIT AGREEMENT


 


THIS CREDIT
AGREEMENT, dated as of December 17, 2003, is among ALIMENTATION COUCHE-TARD
INC., a corporation organized under the laws of the Province of Québec, Canada
(“ACT”), certain of its Canadian wholly-owned Subsidiaries, as set forth
on the signature pages hereto as Canadian Borrowers, certain of its U.S.
wholly-owned Subsidiaries, as set forth on the signature pages hereto and,
immediately following the consummation of the Acquisition (as defined below)
pursuant to a joinder agreement in form and substance satisfactory to the
Arrangers (as defined below), Circle K Stores Inc. (“Circle K Stores”)
as U.S. Borrowers, the various financial institutions and other Persons from
time to time parties hereto which extend Commitments to make Canadian Term
Loans or Revolving Loans to the Canadian Borrowers (the “Canadian Facility
Lenders”), the various financial institutions and other Persons (including
Canadian Facility Lenders acting through their U.S. branches, agencies or
Affiliates) from time to time parties hereto which extend Commitments to make
U.S. Term Loans or U.S. Revolving Loans to the U.S. Borrowers (the “U.S.
Facility Lenders” and, together with the Canadian Facility Lenders,
collectively referred to as the “Lenders”), NATIONAL BANK OF CANADA, as
administrative agent for the Lenders making Canadian Term Loans and Revolving
Loans (in such capacity, the “Canadian Administrative Agent”) and as
collateral agent (in such capacity, the “Collateral Agent”), CANADIAN
IMPERIAL BANK OF COMMERCE, acting through its U.S. branches or agencies, as
administrative agent for the Lenders making U.S. Term Loans (in such capacity,
the “U.S. Administrative Agent” and, together with the Canadian
Administrative Agent, the “Administrative Agents”), and NATIONAL BANK
FINANCIAL, as the Sole Lead Arranger in respect of the Canadian Term Loans and
Revolving Loans, and THE BANK OF NOVA SCOTIA and CIBC WORLD MARKETS CORP., as
Joint Lead Arrangers and Book Runners in respect of the U.S. Term Loans
(National Bank Financial, The Bank of Nova Scotia and CIBC World Markets Corp.
are collectively referred to herein in such capacity as the “Arrangers”).


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, in
accordance with and subject to the terms and conditions contained in the Stock
Purchase Agreement, dated October 3, 2003 (as amended by that certain
Addendum to Stock Purchase Agreement, dated December 11, 2003, the “Purchase
Agreement”), between ACT and ConocoPhillips Company (the “Seller”),
ACT has agreed to acquire, either directly or through a U.S. wholly-owned
Subsidiary (the “Acquisition”), from the Seller all of the issued and
outstanding Capital Securities (the “Shares”) of The Circle K
Corporation (“Circle K Corp.”) for an aggregate purchase price not to
exceed $830,000,000, as adjusted under the Purchase Agreement;


 


WHEREAS,
simultaneously with the Acquisition, the Borrowers intend to refinance
substantially all of the Canadian Borrowers’ existing Indebtedness in an amount
approximately equal to C$240,000,000 and assume certain of Circle K Stores’
existing Indebtedness in an amount approximately equal to $7,900,000
(collectively referred to as the “Refinancing”);


 

















 


WHEREAS, in order
to consummate the Acquisition and the Refinancing, to pay fees and expenses
associated therewith and to provide for the ongoing working capital needs and
general corporate purposes of the Borrowers and their respective Subsidiaries:


 


(a)  the Borrowers have requested that the
Lenders provide:


 


(i)  a Canadian Term Loan Commitment pursuant to
which Canadian Term Loans will be made in a single Borrowing on the Closing
Date;


 


(ii)  a U.S. Term Loan Commitment pursuant to
which U.S. Term Loans will be made in a single Borrowing on the Closing Date;


 


(iii)  a Canadian Revolving Loan Commitment (to
include availability for Canadian Revolving Loans, Canadian Swing Line Loans
and Canadian Letters of Credit) pursuant to which Canadian Revolving Loans will
be made from time to time prior to the Canadian Revolving Loan Commitment
Termination Date;


 


(iv)  a U.S. Revolving Loan Commitment (to include
availability for U.S. Revolving Loans, U.S. Swing Line Loans and U.S. Letters
of Credit) pursuant to which U.S. Revolving Loans will be made from time to
time prior to the U.S. Revolving Loan Commitment Termination Date;


 


(v)  a Canadian Letter of Credit Commitment
pursuant to which Canadian Letters of Credit will be issued from time to time
prior to the Canadian Revolving Loan Commitment Termination Date;


 


(vi)  a U.S. Letter of Credit Commitment pursuant
to which U.S. Letters of Credit will be issued from time to time prior to the
U.S. Revolving Loan Commitment Termination Date;


 


(vii)  a Canadian Swing Line Loan Commitment
pursuant to which Canadian Swing Line Loans will be made from time to time
prior to the Canadian Revolving Loan Commitment Termination Date; and


 


(viii)  a U.S. Swing Line Loan Commitment pursuant
to which U.S. Swing Line Loans will be made from time to time prior to the U.S.
Revolving Loan Commitment Termination Date;


 


(b) 
Couche-Tard U.S. L.P. (“Couche-Tard U.S.”) and Couche-Tard
Financing Corp. (“Couche-Tard Finance”) intend to issue, pursuant to the
Indenture, $350,000,000 in gross proceeds of 71⁄2% senior subordinated notes due
2013 (including any publicly registered subordinated notes exchanged therefor,
collectively, the “Subordinated Notes”);


 


(c)  ACT has
through a private placement raised C$223,600,000, and intends to make or cause
to be made, directly or indirectly, an equity contribution and unsecured 


 


2

















 


subordinated loans in an
aggregate amount not less than C$223,600,000 to the capital of Couche-Tard U.S.
(the “Equity Issuance and Contribution”); and


 


WHEREAS, the
Lenders are willing, on the terms and subject to the conditions hereinafter set
forth, to extend the Commitments and make Loans to the Borrowers and issue (or
participate in) Letters of Credit;


 


NOW, THEREFORE,
the parties hereto agree as follows:


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.1.  Defined Terms.  The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):


 


“Acceptance
Note” is defined in clause (b) of Section 2.8.3.


 


“Acquisition”
is defined in the first recital.


 


“ACT” is
defined in the preamble.


 


“ACT Guaranty”
means the guaranty, substantially in the form of Exhibit F-1
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“ADA Agreement” means the ADA Agreement dated as of December 11,
2003 between ACT and the Seller.


 


“Additional Loan Commitments” 
is defined in Section 2.9.


 


“Additional Revolving Loan Commitments”  is defined in Section 2.9.


 


“Additional Term Loan Commitments”  is defined in Section 2.9.


 


“Adjusted
Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio
of (a) (i) Total Debt outstanding on the last day of such Fiscal Quarter plus
(ii) the product of eight times ACT’s consolidated Rent Expense for such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters less
(iii) (but only to the extent of principal outstanding on Revolving Loans on
the date of determination) Cash In Transit to (b) EBITDAR computed for
the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters on an aggregate basis.


 


“Administrative
Agent Fee Letters” means, collectively, the confidential fee letter, dated
October 3, 2003 (as amended), among the Canadian Administrative Agent and ACT,
and the 


 


3

















 


confidential fee letter, dated October 3, 2003 (as amended), among the
U.S. Administrative Agent and ACT.


 


“Administrative
Agents” is defined in the preamble and includes each other Person
appointed as a successor Canadian Administrative Agent or U.S. Administrative
Agent pursuant to Section 9.4.


 


“Affiliate”
of any Person means any other Person which, directly or indirectly, controls,
is controlled by or is under common control with such Person.  “Control” of a Person means the power,
directly or indirectly, (a) to vote 10% or more of the Capital Securities (on a
fully diluted basis) of such Person having ordinary voting power for the
election of directors, managing members or general partners (as applicable) or
(b) to direct or cause the direction of the management and policies of such
Person (whether by contract or otherwise).


 


“Agents”
means, collectively, the Administrative Agents and the Collateral Agent.


 


“Agreement”
means, on any date, this Credit Agreement as originally in effect on the
Effective Date and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified from time to time and in effect on
such date.


 


“Alternate Base
Rate” means, for any day, a fluctuating rate of interest per annum (rounded
upward, if necessary, to the next highest 1/16 of 1%) equal to (a) in the
case of U.S. Term Loans, the higher of (i) the U.S. Administrative Agent’s
U.S. Base Rate in effect on such day and (ii) the Federal Funds Rate in
effect on such day plus 1/2 of 1%, (b) in the case of U.S.
Revolving Loans, the higher of (i) the U.S. Base Rate of a U.S. branch or
agency of the Canadian Administrative Agent in effect on such day and
(ii) the Federal Funds Rate in effect on such day plus 1/2 of 1%
and (c) in the case of Canadian Loans denominated in U.S. Dollars, the
higher of (i) the Canadian Administrative Agent’s U.S. Prime Rate in
effect on such day and (ii) the Federal Funds Rate in effect on such day plus
1/2 of 1%.  Changes in the rate of interest
on that portion of any Loans maintained as Floating Rate Loans will take effect
simultaneously with each change in the Alternate Base Rate.  The applicable Administrative Agent will
give notice promptly to ACT of changes in the Alternate Base Rate; provided,
that the failure to give such notice shall not affect the Alternate Base Rate
in effect after such change.


 


“Alternate Base
Rate Loan” means a U.S. Loan or a Canadian Loan denominated in U.S. Dollars
and bearing interest at a floating rate determined by reference to the
Alternate Base Rate.


 


“Annualized”
means with respect to the first three Fiscal Quarters of ACT ending after the
Closing Date, the applicable amount for the period after the Closing Date,
divided by the number of days during such period, multiplied by 365 (or 366, as
applicable).


 


“Applicable
Canadian BA Stamping Fee” means, with respect to Canadian Loans maintained
as Canadian BAs, (a) at all times prior to the Reset Date, 2.50% per annum and
(b) at all times after the Reset Date, the applicable percentage set forth
under the column entitled “Applicable Canadian BA Stamping Fee” in the
definition of Applicable Margin.


 


4

















 


“Applicable
Commitment Fee Margin” means (a) at all times prior to the Reset Date,
0.75% and (b) at all times after the Reset Date, the applicable percentage set
forth below corresponding to the relevant Leverage Ratio determined by
reference to the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by ACT to the Administrative Agents:


 




	
  Leverage

  Ratio

  	
   

  	
  Applicable
  Commitment 

  Fee Margin

  	
   

  
	
  > 2.50:1

  	
   

  	
  0.750

  	
  %

  
	
  > 2.00:1 but < 2.50:1

  	
   

  	
  0.625

  	
  %

  
	
  > 1.50:1 but < 2.00:1

  	
   

  	
  0.500

  	
  %

  
	
  < 1.50:1

  	
   

  	
  0.375

  	
  %

  






 


Changes in the
Applicable Commitment Fee Margin resulting from a change in the Leverage Ratio
shall become effective upon delivery by ACT to the Administrative Agents of a
new Compliance Certificate pursuant to clause (c) of Section 7.1.1.  If ACT shall fail to deliver a Compliance
Certificate within 45 days after the end of any Fiscal Quarter (or within
90 days, in the case of the last Fiscal Quarter of the Fiscal Year), the
Applicable Commitment Fee Margin from and including the 46th (or 91st,
as the case may be) day after the end of such Fiscal Quarter to but not
including the date ACT delivers to the Administrative Agents a Compliance
Certificate shall be the highest Applicable Commitment Fee Margin set forth
above.


 


“Applicable
Margin” means (a) with respect to U.S. Term Loans (i) 1.25% for U.S. Term
Loans maintained as Floating Rate Loans and (ii) 2.25% for U.S. Term Loans
maintained as LIBO Rate Loans and (b) with respect to Canadian Term Loans and
Revolving Loans, (i) at all times prior to the Reset Date, (A) 1.50% for
Canadian Term Loans and Revolving Loans maintained as Floating Rate Loans and
(B) 2.50% for Canadian Term Loans and Revolving Loans maintained as Fixed Rate
Loans and (ii) at all times after the Reset Date, with respect to Canadian Term
Loans and Revolving Loans, the applicable percentage set forth below
corresponding to the relevant Leverage Ratio determined by reference to the
Leverage Ratio set forth in the Compliance Certificate most recently delivered
by ACT to the Administrative Agents:


 


5

















 


For Canadian Term Loans and Revolving Loans:


 


	
  Leverage

  Ratio

  	
   

  	
  Applicable

  Margin For

  Floating Rate 

  Loans

  	
   

  	
  Applicable

  Margin For

  LIBO Rate Loans

  	
   

  	
  Applicable

  Canadian BA

  Stamping Fee

  	
   

  
	
  >
  2.50:1

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  
	
  > 2.00:1 but < 2.50:1

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  
	
  > 1.50:1 but < 2.00:1

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  2.00

  	
  %

  
	
  < 1.50:1

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  1.75

  	
  %

  



 


 


Changes in the
Applicable Margin resulting from a change in the Leverage Ratio shall become
effective upon delivery by ACT to the Administrative Agents of a new Compliance
Certificate pursuant to clause (c) of Section 7.1.1.  If ACT shall fail to deliver a Compliance
Certificate within 45 days after the end of any Fiscal Quarter (or within
90 days, in the case of the last Fiscal Quarter of the Fiscal Year), the
Applicable Margin from and including the 46th (or 91st,
as the case may be) day after the end of such Fiscal Quarter to but not
including the date ACT delivers to the Administrative Agents a Compliance
Certificate shall be the highest Applicable Margin set forth above.


 


“Approved Fund” means any Person (other than a natural Person)
that (a) is engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business, and (b) is administered or managed by a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a
Lender.


 


“Arranger Fee
Letter” means the confidential letter, dated October 3, 2003, among ACT and
the Arrangers.


 


“Arrangers”
is defined in the preamble.


 


“Authorized
Officer” means, relative to any Obligor, those of its officers, general
partners, managing members or trustees (as applicable) (or, solely for the
purpose of executing Loan Documents on the Closing Date, those authorized
Persons satisfactory to the Administrative Agents) whose signatures and
incumbency shall have been certified from time to time to the Administrative
Agents.


 


“Bank Act
Agreements” means, collectively, the assignments under Section 427 of
the Bank Act (Canada) and the related agreements executed and delivered by each
Canadian 


 


6

















 


Borrower in favor of the Lenders that are “banks” under such Act, as
amended, supplemented, amended and restated or otherwise modified from time to
time.


 


“Borrowers”
means, collectively, the Canadian Borrowers and the U.S. Borrowers.


 


“Borrowing”
means the Loans of the same type and, in the case of Fixed Rate Loans, having
the same Interest Period made by all Lenders required to make such Loans on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.


 


“Borrowing
Request” means, as the context may require, the Canadian Term
Loan/Revolving Loan Borrowing Request or the U.S. Term Loan Borrowing Request.


 


“Business Day”
means (a) any day which is neither a Saturday or Sunday nor (i) relative
to matters with respect to U.S. Loans and Canadian Loans denominated in U.S.
Dollars, a legal holiday on which banks are authorized or required to be closed
in New York, New York, Montréal, Québec or Toronto, Ontario, or
(ii) relative to matters with respect to Canadian Loans, a legal holiday
on which banks are authorized or required to be closed in Montréal, Québec or
Toronto, Ontario, and (b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day which is a Business Day described in clause (a)(i)
or (ii) above, as the case may be, and which is also a day on which
dealings in U.S. Dollars are carried on in the London interbank eurodollar
market.


 


“Canadian
Administrative Agent” is defined in the preamble (it being
understood, for greater certainty, that the Canadian Administrative Agent will
be acting through its offices or branches (including corresponding offices) in
the United States of America for the purposes of the U.S. Revolving Loans).


 


“Canadian BA”
means a depository bill as defined in the Depository Bills and Notes Act
(Canada) in Canadian Dollars that is in the form of an order signed by a
Canadian Borrower and accepted by a Canadian Facility Lender pursuant to this
Agreement or, for Canadian Facility Lenders not participating in clearing
services contemplated in that Act, a draft or bill of exchange in Canadian
Dollars that is drawn by a Canadian Borrower and accepted by a Canadian
Facility Lender pursuant to this Agreement. 
Orders that become depository bills, drafts and bills of exchange are
sometimes collectively referred to in this Agreement as “drafts.”  Canadian BAs shall have a term of
approximately 30, 60, 90 or 180 days, shall be issued and payable only in
Canada and shall have a face amount of an integral multiple of C$100,000.  In addition, to the extent the context shall
require, each Acceptance Note shall be deemed to be a Canadian BA.


 


“Canadian Borrower
Pledge and Security Agreement” means the Pledge and Security Agreement
executed and delivered by each Canadian Borrower, substantially in the form of Exhibit G-2
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“Canadian Borrowers” means, collectively, the Canadian Revolving
Loan Borrowers and the Canadian Term Loan Borrower.


 


7

















 


“Canadian Dollar” and “C$” each mean the lawful currency
of Canada.


 


“Canadian Dollar Equivalent”  means,
on any date of determination, the equivalent in Canadian Dollars of any value
or sum denominated in U.S. Dollars using the rate of exchange quoted by the
Bank of Canada on the Business Day preceding the day as of which any determination
of such rate is required to be made under the terms hereof, as the noon
mid-market spot rate for conversions of U.S. Dollars into Canadian Dollars.


 


“Canadian Facility Lender” is defined in the preamble.


 


“Canadian Letter of Credit” is defined in clauses (a) of Section
2.1.2.


 


“Canadian Letter of Credit Commitment” means the Issuer’s
obligation to issue Canadian Letters of Credit pursuant to Section 2.1.2.


 


“Canadian Letter of Credit Commitment Amount” means, on any
date, a maximum amount of C$10,000,000 (or the U.S. Dollar Equivalent thereof),
as such amount may be permanently reduced from time to time pursuant to Section 2.2.


 


“Canadian Letter of Credit Outstandings” means, on any date, an
amount equal to the sum of (a) the then aggregate amount which is undrawn and
available under all issued and outstanding Canadian Letters of Credit, and (b)
the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations in respect of such Canadian Letters of Credit.


 


 “Canadian Loan” means,
as the context may require, a Canadian Revolving Loan, a Canadian Term Loan or
a Canadian Swing Line Loan.


 


“Canadian Netting Parties” refers collectively to the Canadian
Borrowers and any of their Canadian Affiliates which are or shall become party
to the Compensation Agreements from time to time.


 


“Canadian Note” means, as the context may require, a Canadian
Term Note, a Revolving Note or a Canadian Swing Line Note.


 


“Canadian Operating Accounts” means the accounts maintained by
the Canadian Netting Parties with the Canadian Swing Line Lender for the
purpose of their day-to-day operations and transactions.


 


“Canadian Overdraft Obligations” is the collective reference to
the obligations of the Canadian Netting Parties to pay to the Canadian
Swing Line Lender any amount due under the Compensation Agreements.


 


“Canadian Pension Plan” means (a) a “pension plan” or
“plan” which is subject to applicable pension benefits legislation in any
jurisdiction of Canada and is applicable to employees resident in Canada of ACT
or any Canadian Subsidiary of ACT, or (b) any pension benefit plan or
similar arrangement applicable to employees resident in Canada of ACT or any
Canadian Subsidiary of ACT.


 


8

















 


“Canadian Person”  means
a Person that is either (i) not a “non-resident” of Canada or (ii) an
authorized foreign bank, in either case within the meaning of the Income Tax
Act (Canada).


 


“Canadian Prime
Rate” means, for any day, a fluctuating rate of interest per annum (rounded
upward, if necessary, to the next highest 1/100 of 1%) equal to the higher of


 


(a)  the rate of interest per annum most recently
announced or established by the Canadian Administrative Agent as its reference
rate in effect on such day for determining interest rates for Canadian Dollar
denominated commercial loans in Canada and commonly known as the “prime rate”
of the Canadian Administrative Agent (such rate not being intended to be the
lowest rate of interest charged by the Canadian Administrative Agent in connection
with extensions of credit to debtors); and


 


(b)  the CDOR Rate most recently determined by
the Canadian Administrative Agent for 30-days bankers’ acceptances plus
1.00%.


 


Changes in the rate of interest on that portion of any
Canadian Loans maintained as Canadian Prime Rate Loans will take effect
simultaneously with each change in the Canadian Prime Rate.  The Canadian Administrative Agent will give
notice promptly to ACT and the Canadian Facility Lenders of changes in the
Canadian Prime Rate; provided, that the failure to give such notice
shall not affect the Canadian Prime Rate in effect after such change.


 


“Canadian Prime Rate Loan” means a Canadian Loan denominated in
Canadian Dollars and bearing interest at a fluctuating rate determined by
reference to the Canadian Prime Rate.


 


“Canadian Register” is defined in clause (a) of Section 2.7.


 


“Canadian Revolving Loan Borrower” is defined in clause (a)
of Section 2.1.1.


 


“Canadian Revolving Loan Commitment” means, relative to any
Lender, such Lender’s obligation (if any) to make Canadian Revolving Loans
pursuant to clause (a) of Section 2.1.1 in accordance
with its Canadian Revolving Loan Percentage.


 


“Canadian Revolving Loan Commitment Amount” means, on any date,
C$50,000,000 (or the U.S. Dollar Equivalent thereof), as such amount may be
reduced from time to time pursuant to Section 2.2.


 


“Canadian Revolving Loan Commitment Termination
Date” means the earliest of


 


(a)  December 31, 2003 (if the initial
Credit Extension has not occurred on or prior to such date);


 


(b)  December 17, 2008;


 


(c)  the date on which the Canadian Revolving
Loan Commitment Amount is terminated in full or reduced to zero pursuant to the
terms of this Agreement; and


 


9

















 


(d)  the date on which any Commitment Termination
Event occurs.


 


Upon the occurrence of any event described above, the Canadian
Revolving Loan Commitments shall terminate automatically and without any
further action.


 


“Canadian Revolving Loan Lender” is defined in clause (a)
of Section 2.1.1.


 


“Canadian Revolving Loan Percentage” means, relative to any
Lender, the applicable percentage relating to Canadian Revolving Loans set
forth opposite its name on Schedule II hereto under the Canadian
Revolving Loan Commitment column or set forth in a Lender Assignment Agreement
under the Canadian Revolving Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreements executed by
such Lender and its Assignee Lender and delivered pursuant to Section 11.11.  A Lender shall not have any Canadian
Revolving Loan Commitment if its percentage under the Canadian Revolving Loan
Commitment column is zero.


 


“Canadian Revolving Loans” is defined in clause (a) of Section 2.1.1.


 


“Canadian Revolving Note” means a promissory note payable to any
Canadian Revolving Loan Lender, in the form of Exhibit A-1 hereto
(as such promissory note may be amended, endorsed or otherwise modified from
time to time), evidencing the aggregate Indebtedness hereunder of the
applicable Canadian Borrowers to such Canadian Revolving Loan Lender resulting
from outstanding Canadian Revolving Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.


 


“Canadian Subsidiary” means any Subsidiary that is incorporated
or organized under the laws of Canada or any jurisdiction thereof.


 


“Canadian
Subsidiary Guarantor” means each Canadian Subsidiary which has executed and
delivered the Canadian Subsidiary Guaranty (or a supplement thereto).


 


“Canadian
Subsidiary Guaranty” means the subsidiary guaranty, substantially in the
form of Exhibit F-2 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


“Canadian
Subsidiary Pledge and Security Agreement” means the Pledge and Security
Agreement executed and delivered by each Subsidiary Guarantor that is a
Canadian Subsidiary, substantially in the form of Exhibit G-3
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“Canadian Swing
Line Lender” means, subject to the terms of this Agreement, National Bank
of Canada.


 


“Canadian Swing
Line Loan” is defined in clause (c) of Section 2.1.1.


 


“Canadian Swing
Line Loan Commitment” is defined in clause (c) of Section 2.1.1.


 


10

















 


“Canadian Swing
Line Loan Commitment Amount” means, on any date, C$10,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.


 


“Canadian Swing Line Note” means, if requested by the Canadian
Swing Line Lender, a promissory note payable to the Canadian Swing Line Lender,
in the form of Exhibit A-5 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness hereunder of the applicable Canadian Borrowers to the
Canadian Swing Line Lender resulting from outstanding Canadian Swing Line
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.


 


“Canadian Term Loan Borrower” is defined in clause (a) of
Section 2.1.3.


 


“Canadian Term Loan Commitment” means, relative to any Lender,
such Lender’s obligation (if any) to make Canadian Term Loans pursuant to clause
(a) of Section 2.1.3 in accordance with its Canadian Term Loan
Percentage.


 


“Canadian Term Loan Commitment Amount” means, on any date,
$265,000,000.


 


“Canadian
Term Loan Commitment Termination Date” means the earliest of


 


(a)  December 31, 2003 (if the Canadian Term Loans have not
been made on or prior to such date);


 


(b)  the Closing Date (immediately after the
making of the Canadian Term Loans on such date); and


 


(c)  the date on which any Commitment Termination
Event occurs.


 


Upon the occurrence of any event described above, the Canadian Term
Loan Commitments shall terminate automatically and without any further action.


 


“Canadian Term Loan Lender” means any Lender that has a Canadian
Term Loan Commitment or that holds a Canadian Term Loan.


 


“Canadian Term Loan Percentage” means, relative to any Lender,
the applicable percentage relating to Canadian Term Loans set forth opposite
its name on Schedule II hereto under the Canadian Term Loan
Commitment column or set forth in a Lender Assignment Agreement under the
Canadian Term Loan Commitment column, as such percentage may be adjusted from
time to time pursuant to Lender Assignment Agreements executed by such Lender
and an Eligible Assignee and delivered pursuant to Section 11.11.  A Lender shall not have any Canadian Term
Loan Commitment if its percentage under the Canadian Term Loan Commitment
column is zero.


 


“Canadian Term
Loan/Revolving Loan Borrowing Request” means a Canadian Term Loan or
Revolving Loan request and certificate duly executed by an Authorized Officer
of any applicable Canadian Borrower substantially in the form of Exhibit B-1
hereto.


 


11

















 


“Canadian Term Loan/Revolving Loan Continuation/Conversion Notice”
means a notice of continuation or conversion (in respect of Canadian Term Loans
and Revolving Loans) and certificate duly executed by an Authorized Officer of
a Canadian Borrower substantially in the form of Exhibit C-1
hereto.


 


“Canadian Term Loans” is defined in clause (a) of Section
2.1.3.


 


“Canadian Term Note” means a promissory note payable to any
Canadian Facility Lender, in the form of Exhibit A-3 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness hereunder of the applicable
Canadian Borrowers to such Canadian Facility Lender resulting from outstanding
Canadian Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.


 


“Canadian
Welfare Plan” means any medical, health, hospitalization, insurance or
other employee benefit or welfare plan, agreement or arrangement applicable to
employees resident in Canada of ACT or a Canadian Subsidiary of ACT.


 


“Capital Expenditures” means, for any period, the aggregate amount
of (a) all expenditures of ACT and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures and (b) Capitalized Lease Liabilities incurred during such
period for fixed or capital assets, by ACT and its Subsidiaries during such
period.


 


“Capital Securities” means, with respect to any Person, all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of or in such Person’s capital, whether now
outstanding or issued after the Effective Date, including common shares,
preferred shares, membership interests in a limited liability company, limited
or general partnership interests in a partnership or any other equivalent of such
ownership interest.


 


“Capitalized Lease Liabilities” means, with respect to any
Person, all monetary obligations of such Person under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and for purposes of each Loan Document the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP,
and the stated maturity thereof shall be the date of the last payment of rent
or any other scheduled amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a premium
or a penalty.


 


“Cash Collateralize” means, with respect to a Letter of Credit
or Canadian BA, the deposit of immediately available funds (in the same
Currency) into a cash collateral account maintained with (or on behalf of) the
Canadian Administrative Agent on terms satisfactory to the Canadian
Administrative Agent in an amount equal to the Stated Amount of such Letter of
Credit or the face amount of such Canadian BA.


 


12

















 


“Cash Equivalent Investment” means, at any
time:


 


(a)  any direct obligation of (or unconditionally
guaranteed by) the United States or a State thereof or Canada or a Province
thereof and rated A-1 or higher by S&P or P-1 or higher by Moody’s (or any
agency or political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States or a State thereof
or Canada or a Province thereof) maturing not more than one year after such
time;


 


(b)  commercial paper maturing not more than 270
days from the date of issue, which is issued by (i) an issuer (other than an
Affiliate of any Obligor) existing under the laws of any State of the United
States or of the District of Columbia, Canada or a Province thereof and rated
A-1 or higher by S&P or P-1 or higher by Moody’s, or (ii)  R1 (high)
by Dominion Bond Rating Service;


 


(c)  any certificate of deposit, time deposit or
bankers acceptance, maturing not more than one year after its date of issuance,
which is issued by either any bank existing under the laws of the United States
(or any State thereof) or Canada and which has (i) a credit rating of A2
or higher from Moody’s or A or higher from S&P and (ii) a combined
capital and surplus greater than $500,000,000; or


 


(d)  any repurchase agreement having a term of 30
days or less entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which (i) is
secured by a fully perfected security interest in any obligation of the type
described in clause (a) and (ii) has a market value at the time
such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution thereunder; or


 


(e)  shares of money market mutual funds or
similar funds which invest exclusively in assets of the type described in clauses (a)
through (d).


 


“Cash In Transit” means, as of the last day of any Fiscal Quarter,
the lesser of (i) $45,000,000 and (ii) the amount equal to number of stores in
operation as of such day which are owned or leased by ACT and its Canadian and
U.S. Subsidiaries multiplied by (ii) $24,117.


 


“Casualty Event” means the damage, destruction, condemnation or
expropriation, as the case may be, of property of ACT or any of its
Subsidiaries.


 


“CDOR Rate”
means, for a particular term, the discount rate per annum, calculated on the
basis of a year of 365 days, equal to the average rate per annum for Canadian
BAs having such term that appears on the Reuters Screen CDOR Page (or any
successor page) as of 10:00 a.m., Montréal time, on the first day of such term
as determined by the Canadian Administrative Agent or, if such rate is not
available at such time, the discount rate for Canadian BAs accepted by the
Canadian Administrative Agent having such term as calculated by the Canadian
Administrative Agent in accordance with normal market practice on such date.


 


13

















 


“CERCLA” means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.


 


“CERCLIS” means the Comprehensive Environmental Response
Compensation Liability Information System List.


 


“Change
in Control” means


 


(a)  any person or group (within the meaning of
Sections 13(d) and 14(d) under the Exchange Act), other than the Permitted
Holders shall become the ultimate “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of Capital
Securities representing (i) 50% or more of the voting rights attached to Voting
Securities of ACT on a fully diluted basis or (ii) more than the percentage of
the voting rights attached to Voting Securities of ACT on a fully diluted basis
that is then owned directly or indirectly by the Permitted Holders and either
(x) such percentage of the voting rights attached to Voting Securities of ACT
is greater than 35% or (y) Alain Bouchard is not (and acting in the full
capacity as) a director of the Board of Directors of ACT and Chief Executive
Officer of ACT (except in the case of death or incapacity);


 


(b)  the failure of ACT at any time to directly
or indirectly own beneficially on a fully diluted basis 100% of the outstanding
Capital Securities of each Borrower;


 


(c)  during any period of
24 consecutive months, individuals who at the beginning of such period
constituted the Board of Directors of ACT (together with any new directors
whose election to such Board or whose nomination for election by the
stockholders of ACT was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of ACT then in
office; or


 


(d)  the occurrence of any
“Change of Control” (or similar term) under (and as defined in) any
Subordinated Debt Document.


 


“Circle K Corp.”
is defined in the first recital.


 


“Circle K Enterprises”
means Circle K Enterprises Inc., a Delaware corporation.


 


“Circle K
Stores” is defined in the preamble.


 


“Closing Date” means the date of the initial Credit Extension
hereunder.


 


“Closing Date
Certificate” means the closing date certificate substantially in the form
of Exhibit D hereto.


 


“Code” means the Internal Revenue Code of 1986, and the
regulations thereunder, in each case as amended, reformed or otherwise modified
from time to time.


 


14

















 


“Collateral Agent” means National Bank of Canada (including
acting through its U.S. branches or agencies), together with its successors,
transferees and assigns and shall be deemed to include, for the purposes of the
Québec Security Agreement, National Bank Trust Inc. in its capacity as the
person holding the power of attorney for the bondholders under such security
agreements (within the meaning and for the purposes of Article 2692 of the
Civil Code of Québec), or its successors, transferee and assigns.


 


“Commitment” means, as the context may require, the Canadian
Term Loan Commitment, the U.S. Term Loan Commitment, the Canadian Revolving
Loan Commitment, the U.S. Revolving Loan Commitment, the Canadian Letter of
Credit Commitment, the U.S. Letter of Credit Commitment, the Canadian Swing
Line Loan Commitment or the U.S. Swing Line Loan Commitment.


 


“Commitment Amount” means, as the context may require, the
Canadian Term Loan Commitment Amount, the U.S. Term Loan Commitment Amount, the
Canadian Revolving Loan Commitment Amount, the U.S. Revolving Loan Commitment
Amount, the Canadian Letter of Credit Commitment Amount, the U.S. Letter of
Credit Commitment Amount, the Canadian Swing Line Loan Commitment Amount or the
U.S. Swing Line Loan Commitment Amount.


 


“Commitment Termination Date” means, as the context may require,
the Canadian Term Loan Commitment Termination Date, the U.S. Term Loan
Commitment Termination Date, the Canadian Revolving Loan Commitment Termination
Date or the U.S. Revolving Loan Commitment Termination Date.


 


“Commitment
Termination Event” means


 


(a)  the occurrence of any Event of Default with
respect to any Borrower described in clauses (a) through (d) of Section
8.1.9; or


 


(b)  the occurrence and continuance of any other
Event of Default and either


 


(i)  the declaration of all or any portion of the
outstanding principal amount of the Loans to be due and payable pursuant to Section 8.3,
or


 


(ii)  the giving of notice by the Administrative
Agents, acting at the direction of the Required Lenders, to ACT that the
Commitments have been terminated pursuant to Section 8.3.


 


“Compensation Agreements” is defined in clause (a)
of Section 2.3.2.


 


“Compliance Certificate” means a certificate substantially in
the form of Exhibit E hereto.


 


“Contingent Liability” means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness of 


 


15

















 


any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the Capital Securities of any other
Person.  The amount of any Person’s
obligation under any Contingent Liability shall (subject to any limitation set
forth therein) be deemed to be (i) the outstanding principal amount of the
debt, obligation or other liability guaranteed thereby (in the case of a
guaranty of payment) and (ii) determined in accordance with GAAP (in the case
of other Contingent Liabilities).


 


“Continuation/Conversion Notice” means a Canadian Term
Loan/Revolving Loan Continuation/Conversion Notice or a U.S. Term
Loan/Revolving Loan Continuation/Conversion Notice.


 


“Controlled Group” means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with any
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.


 


“Couche-Tard Finance” is defined in the third  recital.


 


“Couche-Tard U.S.” is defined in the third  recital.


 


“Credit Extension” means, as the context may require, (a) the
making of a Loan by a Lender (including the acceptance of a Canadian BA) or (b)
the issuance of any Letter of Credit, or the extension of any Stated Expiry
Date of any existing Letter of Credit, by the Issuer.


 


“Currency”
means, as the context may require, U.S. Dollars and/or Canadian Dollars.


 


“Default” means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default.


 


“Disbursement” is defined in Section 2.6.2.


 


“Disbursement Date” is defined in Section 2.6.2.


 


“Disclosure Schedule” means the Disclosure Schedule attached
hereto as Schedule I, as it may be amended, supplemented, amended
and restated or otherwise modified from time to time by ACT with the written
consent of the Required Lenders.


 


“Discount Rate” means, on any day, for a particular term
(a) in respect of any Canadian BA accepted by a Lender that is a Canadian
Schedule I bank, the CDOR Rate on such day for such term; and (b) in
respect of any Canadian BA or Acceptance Note, as the case may be, accepted by
a Lender that is not a Canadian Schedule I bank, the lesser of (i) the
discount rate of such Lender in effect at or about 10:00 a.m., Montréal
time, on such day for Canadian BAs or Acceptance Notes of such Lender for a
comparable term, and (ii) the CDOR Rate plus 0.10%.


 


“Disposition” (or similar words such as “Dispose”) means
any sale, transfer, lease (other than leases or subleases in the ordinary
course of business to third persons not interfering in any material respect
with the business of ACT or any of its Subsidiaries), contribution or other 


 


16

















 


conveyance (including by way of merger) of, or the
granting of options, warrants or other rights to, either ACT’s or its
Subsidiaries’ assets (including accounts receivable and Capital Securities of
Subsidiaries) to any other Person (other than to another Obligor) in a single
transaction or series of transactions (exclusive of licensing by an Obligor of
its intellectual property to the extent it does not interfere with the ordinary
course of business).


 


“Domestic
Office” means


 


(a)  relative to any U.S. Facility Lender, the
office of such Lender designated as its “U.S. Domestic Office” on Schedule
II hereto or in a Lender Assignment Agreement, or such other office within
the United States as may be designated from time to time by notice from such
Lender to the U.S. Administrative Agent and ACT; and


 


(b)  relative to any Canadian Facility Lender,
the office of such Lender designated as its “Canadian Domestic Office” on Schedule
II hereto or in a Lender Assignment Agreement, or such other office within
Canada as may be designated from time to time by notice from such Lender to the
Canadian Administrative Agent and ACT.


 


“EBITDA” means, (i) in respect of the three Fiscal Quarters
ending prior to the Closing Date, the amounts set forth in Schedule VII
hereto, (ii) for the first Fiscal Quarter ending immediately after the Closing
Date, the amount determined in accordance with the methodology set forth in Schedule
VII and (iii) for any other Fiscal Quarter, the sum of (a) Net Income, plus
(b) to the extent deducted in determining Net Income, the sum of (i) amounts
attributable to amortization, (ii) Income Tax Expense, (iii) Interest Expense
and (iv) amounts attributable to depreciation of assets.


 


“EBITDAR” means, for any applicable period, the sum of (a) EBITDA
plus (b) Rent Expense.


 


“Effective Date” means the date this Agreement becomes effective
pursuant to Section 11.8.


 


“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a
Lender (for so long as such Person constitutes the same), (c) an Approved Fund
(for so long as such Person constitutes the same) or (d) any other Person
(other than a natural Person) and, in each case, that is either a Canadian
Person approved by the Canadian Administrative Agent (in the case of a
potential Canadian Facility Lender) or a U.S. Person (or a Person that is
otherwise able to deliver an Exemption Certificate) approved by the U.S.
Administrative Agent (in the case of a potential U.S. Facility Lender), and is
approved by the Issuer and each Swing Line Lender (but then only in the case of
any assignment of the applicable Revolving Loan Commitment) and (if no Event of
Default has occurred and is continuing on the date of such assignment), in the
event the assignment would result in any material increase in the cost of the Loans
(exclusive of an increase in the Discount Rate as a result of an assignment to
a Lender that is not a Canadian Schedule I bank) to any Borrower, ACT
(such approvals not to be unreasonably withheld or delayed).  Any material increase in such cost or, if requested by
ACT, any failure to deliver an 


 


17

















 


Exemption
Certificate or a similar certificate, shall be a reason
sufficient for ACT not to approve such Person.


 


“Environmental Laws” means all applicable U.S. and Canadian
federal, state, provincial or local statutes, laws, ordinances, codes, rules,
regulations, by-laws and guidelines (including consent decrees and
administrative orders) and common law to the extent such relate to public
health and safety and protection or quality of the environment.


 


“Equity Issuance and Contribution” is defined in the third
recital.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto of similar import, together
with the regulations thereunder, in each case as in effect from time to
time.  References to Sections of ERISA
also refer to any successor Sections thereto.


 


“Event of Default” is defined in Section 8.1.


 


“Event of Failure”
means an “event of failure” within the meaning of Section 212(1)(b) (vii) of
the Income Tax Act (Canada) which requires that an Offer to Prepay be made,
failing which an Event of Default shall occur.


 


“Excess Cash Flow” means, for any Fiscal Year, the excess (if
any), of (a) EBITDA for such Fiscal Year less (b) the sum (for such
Fiscal Year) of (i) Interest Expense actually paid in cash by ACT and its
Subsidiaries, (ii) voluntary and mandatory principal repayments, to the extent
actually made, of Term Loans (or, in the case of clause (b) only,
Revolving Loans) pursuant to clauses (a) (other than the amount of a
voluntary prepayment made with Prepayment Proceeds), (b),  (c) and
(d) of Section 3.1.1, (iii) voluntary and mandatory repayments or
prepayments (but excluding refinancings and replacements) of Indebtedness
incurred under clauses (c), (e), (h) and (i) of Section
7.2.2 (provided, that if any repayment of such Indebtedness is of a
“revolving” or similar nature, such amount will only be included in this clause
to the extent that it is accompanied by a permanent and irrevocable reduction
in the commitment to make further credit extensions under the operative
agreements), (iv) all income Taxes actually paid in cash by ACT and its
Subsidiaries, (v) Capital Expenditures (other than the portion of Capital
Expenditures financed by a third party (other than an Affiliate of ACT or its
Subsidiaries and Capital Expenditures made with the Reinvestment Amount, it
being agreed that the Reinvestment Amount shall be deemed to have been applied
first in such Capital Expenditures) actually made by ACT and its Subsidiaries
and (vi) Investments made during such Fiscal Year pursuant to clauses (f),
(h) and (j) of Section 7.2.5 (with other than the
Reinvestment Amount, it being agreed that the Reinvestment Amount shall be
deemed to have been applied first in such Investments), but only to the extent
such Investment could not be characterized by any of the other clauses in Section
7.2.5.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended.


 


“Exemption Certificate” is defined in clause (e) of Section
4.6.


 


18

















 


“Federal Funds Rate” means, for any period, a fluctuating
interest rate per annum equal for each day during such period to (a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York or (b) if
such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by the applicable
Administrative Agent from three federal funds brokers of recognized standing
selected by it.


 


“Filing Agent” is defined in Section 5.1.13.


 


“Filing Statements” is defined in Section 5.1.13.


 


“Fiscal Quarter” means a fiscal quarter ending on any of the
dates set forth on Schedule IV.


 


“Fiscal Year” means any period of twelve consecutive calendar
months ending on any of the dates set forth on Schedule V hereto;
references to a Fiscal Year with a number corresponding to any calendar year (e.g.,
the “2004 Fiscal Year”) refer to the Fiscal Year ending on the date set forth on
Schedule V hereto which corresponds to such Fiscal Year reference.


 


“Fixed Charge Coverage Ratio” means, as of the close of any
Fiscal Quarter, the ratio computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters of (a)
EBITDAR (for all such Fiscal Quarters) minus Capital Expenditures made
during such Fiscal Quarters to (b) the sum (for all such Fiscal
Quarters) of (i) cash Interest Expense (Annualized for the first three Fiscal
Quarters following the Closing Date), (ii) scheduled principal repayments of
Indebtedness due and (without duplication) made during such period (including
repayments of the Term Loans pursuant to clauses (c) and (d) of Section
3.1.1, after giving effect to any reductions in such scheduled principal
repayments attributable to any optional or mandatory prepayments of the Term
Loans), (iii) Rent Expense, (iv) all Income Tax Expense actually paid (or
payable) in cash by ACT and its Subsidiaries and (v) Restricted Payments declared
(and, without duplication, made) for the repurchase or redemption of Capital
Securities of ACT under Section 7.2.6.


 


“Fixed Rate Loan” means a LIBO Rate Loan or a Canadian BA.


 


“Floating Rate Loan” means a Canadian Prime Rate Loan or an
Alternate Base Rate Loan.


 


“Foreign Subsidiary” means any Subsidiary that is not a U.S.
Subsidiary or a Canadian Subsidiary.


 


“Fortress” means Fortress Credit Corporation.


 


19

















 


“Fortress SLB” means the sale lease-back arrangement providing
for the sale by certain Obligors of certain real property to Fortress,
Newcastle Investment Corp. or their respective Affiliates or assignees and the
subsequent lease of such real property to such Obligors.


 


“F.R.S. Board” means the Board of Governors of the Federal
Reserve System or any successor thereto.


 


“GAAP” is defined in Section 1.4.


 


“Governmental Authority” means the government of Canada, the
United States, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other Person exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.


 


“Guarantor” means, collectively, ACT, each Borrower and each
Subsidiary Guarantor.


 


“Hazardous
Material” means


 


(a)  any “hazardous substance”, as defined by
CERCLA;


 


(b)  any “hazardous waste”, as defined by the
Resource Conservation and Recovery Act, as amended; or


 


(c)  any pollutant or contaminant or waste or
hazardous, dangerous or toxic chemical, material or substance (including any
petroleum product) within the meaning of any Environmental Laws or any other
applicable federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended.


 


“Hedging Obligations” means, with respect to any Person, all
liabilities of such Person under currency exchange agreements, interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements and other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates, and
cash-settled commodity contracts designed to protect a Person against
fluctuations in the price of petroleum products (excluding fixed-price or
similar supply agreements entered into in the ordinary course of business).


 


“herein”, “hereof”, “hereto”, “hereunder”
and similar terms contained in any Loan Document refer to such Loan Document as
a whole and not to any particular Section, paragraph or provision of such Loan
Document.


 


“High Yield Issuers” means, collectively, Couche-Tard U.S. and
Couche-Tard Finance.


 


“Hostile Take-Over” means any offer to purchase all or
substantially all of the voting or participating Capital Securities of a Person
whose securities are traded on the floor of an 


 


20

















 


exchange or other organized market, in respect of
which the board of directors (or a Person having similar duties) of the
targeted Person has recommended its rejection at the time of the announcement
of the offer.


 


“Impermissible Qualification” means any qualification or
exception to the opinion or certification of any independent chartered
accountant as to any financial statement of ACT


 


(a)  which is of a “going concern” or similar
nature;


 


(b)  which relates to the limited scope of
examination of matters relevant to such financial statement; or


 


(c)  which relates to the treatment or
classification of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to such item the effect
of which would be to cause the Borrowers to be in Default.


 


“including” and “include” means including without
limiting the generality of any description preceding such term, and, for
purposes of each Loan Document, the parties hereto agree that the rule of
ejusdem generis shall not be applicable to limit a general statement, which is
followed by or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.


 


“Income Tax Expense” of any Person, means for any period the consolidated income taxes of
such Person and its consolidated Subsidiaries for such period calculated in
accordance with GAAP (or, in the case of U.S. organized Obligors, with
GAAP or U.S. generally accepted accounting principles, as applicable).


 


“Indebtedness”
of any Person means:


 


(a)  all obligations of such Person for borrowed
money, including obligations for borrowed money evidenced by bonds, debentures,
notes or similar instruments;


 


(b)  all obligations of such Person, contingent
or otherwise, relative to the face amount of all letters of credit, whether or
not drawn, and banker’s acceptances issued for the account of such Person;


 


(c)  all Capitalized Lease Liabilities of such
Person;


 


(d)  all obligations of such Person secured by
any Lien on any property or assets owned or held by such Person, regardless of
whether the obligations secured thereby shall have been assumed by that Person
or is non-recourse to the credit of that Person;  provided, that the amount of any Indebtedness of others that constitutes
Indebtedness of such Person solely by reason of this clause shall, in the event
that such Indebtedness is limited in recourse solely to such property (without
recourse to such Person) be equal to the lesser of the amount of such
obligation and the fair market value of the property or assets to which the
Lien attaches, determined in good faith by such Person;


 


21

















 


(e)  net Hedging Obligations of such Person;


 


(f)  whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services to the extent such obligations bear
interest (excluding trade accounts payable in the ordinary course of business);


 


(g)  obligations of such Person arising under
Synthetic Leases; and


 


(h)  all Contingent Liabilities of such Person in
respect of any of the foregoing.


 


The Indebtedness of any Person shall include the Indebtedness of any
other Person (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such Person, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.


 


“Indemnified Liabilities” is defined in Section 11.4.


 


“Indemnified Parties” is defined in Section 11.4.


 


“Indenture”
means the Indenture, dated as of December 17, 2003, by and among the High Yield
Issuers and Wells Fargo Bank Minnesota, N.A., as the trustee, as such Indenture
may be amended, supplemented or otherwise modified in accordance with the terms
of Section 7.2.12.


 


“Interest Coverage Ratio” means, as of the last day of any
Fiscal Quarter, the ratio computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters of (a)
EBITDA (for all such Fiscal Quarters) to (b) the sum (for all such
Fiscal Quarters) of cash Interest Expense (Annualized for the first three
Fiscal Quarters following the Closing Date).


 


“Interest Expense” means, for any applicable period, the
aggregate interest expense (both accrued and paid) of ACT and its Subsidiaries,
including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense.


 


“Interest Period” means, (a) relative to any LIBO Rate
Loan, the period beginning on (and including) the date on which such LIBO Rate
Loan is made or continued as, or converted into, a LIBO Rate Loan pursuant to Sections 2.3
or 2.4 and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such
month), in either case as the applicable Borrower may select in its relevant
notice pursuant to Sections 2.3 or 2.4 and (b) relative
to any Canadian BA or Acceptance Note, the period beginning on (and including)
the date on which such Canadian BA is accepted or rolled over pursuant to Section 2.4
or such Acceptance Note is issued pursuant to Section 2.8.3 and
continuing to (but excluding) the date which is approximately 30, 60, 90 or 180
days thereafter as any applicable Canadian Borrower may select in its relevant
notice pursuant to Section 2.3 or 2.4; provided, that


 


22

















 


(a)  the Borrowers shall not be permitted to
select Interest Periods to be in effect at any one time which have expiration
dates occurring on more than ten different dates;


 


(b)  if such Interest Period would otherwise end
on a day which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day next preceding such numerically corresponding
day); and


 


(c)  no Interest Period for any Loan may end
later than the Stated Maturity Date for such Loan.


 


“Investment”
means, relative to any Person,


 


(a)  any loan, advance or extension of credit
made by such Person to any other Person, including the purchase by such Person
of any bonds, notes, debentures or other debt securities of any other Person;
and


 


(b)  any Capital Securities held by such Person
in any other Person.


 


The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon and shall, if
made by the transfer or exchange of property other than cash, be deemed to have
been made in an original principal or capital amount equal to the fair market
value of such property at the time of such Investment.


 


“ISP Rules” is defined in Section 11.9.


 


“Issuance Request” means a Letter of Credit request and
certificate substantially in the form of Exhibit B-3 hereto.


 


“Issuer” means National Bank of Canada or any other Lenders
consented to by ACT in accordance with the terms of Section 2.6.


 


“Lender Assignment Agreement” means an assignment agreement
substantially in the form of Exhibit H hereto.


 


“Lender Party” means, as the context may require, each Lender,
each Arranger and each Agent.


 


“Lenders” is defined in the preamble.


 


“Lender’s Environmental Liability” means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential
damages), disbursements or expenses of any kind or nature whatsoever (including
reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted 


 


23

















 


or awarded against any Agent, any Lender or any Issuer
or any of such Person’s Affiliates, shareholders, directors, officers,
employees, and agents in connection with or arising from any Loan Document
(including the Lenders’ exercise of remedies thereunder), any Credit Extension
or any other matter contemplated herein, in each case, to the extent relating
to:


 


(a)  any Hazardous Material on, in, under or
affecting all or any portion of any property of ACT or any of its Subsidiaries,
the groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from ACT’s or any of its Subsidiaries’ or any of their
respective predecessors’ properties;


 


(b)  any misrepresentation, inaccuracy or breach
of any warranty contained or referred to in Section 6.12;


 


(c)  any violation, or claim of violation, by ACT
or any of its Subsidiaries of any Environmental Laws; or


 


(d)  the imposition of any lien for damages
caused by, or the recovery of any costs for, the cleanup, release or threatened
release of Hazardous Material by ACT or any of its Subsidiaries, or in
connection with any property owned or formerly owned by ACT or any of its
Subsidiaries.


 


“Letter of Credit” means, as the context may require, a Canadian
Letter of Credit or a U.S. Letter of Credit.


 


“Letter of Credit Commitment” means, as the context may require,
the Canadian Letter of Credit Commitment or the U.S. Letter of Credit
Commitment.


 


“Letter of Credit Commitment Amount” means, as the context may
require, the Canadian Letter of Credit Commitment Amount or the U.S. Letter of
Credit Commitment Amount.


 


“Letter
of Credit Outstandings” means, as the context may require, the Canadian
Letter of Credit Outstandings or the U.S. Letter of Credit Outstandings.


 


“Leverage Ratio” means, as of the last day of any Fiscal
Quarter, the ratio of (a) (i) Total Debt outstanding on the last day of such
Fiscal Quarter less (ii) (but only to the extent of principal
outstanding on Revolving Loans on the date of determination) Cash In Transit to
(b) EBITDA computed for the period consisting of such Fiscal Quarter and each
of the three immediately preceding Fiscal Quarters.


 


“LIBO
Rate” means,


 


(a)  relative to any Interest Period for Canadian
Term Loans and Revolving Loans denominated in U.S. Dollars and maintained as
LIBO Rate Loans, the rate of interest equal to the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at which U.S.
Dollar deposits in immediately available funds are offered to the Canadian
Administrative Agent’s LIBOR Office in the London interbank market as published
on Telerate page 3750 as at or about 11:00 a.m. London, England time
two 


 


24

















 


Business Days
prior to the beginning of such Interest Period for delivery on the first day of
such Interest Period, and in an amount equal to the amount of the LIBO Rate
Loan and for a period equal to such Interest Period; and


 


(b)  relative to any Interest Period for U.S.
Term Loans maintained as LIBO Rate Loans, the rate of interest equal to the
average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the rates
per annum at which U.S. Dollar deposits in immediately available funds are
offered to the U.S. Administrative Agent’s LIBOR Office in the London interbank
market as published on Telerate page 3750 as at or about 11:00 a.m.
London, England time two Business Days prior to the beginning of such Interest
Period for delivery on the first day of such Interest Period, and in an amount
equal to the amount of the LIBO Rate Loan and for a period equal to such
Interest Period.


 


“LIBO Rate Loan” means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).


 


“LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the LIBO Rate or, in the case of a Lender for which the LIBOR
Reserve Percentage is actually applicable, a rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:


 




	
  LIBO Rate

  	
  =

  	
  LIBO Rate

  
	
  (Reserve Adjusted)

  	
   

  	
  1.00 - LIBOR Reserve
  Percentage

  






 


 


The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined, in the case of Canadian Term Loans and Revolving
Loans maintained as LIBO Rate Loans, by the Canadian Administrative Agent and,
in the case of U.S. Term Loans maintained as LIBO Rate Loans, by the  U.S. Administrative Agent, in each case on
the basis of the LIBOR Reserve Percentage in effect two Business Days before
the first day of such Interest Period.


 


“LIBOR Office” means, relative to any Lender, (a) the office of
such Lender designated as such on Schedule II hereto or designated in
the Lender Assignment Agreement pursuant to which such Lender became a Lender
hereunder or (b) such other office of a Lender as shall be so designated from
time to time by notice from such Lender to ACT and the applicable
Administrative Agent, which shall be making or maintaining LIBO Rate Loans of
such Lender in such Currency hereunder.


 


“LIBOR Reserve Percentage” means, relative to any Interest
Period for LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal
to the maximum aggregate reserve requirements (to the extent actually assessed,
including all basic, emergency, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled changes in
reserve requirements) specified under regulations issued from time to time by
the F.R.S. Board and then applicable to assets or liabilities consisting of or
including 


 


25

















 


“Eurocurrency Liabilities”, as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.


 


“Lien” means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property, or other similar priority
or preferential arrangement of any kind or nature whatsoever, to secure payment
of a debt or performance of an obligation.


 


“Loan” means, as the context may require, a Revolving Loan, a Term Loan
or a Swing Line Loan of any type and shall include, without limitation, all
Canadian BAs in respect of which any Lender has not received payout in
full.  References herein to the
“principal amount” of a Loan shall, when referring to a Canadian BA, mean the
stated face amount thereof.


 


“Loan Documents” means, collectively, this Agreement, the Notes,
the Letters of Credit, the Acceptance Notes, the Canadian BAs, the
Administrative Agent Fee Letters, each Rate Protection Agreement, the Arranger
Fee Letter, the ACT Guaranty, the U.S. Subsidiary Guaranty, the Canadian
Subsidiary Guaranty, each Security Document, each other agreement pursuant to
which the Collateral Agent is granted a Lien to secure the Obligations, each
Compensation Agreement, and each other agreement, certificate, document or
instrument delivered in connection with any Loan Document, whether or not
specifically mentioned herein or therein.


 


“Material Adverse Effect” means a material adverse effect on (a)
the business, condition (financial or otherwise), operations, properties or
prospects of ACT and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Lender Parties under the Loan Documents or (c) the ability of
any Obligor to perform its Obligations under any Loan Document in any material
respect.


 


“Material Subsidiary” means at any date, each Subsidiary of ACT
(i) the EBITDA of which, together with that of its Subsidiaries, on a
consolidated basis, constitutes 5% or more of the consolidated EBITDA of ACT
and its Subsidiaries for the then most recently ended Fiscal Quarter,
(ii) the assets of which, together with those of its Subsidiaries, on a
consolidated basis, from time to time constitute 5% or more of the consolidated
assets of ACT and its Subsidiaries as of the end of the then most recently
ended Fiscal Quarter or (iii) the gross revenue of which, together with that of
its Subsidiaries, on a consolidated basis, constitutes 5% or more of the
consolidated gross revenue of ACT and its Subsidiaries for the then most recently
ended Fiscal Quarter.


 


“Maximum Amount” is defined in Section 3.1.2.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“Mortgage” means each mortgage, deed of trust, deed of hypothec
or agreement executed and delivered by any Obligor in favor of the Collateral
Agent for the benefit of the Secured Parties pursuant to the requirements of
this Agreement, in each case in form and substance reasonably satisfactory to
the Administrative Agents, under which a Lien is granted on the real 


 


26

















 


property and fixtures described therein, in each case
as amended, supplemented, amended and restated or otherwise modified from time
to time.


 


“Net Casualty Proceeds” means, with respect to any Casualty
Event, the amount of any cash insurance proceeds or condemnation or
expropriation awards received by ACT or any of its Subsidiaries in connection
with such Casualty Event in excess of $1,000,000 for any Casualty Event (net of
all collection expenses thereof), but excluding any proceeds or awards required
to be paid to a creditor (other than the Lenders) which holds any Permitted
Lien on the property which is the subject of such Casualty Event which has
priority over the Liens securing payment of the Obligations.


 


“Net Debt Proceeds”
means, with respect to the incurrence, sale or issuance of any Indebtedness
permitted by clause (g)(ii) or (g)(iii) of Section 7.2.2,
the gross cash proceeds received by ACT or any of its Subsidiaries from such
incurrence, sale or issuance less the sum of all commissions and legal,
investment banking, brokerage, accounting, consulting and other fees and
expenses incurred in connection with such incurrence, sale or issuance (and, in
each case, paid to other than an Affiliate of ACT).


 


“Net Disposition Proceeds” means the gross cash proceeds
received by ACT or any of its Subsidiaries from any Disposition (including by
way of the Permitted Sale-Leaseback or Permitted Store Closures) pursuant to clauses (a)(iii),
(b) or (c) of Section 7.2.11 and any cash payment
received in respect of promissory notes or other non-cash consideration
delivered to ACT or its Subsidiaries in respect thereof, less the sum of
(a) all commissions and legal, investment banking, brokerage, accounting,
consulting and other fees and expenses incurred in connection with such
Disposition, in each case paid to other than an Affiliate of ACT, (b) all taxes
in connection with such Disposition actually paid in cash, or estimated by ACT
in good faith and using reasonable assumptions to be payable in cash within the
then occurring (or immediately succeeding) Fiscal Year and for which adequate
reserves in accordance with GAAP shall have been set aside on its books, and
(c) payments made by ACT or its Subsidiaries to retire Indebtedness (other than
the Loans) where payment of such Indebtedness is required in connection with
such Disposition; provided, that if the amount of any estimated taxes
pursuant to clause (b) exceeds the amount of taxes actually required to
be paid in cash in respect of such Disposition or if ACT or any Subsidiary
knows (or has reason to know) that it has overestimated the amount of taxes
that will be required to be paid within such Fiscal Year (or the immediately
succeeding Fiscal Year, as applicable), then the aggregate amount of such
excess shall constitute Net Disposition Proceeds and if the amount of any
estimated taxes pursuant to clause (b) is less than the amount of
taxes actually required to be paid in cash in respect of such Disposition, the
aggregate amount of such difference shall be deducted from outstanding Net
Disposition Proceeds.


 


“Net Equity Proceeds” means with respect to the sale or issuance
after the Closing Date by ACT to any Person of its Capital Securities, warrants
or options or the exercise of any such warrants or options (other than options
under the management stock option plan, as amended, supplemented, amended and
restated or otherwise modified from time to time, and Capital Securities issued
as a result of the exercise of options thereunder), the gross cash proceeds
received by ACT from such sale, exercise or issuance, less all
underwriting commissions and 


 


27

















 


legal, investment banking, brokerage, accounting,
consulting and other fees and expenses incurred in connection with such sale or
issuance, in each case which have not been paid to Affiliates of ACT in
connection therewith.


 


“Net Income” means, for any period, the aggregate of all amounts
(exclusive of all amounts in respect of any extraordinary gains and non-cash
extraordinary losses) which would be included as net income on the consolidated
financial statements of ACT and its Subsidiaries for such period; provided,
that (i) in any jurisdiction in which (in the case of other than a Guarantor) there
is any legal, regulatory or other prohibition on the payments of dividends or
distributions, only the amount of cash dividends and distributions actually
received by ACT from a Subsidiary in such jurisdiction shall be included and
(ii) Net Income of any Person that is accounted for during such period by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions actually paid in cash to ACT or a Subsidiary
during such period.


 


“Non-Excluded Taxes” means any Taxes, other than Taxes imposed on net income, or capital and
franchise Taxes imposed with respect to any Secured Party by any Governmental
Authority in the jurisdiction in which such Secured Party is organized or in
which it maintains its applicable lending office.


 


“Non-Financial LG” means any performance bond, warranty and
indemnity, performance stand-by letter of credit or letter of guarantee and any
other similar instrument, the purpose of which is to support particular
performance of non-financial or commercial contracts or undertakings or
guarantee the repayment of deposits or prepayments in cases of non-performance
of non-financial obligations.


 


“Non-U.S. Lender” means any Lender that is not a “United States
person”, as defined under Section 7701(a)(30) of the Code.


 


“Note” means, as the context may require, a Canadian Revolving
Note, a U.S. Revolving Note, a Canadian Term Note, a U.S. Term Note, a Canadian
Swing Line Note or a U.S. Swing Line Note.


 


“Notional BA
Proceeds” means, relative to a Canadian BA, an amount (rounded to the
nearest whole cent, and with one-half of one cent being rounded up) calculated
by the Canadian Administrative Agent by multiplying:


 


(a)  the face amount of such Canadian BA, by


 


(b)  the price, where the price is determined by
dividing one by the sum of one plus the product of:


 


(i)  the Discount Rate (expressed as a decimal);
and


 


(ii)  a fraction, the numerator of which is the
number of days in the term of such Canadian BA and the denominator of
which is 365;


 


28

















 


with the price as
so determined being rounded up or down to the fifth decimal place and .000005
being rounded up;


 


and by deducting
from the amount resulting from the calculation set forth above an acceptance
fee calculated at the rate per annum, on the basis of a year of 365 days,
equal to the Applicable Canadian BA Stamping Fee on the face amount of
such Canadian BA for its term, being the actual number of days in the
period commencing on the date of acceptance of such Canadian BA and
continuing to (but excluding) the maturity date of such Canadian BA, such
acceptance fee to be non-refundable and fully earned when due.


 


“Obligations” means all obligations (monetary or otherwise,
whether absolute or contingent, matured or unmatured) of each Borrower and each
other Obligor arising under or in connection with a Loan Document, including
Reimbursement Obligations and the principal of and premium, if any, and
interest (including interest accruing during the pendency of any proceeding of
the type described in Section 8.1.9, whether or not allowed in such
proceeding) on the Loans.


 


“Obligor” means, as the context may require, ACT, each Borrower
and each Subsidiary Guarantor.


 


“Offer to Prepay” means a request delivered by the U.S. Term
Loan Borrower to the U.S. Administrative Agent substantially in the form of Exhibit
K hereto.


 


“Organic Document” means, relative to any Obligor, as
applicable, its certificate of incorporation, constating documents, by-laws,
certificate of partnership, partnership agreement, certificate of formation,
limited liability agreement, operating agreement and all unanimous shareholder
agreements, voting trusts and similar arrangements applicable to any of such
Obligor’s partnership interests, limited liability company interests or
authorized shares of Capital Securities.


 


“Other Taxes” means any and all stamp, documentary or similar
Taxes, or any other excise or property Taxes or similar levies that arise on
account of any payment made or required to be made under any Loan Document or
from the execution, delivery, registration, recording or enforcement of any
Loan Document.


 


“Overdraft Obligations” means, as the context may require,
Canadian Overdraft Obligations and U.S. Overdraft Obligations.


 


“Participant” is defined in Section 11.11.


 


“Patriot Act”  means the
USA Patriot Act of 2001, 31 U.S.C. §5318.


 


“PBGC” means the Pension Benefit Guaranty Corporation and any
Person succeeding to any or all of its functions under ERISA.


 


29

















 


“Percentage” means, as the context may require, any Lender’s
Canadian Revolving Loan Percentage, U.S. Revolving Loan Percentage, Canadian
Term Loan Percentage or U.S. Term Loan Percentage.


 


“Permitted Acquisition” means an acquisition (whether pursuant
to an acquisition of Capital Securities, assets or otherwise) by ACT or any of
its Subsidiaries from any Person of a business in which the following
conditions are satisfied:


 


(a)  immediately before and after giving effect to
such acquisition no Default shall have occurred and be continuing or would
result therefrom (including under Section 7.2.1); and


 


(b)  if the purchase price for such acquisition
exceeds $25,000,000, ACT shall have delivered to the Administrative Agents a
Compliance Certificate for the period of four full Fiscal Quarters immediately
preceding such acquisition (prepared in good faith and in a manner and using
such methodology which is consistent with the most recent financial statements
delivered pursuant to Section 7.1.1) giving pro  forma
effect to the consummation of such acquisition and evidencing compliance with
the covenants set forth in Section 7.2.4 (provided, that with
respect to any acquisition having a purchase price (including cash and the fair
market value of non-cash consideration) in excess of $25,000,000, the Adjusted
Leverage Ratio shall be 0.25 less than the applicable covenant level set forth
in clause (b) of Section 7.2.4).


 


“Permitted Holders” means (i) Alain Bouchard,
(ii) Richard Fortin, (iii) Réal Plourde and (iv) Jacques
D’Amours, (v) the spouse, children or other lineal descendants (whether
adoptive or biological) of any individual named in clauses (i) through (iv)
above, (vi) any revocable or irrevocable intervivos or testamentary trust or
the probate estate of any individual named in clauses (i) through (v)
above, so long as one or more of the foregoing individuals named in clauses
(i) through (v) above is the principal beneficiary of such trust or
probate estate, and (vii) any Person all of the Capital Securities of which are
held, directly or indirectly, by, or for the benefit of, one or more of the
foregoing individuals or trusts specified in clause (i) through (vi)
above.


 


“Permitted Liens” is defined in Section 7.2.3.


 


“Permitted Sale-Leaseback” means a sale-leaseback by ACT or any
of its Subsidiaries in which the following conditions are satisfied:


 


(a)  it shall be consummated within four months
following the Closing Date;


 


(b)  the fee owned properties that will be
subject to such Permitted Sale-Leaseback shall be located in the U.S. and
selected from the list of locations set forth in Item (a) of Schedule III
hereto;


 


(c)  not more than $330,000,000 (in the
aggregate) in value (as reasonably determined by an appraisal firm reasonably
satisfactory to the Arrangers (in the case of 


 


30

















 


the Fortress SLB)
and an appraisal undertaken in conjunction with such transaction by Realty
Income (or its Affiliate) (in the case of the Realty Income SLB)) of properties
shall be the subject of all Permitted Sale-Leasebacks; and


 


(d)  such Permitted Sale-Leaseback shall
otherwise be on terms and conditions reasonably satisfactory to the Arrangers.


 


“Permitted Store Closure” 
means any sale, transfer, conveyance or closure of (in a single
transaction or series of transactions) any of the properties (or leaseholds in
respect thereof) set forth in Item (b) of Schedule III
hereto (together with all fixtures thereon).


 


“Person” means any natural person, corporation, limited
liability company, partnership, joint venture, association, trust or
unincorporated organization, Governmental Authority or any other legal entity,
whether acting in an individual, fiduciary or other capacity.


 


“PPSA” means the Personal Property Security Act, as in effect
from time to time in Ontario, Alberta, Saskatchewan, Manitoba, British
Columbia, Northwest Territories and Nova Scotia and similar legislation in any
other province of Canada where collateral is located.


 


 “Prepayment Proceeds” is
defined in Section 3.1.2.


 


“Purchase Agreement” is defined in the first recital.


 


“Quarterly Payment Date” means the dates set forth in Schedule IV
hereto, or, if any such day is not a Business Day, the next succeeding Business
Day.


 


“Québec Security Agreements” means, collectively, the Deed of
Hypothec, the Movable Hypothec, the Demand Bond and the related agreements
executed and delivered by ACT and each Obligor which is headquartered or has
tangible personal property in the Province of Québec, substantially in the form
of Exhibit G-1 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


“Rate Protection Agreement” means, collectively, any interest
rate swap, cap, collar or similar agreement entered into by ACT or any of its
Subsidiaries under which the counterparty of such agreement is (or at the time
such agreement was entered into, was) a Lender or an Affiliate of a Lender.


 


“Realty Income” means Realty Income Corporation.


 


“Realty Income SLB” means the sale lease-back arrangement providing for the
sale by certain Obligors of certain real property to Realty Income or its
Affiliates or assigns and the subsequent lease of such real property to such
Obligors.


 


“Refinancing” is defined in the second recital.


 


“Refunded Swing Line Loans” is defined in clause (c) of Section
2.3.2.


 


31

















 


“Register” means, as the context may require, the Canadian
Register or the U.S. Register.


 


“Reimbursement Obligation” is defined in Section 2.6.3.


 


“Reinvestment Amount” is defined in clause (f) of Section
3.1.1.


 


“Release” means a “release”, as such term is defined in
CERCLA or the Canadian Environmental Protection Act of 1999.


 


“Rent Expense” means, for any period, the aggregate amount of
basic rent payable in cash (and, if the aggregate amount of contingent rental
payments exceeds 1.5% of basic rental payments in any applicable period, such
excess amount of contingent rental payments) by ACT and its Subsidiaries for
such period with respect to leases of real property (excluding amounts in
respect of taxes, maintenance, repairs, replacements, insurance, utility
payments and similar items in the case of gross leases).


 


“Required Lenders” means, at any time, Lenders holding more than
50% of the Total Exposure Amount.


 


“Reset Date” means the date of delivery of the Compliance
Certificate (pursuant to clause (c) of Section 7.1.1) in
respect of the second full Fiscal Quarter ended after the Closing Date.


 


“Resource Conservation and Recovery Act” means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.,
as amended.


 


“Restricted Payment” means the declaration or payment of any
dividend (other than dividends payable solely in Capital Securities of ACT or
any Subsidiary) on, or the making of any payment or distribution on account of,
or setting apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any class
of Capital Securities of ACT or any Subsidiary or any warrants or options to
purchase any such Capital Securities, whether now or hereafter outstanding, or
the making of any other distribution in respect thereof, either directly or
indirectly, whether in cash or property, obligations of ACT or any Subsidiary
or otherwise.


 


“Revolving Loan” means, as the context may require, a Canadian
Revolving Loan or a U.S. Revolving Loan.


 


“Revolving Loan Commitment” means, as the context may require,
the Canadian Revolving Loan Commitment or the U.S. Revolving Loan Commitment.


 


“Revolving Loan Commitment Amount” means, as the context may
require, the Canadian Revolving Loan Commitment Amount or the U.S. Revolving
Loan Commitment Amount.


 


32

















 


“Revolving Loan Commitment Termination Date”
means, as the context may require, the Canadian Revolving Loan Commitment
Termination Date or the U.S. Revolving Loan Commitment Termination Date.


 


“Revolving Loan Lender” means, as the context may require, a
Canadian Revolving Loan Lender or a U.S. Revolving Loan Lender.


 


“Revolving Loan Percentage” means, as the context may require,
the Canadian Revolving Loan Percentage or the U.S. Revolving Loan Percentage.


 


“S&P” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc.


 


“Sale Lease-Back Documents” means, collectively, the material
agreements executed and delivered in connection with the Fortress SLB and the
Realty Income SLB and all other material agreements executed and delivered in
connection with any arrangement providing for the sale or transfer by an
Obligor of any property hereafter acquired to a Person and the subsequent lease
or rental of such property or other similar property to an Obligor from such
Person.


 


“SEC” means the Securities and Exchange Commission.


 


“Secured Parties” means, collectively, the Lenders, the Issuers,
the Agents, the Arrangers, each counterparty to a Rate Protection Agreement
that is (or at the time such Rate Protection Agreement was entered into, was) a
Lender or an Affiliate thereof, and, in each case, each of their respective
successors, transferees and assigns.


 


“Security Agreements” means, as the context may require, the
U.S. Borrower Pledge and Security Agreement, the Canadian Borrower Pledge and
Security Agreement, the Canadian Subsidiary Pledge and Security Agreement, the
U.S. Subsidiary Pledge and Security Agreement, the Québec Security Agreements
and the Bank Act Agreements, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


“Security Document” means, collectively, each Security Agreement
and each Mortgage, in each case as amended, supplemented, amended and restated
or otherwise modified from time to time.


 


“Seller” is defined in the first recital.


 


“Senior Secured Leverage Ratio” means, as of the last day of any
Fiscal Quarter, the ratio of (a) Total Debt (excluding all Indebtedness that is
unsecured or, if secured, is contractually subordinated to the payment of the
Obligations upon terms satisfactory to the Arrangers) outstanding on the last
day of such Fiscal Quarter on an aggregated basis less (but only to the
extent of principal outstanding on Revolving Loans on the date of
determination) Cash In Transit to (b) EBITDA computed for the period
consisting of such Fiscal Quarter and each of the three immediately preceding
Fiscal Quarters.


 


“Shares” is
defined in the first recital.


 


33

















 


“Solvent” means, with respect to any Person and its Subsidiaries
on any date of determination, that on such date (a) the fair value of the
property of such Person and its Subsidiaries on a consolidated basis is greater
than the total amount of liabilities, including contingent liabilities, of such
Person and its Subsidiaries on a consolidated basis, (b) the present fair
salable value of the assets of such Person and its Subsidiaries on a
consolidated basis is not less than the amount that will be required to pay the
probable liability of such Person and its Subsidiaries on a consolidated basis
on its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it or its Subsidiaries will, incur debts
or liabilities beyond the ability of such Person and its Subsidiaries to pay as
such debts and liabilities mature, and (d) such Person and its
Subsidiaries on a consolidated basis is not engaged in business or a
transaction, and such Person and its Subsidiaries on a consolidated basis is
not about to engage in a business or a transaction, for which the property of
such Person and its Subsidiaries on a consolidated basis would constitute an
unreasonably small capital.  The amount
of Contingent Liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.


 


“Stated Amount” means, on any date and with respect to a
particular Letter of Credit, the total amount then available to be drawn under
such Letter of Credit.


 


“Stated Expiry Date” is defined in Section 2.6.


 


“Stated
Maturity Date” means


 


(a)  with respect to all Canadian Term Loans,
December 17, 2008;


 


(b)  with respect to all U.S. Term Loans,
December 17, 2010; and


 


(c)  with respect to all Revolving Loans and
Swing Line Loans, December 17, 2008.


 


“Subordinated Debt” means, as the context may require, (i) the
unsecured subordinated Indebtedness of the High Yield Issuers evidenced by the
Subordinated Notes and (ii) other unsecured subordinated Indebtedness incurred
pursuant to clauses (g)(ii), (g)(iii) or (g)(iv) of Section
7.2.2.


 


“Subordinated Debt Documents” means, the Indenture and the note
purchase agreements, promissory notes, guarantees, and other instruments and
agreements delivered in connection therewith, as amended, supplemented, amended
and restated or otherwise modified in accordance with Section 7.2.12.


 


“Subordinated Notes” is defined in the third  recital.


 


“Subordination Provisions” is defined in Section 8.1.11.


 


“Subsidiary” means, with respect to any Person, any other Person
of which more than 50% of the outstanding Voting Securities of such other
Person (irrespective of whether at the


 


34

















 


time Capital Securities of any other class or classes
of such other Person shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person.  Unless the context otherwise specifically requires, the term
“Subsidiary” shall be a reference to a Subsidiary of ACT and shall include ACT
Financial Trust and Circle K Corp. and its Subsidiaries.


 


“Subsidiary Guarantor” means each Subsidiary that has executed
and delivered the U.S. Subsidiary Guaranty or the Canadian Subsidiary Guaranty.


 


“Swing Line Lender” means, as the context may require and
subject to the terms of this Agreement, the Canadian Swing Line Lender or the
U.S. Swing Line Lender.


 


“Swing Line Loan” means, as the context may require, a Canadian
Swing Line Loan or a U.S. Swing Line Loan.


 


“Synthetic Lease” means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (a) that is not a capital lease in
accordance with GAAP and (b) in respect of which the lessee retains or obtains
ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor.


 


“Target Date”  means, the
first day after the fifth anniversary of the Closing Date.


 


“Taxes” means all income, stamp or other taxes, duties, levies,
imposts, charges, assessments, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, and all interest, penalties or similar liabilities with respect
thereto.


 


“Term Loan” means, as the context may require, a Canadian Term
Loan or a U.S. Term Loan.


 


“Termination Date” means the date on which all Obligations have
been paid in full in cash, all Letters of Credit and all Canadian BAs have been
terminated or expired (or been Cash Collateralized), and all Commitments shall
have terminated, other than Rate Protection Agreements which do not terminate
upon the repayment of the Loans and those obligations which by the terms of the
Loan Documents are intended to survive the repayment of the Loans.


 


“Terrorism
Laws” means any of the following:


 


(a)  Executive Order 13224 issued by the
President of the United States of America;


 


(b)  the Terrorism Sanctions Regulations (Title
31 Part 595 of the U.S. Code of Federal Regulations);


 


35

















 


(c)  the Terrorism List Governments Sanctions
Regulations (Title 31 Part 596 of the U.S. Code of Federal Regulations);


 


(d)  the Foreign Terrorist Organizations
Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal
Regulations);


 


(e)  all other present and future legal
requirements of any Governmental Authority addressing, relating to, or
attempting to eliminate, terrorist acts and acts of war;


 


(f)  any regulations promulgated pursuant to any
of the foregoing or pursuant to any legal requirement governing terrorist acts
and acts of war; and


 


(g)  the Patriot Act.


 


“Threshold Amount” is defined in clause (f) of Section
3.1.1.


 


“Total Debt” means, on any date, the outstanding principal
amount of all Indebtedness of ACT and its Subsidiaries of the type referred to
in clause (a), clause (b), clause (c), clause (f)
and clause (g), in each case of the definition of “Indebtedness”
(exclusive of intercompany Indebtedness between and among ACT and its
Subsidiaries).


 


“Total Exposure Amount” means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount
of the Commitments; provided, that with respect to any of the foregoing
denominated in Canadian Dollars, calculated at the U.S. Dollar Equivalent
thereof.


 


“Trademark Security Agreement” means any Trademark Security
Agreement in substantially in the form of Exhibit B to any Security
Agreement, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“Transaction” means, collectively, (a) the Acquisition,
(b) the Refinancing, (c) ACT’s receipt of no less than C$223,600,000,
representing the proceeds of the Equity Issuance and Contribution, (d) the
receipt by the High Yield Issuers of the gross cash proceeds from the issuance
of the Subordinated Notes, (e) the making by the Lenders of the initial
Credit Extensions and (f) each of the other transactions contemplated
hereby and consummated on the Closing Date.


 


“Transaction Documents” means, the Purchase Agreement and all
exhibits and schedules thereto, collectively, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.12.


 


“Transaction Expenses” means the aggregate amount of fees and
expenses payable as a result of, and in connection with, the Transaction.


 


“type” means, relative to any Loan, the portion thereof, if any,
being maintained as a Floating Rate Loan or a Fixed Rate Loan.


 


36

















 


“UCC” means the Uniform Commercial Code as in effect from time
to time in the State of New York; provided, that if, with respect to any
Filing Statement or by reason of any provisions of law, the perfection or the
effect of perfection or non-perfection of the security interests granted to the
Collateral Agent pursuant to the applicable Loan Document is governed by the
Uniform Commercial Code as in effect in a jurisdiction of the United States
other than New York, then “UCC” means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions of
each Loan Document and any Filing Statement relating to such perfection or
effect of perfection or non-perfection.


 


“Underperforming Store” means any store owned or leased by ACT
or its Subsidiaries in which the annual income as determined by ACT using
reasonable methods (but before giving effect to general and administrative
expenses) is less than $70,000.


 


“United States” or “U.S.” means the United States of
America, its fifty states and the District of Columbia.


 


“U.S. Administrative Agent” is defined in the preamble.


 


“U.S. Base Rate”
means, at any time, the rate of interest per annum publicly announced or
established from time to time by the U.S. Administrative Agent or the U.S.
branch or agency of the Canadian Administrative Agent, as applicable, as its
base rate for loans in U.S. Dollars loaned in the United States.  The U.S. Base Rate is not intended to be the
lowest rate of interest charged by such Administrative Agent in connection with
extensions of credit.


 


“U.S. Borrower Pledge and Security Agreement” means the Pledge
and Security Agreement executed and delivered by each of the U.S. Borrowers,
substantially in the form of Exhibit G-4 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.


 


“U.S. Borrowers” means, collectively, the U.S. Revolving Loan
Borrowers and the U.S. Term Loan Borrower.


 


“U.S. Dollar” and “$” each mean lawful currency of the
United States.


 


“U.S. Dollar Equivalent” means, on any date of determination,
the equivalent in U.S. Dollars of any value or sum denominated in Canadian
Dollars using the rate of exchange quoted by the Bank of Canada on the Business
Day preceding the day as of which any determination of such rate is required to
be made under the terms hereof, as the noon mid-market spot rate for
conversions of Canadian Dollars into U.S. Dollars.


 


“U.S. Facility Lender” is defined in the preamble.


 


“U.S. Letter of Credit” is defined in clause (b) of Section 2.1.2.


 


“U.S. Letter of Credit Commitment” means the Issuer’s obligation
to issue U.S. Letters of Credit pursuant to Section 2.1.2.


 


37

















 


“U.S. Letter of Credit Commitment Amount” means, on any date, a
maximum amount of $30,000,000, as such amount may be permanently reduced from
time to time pursuant to Section 2.2.


 


“U.S. Letter of Credit Outstandings” means, on any date, an
amount equal to the sum of (a) the then aggregate amount which is undrawn
and available under all issued and outstanding U.S. Letters of Credit, and
(b) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations in respect of such U.S. Letters of Credit.


 


“U.S. Loan”
means, as the context may require, a U.S. Revolving Loan, a U.S. Term Loan or a
U.S. Swing Line Loan.


 


“U.S. Netting
Parties” refers collectively to the U.S. Borrowers and any of their
U.S. Affiliates which are or shall become party to the Compensation Agreements
from time to time.


 


“U.S. Operating
Accounts” means the accounts maintained by the
U.S. Netting Parties with the U.S. Swing Line Lender for the
purpose of their day-to-day operations and transactions.


 


“U.S. Overdraft Obligations” is the collective reference to the
obligations of the U.S. Netting Parties to pay to the
U.S. Swing Line Lender any amount due under the Compensation
Agreements.


 


“U.S. Pension Plan” means a “pension plan”, as such term is
defined in Section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA), and to which any Borrower or any corporation, trade or business that
is, along with such Borrower, a member of a Controlled Group, may have
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during
the preceding five years, or by reason of being deemed to be a contributing
sponsor under Section 4069 of ERISA.


 


“U.S. Person”  means any
Person that is a “United States person”, as defined under Section 7701(a)(30)
of the Code.


 


“U.S. Prime
Rate” means, at any time, the rate of interest per annum publicly announced
or established from time to time by the Canadian Administrative Agent as its
reference rate for loans in U.S. Dollars loaned in Canada.  The U.S. Prime Rate is not intended to be
the lowest rate of interest charged by the Canadian Administrative Agent in
connection with extensions of credit.


 


“U.S. Register” is defined in clause (c) of Section 2.7.


 


“U.S. Revolving Loan Borrower” is defined in clause (b)
of Section 2.1.1.


 


“U.S. Revolving Loan Commitment” means, relative to any Lender,
such Lender’s obligation (if any) to make U.S. Revolving Loans pursuant to clause (b)
of Section 2.1.1 in accordance with its U.S. Revolving Loan
Percentage.


 


38

















 


“U.S. Revolving Loan Commitment Amount” means, on any date,
$75,000,000, as such amount may be reduced from time to time pursuant to Section 2.2.


 


“U.S. Revolving Loan Commitment Termination Date”
means the earliest of


 


(a)  December 31, 2003 (if the initial
Credit Extension has not occurred on or prior to such date);


 


(b)  December 17, 2008;


 


(c)  the date on which the U.S. Revolving Loan
Commitment Amount is terminated in full or reduced to zero pursuant to the
terms of this Agreement; and


 


(d)  the date on which any Commitment Termination
Event occurs.


 


Upon the occurrence of any event described above, the U.S. Revolving
Loan Commitments shall terminate automatically and without any further action.


 


“U.S. Revolving Loan Lender” is defined in clause (b)
of Section 2.1.1.


 


“U.S. Revolving Loan Percentage” means, relative to any Lender,
the applicable percentage relating to U.S. Revolving Loans set forth opposite
its name on Schedule II hereto under the U.S. Revolving Loan
Commitment column or set forth in a Lender Assignment Agreement under the U.S.
Revolving Loan Commitment column, as such percentage may be adjusted from time
to time pursuant to Lender Assignment Agreements executed by such Lender and
its Assignee Lender and delivered pursuant to Section 11.11.  A Lender shall not have any U.S. Revolving
Loan Commitment if its percentage under the U.S. Revolving Loan Commitment
column is zero.


 


“U.S. Revolving Loans” is defined in clause (b) of Section 2.1.1.


 


“U.S. Revolving Note” means a promissory note payable to any
U.S. Revolving Loan Lender, in the form of Exhibit A-2 hereto (as
such promissory note may be amended, endorsed or otherwise modified from time
to time), evidencing the aggregate Indebtedness hereunder of the applicable
U.S. Borrowers to such U.S. Revolving Loan Lender resulting from outstanding
U.S. Revolving Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.


 


 “U.S. Subsidiary” means
any Subsidiary that is incorporated or organized under the laws of the United
States.


 


“U.S. Subsidiary Guarantor” means each U.S. Subsidiary which has
executed and delivered the U.S. Subsidiary Guaranty (or a supplement thereto).


 


“U.S. Subsidiary Guaranty” means the subsidiary guaranty
executed and delivered by each U.S. Subsidiary pursuant to the terms of this
Agreement substantially in the form of 


 


39

















 


Exhibit F-3 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.


 


“U.S. Subsidiary Pledge and Security Agreement” means the Pledge
and Security Agreement executed and delivered by each Subsidiary Guarantor that
is a U.S. Subsidiary, substantially in the form of Exhibit G-5
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.


 


“U.S. Swing
Line Lender” means, any of Bank of America, N.A., Bank One, N.A. or
Wachovia Bank, National Association., as determined by ACT in a notice to the
Agents and acknowledged by such Person in accordance with Section 2.1.1
hereof.


 


“U.S. Swing
Line Loan” is defined in clause (d) of Section 2.1.1.


 


“U.S. Swing
Line Loan Commitment” is defined in clause (d) of Section 2.1.1.


 


“U.S. Swing
Line Loan Commitment Amount” means, on any date, $10,000,000, as such
amount may be reduced from time to time pursuant to Section 2.2.


 


“U.S. Swing Line Note” means, if requested by the U.S. Swing
Line Lender, a promissory note payable to the U.S. Swing Line Lender, in the
form of Exhibit A-6 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness hereunder of the applicable U.S. Borrowers to the U.S. Swing Line
Lender resulting from outstanding U.S. Swing Line Loans, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.


 


“U.S. Term Loan Borrower” is defined in clause (b) of Section
2.1.3.


 


“U.S. Term Loan Borrowing Request” means a U.S. Term Loan
request and certificate duly executed by an Authorized Officer of any
applicable U.S. Borrower substantially in the form of Exhibit B-2
hereto.


 


“U.S. Term Loan Commitment” means, relative to any Lender, such
Lender’s obligation (if any) to make U.S. Term Loans pursuant to clause (b)
of Section 2.1.3 in accordance with its U.S. Term Loan Percentage.


 


“U.S. Term Loan Commitment Amount” means, on any date, $245,000,000.


 


“U.S.
Term Loan Commitment Termination Date” means the earliest of


 


(a)  December 31, 2003 (if the U.S. Term
Loans have not been made on or prior to such date);


 


(b)  the Closing Date (immediately after the
making of the U.S. Term Loans on such date); and


 


(c)  the date on which any Commitment Termination
Event occurs.


 


40

















 


Upon the occurrence of any event described above, the U.S. Term Loan
Commitments shall terminate automatically and without any further action.


 


“U.S. Term Loan Continuation/Conversion Notice” means a notice
of continuation or conversion (in respect of U.S. Term Loans) and certificate
duly executed by an Authorized Officer of the applicable U.S. Borrower
substantially in the form of Exhibit C-2 hereto.


 


“U.S. Term Loan Lender” means any Lender that has a U.S. Term
Loan Commitment or that holds a U.S. Term Loan.


 


“U.S. Term Loan Percentage” means, relative to any Lender, the
applicable percentage relating to U.S. Term Loans set forth opposite its name
on Schedule II hereto under the U.S. Term Loan Commitment column or
set forth in a Lender Assignment Agreement under the U.S. Term Loan Commitment
column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreements executed by such Lender and its Assignee Lender and
delivered pursuant to Section 11.11.  A Lender shall not have any U.S. Term Loan Commitment if its
percentage under the U.S. Term Loan Commitment column is zero.


 


“U.S. Term Loans” is defined in clause (b) of Section 2.1.3.


 


“U.S. Term Note” means a promissory note payable to any U.S.
Term Loan Lender, in the form of Exhibit A-4 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness hereunder of the applicable U.S.
Borrowers to such U.S. Term Loan Lender resulting from outstanding U.S. Term
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.


 


“U.S. Welfare Plan” means a “welfare plan”, as such term is
defined in Section 3(1) of ERISA.


 


“Voting Securities” means, with respect to any Person, Capital
Securities of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing body
of such Person.


 


“wholly-owned Subsidiary” means any Subsidiary all of the
outstanding Capital Securities of which (other than any director’s qualifying
shares or investments by individuals mandated by applicable laws) is owned
directly or indirectly by ACT.


 


SECTION 1.2.  Use of Defined Terms.  Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.


 


SECTION 1.3.  Cross-References.  Unless otherwise specified, references in a
Loan Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.


 


41

















 


SECTION 1.4.  Accounting and Financial Determinations.  Unless otherwise specified, all accounting
terms used in each Loan Document shall be interpreted, and all accounting
determinations and computations thereunder (including under Section 7.2.4
and the definitions used in such calculations) shall be made, in accordance
with those Canadian generally accepted accounting principles (“GAAP”) as
in effect from time to time (provided that the parties hereto agree to
negotiate in good faith in order to amend the financial covenants and other
terms of this Agreement if there occur any changes in GAAP that have a material
effect on the financial statements of ACT and its Subsidiaries, so as to
equitably reflect such changes with the desired result that the criteria for
evaluating the financial condition of ACT and its Subsidiaries and such other
terms shall be the same in all material respects after such changes as if the
changes had not been made.  Unless
otherwise expressly provided, all financial covenants and defined financial
terms shall be computed on a consolidated basis for ACT and its Subsidiaries,
in each case without duplication.   For
the purposes of determining any threshold amount forming any part of any
representation or warranty, covenant or Event of Default, all relevant amounts
denominated in Canadian Dollars shall be calculated, as of such time of
determination, at the U.S. Dollar Equivalent thereof.  Each calculation of the U.S. Dollar Equivalent of any amounts
denominated in Canadian Dollars shall constitute prima facie evidence thereof.  For purposes of determining the financial
covenants set forth in Section 7.2.4 (and any financial
calculations required to be made or included within such ratios), and for
purposes of any Compliance Certificate to be delivered pursuant to clause (b)
of the definition of “Permitted Acquisition”, the calculation of such ratios
shall include or exclude, as the case may be, the effect of any assets or
businesses that have been acquired or Disposed of by ACT or any of its
Subsidiaries (including through mergers or consolidations), as determined in
good faith (using reasonable assumptions) by ACT on a pro  forma
basis, for the period of four Fiscal Quarters ended immediately prior to the
date of determination of any such ratios as if such acquisition or Disposition
had occurred on such first day of such four Fiscal Quarters period, but in each
case calculated in accordance with Regulation S-X of the Securities Act of
1933, as amended, for the period of four Fiscal Quarters ended on or
immediately prior to the date of determination of any such ratios.


 


ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT


 


SECTION 2.1.  Commitments.  On the terms and subject to the conditions
of this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.


 


SECTION 2.1.1.  Revolving Loan Commitments and Swing Line
Loan Commitments.  From time to time
on any Business Day occurring from and after the Effective Date but prior to
the applicable Revolving Loan Commitment Termination Date,


 


(a)  each Lender that has a Canadian Revolving
Loan Commitment (each a “Canadian Revolving Loan Lender”) agrees that it
will make loans (relative to such Lender, its “Canadian Revolving Loans”)
denominated in Canadian Dollars or U.S. Dollars to, or accept Canadian BAs
from, any Borrower set forth on Schedule VIII  


 


42

















 


hereto under the
heading “Canadian Revolving Loan Borrowers” (each a “Canadian Revolving Loan
Borrower”) in an aggregate amount equal to such Canadian Revolving Loan
Lender’s Canadian Revolving Loan Percentage of the aggregate amount of each
Borrowing of Canadian Revolving Loans requested by such Canadian Revolving Loan
Borrower to be made on such day;


 


(b)  each Lender that has a U.S. Revolving Loan
Commitment (each a “U.S. Revolving Loan Lender”) agrees that it (through
one of its U.S. Affiliates, branches or agencies party to this Agreement, if
applicable) will make loans (relative to such Lender, its “U.S. Revolving
Loans”) denominated in U.S. Dollars to any Borrower set forth on Schedule
VIII hereto under the heading “U.S. Revolving Loan Borrowers” (each
a “U.S. Revolving Loan Borrower”) in an aggregate amount equal to such
U.S. Revolving Loan Lender’s U.S. Revolving Loan Percentage of the aggregate
amount of each Borrowing of U.S. Revolving Loans requested by such U.S.
Revolving Loan Borrower to be made on such day;


 


(c)  the Canadian Swing Line Lender agrees that
it will make loans (its “Canadian Swing Line Loans”) denominated in
Canadian Dollars or U.S. Dollars to any Canadian Revolving Loan Borrower in an
aggregate amount equal to the aggregate amount of the Borrowing of the Canadian
Swing Line Loan requested by such Canadian Revolving Loan Borrower to be made
on such day (with the commitment of the Canadian Swing Line Lender described in
this clause herein referred to as its “Canadian Swing Line Loan Commitment”);
and


 


(d)  the U.S. Swing Line Lender agrees that it
will make loans (its “U.S. Swing Line Loans”) denominated in U.S.
Dollars to any U.S. Revolving Loan in an aggregate amount equal to the
aggregate amount of the Borrowing of the U.S. Swing Line Loan requested by such
U.S. Revolving Loan Borrower to be made on such day (with the commitment of the
U.S. Swing Line Lender described in this clause herein referred to as its “U.S.
Swing Line Loan Commitment”).


 


On the terms and subject to the conditions hereof, the applicable
Borrowers may from time to time borrow, prepay and reborrow Revolving Loans and
Swing Line Loans, as the case may be. 
No Canadian Revolving Loan Lender shall be permitted or required to make
any Canadian Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Canadian Revolving Loans (with Canadian
Revolving Loans denominated in U.S. Dollars calculated at the Canadian Dollar
Equivalent thereof) of such Canadian Revolving Loan Lender, together with such
Canadian Revolving Loan Lender’s Canadian Revolving Loan Percentage of the
aggregate amount of all Canadian Swing Line Loans (with Canadian Swing Line
Loans denominated in U.S. Dollars calculated at the Canadian Dollar Equivalent
thereof) and Canadian Letter of Credit Outstandings (with Canadian Letter of
Credit Outstandings denominated in U.S. Dollars calculated at the Canadian
Dollar Equivalent thereof), would exceed such Canadian Revolving Loan Lender’s
Canadian Revolving Loan Percentage of the then existing Canadian Revolving Loan
Commitment Amount.  No U.S. Revolving
Loan Lender shall be permitted or required to make any U.S. Revolving Loan if, after
giving effect thereto, the aggregate outstanding principal amount of all U.S.
Revolving Loans of such U.S. Revolving Loan Lender,


 


43

















 


together with such U.S. Revolving Loan Lender’s U.S. Revolving Loan
Percentage of the aggregate amount of all U.S. Swing Line Loans and U.S. Letter
of Credit Outstandings, would exceed such U.S. Revolving Loan Lender’s U.S.
Revolving Loan Percentage of the then existing U.S. Revolving Loan Commitment
Amount.  The Canadian Swing Line Lender
shall not be required to make Canadian Swing Line Loans if, after giving effect
thereto, the aggregate outstanding principal amount of all Canadian Swing Line
Loans (with Canadian Swing Line Loans denominated in U.S. Dollars calculated at
the Canadian Dollar Equivalent thereof) would exceed the then existing Canadian
Swing Line Loan Commitment Amount.  The
U.S. Swing Line Lender shall not be required to make U.S. Swing Line Loans if,
after giving effect thereto, the aggregate outstanding principal amount of all
U.S. Swing Line Loans would exceed the then existing U.S. Swing Line Loan
Commitment Amount.


 


Notwithstanding anything herein to the contrary, each
of Bank of America, N.A., Wachovia Bank, National Association and Bank One,
N.A. (each a “Potential U.S. Swing Line Lender”) agree that, upon notice
from ACT given no later than three months after the Closing Date appointing any
one Potential U.S. Swing Line Lender as the “U.S. Swing Line Lender” hereunder
(which notice must be acknowledged by such appointed Potential U.S. Swing Line
Lender), such appointed Potential U.S. Swing Line Lender shall be bound by (and
hereby agrees to be bound by) all of the terms and conditions set forth in the
Loan Documents applicable to the U.S. Swing Line Lender in its capacity as the
“U.S. Swing Line Lender” and also agrees to an increase in its U.S. Revolving
Loan Commitment Amount to the maximum amount of the U.S. Swing Line Loan
Commitment Amount.  ACT agrees that
neither it nor any of its Subsidiaries may borrow U.S. Swing Line Loans until
such time as ACT has delivered the notice provided above.


 


SECTION 2.1.2.  Letter of Credit Commitment.  From time to time on any Business Day
occurring from and after the Effective Date until ten Business Days prior to
the applicable Revolving Loan Commitment Termination Date, the Issuer agrees
that it will


 


(a)  issue one or more standby letters of credit
or Non-Financial LGs (each a “Canadian Letter of Credit”) denominated in
Canadian Dollars or U.S. Dollars for the account of any Canadian Revolving Loan
Borrower or another Obligor in the Stated Amount requested by such Canadian
Revolving Loan Borrower on such day;


 


(b)  issue one or more standby letters of credit
or Non-Financial LGs (each a “U.S. Letter of Credit” and, together with
the Canadian Letters of Credit, the “Letters of Credit”) denominated in
U.S. Dollars for the account of any U.S. Revolving Loan Borrower or another
Obligor in the Stated Amount requested by such U.S. Revolving Loan Borrower on
such day; or


 


(c)  extend the Stated Expiry Date of an existing
standby Letter of Credit previously issued hereunder.


 


No Stated Expiry Date shall extend beyond the earlier of (i) the
applicable Revolving Loan Commitment Termination Date and (ii) unless otherwise
agreed to by the Issuer in its sole discretion, one year from the date of
such issue or extension.  The Issuer
shall not be permitted or 


 


44

















 


required to issue any (i) Canadian Letter of Credit if, after giving
effect thereto, (A) the aggregate amount of all Canadian Letter of Credit
Outstandings (with Canadian Letter of Credit Outstandings denominated in U.S.
Dollars calculated at the Canadian Dollar Equivalent thereof) would exceed the
Canadian Letter of Credit Commitment Amount or (B) the sum of the
aggregate amount of all Canadian Letter of Credit Outstandings (with Canadian
Letter of Credit Outstandings denominated in U.S. Dollars calculated at the
Canadian Dollar Equivalent thereof) plus the aggregate principal amount
of all Canadian Revolving Loans (with Canadian Revolving Loans denominated
in U.S. Dollars calculated at the Canadian Dollar Equivalent thereof) and
Canadian Swing Line Loans (with Canadian Swing Line Loans denominated in U.S.
Dollars calculated at the Canadian Dollar Equivalent thereof) then outstanding
would exceed the Canadian Revolving Loan Commitment Amount, and (ii) U.S.
Letter of Credit if, after giving effect thereto, (A) the aggregate amount
of all U.S. Letter of Credit Outstandings would exceed the U.S. Letter of
Credit Commitment Amount or (B) the sum of the aggregate amount of all
U.S. Letter of Credit Outstandings plus the aggregate principal amount
of all U.S. Revolving Loans and U.S. Swing Line Loans then outstanding
would exceed the U.S. Revolving Loan Commitment Amount.


 


SECTION 2.1.3.  Term Loan Commitments.  (a) 
In a single Borrowing (which shall be on a Business Day) occurring on or
prior to the Canadian Term Loan Commitment Termination Date, each Lender that
has a Canadian Term Loan Commitment agrees that it will make loans (relative to
such Lender, its “Canadian Term Loans”) denominated in U.S. Dollars to
the Borrower set forth on Schedule VIII hereto under the heading
“Canadian Term Loan Borrower” (the “Canadian Term Loan Borrower”) in an
aggregate amount equal to such Lender’s Canadian Term Loan Percentage of the
aggregate amount of the Borrowing of Canadian Term Loans requested by the
Canadian Term Loan Borrower to be made on such day (such amount not to exceed
the Canadian Term Loan Commitment Amount). 
No amounts paid or prepaid with respect to Canadian Term Loans may
be reborrowed.


 


(b)  In a
single Borrowing (which shall be on a Business Day) occurring on or prior to
the U.S. Term Loan Commitment Termination Date, each Lender that has a U.S.
Term Loan Commitment agrees that it will make loans (relative to such Lender,
its “U.S. Term Loans”) denominated in U.S. Dollars to the Borrower set
forth on Schedule VIII hereto under the heading “U.S. Term Loan
Borrower” (the “U.S. Term Loan Borrower”) in an aggregate amount equal
to such Lender’s U.S. Term Loan Percentage of the aggregate amount of the
Borrowing of U.S. Term Loans requested by such U.S. Term Loan Borrower to be
made on such day (such amount not to exceed the U.S. Term Loan Commitment
Amount).  No amounts paid or prepaid
with respect to U.S. Term Loans may be reborrowed.


 


SECTION 2.2.  Reduction of the Commitment Amounts.  Any Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Canadian Revolving Loan Commitment Amount, the U.S. Revolving Loan
Commitment Amount, the Canadian Swing Line Loan Commitment Amount, the U.S.
Swing Line Loan Commitment Amount, the Canadian Letter of Credit Commitment Amount
or the U.S. Letter of Credit Commitment Amount on the Business Day so specified
by such Borrower and such reduction shall be binding on all Borrowers; provided,
that all such reductions shall require at 


 


45

















 


least
three Business Days’ prior notice to the Canadian Administrative Agent and be
permanent, shall be made ratably among the applicable Lenders and any partial
reduction of any Commitment Amount shall be in a minimum amount of C$5,000,000
(and in an integral multiple of C$1,000,000) for Canadian Dollar denominated
Commitments or $5,000,000 (and in an integral multiple of $1,000,000) for U.S.
Dollar denominated Commitments.


 


SECTION 2.3.  Borrowing Procedures.  Loans (other than Swing Line Loans) shall be
made by the Lenders in accordance with Section 2.3.1 and Swing Line
Loans shall be made by the applicable Swing Line Lender in accordance with Section 2.3.2.


 


SECTION 2.3.1.  Borrowing Procedure.  In the case of Loans (other than Swing Line
Loans), by delivering a Borrowing Request to the applicable Administrative
Agent on or before 10:00 a.m., Montréal time, on a Business Day, any
Borrower may from time to time irrevocably request, on not less than one
Business Day’s notice in the case of Floating Rate Loans, two Business Days’
notice in the case of Fixed Rate Loans comprised of Canadian BAs or three
Business Days’ notice in the case of Fixed Rate Loans comprised of LIBO Rate
Loans, and in any case not more than five Business Days’ notice, that a Borrowing
be made, (a) in the case of Fixed Rate Loans, in an aggregate minimum amount of
C$2,500,000 and an integral multiple of C$100,000 (for Loans denominated in
Canadian Dollars) and in an aggregate minimum amount of $2,500,000 and an
integral multiple of $100,000 (for Loans denominated in U.S. Dollars), (b) in
the case of Floating Rate Loans, in a minimum amount of C$1,000,000 and an
integral multiple of C$100,000 (for Loans denominated in Canadian Dollars) and
in an aggregate minimum amount of $1,000,000 and an integral multiple of
$100,000 (for Loans denominated in U.S. Dollars) or, in either case, in the
unused amount of the applicable Commitment; provided, that all of the
initial Loans shall be made as Floating Rate Loans and, in the case of U.S.
Term Loans (i) such Loans (unless otherwise agreed to by the U.S.
Administrative Agent acting reasonably in order to complete any requisite
assignments of the U.S. Term Loans during the primary syndication), shall
remain as Alternate Base Rate Loans without the option to convert same into
Fixed Rate Loans for a period of five Business Days following the Closing Date
and (ii) such Loans, if converted into Fixed Rate Loans at any time after the
Closing Date, shall have an initial Interest Period no greater than one
month.  On the terms and subject to the
conditions of this Agreement, each Borrowing shall be comprised of the type of
Loans, and shall be made on the Business Day, specified in such Borrowing
Request.  In the case of Loans (other
than Swing Line Loans), on or before 11:00 a.m., Montréal time, on such
Business Day, each Lender that has a Commitment to make the Loans being
requested shall deposit with the applicable Administrative Agent same day funds
in an amount equal to such Lender’s applicable Percentage of the requested
Borrowing.  Such deposit will be made to
an account which the applicable Administrative Agent shall specify from time to
time by notice to the Lenders.  To the
extent funds are received from the Lenders, the applicable Administrative Agent
shall make such funds available to the applicable Borrower by making a deposit
(or wire transfer if applicable) to the accounts such Borrower shall have
specified in its Borrowing Request.  No
Lender’s obligation to make any Loan shall be affected by any other Lender’s
failure to make any Loan.


 


SECTION 2.3.2.  Swing Line Loans; Participations, etc.  (a) By telephonic notice to the Canadian
Swing Line Lender on or before 12:00 noon, Montréal time, on a Business
Day 


 


46

















 


(followed
(within one Business Day) by the delivery of a confirming Canadian Term
Loan/Revolving Loan Borrowing Request), any Canadian Revolving Loan Borrower
may from time to time irrevocably request that Canadian Swing Line Loans be made
by the Canadian Swing Line Lender in an aggregate minimum principal amount of
C$100,000 and an integral multiple of C$100,000 (for Canadian Swing Line Loans
denominated in Canadian Dollars) and in aggregate minimum principal amount of
$100,000 and an integral multiple of $100,000 (for Canadian Swing Line Loans
denominated in U.S. Dollars).  All
Canadian Swing Line Loans shall be made as Floating Rate Loans and shall not be
entitled to be converted into Fixed Rate Loans.  The proceeds of each Canadian Swing Line Loan shall be made
available by the Canadian Swing Line Lender to such Canadian Revolving Loan
Borrower by making a deposit (or wire transfer if applicable) to the account
such Canadian Revolving Loan Borrower shall have specified in its notice therefor
by the close of business on the Business Day telephonic notice is received by
the Canadian Swing Line Lender.  Upon
the making of each Canadian Swing Line Loan, and without further action on the
part of the Canadian Swing Line Lender or any other Person, each Canadian
Revolving Loan Lender (other than the Canadian Swing Line Lender) shall be
deemed to have irrevocably purchased, to the extent of its Canadian Revolving
Loan Percentage, a participation interest in such Canadian Swing Line Loan, and
such Canadian Revolving Loan Lender shall, to the extent of its Canadian
Revolving Loan Percentage, be responsible for reimbursing within one Business
Day the Canadian Swing Line Lender for Canadian Swing Line Loans which have not
been reimbursed by the Borrowers in accordance with the terms of this
Agreement.  The notice requirements
hereinabove contemplated do not apply to Canadian Swing Line Loans obtained
from the Canadian Swing Line Lender by way of overdrafts in accounts opened for
such purpose with the Canadian Swing Line Lender up to a maximum outstanding
amount not exceeding the available portion of the Canadian Swing Line Loan
Commitment.  Any cheque or payment
instruction or debit authorization from a Canadian Revolving Loan Borrower
resulting in an overdraft in any such account will be deemed to be a request
for such Canadian Swing Line Loan in an amount that is sufficient to cover the
overdraft.  Such accounts may include
accounts of each Canadian Revolving Loan Borrower and of its Affiliates in
respect of which set-off and netting arrangements have been made with the
Canadian Swing Line Lender, including any notional account reflecting any such
arrangements (a “Compensation Agreement”).  The outstanding Canadian Swing Line Loans owed to the Canadian Swing
Line Lender may be calculated after giving effect to such arrangements.


 


(b)  By
telephonic notice to the U.S. Swing Line Lender on or before 12:00 noon,
Montréal time, on a Business Day (followed (within one Business Day) by the
delivery of a confirming Canadian Term Loan/Revolving Loan Borrowing Request),
any U.S. Revolving Loan Borrower may from time to time irrevocably request that
U.S. Swing Line Loans be made by the U.S. Swing Line Lender in an aggregate
minimum principal amount of $100,000 and an integral multiple of $100,000.  All U.S. Swing Line Loans shall be made as
Floating Rate Loans and shall not be entitled to be converted into Fixed Rate
Loans.  The proceeds of each U.S. Swing
Line Loan shall be made available by the U.S. Swing Line Lender to such U.S.
Revolving Loan Borrower by wire transfer to (or making a deposit in) the
account such U.S. Revolving Loan Borrower shall have specified in its notice
therefor by the close of business on the Business Day telephonic notice is
received by the U.S. Swing Line Lender. 
Upon the making of each U.S. Swing Line Loan, and without further action
on the part of the U.S. Swing Line Lender or any 


 


47

















 


other
Person, each U.S. Revolving Loan Lender (other than the U.S. Swing Line Lender)
shall be deemed to have irrevocably purchased, to the extent of its U.S.
Revolving Loan Percentage, a participation interest in such U.S. Swing Line
Loan, and such U.S. Revolving Loan Lender shall, to the extent of its U.S.
Revolving Loan Percentage, be responsible for reimbursing within one Business
Day the U.S. Swing Line Lender for U.S. Swing Line Loans which have not been
reimbursed by the Borrowers in accordance with the terms of this Agreement.  The notice requirements contemplated in this
clause do not apply to U.S. Swing Line Loans obtained from the U.S. Swing Line
Lender by way of overdrafts in accounts opened for such purpose with the U.S.
Swing Line Lender up to a maximum outstanding amount not exceeding the available
portion of the U.S. Swing Line Loan Commitment.  Any cheque or payment instruction or debit authorization from
such U.S. Revolving Loan Borrower resulting in an overdraft in any such account
will be deemed to be a request for such U.S. Swing Line Loan in an amount that
is sufficient to cover the overdraft. 
Such accounts may include accounts of such U.S. Revolving Loan Borrower
and of its Affiliates in respect of which Compensation Agreements have been
made with the U.S. Swing Line Lender. 
The outstanding U.S. Swing Line Loans owed to the U.S. Swing Line Lender
may be calculated after giving effect to such arrangements.


 


(c)  If (i) any
Swing Line Loan shall be outstanding for more than five Business Days,
(ii) any Swing Line Loan is or will be outstanding on a date when any
Borrower requests that a Revolving Loan be made, (iii) the aggregate
outstanding principal amount of the Canadian Swing Line Loans or the U.S. Swing
Line Loans, as the case may be, shall exceed at any time the then existing
Canadian Swing Line Loan Commitment or the U.S. Swing Line Loan Commitment, as
the case may be, or (iv) any Default shall occur and be continuing, then each
applicable Revolving Loan Lender (other than the applicable Swing Line Lender)
irrevocably agrees that it will, at the request of the applicable Swing Line
Lender, make an applicable Revolving Loan (which shall initially be funded as a
Floating Rate Loan) in an amount equal to such Lender’s applicable Revolving
Loan Percentage of the aggregate principal amount of all such Swing Line Loans
then outstanding (such outstanding Swing Line Loans hereinafter referred to as
the “Refunded Swing Line Loans”). 
On or before 11:00 a.m., Montréal time, on the first Business Day
following receipt by each such Revolving Loan Lender of a request to make
Revolving Loans as provided in the preceding sentence, each Revolving Loan
Lender shall wire transfer to an account specified by the applicable Swing Line
Lender the amount so requested in same day funds and such funds shall be applied
by the applicable Swing Line Lender to repay the Refunded Swing Line
Loans.  At the time the applicable
Revolving Loan Lenders make the above referenced Revolving Loans, the
applicable Swing Line Lender shall be deemed to have made, in consideration of
the making of the Refunded Swing Line Loans, Revolving Loans in an amount equal
to the applicable Swing Line Lender’s applicable Revolving Loan Percentage of
the aggregate principal amount of the Refunded Swing Line Loans.  Upon the making (or deemed making, in the
case of the applicable Swing Line Lender) of any Revolving Loans pursuant to
this clause, the amount so funded shall become an outstanding applicable
Revolving Loan and shall no longer be owed as a Swing Line Loan.  All interest payable with respect to any
Revolving Loans made (or deemed made, in the case of the applicable Swing Line
Lender) pursuant to this clause shall be appropriately adjusted to reflect the
period of time during which the applicable Swing Line Lender had outstanding
Swing Line Loans in respect of which such Revolving Loans were made.  Each Revolving Loan Lender’s 


 


48

















 


obligation
to make the Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including
(i) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the applicable Swing Line Lender, any Obligor or
any Person for any reason whatsoever; (ii) the occurrence or continuance
of any Default; (iii) any adverse change in the condition (financial or
otherwise) of any Obligor; (iv) the acceleration or maturity of any
Obligations or the termination of any Commitment after the making of any Swing
Line Loan; (v) any breach of any Loan Document by any Person; or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.


 


SECTION 2.4.  Continuation and Conversion Elections.  By delivering the applicable
Continuation/Conversion Notice to the applicable Administrative Agent on or
before 10:00 a.m., Montréal
time, on a Business Day, any Borrower may from time to time irrevocably elect,
on not less than one Business Day’s notice in the case of Floating Rate Loans,
two Business Days’ notice in the case of Fixed Rate Loans comprised of BAs or
three Business Days’ notice in the case of Fixed Rate Loans comprised of LIBO
Rate Loans, and in any case not more than five Business Days’ notice, that all,
or any portion in an aggregate minimum amount of C$2,500,000 and an integral
multiple of C$100,000 (in the case of Loans denominated in Canadian Dollars)
and in an aggregate minimum amount of $2,500,000 and an integral multiple of
$100,000 (in the case of Loans denominated in U.S. Dollars) be, in the case of
Floating Rate Loans, converted into Fixed Rate Loans, or in the case of Fixed
Rate Loans, converted into Floating Rate Loans or continued as Fixed Rate Loans
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any Fixed Rate Loan at least three Business Days (but not more than five
Business Days) before the last day of the then current Interest Period with
respect thereto, such Fixed Rate Loan shall, on such last day, automatically
convert to a Floating Rate Loan); provided, that (i) each such
conversion or continuation shall be pro rated among the applicable outstanding
Loans of all Lenders that have made such Loans, and (ii) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, Fixed Rate Loans when any Default has occurred and is continuing.  The conversion of a Floating Rate Loan into
a Fixed Rate Loan or a Fixed Rate Loan into a Floating Rate Loan shall not
effect a novation of the Loan so converted.


 


SECTION
2.4.1.  Converting Canadian Prime Rate
Loans to, or Continuing Canadian BAs as, Canadian BAs.  Provided that any Canadian Borrower has, by
giving notice to the Canadian Administrative Agent in accordance with Section 2.4,
requested the Canadian Facility Lenders to accept its drafts to replace all or
a portion of an outstanding Canadian Loan, then each Canadian Facility Lender
shall, on the date of conversion or continuation, as applicable, and concurrent
with the payment by such Canadian Borrower to the Canadian Administrative Agent
on behalf of the Canadian Facility Lenders of an amount equal to the difference
between the principal or face amount of such outstanding Canadian Loan or the
portion thereof which is being converted or continued and the aggregate
Notional BA Proceeds with respect to the drafts to be accepted by the Canadian
Facility Lenders, accept such Canadian Borrower’s draft or drafts having an
aggregate face amount equal to its Percentage of the aggregate principal or
face amount of such Canadian Loan or the portion thereof which is being
converted or continued, such acceptance to be in accordance with Section 2.8.


 


49

















 


SECTION 2.4.2.  Converting Canadian BAs to Canadian Prime
Rate Loans.  Each Canadian Facility
Lender shall, at the end of an Interest Period with respect to Canadian BAs
which such Canadian Facility Lender has accepted, pay to the holder thereof the
face amount of such Canadian BA.  Provided
that any Canadian Borrower has, by giving notice to the Canadian Administrative
Agent in accordance with Section 2.4, requested a Canadian Facility
Lender to convert all or a portion of outstanding maturing Canadian BAs into a
Canadian Prime Rate Loan, such Canadian Facility Lender shall, upon the end of
the current Interest Period with respect to such Canadian BAs and the payment
by such Canadian Facility Lender to the holders of such Canadian BAs of the
aggregate face amount thereof, be deemed to have made to the applicable
Canadian Borrower the Canadian Prime Rate Loan into which the matured Canadian
BAs or a portion thereof are converted in the aggregate principal amount equal
to its Canadian Revolving Loan Percentage or Canadian Term Loan Percentage, as
the case may be, of the aggregate face amount of the matured Canadian BAs or
the portion thereof which are being converted.


 


SECTION 2.5.  Funding.  Each Lender may, if it so elects, fulfill its obligation to make,
continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches
or Affiliates (or an international banking facility created by such Lender) to
make or maintain such LIBO Rate Loan; provided, that such LIBO Rate Loan
shall nonetheless be deemed to have been made and to be held by such Lender,
and the obligation of the Borrowers to repay such LIBO Rate Loan shall
nevertheless be to such Lender for the account of such foreign branch,
Affiliate or international banking facility, provided  further,
that any such foreign branch, affiliate or international banking facility shall
not be considered as a Lender hereunder for any purpose and shall have no right
or remedy under the Loan Documents against any of the Obligors.  In addition, each Borrower hereby consents
and agrees that, for purposes of any determination to be made for purposes of Sections
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed
that each Lender elected to fund all LIBO Rate Loans by purchasing deposits in
its LIBOR Office’s interbank eurodollar market.


 


SECTION 2.6.  Issuance Procedures.  (a) By delivering to the Canadian
Administrative Agent an Issuance Request on or before 10:00 a.m., Montréal
time, on a Business Day, any Borrower may from time to time irrevocably request
on not less than three nor more than ten Business Days’ notice, in the case of
an initial issuance of a Canadian Letter of Credit and not less than three
Business Days’ prior notice, in the case of a request for the extension of the
Stated Expiry Date of a standby Canadian Letter of Credit (in each case, unless
a shorter notice period is agreed to by the Issuer, in its sole discretion),
that the Issuer issue, or extend the Stated Expiry Date of, a Canadian Letter
of Credit in such form as may be requested by such Borrower and approved by the
Issuer, solely for the purposes described in Section 7.1.7.  At the request of the Issuer and with ACT’s
consent (not to be unreasonably withheld), another Lender may issue one or more
Canadian Letters of Credit hereunder. 
Notwithstanding anything to the contrary contained herein or in any separate
application for any Canadian Letter of Credit, each Borrower hereby
acknowledges and agrees that it shall be deemed to be the obligor for purposes
of each Canadian Letter of Credit issued hereunder, whether the account party
on such Canadian Letter of Credit is a Borrower or another Obligor) and shall
be obligated to reimburse the Issuer of such Canadian Letter of Credit in
accordance with the reimbursement provisions herein.  Each Canadian Letter of Credit shall by its terms be stated to
expire on a date (its “Stated Expiry 


 


50

















 


Date”)
no later than the earlier to occur of (i) the Canadian Revolving Loan
Commitment Termination Date or (ii) (unless otherwise agreed to by the Issuer,
in its sole discretion), one year from the date of its issuance or
extension.  The Issuer will make
available to the beneficiary thereof the original of the Canadian Letter of
Credit which it issues or extends.


 


(b)  By
delivering to the Canadian Administrative Agent an Issuance Request on or
before 10:00 a.m., Montréal time, on a Business Day, any Borrower may from
time to time irrevocably request on not less than three nor more than ten
Business Days’ notice, in the case of an initial issuance of a U.S. Letter of
Credit and not less than three Business Days’ prior notice, in the case of a
request for the extension of the Stated Expiry Date of a standby U.S. Letter of
Credit (in each case, unless a shorter notice period is agreed to by the
Issuer, in its sole discretion), that the Issuer issue, or extend the Stated
Expiry Date of, a U.S. Letter of Credit in such form as may be requested by
such Borrower and approved by the Issuer, solely for the purposes described in Section
7.1.7.  At the request of the Issuer
and with ACT’s consent (not to be unreasonably withheld), another Lender may
issue one or more U.S. Letters of Credit hereunder.  Notwithstanding anything to the contrary contained herein or in
any separate application for any U.S. Letter of Credit, each Borrower hereby acknowledges
and agrees that it shall be deemed to be the obligor for purposes of each U.S.
Letter of Credit issued hereunder, whether the account party on such U.S.
Letter of Credit is a Borrower or another Obligor) and shall be obligated to
reimburse the Issuer of such U.S. Letter of Credit in accordance with the
reimbursement provisions herein.  Each
U.S. Letter of Credit shall by its terms be stated to expire on a date (its “Stated
Expiry Date”) no later than the earlier to occur of (i) the U.S.
Revolving Loan Commitment Termination Date or (ii) (unless otherwise agreed to
by the Issuer, in its sole discretion), one year from the date of its
issuance or extension.  The Issuer will
make available to the beneficiary thereof the original of the U.S. Letter of
Credit which it issues or extends.


 


SECTION 2.6.1.  Other Lenders’ Participation.  Upon the issuance of each Letter of Credit,
and without further action, each applicable Revolving Loan Lender (other than
the Issuer) shall be deemed to have irrevocably purchased, to the extent of its
applicable Revolving Loan Percentage, a participation interest in such Letter
of Credit (including the Contingent Liability of such Issuer and the right to
receive any Reimbursement Obligation with respect thereto), and such Revolving
Loan Lender shall, to the extent of its applicable Revolving Loan Percentage,
be responsible for reimbursing (in the applicable Currency) within one Business
Day after receipt of a request therefor, the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrowers in accordance with Section
2.6.3.  In addition, such Revolving
Loan Lender shall, to the extent of its applicable Revolving Loan Percentage,
be entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit (other
than the issuance fees payable to the Issuer of such Letter of Credit pursuant
to the last sentence of Section 3.3.3) and of interest payable pursuant
to Section 3.2 with respect to any Reimbursement Obligation.  To the extent that any Revolving Loan Lender
has reimbursed any Issuer for a Disbursement, such Lender shall be entitled to
receive its ratable portion of any amounts subsequently received (from the
Borrowers or otherwise) in respect of such Disbursement.


 


51

















 


SECTION 2.6.2.  Disbursements.  An Issuer will notify ACT and the Canadian
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by such Issuer, together with notice of the date (the “Disbursement
Date”) such payment shall be made (each such payment, a “Disbursement”).  Subject to the terms and provisions of such
Letter of Credit and this Agreement, the applicable Issuer shall make such
payment to the beneficiary (or its designee) of such Letter of Credit.  Prior to 11:00 a.m., Montréal time, on
the third Business Day following the Disbursement Date, the Borrowers agree
that they will reimburse the Canadian Administrative Agent, for the account of
the applicable Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at a rate per annum equal
to the rate per annum then in effect for Floating Rate Loans (with the then
Applicable Margin for applicable Revolving Loans accruing on such amount)
pursuant to Section 3.2 for the period from the Disbursement Date
through the date of such reimbursement. 
Without limiting in any way the foregoing and notwithstanding anything
to the contrary contained herein or in any separate application for any Letter
of Credit, each Borrower hereby acknowledges and agrees that it shall be
obligated to reimburse the applicable Issuer upon each Disbursement of a Letter
of Credit, and it shall be deemed to be the obligor for purposes of each such
Letter of Credit issued hereunder (whether the account party on such Letter of
Credit is a Borrower or another Obligor).


 


SECTION 2.6.3.  Reimbursement.  The obligation (a “Reimbursement
Obligation”) of the Borrowers under Section 2.6.2 to reimburse an
Issuer with respect to each Disbursement (including interest thereon), and,
upon the failure of the Borrowers to reimburse an Issuer, each Revolving Loan
Lender’s obligation under Section 2.6.1 to reimburse an Issuer, shall be
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrowers or such
Revolving Loan Lender, as the case may be, may have or have had against such
Issuer or any Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (if, in
such Issuer’s good faith opinion, such Disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit; provided, that after paying in full
its Reimbursement Obligation hereunder, nothing herein shall adversely affect
the right of any Borrower or such Lender, as the case may be, to commence any
proceeding against an Issuer for any wrongful Disbursement made by such Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of such Issuer.


 


SECTION 2.6.4.  Deemed Disbursements.  Upon the occurrence and during the
continuation of any Default with respect to U.S. Obligors under clauses (c)
or (d) of Section 8.1.9 or upon notification by the Canadian
Administrative Agent (acting at the direction of the Required Lenders) to ACT,
following the occurrence and during the continuation of any other Event of
Default,


 


(a)  the aggregate Stated Amount of all Letters
of Credit shall, without demand upon or notice to any Borrower or any other
Person, be deemed to have been paid or disbursed by the Issuers of such Letters
of Credit (notwithstanding that such amount may not in fact have been paid or
disbursed); and


 


52

















 


(b)  each Borrower shall be immediately obligated
to reimburse the Issuers for the amount deemed to have been so paid or
disbursed by such Issuers.


 


Amounts payable by the Borrowers pursuant to this Section shall be
deposited in immediately available funds with the Canadian Administrative Agent
and held as collateral security for the Reimbursement Obligations in an
interest-bearing trust account for the benefit of the applicable
Borrowers.  When all Defaults giving
rise to the deemed disbursements under this Section have been cured or waived
the Canadian Administrative Agent shall return to the applicable Borrowers all
amounts then on deposit with the Canadian Administrative Agent pursuant to this
Section which have not been applied to the satisfaction of the Reimbursement
Obligations.


 


SECTION 2.6.5.  Nature of Reimbursement Obligations.  Each Borrower, each other Obligor and, to
the extent set forth in Section 2.6.1, each Revolving Loan Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof.  No Issuer
(except to the extent of its own gross negligence or willful misconduct) shall
be responsible for:


 


(a)  the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any document submitted
by any party in connection with the application for and issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;


 


(b)  the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any reason;


 


(c)  failure of the beneficiary to comply fully
with conditions required in order to demand payment under a Letter of Credit;


 


(d)  errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telegraph, telex
or otherwise; or


 


(e)  any loss or delay in the transmission or
otherwise of any document or draft required in order to make a Disbursement
under a Letter of Credit.


 


None of the foregoing shall affect, impair or prevent the vesting of
any of the rights or powers granted to any Issuer or any Revolving Loan Lender
hereunder.  In furtherance and not in
limitation or derogation of any of the foregoing, any action taken or omitted
to be taken by an Issuer in good faith (and not constituting gross negligence or
willful misconduct) shall be binding upon each Obligor and each such Revolving
Loan Lender, and shall not put such Issuer under any resulting liability to any
Obligor or any Revolving Loan Lender, as the case may be.


 


SECTION 2.6.6.  Deemed Utilization.  The letters of credit listed in Schedule VI
shall be deemed to be Canadian Letters of Credit Outstandings under the
Canadian Letter of Credit Commitment. 
The Letter of Credit fee contemplated in Section 3.3.3 shall
apply, as of and from 


 


53

















 


the
Closing Date, to the aforesaid deemed Canadian Letter of Credit
Outstandings.  Therefore, the Canadian
Borrowers, on the one hand, and the Canadian Facility Lenders, through the
Canadian Administrative Agent, on the other hand, shall settle among themselves
and pay to each other as required, the appropriate amount resulting from such
adjustment to the pricing applicable to such Canadian Letter of Credit
Outstandings, the whole by taking into consideration the remaining period of
time to lapse until the Stated Expiry Date applicable to such Canadian Letters
of Credit and the stated amount of each one thereof.


 


SECTION 2.7.  Register; Notes.  (a)  Each Borrower hereby designates the Canadian Administrative Agent
to serve as such Borrower’s agent, solely for the purpose of this clause, to
maintain a register (the “Canadian Register”) on which the Canadian
Administrative Agent will record each Canadian Term Loan Lender’s, each
Canadian Revolving Loan Lender’s and each U.S. Revolving Loan Lender’s
Commitment, the Loans made by each such Lender and each repayment in respect of
the principal amount of the Canadian Term Loans and Revolving Loans, annexed to
which the Canadian Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Canadian Administrative Agent pursuant to
Section 11.11.  Failure to make
any recordation, or any error in such recordation, shall not affect any
Obligor’s Obligations.  The entries in
the Canadian Register shall constitute prima
facie evidence, and the Borrowers, the Canadian Administrative Agent
and the Lenders shall treat each Person in whose name a Canadian Term Loan or
Revolving Loan is registered (or, if applicable, to which a Canadian Term Note
or a Revolving Note has been issued) as the owner thereof for the purposes of
all Loan Documents, notwithstanding notice or any provision herein to the
contrary.  Any assignment or transfer of
a Canadian Facility Lender’s or U.S. Revolving Loan Lender’s Commitment or the
Canadian Term Loans or Revolving Loans made pursuant hereto shall be registered
in the Canadian Register only upon delivery to the Canadian Administrative
Agent of a Lender Assignment Agreement that has been executed by the requisite
parties pursuant to Section 11.11. 
No assignment or transfer of a Canadian Facility Lender’s or U.S.
Revolving Loan Lender’s Commitments, Canadian Term Loans or Revolving Loans
shall be effective unless such assignment or transfer shall have been recorded
in the Canadian Register by the Canadian Administrative Agent as provided in
this Section.


 


(b)  Each
Borrower agrees that, upon the request to the Canadian Administrative Agent by
any Canadian Facility Lender or U.S. Revolving Loan 


 


54

















 


Lender,
such Borrower will execute and deliver to such Canadian Facility Lender or U.S.
Revolving Loan Lender a Canadian Term Note or a Revolving Note, as the case may
be, evidencing the Canadian Term Loans or Revolving Loans made by, and payable
to the order of, such Canadian Facility Lender or U.S. Revolving Loan Lender in
a maximum principal amount equal to such Canadian Facility Lender’s or U.S.
Revolving Loan Lender’s applicable Percentage of the original (in the case of
Canadian Term Loans) or then applicable (in the case of Canadian Revolving
Loans) Commitment Amount; provided, that upon any assignment or transfer
of a Canadian Facility Lender’s or U.S. Revolving Loan Lender’s Commitments or
Canadian Term Loans or Revolving Loans, such Canadian Facility Lender or U.S.
Revolving Loan Lender shall surrender to the relevant Borrowers its Canadian
Term Notes and Revolving Notes.  Each
Borrower hereby irrevocably authorizes each Canadian Facility Lender to make
(or cause to be made) appropriate notations on the grid attached to such
Canadian Facility Lender’s or U.S. Revolving Loan Lender’s Notes (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest
rate and Interest Period applicable to the Canadian Term Loans or Revolving
Loans evidenced thereby.  Such notations
shall, to the extent not inconsistent with notations made by the Canadian
Administrative Agent in the Canadian Register, constitute prima facie evidence; provided,
that the failure of any Canadian Facility Lender or U.S. Revolving Loan Lender
to make any such notations or any error in such notations shall not limit or
otherwise affect any Obligations of any Obligor.


 


(c)  Each
Borrower hereby designates the U.S. Administrative Agent to serve as such
Borrower’s agent, solely for the purpose of this clause, to maintain a register
(the “U.S. Register”) on which the U.S. Administrative Agent will record
each U.S. Term Loan Lender’s U.S. Term Loan Commitment and the U.S. Term Loans
made by such Lender and each repayment in respect of the principal amount of
the U.S. Term Loans, annexed to which the U.S. Administrative Agent shall
retain a copy of each Lender Assignment Agreement delivered to the U.S.
Administrative Agent pursuant to Section 11.11.  Failure to make any recordation, or any
error in such recordation, shall not affect any Obligor’s Obligations.  The entries in the U.S. Register shall
constitute prima facie evidence,
and the Borrowers, the U.S. Administrative Agent and the Lenders shall treat
each Person in whose name a U.S. Term Loan is registered (or, if applicable, to
which a U.S. Term Note has been issued) as the owner thereof for the purposes
of all Loan Documents, notwithstanding notice or any provision herein to the
contrary.  Any assignment or transfer of
a U.S. Term Loan made pursuant hereto shall be registered in the U.S. Register
only upon delivery to the U.S. Administrative Agent of a Lender Assignment
Agreement that has been executed by the requisite parties pursuant to Section
11.11.  No assignment or transfer of
a U.S. Term Loan shall be effective unless such assignment or transfer shall
have been recorded in the U.S. Register by the U.S. Administrative Agent as
provided in this Section.


 


(d)  Each
Borrower agrees that, upon the request to the U.S. Administrative Agent by any
U.S. Term Loan Lender, such Borrower will execute and deliver to such U.S. Term
Loan Lender a U.S. Term Note evidencing the U.S. Term Loans made by, and
payable to the order of, such U.S. Term Loan Lender in a maximum principal
amount equal to such U.S. Term Loan Lender’s U.S. Term Loan Percentage of the
then aggregate outstanding principal amount of U.S. Term Loans; provided,
that upon any assignment or transfer of U.S. Term Loans, such U.S. Term Loan
Lender shall surrender to the relevant Borrower its U.S. Term Notes.  Each Borrower hereby irrevocably authorizes
each U.S. Term Loan Lender to make (or cause to be made) appropriate notations
on the grid attached to such U.S. Term Loan Lender’s U.S. Term Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest
rate and Interest Period applicable to the U.S. Term Loans evidenced thereby.  Such notations shall, to the extent not
inconsistent with notations made by the U.S. Administrative Agent in the U.S.
Register, constitute prima facie evidence;
provided, that the failure of any U.S. Term Loan Lender to make any such
notations or any error in such notations shall not limit or otherwise affect
any Obligations of any Obligor.


 


55

















 


SECTION 2.8.  Canadian BAs.  Not in limitation of any other provision of
this Agreement, but in furtherance thereof, the provisions of this Section
shall further apply to the acceptance, rolling over and conversion of Canadian
BAs.


 


SECTION 2.8.1.  Funding of Canadian BAs.  If the Canadian Administrative Agent
receives a Canadian Term Loan/Revolving Loan Borrowing Request or a Canadian
Term Loan/Revolving Loan Continuation/Conversion Notice from any Canadian
Revolving Loan Borrower requesting a Borrowing or a rollover of or a conversion
into a Canadian Revolving Loan by way of Canadian BAs, the Canadian Administrative
Agent shall notify each of the applicable Canadian Revolving Loan Lenders, on
the same Business Day on which it shall have received such request, of such
request and of each such Canadian Revolving Loan Lender’s applicable Percentage
of such Canadian Revolving Loan.  Each
applicable Canadian Revolving Loan Lender shall, not later than 10:00 a.m.,
Montréal time, on the date of each Canadian Loan by way of Canadian BAs
(whether in respect of the Credit Extension or pursuant to a rollover or
conversion), accept drafts of a Canadian Revolving Loan Borrower which are
presented to it for acceptance and which have an aggregate face amount equal to
such Canadian Revolving Loan Lender’s applicable Percentage of the total
Canadian Revolving Loan being made available by way of Canadian BAs on such
date.  With respect to each draw down
of, rollover of or conversion into Canadian BAs, no Canadian Revolving Loan
Lender shall be required to accept any draft which has a face amount which is
not in a minimum amount of C$100,000 and an integral multiple of
C$100,000.  Concurrent with the
acceptance of drafts of any Canadian Revolving Loan Borrower as aforesaid, each
applicable Canadian Revolving Loan Lender shall make available to the Canadian
Administrative Agent the aggregate Notional BA Proceeds with respect to the
Canadian BAs being purchased by such Canadian Revolving Loan Lender (net of the
aggregate amount required to repay such Canadian Revolving Loan Lender’s
outstanding Canadian BAs that are maturing on such date and/or Floating Rate
Loans of such Canadian Revolving Loan Lender that are being converted on such
date).  The Canadian Administrative
Agent shall make such amount, if any, received from the applicable Canadian
Revolving Loan Lenders available to the applicable Canadian Revolving Loan
Borrower on the date of such Canadian Revolving Loan by crediting the
designated account of such Canadian Revolving Loan Borrower.  Each Canadian BA to be accepted by any
Canadian Revolving Loan Lender shall be accepted by such Canadian Revolving
Loan Lender at its Domestic Office located in Canada.


 


SECTION 2.8.2.  Execution of Canadian BAs.  To facilitate the acceptance of Canadian BAs
hereunder, each Canadian Revolving Loan Borrower hereby appoints each Canadian
Revolving Loan Lender as its attorney to sign and endorse on its behalf, as and
when considered necessary by the Canadian Revolving Loan Lender, an appropriate
number of drafts in the form prescribed by that Canadian Revolving Loan Lender.  Each Canadian Revolving Loan Lender may, at
its option, execute any draft in handwriting or by the facsimile or mechanical
signature of any of its authorized officers, and the Canadian Revolving Loan
Lenders are hereby authorized to accept or pay, as the case may be, any draft
of any Canadian Revolving Loan Borrower which purports to bear such a signature
notwithstanding that any such individual has ceased to be an authorized officer
of the Canadian Revolving Loan Lender, in which case any such draft or Canadian
BA shall be as valid as if he or she were an authorized officer at the date of
issue of the draft or Canadian BA.  Any
drafts or Canadian BA signed by a Canadian 


 


56

















 


Revolving
Loan Lender as attorney for any Canadian Revolving Loan Borrower, whether
signed in handwriting or by the facsimile or mechanical signature of an
authorized officer of a Canadian Revolving Loan Lender, may be dealt with by
the Canadian Administrative Agent or any Canadian Revolving Loan Lender to all
intents and purposes and shall bind each Borrower as if duly signed and issued
by a Canadian Revolving Loan Borrower. 
The receipt by the Canadian Administrative Agent of a request for a
Borrowing by way of Canadian BAs shall constitute each applicable Canadian
Revolving Loan Lender’s sufficient authority to execute, and each applicable
Canadian Revolving Loan Lender shall, subject to the terms and conditions of
this Agreement, execute drafts in accordance with such request and the advice
of the Canadian Administrative Agent given pursuant to this Section, and the
drafts so executed shall thereupon be deemed to have been presented for
acceptance.


 


SECTION 2.8.3.  Special Provisions Relating to Acceptance
Notes.  (a)  Each Canadian Revolving Loan Borrower and
each Lender hereby acknowledges and agrees that from time to time certain
Canadian Revolving Loan Lenders may not be authorized to or may, as a matter of
general corporate policy, elect not to, accept Canadian BA drafts, and each
Canadian Revolving Loan Borrower and each Lender agrees that any such Canadian
Revolving Loan Lender may purchase Acceptance Notes of any Canadian Revolving
Loan Borrower in accordance with the provisions of clause (b) in
lieu of accepting Canadian BAs for its account.


 


(b)  In the event
that any Canadian Revolving Loan Lender described in clause (a) is
unable to, or elects as a matter of general corporate policy not to, accept
Canadian BAs hereunder, such Canadian Revolving Loan Lender shall not accept
Canadian BAs hereunder, but rather, if any Canadian Revolving Loan Borrower
requests the acceptance of such Canadian BAs, such Canadian Revolving Loan
Borrower shall deliver to such Canadian Revolving Loan Lender non-interest
bearing promissory notes (each, an “Acceptance Note”) of such Canadian
Revolving Loan Borrower, substantially in the form of Exhibit A-7
hereto, having the same maturity as the Canadian BAs that would otherwise be
accepted by such Canadian Revolving Loan Lender and in an aggregate principal
amount equal to the undiscounted face amount of such Canadian BAs.  Each Canadian Revolving Loan Lender hereby
agrees to purchase each Acceptance Note from any Canadian Revolving Loan
Borrower at a purchase price equal to the Notional BA Proceeds for a Lender
which would have been applicable if a Canadian BA draft had been accepted by
such Lender and such Acceptance Notes shall be governed by the provisions of
this Article II as if they were Canadian BAs.


 


SECTION 2.9.  Increase in Commitments.  At any time that no Default has occurred and
is continuing and the Permitted Sale-Leaseback has been consummated resulting
in no less than $200,000,000 of Net Disposition Proceeds, ACT may, by notice to
the Administrative Agents, request that on the terms and subject to the
conditions contained in this Agreement, the Lenders or Eligible Assignees (not
then a party to this Agreement) provide up to an aggregate amount of
$100,000,000 (or such lesser amount then permitted by the terms of Subordinated
Debt) in additional loan commitments consisting of revolving loan commitments
denominated in any Currency (the “Additional Revolving Loan Commitments”)
and/or term loan commitments denominated in any Currency (the “Additional
Term Loan Commitments”, and collectively, with the Additional Revolving
Loan Commitments, the “Additional Loan Commitments”).  Upon 


 


57

















 


receipt
of such notice, the Administrative Agents shall use commercially reasonable
efforts to arrange for the Lenders to provide such Additional Loan Commitments;
provided, that the Administrative Agents will first offer each of the
Lenders that then has a Percentage of the Revolving Loan Commitment or has
outstanding Term Loans, as applicable, a pro rata portion (based upon the
applicable Revolving Loan Commitment Amount or applicable aggregate outstanding
principal amount of Term Loans, as applicable, at such time) of any such
Additional Loan Commitments. 
Alternatively, any Lender may commit to provide the full amount of the
requested Additional Loan Commitments and then offer portions of such
Additional Loan Commitments to the other Lenders or Eligible Assignees, subject
to the proviso in the immediately preceding sentence.  Nothing contained in this Section or otherwise in this Agreement
is intended to commit any Lender or any Agent to provide any portion of any
such Additional Loan Commitments.


 


If and to the
extent that any Lenders or Eligible Assignees agree, in their sole discretion,
to provide any Additional Revolving Loan Commitments, (i) the applicable
Revolving Loan Commitment Amount shall be increased by the amount of the
Additional Revolving Loan Commitments agreed to be so provided, (ii) the
Percentages of the respective Lenders in respect of the applicable Revolving
Loan Commitment shall be proportionally adjusted, as applicable, (iii) at such
time and in such manner as ACT and the Canadian Administrative Agent shall
agree, the Lenders shall assign and assume outstanding applicable Revolving
Loans and participations in outstanding applicable Letters of applicable Credit
and applicable Swing Line Loans so as to cause the amount of such applicable
Revolving Loans and participations held by each Lender to conform to the
respective percentages of the applicable Revolving Loan Commitments of the
Lenders and (iv) the Borrowers shall execute and deliver (or cause to be
executed and delivered) any additional Notes or other amendments or
modifications to this Agreement or any other Loan Document as the
Administrative Agents may reasonably request and acceptable to ACT (acting
reasonably).  If and to the extent that
any Lenders or Eligible Assignees agree, in their sole discretion, to provide
any such Additional Term Loan Commitments, (i) the Borrowers shall deliver to
the Administrative Agents an applicable term loan commitment addendum, in form
and substance acceptable to the Administrative Agents, setting forth the
aggregate amount of the requested Additional Term Loan Commitments and the
applicable Percentage of each Lender or Eligible Assignee providing such
Additional Term Loan Commitments, (ii) the interest rate applicable to
additional term loans shall be mutually agreed upon at the time the Additional
Term Loan Commitments are provided (but after giving effect to the then
prevailing mark-to-market of Term Loans then outstanding in the secondary
trading of such Term Loans, as determined by the Arrangers), (iii) unless
specifically set forth herein or in the applicable term loan commitment
addendum, all other terms of the Additional Term Loans shall be identical to
those of the U.S. Term Loans or Canadian Term Loans (but after giving effect to
the then prevailing mark-to-market of Term Loans then outstanding in the
secondary trading of such Term Loans, as determined by the Arrangers), as
applicable, and (iv) the Borrowers shall execute and deliver any additional
Notes or other amendments or modifications to this Agreement or any other Loan
Document as the Administrative Agents may reasonably request and acceptable to
ACT (acting reasonably).  Any request by
ACT under this Section shall be binding on all Obligors.  The parties hereto agree that the
Administrative Agents are entitled to execute on behalf of the Secured Parties
any amendments or modifications reasonably required to effectuate 


 


58

















 


the foregoing.  The
Administrative Agent shall have the right to set forth the conditions precedent
to the Additional Loan Commitments.


 


ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES


 


SECTION 3.1.  Repayments and Prepayments; Application.  The Borrowers agree that the Loans shall be
repaid and prepaid pursuant to the following terms.


 


SECTION 3.1.1.  Repayments and Prepayments.  The Borrowers (jointly and severally) shall
repay in full the unpaid principal amount of each Loan upon the applicable
Stated Maturity Date therefor.  Prior
thereto, payments and prepayments of the Loans shall or may be made as set
forth below.


 


(a)  From time to time on any Business Day, any
Borrower may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any


 


(i)  Loans (other than Swing Line Loans and
Canadian BAs); provided, that (A) any such prepayment of the
Term Loans shall be made pro  rata among Canadian Term Loans
and U.S. Term Loans, and pro  rata among Canadian Term Loans and
U.S. Term Loans of the same type and, if applicable, having the same Interest
Period of all Lenders that have made such Canadian Term Loans or U.S. Term
Loans (applied to the remaining amortization payments for the Canadian Term
Loans and the U.S. Term Loans, as the case may be, in such amounts as such
Borrower shall determine) and any such prepayment of Revolving Loans shall be
made pro  rata among the Canadian Revolving Loans and U.S.
Revolving Loans of the same type and, if applicable, having the same Interest
Period of all Lenders that have made such Canadian Revolving Loans or U.S.
Revolving Loans; (B) all such voluntary prepayments shall require at least
one but no more than five Business Days’ prior notice to the Canadian
Administrative Agent (with respect to Canadian Term Loans or Revolving Loans)
or to the U.S. Administrative Agent (with respect to U.S. Term Loans); and
(C) all such voluntary partial prepayments shall be, in the case of LIBO
Rate Loans, in an aggregate minimum amount of $2,500,000 and an integral
multiple of $100,000 and, in the case of Floating Rate Loans, in an aggregate
minimum amount of C$1,000,000 and an integral multiple of C$100,000 (for
Floating Rate Loans denominated in Canadian Dollars) and $1,000,000 and an
integral multiple of $100,000 (for Floating Rate Loans denominated in U.S.
Dollars) or, in either case, in the full amount of the Term Loans or the
Revolving Loans then outstanding, as the case may be; and


 


(ii)  Swing Line Loans; provided, that (A)
all such voluntary prepayments shall require prior telephonic notice to the
applicable Swing Line Lender on or before 1:00 p.m., Montréal time, on the
day of such prepayment (such notice to be confirmed in writing within
24 hours thereafter); and (B) all such voluntary partial 


 


59

















 


prepayments shall
be in an aggregate minimum amount of C$100,000 and an integral multiple of
C$100,000 (or the Canadian Equivalent Amount thereof, in the case of U.S. Swing
Line Loans) or in the full amount of the Swing Line Loans then outstanding; provided,
that such notice requirements shall not apply to a repayment, through account
deposits, of Swing Line Loans obtained by way of overdraft.


 


(b)  On any date when the sum of (i) the
aggregate outstanding principal amount of all Canadian Revolving Loans and
Canadian Swing Line Loans and (ii) the aggregate amount of all Canadian
Letter of Credit Outstandings exceeds the then Canadian Revolving Loan Commitment
Amount, the Borrowers shall make a mandatory prepayment of Canadian Revolving
Loans or Canadian Swing Line Loans or both (other than Canadian BAs), and, if
necessary, Cash Collateralize all Canadian Letter of Credit Outstandings and
all Canadian BAs, in an aggregate amount equal to such excess; provided,
that to the extent such excess is a result of Currency fluctuations that cause
the aggregate amount of Canadian Revolving Loans, Canadian Swing Line Loans and
Canadian Letters of Credit to exceed 103% of the Canadian Revolving Loan
Commitment Amount, the Borrowers shall, within three Business Days of such
date, make a mandatory prepayment of such Canadian Revolving Loans and Canadian
Swing Line Loans and, if necessary, Cash Collateralize such Canadian Letters of
Credit.  On any date when the sum of
(i) the aggregate outstanding principal amount of all U.S. Revolving Loans
and U.S. Swing Line Loans and (ii) the aggregate amount of all U.S. Letter
of Credit Outstandings exceeds the then U.S. Revolving Loan Commitment Amount,
the Borrowers shall make a mandatory prepayment of U.S. Revolving Loans or U.S.
Swing Line Loans or both, and, if necessary, Cash Collateralize all U.S. Letter
of Credit Outstandings, in an aggregate amount equal to such excess.


 


(c)  On the Stated Maturity Date and on each
Quarterly Payment Date occurring during any period set forth below, the
Borrowers shall make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all Canadian Term Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such Quarterly
Payment Date, as applicable:


 


	
  Period

  	
   

  	
  Amount of Required

  Principal Repayment

  	
   

  
	
  07/17/04
  through (and including) 01/30/05

  	
   

  	
  $

  	
  6,625,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  01/31/05
  through (and including) 07/17/05

  	
   

  	
  $

  	
  9,937,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  07/18/05
  through (and including) 07/23/06

  	
   

  	
  $

  	
  13,250,000

  	
   

  



 


60

















 


	
  Period

  	
   

  	
  Amount of Required

  Principal Repayment

  	
   

  
	
  07/24/06
  through (and including) 07/20/08

  	
   

  	
  $

  	
  16,562,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10/12/08

  	
   

  	
  $

  	
  19,875,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stated
  Maturity Date for 

  	
   

  	
  $

  	
  19,875,000

  	
   

  
	
  Canadian
  Term Loans

  	
   

  	
   

  	
  or the then
  outstanding

  principal amount of all

  Canadian Term Loans, if 

  different.

  	
   

  



 


 


(d)  On the Stated Maturity Date and on each
Quarterly Payment Date occurring during any period set forth below, the
Borrowers shall make a scheduled repayment of the aggregate outstanding
principal amount, if any, of all U.S. Term Loans in an amount equal to the
amount set forth below opposite the Stated Maturity Date or such Quarterly
Payment Date, as applicable:


 


	
  Period

  	
   

  	
  Amount of Required

  Principal Repayment

  	
   

  
	
  04/24/04
  through (and including) 01/31/10

  	
   

  	
  $

  	
  612,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  02/01/10
  through (and including) 10/10/10

  	
   

  	
  $

  	
  57,575,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stated
  Maturity Date for

  	
   

  	
  $

  	
  57,575,000

  	
   

  
	
  U.S.
  Term Loans

  	
   

  	
   

  	
  or the then
  outstanding 

  principal amount of all U.S. 

  Term Loans, if different.

  	
   

  



 


 


(e)  Subject to clause (c) of Section
3.1.2, within three Business Days following the receipt by ACT of any Net
Equity Proceeds or ACT or any of its Subsidiaries of any Net Debt Proceeds, the
Borrowers shall make a mandatory prepayment of the Loans in an amount equal to
100% of such Net Equity Proceeds or Net Debt Proceeds, to be applied as set
forth in Section 3.1.2.


 


(f)  In the event ACT or any of its Subsidiaries
receives any Net Disposition Proceeds pursuant to clause (a)(iii)
or clause (c) of Section 7.2.11 or Net Casualty Proceeds,
the Borrowers shall (i) within ten Business Days of receipt by ACT or its 


 


61

















 


Subsidiaries of
funds in excess of $1,000,000 for any single transaction, deliver to the
Administrative Agents a calculation of the aggregate amount of such Net
Disposition Proceeds or Net Casualty Proceeds, and (ii) to the extent the
aggregate amount of such Net Disposition Proceeds or Net Casualty Proceeds
received by ACT and its Subsidiaries in any Fiscal Year exceeds $10,000,000
(the “Threshold Amount”), the Borrowers shall make a mandatory
prepayment of the Canadian Term Loans and, subject to clause (c) of Section
3.1.2, the U.S. Term Loans, pro rata, in an amount equal to 100% of Net
Disposition Proceeds or Net Casualty Proceeds (and not just the amount in
excess of the Threshold Amount); provided however, that upon written
notice by ACT to the Administrative Agents not more than ten Business Days
following receipt of such Net Disposition Proceeds or Net Casualty Proceeds,
all such proceeds (referred to as the “Reinvestment Amount”) may be
retained by ACT and its Subsidiaries (and be excluded from the prepayment
requirements of this clause) if (A) no Event of Default has occurred and
is continuing, (B) ACT informs the Administrative Agents in such notice of
its good faith intention to apply (or cause one or more of its Subsidiaries to
apply) such Net Disposition Proceeds or Net Casualty Proceeds to the
acquisition of other assets or properties in the U.S. or Canada consistent with
the businesses permitted to be conducted pursuant to Section 7.2.1,
and (C) within 180 days following the receipt of such Net Disposition
Proceeds or Net Casualty Proceeds, such proceeds are applied or committed (and
actually applied within the next 170 days) to such acquisition.  The amount of such Net Disposition Proceeds
or Net Casualty Proceeds unused or uncommitted after such 180 day period (or
not actually applied after 350 days) shall (subject to clause (c) of Section
3.1.2) be applied to prepay the Loans as set forth in Section 3.1.2.  At any time after receipt of any Net
Disposition Proceeds or Net Casualty Proceeds in excess of the Threshold Amount
but prior to the application thereof to a mandatory prepayment, the acquisition
of other assets or properties as described above, or a voluntary prepayment of
Revolving Loans, following the occurrence and during the continuation of an
Event of Default, upon written request by the Administrative Agents (in their
discretion) to ACT, ACT shall deposit all of the Net Disposition Proceeds or
Net Casualty Proceeds into a cash collateral account maintained with (and
subject to documentation reasonably satisfactory to) either Administrative
Agent for the benefit of the Secured Parties (and over which such
Administrative Agent shall have a first priority perfected Lien) pending such
application as a prepayment or to be released as requested by ACT in respect of
such acquisition.  Amounts deposited in
such cash collateral account shall be invested in Cash Equivalent Investments,
as directed by ACT.


 


(g)  Within two Business Days of the occurrence
or consummation of a Permitted Sale-Leaseback, which event shall constitute an
Event of Failure, the Borrowers shall make a mandatory prepayment of the
Canadian Term Loans and an Offer to Prepay the U.S. Term Loans (in accordance
with clause (d) of Section 3.1.2 hereof), pro rata, in an amount
equal to 100% of the Net Disposition Proceeds from such Permitted
Sale-Leaseback.


 


(h)  Subject to clause (c) of Section
3.1.2, within 100 days after the last day of each Fiscal Year
(beginning with the last day of the 2005 Fiscal Year), subject to the next 


 


62

















 


sentence, the
Borrowers shall make a mandatory prepayment of the Loans in an amount equal to
50% of the Excess Cash Flow (if any) for such Fiscal Year, to be applied as set
forth in Section 3.1.2.  No
prepayment of the Loans shall be required in respect of any particular Fiscal
Year if the Adjusted Leverage Ratio as of the last day of such Fiscal Year was
less than 3.50:1.


 


(i)  Subject to clause (c) of Section
3.1.2, within three Business Days following the receipt by ACT or any of
its Subsidiaries of any Net Disposition Proceeds pursuant to clauses (b)
(to the extent such Net Disposition Proceeds have not been applied to fund the
purchase price of the assets acquired and subject to such sale and leaseback)
or (c) of Section 7.2.15, the Borrowers shall make a
mandatory prepayment of the Loans in an amount equal to 100% of such Net
Disposition Proceeds, to be applied as set forth in Section 3.1.2.


 


(j)  Immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3,
the Borrowers shall repay all the Loans, unless, pursuant to Section 8.3,
only a portion of all the Loans is so accelerated (in which case the portion so
accelerated shall be so repaid).


 


Each prepayment of any Loans made pursuant to this Section shall be the
joint and several obligations of the Borrowers, and shall be made without
premium or penalty, except as may be required by Section 4.4.


 


SECTION 3.1.2.  Application.  Amounts prepaid pursuant to Section 3.1.1
shall be applied as set forth in this Section.


 


(a)  Subject to clause (b), each
prepayment or repayment of the principal of the Loans shall be applied, to the
extent of such prepayment or repayment, first, to the principal amount
thereof being maintained as Floating Rate Loans, and second, subject to
the terms of Section 4.4, to the principal amount thereof being
maintained as Fixed Rate Loans.


 


(b)  Subject to clause (c), each
prepayment or repayment of the principal of the Loans (excluding any prepayment
pursuant to an Offer to Prepay) shall be applied first, pro rata
to a mandatory prepayment of the outstanding principal amount of all Term Loans
(with the amount of such prepayment of the Term Loans being applied to the
remaining Canadian Term Loans or U.S. Term Loans, as the case may be,
amortization payments, ratably in accordance with the amount of each such
remaining Term Loan amortization payment), and second, once all
Term Loans have been repaid in full, pro  rata to a mandatory
prepayment of any outstanding Revolving Loans; provided that, if any
Canadian Term Loans are outstanding, any U.S. Term Loan Lender that has U.S.
Term Loans outstanding may, by delivering a notice to the Administrative Agents
at least two Business Days prior to the date that such prepayment is to be
made, elect not to have its pro  rata share of U.S. Term Loans
prepaid with amounts resulting from the operation of clauses (e), (f),
(h) and (i) of Section 3.1.1 (referred to as “Prepayment
Proceeds”), and, upon any such election, the Prepayment Proceeds that
otherwise would have prepaid 


 


63

















 


such U.S. Term
Loan Lender’s U.S. Term Loans shall be applied to a mandatory prepayment of the
Canadian Term Loans until repaid in full, and then to prepay U.S. Term Loans
(but only if such prepayment will not result in withholding Taxes being payable
or assessed).


 


(c)  Notwithstanding clause (b) each
repayment and prepayment required to be made in respect of the then outstanding
U.S. Term Loans pursuant to clauses (e), (f), (h) and (i)
of Section 3.1.1 shall not, in the aggregate, at any time prior to
the Target Date exceed an amount (referred to as the “Maximum Amount”)
equal to 20% of the principal amount of the U.S. Term Loans outstanding on the
Closing Date; provided, that the foregoing shall in no way preclude a
U.S. Term Loan Lender from receiving payments in excess of the foregoing
amounts upon, during the continuance of, or in connection with, any Event of
Default.  Any prepayment amount required
to be made in respect of the U.S. Term Loans (or portion thereof) in excess of
the Maximum Amount be re-allocated to the prepayment of the Canadian Term Loans
(until repaid in full), and then to a repayment (pro rata) to the Revolving
Loans (without a reduction in the available Revolving Loan Commitment Amounts).


 


(d)  Each Offer to Prepay required to be made
pursuant to clause (g) of Section 3.1.1 shall be made by the U.S.
Term Loan Borrower by executing and delivering to the U.S. Administrative Agent
a notice of Offer to Prepay pursuant to which it shall make an offer to the
U.S. Term Loan Lenders to voluntarily prepay the U.S. Term Loans.  Each U.S. Term Loan Lender shall be obligated
to accept any Offer to Prepay (in an amount equal to its ratable share of such
prepayment) if (i) after giving effect to such voluntary prepayment, the
aggregate principal amount of the U.S. Term Loans then outstanding is in excess
of $150,000,000 and (ii) as a result of such voluntary prepayment, no Taxes
would be (or requested to be) withheld by (or on behalf of) any Governmental
Authority.  Once the aggregate principal
amount of the U.S. Term Loans outstanding is less than or equal to
$150,000,000, (but only for so long as Canadian Term Loans remain outstanding)
each U.S. Term Loan Lender shall, within two Business Days following its
receipt of the Offer to Prepay, inform the Administrative Agents as to how much
(if any) of the Offer to Prepay it agrees (in its sole discretion) to have applied
as a voluntary prepayment to its U.S. Term Loans.  Failure to respond within that period shall be deemed to be an
instruction from such non-responding U.S. Term Loan Lender that it does not
want to accept such Offer to Prepay.  To
the extent any Offer to Prepay is not accepted by U.S. Term Loan Lenders, the
principal amount of the U.S. Term Loans not accepted shall be re-allocated to
the prepayment of the Canadian Term Loans until repaid in full.  The amount of any prepayment of the Term
Loans under this clause (d) shall be applied to the remaining Canadian
Term Loans or U.S. Term Loans, as the case may be, amortization payments,
ratably in accordance with the amount of each such remaining Term Loan
amortization payment.  The Borrowers
agree to make any prepayment of the Term Loans under this clause (d) no
later than six Business Days following the occurrence or consummation of the
Permitted Sale-Leaseback


 


64

















 


SECTION 3.2.  Interest Provisions.  Interest on the outstanding principal amount
of the Loans (other than interest payable with respect to Canadian BAs) shall
accrue and be payable in accordance with the terms set forth below.


 


SECTION 3.2.1.  Rates.  Subject to Section 2.3.2, pursuant to
an appropriately delivered Borrowing Request or Continuation/Conversion Notice,
the applicable Borrowers may elect that Loans comprising a Borrowing accrue
interest at a rate per annum:


 


(a)  on that portion maintained from time to time
as a Floating Rate Loan, equal to the sum of the Alternate Base Rate (if such
Loan is a U.S. Loan or a Canadian Loan denominated in U.S. Dollars) or the
Canadian Prime Rate (if such Loan is a Canadian Loan denominated in Canadian
Dollars), as applicable, from time to time in effect plus the Applicable
Margin; provided, that (i) all Canadian Swing Line Loans shall always
accrue interest at a rate per annum equal to the Canadian Prime Rate or the
Alternate Base Rate from time to time in effect plus the then effective
Applicable Margin for Canadian Revolving Loans maintained as Floating Rate
Loans and (ii) all U.S. Swing Line Loans shall always accrue interest at a rate
per annum equal to the U.S. Base Rate from time to time in effect plus the then
effective Applicable Margin for U.S. Revolving Loans maintained as Floating
Rate Loans; and


 


(b)  on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the then
effective Applicable Margin for such Loan.


 


All LIBO Rate Loans shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan.  Interest on Floating Rate
Loans shall be calculated from and including the first day of the Borrowing of
such Floating Rate Loan to (but not including) the date interest is required to
be paid on such Floating Rate Loan pursuant to Section 3.2.3.


 


SECTION 3.2.2.  Post-Maturity Rates.  After the date any principal amount of any
Loan or Reimbursement Obligation is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary
Obligation of the Borrowers shall have become due and payable, the Borrowers
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at a rate per annum equal to (a) in the case
of overdue principal on any Loan, the rate of interest that otherwise would be
applicable to such Loan plus 2% per annum; and (b) in the case of
overdue interest, fees and other monetary Obligations, the Alternate Base Rate
(in respect of U.S. Loans or Canadian Loans denominated in U.S. Dollars) and
the Canadian Prime Rate (in respect of Canadian Loans denominated in Canadian
Dollars) plus the then Applicable Margin for such designated Loan plus
2% per annum.


 


SECTION 3.2.3.  Payment Dates.  Interest accrued on each Loan shall be
payable, without duplication:


 


65

















 


(a)  on the Stated Maturity Date therefor;


 


(b)  on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Loan on the principal amount
so paid or prepaid;


 


(c)  with respect to Floating Rate Loans, on each
Quarterly Payment Date occurring after the Effective Date;


 


(d)  with respect to LIBO Rate Loans, on the last
day of each applicable Interest Period (and, if such Interest Period shall
exceed three months, on the first Business Day following such three month
period and the last day of such Interest Period);


 


(e)  with respect to any Floating Rate Loans
converted into Fixed Rate Loans on a day when interest would not otherwise have
been payable pursuant to clause (c), on the date of such conversion; and


 


(f)  on that portion of any Loans the Stated
Maturity Date of which is accelerated pursuant to Section 8.2 or Section
8.3, immediately upon such acceleration.


 


Interest accrued on Loans or other monetary Obligations
after the date such amount is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise) shall be payable upon demand.


 


SECTION 3.2.4.  Interest Act Provision.


 


(a)  For the purposes of the Interest Act
(Canada), whenever interest payable pursuant to this Agreement is calculated
with respect to any monetary Obligation relating to Canadian Loans on the basis
of a period other than a calendar year (the “Calculation Period”), each
rate of interest determined pursuant to such calculation expressed as an annual
rate is equivalent to such rate as so determined, multiplied by the
actual number of days in the calendar year in which the same is to be
ascertained and divided by the number of days in the Calculation Period.


 


(b)  The principle of deemed reinvestment of
interest with respect to any monetary Obligation relating to Canadian Loans
shall not apply to any interest calculation under this Agreement.


 


(c)  The rates of interest with respect to any
monetary Obligation relating to Canadian Loans stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.


 


SECTION 3.3.  Fees.  The Borrowers shall pay the fees set forth
below.  All such fees shall be
non-refundable.


 


SECTION 3.3.1.  Commitment Fee.  The Borrowers shall pay to the Canadian
Administrative Agent for the account of each Revolving Loan Lender, for the
period (including any portion thereof when any of its Commitments are suspended
by reason of any Borrower’s 


 


66

















 


inability
to satisfy any condition of Article V) commencing on the Effective
Date and ending on (but excluding) the first Quarterly Payment Date following
the Effective Date and thereafter for each period commencing on a Quarterly
Payment Date and ending on (but excluding) the following Quarterly Payment Date
or (if earlier) the applicable Revolving Loan Commitment Termination Date, a
commitment fee in an amount equal to the Applicable Commitment Fee Margin, in
each case on such Lender’s Percentage of the sum of the daily unused portion of
the applicable Revolving Loan Commitment Amount (net of applicable Letter of
Credit Outstandings) during such period. 
All commitment fees payable pursuant to this Section shall be calculated
on a year comprised of 365 days and payable by the Borrowers in arrears on
each Quarterly Payment Date, commencing with the first Quarterly Payment Date
following the Effective Date, and on the applicable Revolving Loan Commitment
Termination Date.  The making of Swing
Line Loans shall constitute usage of the applicable Revolving Loan Commitment
with respect to the calculation of commitment fees to be paid by the Borrowers
to the Lenders.


 


SECTION 3.3.2.  Administrative Agents’ Fees.  The Borrowers shall pay to each
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in each Administrative Agent Fee Letter.


 


SECTION 3.3.3.  Letter of Credit Fee.  (a)  
The Borrowers shall pay to the Canadian Administrative Agent, for the pro
rata account of the Issuer and each applicable Revolving Loan Lender, a
Letter of Credit fee in a per annum amount equal to (i) at all times prior
to the Reset Date, 2.50% per annum and (ii) thereafter the then effective
Applicable Margin for applicable Revolving Loans maintained as LIBO Rate Loans,
multiplied by the Stated Amount of each Letter of Credit issued and
outstanding, such fees being payable quarterly in arrears on each Quarterly
Payment Date following the date of issuance of each Letter of Credit until its
termination or expiration and, on the date of termination or expiration of such
Letter of Credit (if other than a Quarterly Payment Date), and on the
applicable Revolving Loan Commitment Termination Date; provided, that in
the case of Non-Financial LGs, the Letter of Credit fee shall be 75% of the fee
otherwise set forth in this clause.


 


(b)  The
Borrowers shall also pay to the Canadian Administrative Agent for the account
of the Issuer, quarterly in arrears on each Quarterly Payment Date following
the date of issuance of each Letter of Credit and on the applicable Revolving
Loan Commitment Termination Date, an issuance fee in an amount equal to 1/8 of
1.00% per annum on the Stated Amount of each Letter of Credit; provided,
that, to the extent Letter of Credit fees set forth in the foregoing clause
(a) have been received by the Canadian Administrative Agent for the account
of the Issuer and each applicable Revolving Loan Lender, each such Letter of
Credit issuance fee shall be payable by the applicable Revolving Loan Lenders,
ratably, in accordance with their applicable Revolving Loan Commitments.


 


67

















 


ARTICLE IV

CERTAIN LIBO RATE, CANADIAN BA AND OTHER PROVISIONS


 


SECTION 4.1.  Fixed Rate Lending Unlawful.  If any Lender shall determine (which
determination shall, upon notice thereof to ACT and the Administrative Agents,
constitute prima facie evidence)
that the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any Governmental Authority asserts that it is unlawful,
for any Lender to make or continue any Loan as, or to convert any Loan into, a
Fixed Rate Loan, the obligations of such Lender to make, continue or convert
any such Fixed Rate Loan shall, upon such determination, forthwith be suspended
until such Lender shall notify the Administrative Agents that the circumstances
causing such suspension no longer exist, and all outstanding Fixed Rate Loans
payable to such Lender shall automatically convert into Floating Rate Loans at
the end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion.


 


SECTION 4.2.  Deposits Unavailable; Circumstances
making Canadian BAs Unavailable. 
(a)   If the applicable Administrative
Agent shall have determined that (i) deposits in the amount and for the
relevant Interest Period are not available to it in its relevant market; or
(ii) by reason of circumstances affecting its relevant market, adequate means
do not exist for ascertaining the interest rate applicable hereunder to LIBO
Rate Loans, then, upon notice from the applicable Administrative Agent to ACT
and the applicable Lenders, the obligations of all such Lenders under Section
2.3 and Section 2.4 to make or continue any Loans as, or to convert
any Loans into, LIBO Rate Loans shall forthwith be suspended until the
applicable Administrative Agent shall notify ACT and the applicable Lenders
that the circumstances causing such suspension no longer exist.


 


(b)  If the
Canadian Administrative Agent shall have determined in good faith that by
reason of circumstances affecting the Canadian money market, there is no market
for Canadian BAs, then, upon notice to ACT and the applicable Lenders, the
right of the Borrowers to request the acceptance of Canadian BAs and the
acceptance thereof shall be suspended until the Canadian Administrative Agent
shall notify ACT and the applicable Lenders that it has determined that the
circumstances causing such suspension no longer exist.


 


SECTION 4.3.  Increased Loan Costs, etc.  (a)  
The Borrowers shall reimburse each Lender and Issuer for any increase in
the cost to such Lender or Issuer of, or any reduction in the amount of any sum
receivable by such Lender or Issuer in respect of, such Lender or Issuer’s
Commitments and the making of Credit Extensions hereunder (including the
making, continuing or maintaining (or of its obligation to make or continue)
any Loans as, or of converting (or of its obligation to convert) any Loans
into, Fixed Rate Loans) that arise in connection with any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the Closing Date of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law but
binding on such Person) of any Governmental Authority, except for such changes
with respect to increased capital costs and Taxes which are governed by Sections 4.5
and 4.6, respectively.  Each
affected Lender or Issuer shall promptly notify the Administrative Agents and
ACT in writing of the occurrence of any such event, stating the reasons
therefor and the additional amount required fully to compensate such Lender or
Issuer for such increased cost or reduced amount.  Such additional amounts shall be payable by the 


 


68

















 


Borrowers
directly to such Lender or Issuer within thirty days of ACT’s receipt of such
notice, and such notice shall constitute prima
facie evidence of such increased cost or reduced amount.


 


(b)  A Lender
claiming any reimbursement, compensation, indemnification or any other payment
under Sections 4.3, 4.4, 4.5 or 4.6 or Section
11.4 shall use reasonable efforts, consistent with its internal policies,
to designate a different lending office if the making of such a designation
would avoid the need for, or reduce the amount of, such reimbursement,
compensation, indemnification or other payment.  If a Lender is not able to obviate its requirement for
reimbursement, compensation, indemnification or other payment pursuant to Sections
4.3, 4.4, 4.5 or 4.6 or Section 11.4 by
designating a different lending office, the Borrowers shall (subject to Section
11.11) have the right to obligate the Lender to assign its all but not less
than all of its rights and obligations under this Agreement and the other Loan
Documents to an Eligible Assignee if such assignment would allow the Borrowers,
either at that time or in the future, to avoid having to pay such
reimbursement, compensation, indemnification or other payment, provided that
such assignment results in the assigning Lender being paid an amount equal to
all amounts owing hereunder by the Borrowers to such Lender at that time and
any outstanding Letter of Credit issued by such Lender is Cash Collateralized
or replaced.  Any assignment hereunder
shall be made by the assigning Lender in accordance with the terms and
requirements of this Agreement.  No
claim may be made by a Lender under Sections 4.3, 4.4, 4.5
or 4.6 or Section 11.4 unless such Lender is claiming such
reimbursement, compensation, indemnification or other payment generally from
all of its customers against whom it is entitled to make such claim.


 


SECTION 4.4.  Funding Losses.  In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make or
continue any portion of the principal amount of any Loan as, or to convert any
portion of the principal amount of any Loan into, a Fixed Rate Loan) as a
result of


 


(a)  any conversion or repayment or prepayment of
the principal amount of any Fixed Rate Loan on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to Article III
or otherwise;


 


(b)  any Loans not being made as Fixed Rate Loans
in accordance with the Borrowing Request therefor; or


 


(c)  any Loans not being continued as, or
converted into, Fixed Rate Loans in accordance with the Continuation/Conversion
Notice therefor;


 


then, upon the written notice of such Lender to ACT (with a copy to
each Administrative Agent), the Borrowers shall, within thirty days of ACT’s
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense.  Such written notice shall
constitute prima facie evidence
of such loss or expense.


 


69

















 


SECTION 4.5.  Increased Capital Costs.  If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of, any
law or regulation, directive, guideline, decision or request (whether or not
having the force of law but binding on such Person) of any Governmental
Authority affects or would affect the amount of capital required or expected to
be maintained by any Lender or any Person controlling such Lender, and such
Lender determines (acting reasonably and in good faith) that the rate of return
on its or such controlling Person’s capital as a consequence of the Commitments
or the Credit Extensions made, or the Letters of Credit participated in, by
such Lender is reduced to a level below that which such Lender or such
controlling Person would have achieved but for the occurrence of any such
circumstance, then upon notice from time to time by such Lender to ACT, the
Borrowers shall, within 30 days following ACT’s receipt of such notice, pay
directly to such Lender additional amounts sufficient to compensate such Lender
or such controlling Person for such reduction in rate of return.  A statement of such Lender as to any such
additional amount or amounts shall constitute prima
facie evidence thereof.  In
determining such amount, such Lender may use any method of averaging and
attribution that it (acting reasonably and in good faith) shall deem
applicable.


 


SECTION 4.6.  Taxes.  Each Borrower covenants and agrees as
follows with respect to Taxes.


 


(a)  Any and all payments by such Borrower under
each Loan Document shall be made without setoff, counterclaim or other defense,
and free and clear of, and without deduction or withholding for or on account
of, any Taxes.  In the event that any
Taxes are imposed and required to be deducted or withheld from any payment required
to be made by any Obligor to or on behalf of any Lender Party under any Loan
Document, then:


 


(i)  subject to clause (g), if such Taxes
are Non-Excluded Taxes, the amount of such payment shall be increased as may be
necessary so that such payment is made, after withholding or deduction for or
on account of such Taxes, in an amount that is not less than the amount
provided for in such Loan Document; and


 


(ii)  such Borrower shall withhold the full amount
of such Taxes from such payment (as increased pursuant to clause (a)(i))
and shall pay such amount to the Governmental Authority imposing such Taxes in
accordance with applicable law.


 


(b)  In addition, the Borrowers shall pay all
Other Taxes imposed to the relevant Governmental Authority imposing such Other
Taxes in accordance with applicable law.


 


(c)  As promptly as practicable after the payment
of any Taxes or Other Taxes, and in any event within 45 days of any such
payment being due, the Borrowers shall furnish to the Administrative Agents a
copy of an official receipt (or a certified copy thereof) evidencing the
payment of such Taxes or Other Taxes. 
The Administrative Agents shall make copies thereof available to any
Lender upon request therefor.


 


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(d)  Subject to clause (g), the Borrowers
shall indemnify each Lender Party for any Non-Excluded Taxes and Other Taxes
levied, imposed or assessed on (and whether or not paid directly by) such
Lender Party whether or not such Non-Excluded Taxes or Other Taxes are
correctly or legally asserted by the relevant Governmental Authority.  Promptly upon having knowledge that any such
Non-Excluded Taxes or Other Taxes have been levied, imposed or assessed, and
promptly upon notice thereof by any Secured Party, the Borrowers shall pay such
Non-Excluded Taxes or Other Taxes directly to the relevant Governmental
Authority (provided, that no Lender Party shall be under any obligation
to provide any such notice to the Borrowers).  
In addition, the Borrowers shall indemnify each Lender Party for any
incremental Taxes that may become payable by such Lender Party as a result of
any failure of any Borrower to pay any Taxes when due to the appropriate
Governmental Authority or to deliver to the Administrative Agents, pursuant to clause
(c), documentation evidencing the payment of Taxes or Other Taxes.  With respect to indemnification for
Non-Excluded Taxes and Other Taxes actually paid by any Lender Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such Lender Party
makes written demand therefor.  Each
Borrower acknowledges that any payment made to any Lender Party or to any
Governmental Authority in respect of the indemnification obligations of such
Borrower provided in this clause shall constitute a payment in respect of which
the provisions of clause (a) and this clause shall apply.  If any Lender or any Administrative Agent
shall become aware that it is entitled to receive a refund in respect of Taxes
as to which it has been indemnified by the Borrowers pursuant to this Section
4.6, it shall promptly notify ACT of the availability of such refund and shall,
within thirty (30) days after receipt of a request by the Borrowers, apply for such
refund.  If any Lender or any
Administrative Agent, as applicable, determines in its sole discretion that it
has received a refund in respect of any Taxes to which it has been indemnified
by any Borrower pursuant to this Section 4.6, it shall promptly pay such refund
to such Borrower (to the extent of amounts that such Lender determines in its
sole discretion were paid by such Borrower under this Section 4.6 with respect
to such refund), provided that such Borrower, upon the request of such Lender
or such Administrative Agent, as applicable, agrees to return such refund to
such Lender or such Administrative Agent in the event such Lender or such
Administrative Agent is required to repay such refund.  The Borrowers shall be responsible for any
costs incurred by such Lender or such Administrative Agent in applying for any
such refund and promptly reimburse such Lender or such Administrative Agent
therefor on demand.  Nothing contained
in this Section 4.6 (including the immediately preceding sentence) shall
require any Lender (or an Eligible Assignee or Participant) or any
Administrative Agent to make available any of its tax returns or any other
information that it deems to be confidential or proprietary.


 


(e)  Promptly upon the request of ACT, each
Non-U.S. Lender that has a U.S. Term Loan Commitment or U.S. Revolving Loan
Commitment, on or prior to the date on which such Non-U.S. Lender becomes a
Lender hereunder (unless it is an Assignee Lender at a time when an Event of
Default had occurred (and therefore neither ACT’s nor any Borrower’s consent to
assignment was required)) (and from time to time thereafter 


 


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upon the request
of ACT or any Administrative Agent, but only for so long as such Non-U.S. Lender
is legally entitled to do so), shall deliver to ACT and the Administrative
Agents either (i) two duly completed copies of either (x) Internal Revenue
Service Form W-8BEN claiming eligibility of the Non-U.S. Lender for benefits of
an income tax treaty to which the United States is a party or (y) Internal
Revenue Service Form W-8ECI, or in either case an applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not legally entitled to deliver
either form listed in clause (e)(i), (x) a certificate to the effect
that such Non-U.S. Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of any Borrower within
the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (referred to as an “Exemption Certificate”) and
(y) two duly completed copies of Internal Revenue Service Form W-8BEN or
applicable successor form.


 


(f)  Except in the case of an Assignee Lender at
a time when an Event of Default had occurred (and therefore neither ACT’s nor
any Borrower’s consent to assignment was required), each Lender that (i) is not
listed in Schedules I or II of the Bank Act (Canada), (ii) is a non-resident of
Canada for purposed of the Income Tax Act and (iii) is an “authorized foreign
bank” as defined in section 2 of the Bank Act (Canada) which desires to be
considered a Canadian Facility Lender shall, promptly upon the request of ACT
(A) deliver to the Borrowers a certificate of an officer of such Lender stating
that, as at the time of delivery of such certificate, no amount is required to
be deducted or withheld pursuant to the Income Tax Act (Canada) from payments
made hereunder or under any other Loan Document by the applicable Borrowers as
a result of such Person being a non-resident of Canada for purposes of the
Income Tax Act and, (B) notify the applicable Borrowers promptly in writing of
any change in fact or change in law that would make the certificate inaccurate.


 


(g)  No Borrower shall be obligated to pay any
additional amounts to any Lender pursuant to clause (a)(i), or to indemnify any
Lender pursuant to clause (d), in respect of U.S. or Canadian withholding taxes
to the extent imposed as a result of (i) the failure of such Lender to
deliver to ACT the form or forms and/or an Exemption Certificate or officer’s
certificate, as applicable to such Lender, pursuant to clauses (e) or (f), as
the case may be, (ii) such form or forms and/or Exemption Certificate or
officer’s certificate not establishing a complete exemption from U.S. or
Canadian withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any material
respect, or (iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to become
obligated for tax payments in excess of those in effect immediately prior to
such designation; provided, that the Borrowers shall be obligated to pay
additional amounts to any such Lender pursuant to clause (a)(i), and to
indemnify any such Lender pursuant to clause (d), in respect of U.S. or
Canadian withholding taxes if  (i) any
such failure to deliver a form or forms or an Exemption Certificate or
officer’s certificate or the failure of such form or forms or Exemption
Certificate or officer’s certificate to establish a complete exemption from
U.S. or Canadian withholding tax or inaccuracy or untruth 


 


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contained therein
resulted from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring after
the Closing Date, which change rendered such Lender no longer legally entitled
to deliver such form or forms or Exemption Certificate or otherwise ineligible
for a complete exemption from U.S. or Canadian withholding tax, or rendered the
information or certifications made in such form or forms or Exemption
Certificate or officer’s certificate untrue or inaccurate in a material
respect, (ii) the redesignation of the Lender’s lending office was made at the
request of any Borrower, (iii) the obligation to pay any additional amounts to
any such Lender pursuant to clause (a)(i) or to indemnify any such Lender
pursuant to clause (d) is with respect to an Assignee Lender that becomes an
Assignee Lender as a result of an assignment made at the request of any
Borrower or (iv) such Lender was an Assignee Lender at the time an Event of
Default had occurred (and therefore neither ACT’s nor any Borrower’s consent to
assignment was required).


 


SECTION 4.7.  Payments, Computations, etc.  Unless
otherwise expressly provided in a Loan Document, all payments by the Borrowers
pursuant to each Loan Document shall be made by the Borrowers to the applicable
Administrative Agent for the pro  rata account of the applicable
Secured Parties entitled to receive such payment.  In furtherance of the foregoing, (i) payments of principal and
interest with respect to Canadian Revolving Loans made in Canadian Dollars and
all commitment fees shall be payable in Canadian Dollars to the Canadian
Administrative Agent, (ii) payments of principal and interest with respect to
Canadian Term Loans, U.S. Revolving Loans and Canadian Revolving Loans made in
U.S. Dollars shall be payable in U.S. Dollars to the Canadian Administrative
Agent and (iii) payments of principal and interest with respect to U.S. Term
Loans shall be payable in U.S. Dollars to the U.S. Administrative Agent.  Subject to Section 4.6, all payments
shall be made without setoff, deduction or counterclaim not later than
1:00 p.m., Montréal time, on the date due in same day or immediately
available funds to such account as the applicable Administrative Agent shall
specify from time to time by notice to ACT. 
Funds received after that time shall be deemed to have been received by
the applicable Administrative Agent on the next succeeding Business Day.  The applicable Administrative Agent shall
promptly remit in same day funds to each Secured Party (entitled to receive
such payment) its share, if any, of such payments received by such
Administrative Agent for the account of such Secured Party.  All interest (including interest on LIBO
Rate Loans) and fees shall be computed on the basis of the actual number of
days (including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of 360 days
(or, in the case of interest on a Floating Rate Loan (calculated at other than
the Federal Funds Rate), 365 days or, if appropriate, 366 days).  Payments due on other than a Business Day
shall (except as otherwise required by clause (c) of the definition of
“Interest Period”) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees in
connection with that payment.  Except as
otherwise expressly set forth therein, all payments made under any Loan
Document shall be applied upon receipt (a)  first,
to the payment of all Obligations (other than Loans and interest thereon) owing
to each Administrative Agent, in its capacity as Administrative Agent
(including the fees and expenses of one U.S. counsel, one Canadian counsel and
local counsel (if any) for the Administrative Agents), (b)
second, after payment in full in cash of the amounts specified in clause (a),
to the ratable payment of all interest and fees 


 


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owing
with respect to the Credit Extensions and all costs and expenses owing to the
Secured Parties pursuant to the terms of the Credit Agreement, until paid in
full in cash, (c)  third, after payment in
full in cash of the amounts specified in clauses (a) and (b),
to the ratable payment of the principal amount of the Loans then outstanding,
the aggregate Reimbursement Obligations then owing, the Overdraft Obligations,
the Cash Collateralization for contingent liabilities under Letter of Credit Outstandings
and Canadian BAs, if such payment resulted from the proceeds of any collateral,
then to amounts owing to Secured Parties under Rate Protection Agreements, (d) fourth,
after payment in full in cash of the amounts specified in clauses (a)
through (c), to the ratable payment of all other Obligations owing to
the Secured Parties, (e) fifth, after payment in full in cash of the
amounts specified in clauses (a) through (d), and following
the Termination Date, to each applicable Obligor or any other Person lawfully
entitled to receive such surplus.  For
purposes of this Section, the “credit exposure” at any time of any Secured
Party with respect to a Rate Protection Agreement to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal amount
and term of such Rate Protection Agreement.


 


SECTION 4.8.  Sharing of Payments.  If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Sections 4.3, 4.4,
4.5 or 4.6) in excess of its pro  rata share of
payments obtained by all Secured Parties, such Secured Party shall purchase
from the other Secured Parties such participations in Credit Extensions made by
them as shall be necessary to cause such purchasing Secured Party to share the
excess payment or other recovery ratably (to the extent such other Secured
Parties were entitled to receive a portion of such payment or recovery) with
each of them; provided, that if all or any portion of the excess payment
or other recovery is thereafter recovered from such purchasing Secured Party,
the purchase shall be rescinded and each Secured Party which has sold a
participation to the purchasing Secured Party shall repay to the purchasing
Secured Party the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Secured Party’s ratable share
(according to the proportion of (a) the amount of such selling Secured Party’s
required repayment to the purchasing Secured Party to (b) total
amount so recovered from the purchasing Secured Party) of any interest or other
amount paid or payable by the purchasing Secured Party in respect of the total
amount so recovered.  The Borrowers
agree that any Secured Party purchasing a participation from another Secured
Party pursuant to this Section may, to the fullest extent permitted by law,
exercise all its rights of payment (including pursuant to Section 4.9)
with respect to such participation as fully as if such Secured Party were the
direct creditor of the Borrowers in the amount of such participation.  If under any applicable bankruptcy,
insolvency or other similar law any Secured Party receives a secured claim in
lieu of a setoff to which this Section applies, such Secured Party shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Secured Parties entitled under this
Section to share in the benefits of any recovery on such secured claim.


 


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SECTION 4.9.  Setoff.  Each Lender Party shall, upon the occurrence
and during the continuance of any Default described in clauses (a)
through (d) of Section 8.1.9 or, with the consent of the Required
Lenders, upon the occurrence and during the continuance of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and, as security for such
Obligations) each Borrower hereby grants to each Lender Party a continuing
security interest in, any and all balances, credits, deposits, accounts or
moneys of such Borrower then or thereafter maintained with such Lender Party; provided,
that any such appropriation and application shall be subject to the provisions
of Section 4.8.  Each Lender
Party agrees promptly to notify ACT and each Administrative Agent after any
such appropriation and application made by such Lender Party; provided,
that the failure to give such notice shall not affect the validity of such
setoff and application.  The rights of
each Lender Party under this Section are in addition to other rights and
remedies (including other rights of setoff under applicable law or otherwise)
which such Lender Party may have.


 


SECTION 4.10.  Account Debit Authorization.  Notwithstanding the provisions of Section 4.7,
each Borrower authorizes and directs the applicable Administrative Agent (and
each Swing Line Lender in the case of the Canadian Swing Line Loan
Commitment and the U.S. Swing Line Loan Commitment, as the case may be,
with respect to the Canadian Operating Accounts and the U.S. Operating
Accounts, as the case may be), in its discretion, to debit automatically the
bank accounts of each Borrower maintained with the applicable Administrative
Agent or the applicable Swing Line Lender, as the case may be, for all
amounts payable by such Borrower pursuant to Article III.  Furthermore, subject to the provisions of
the Compensation Agreements (i) the Canadian Swing Line Lender shall
have the right to debit automatically on a daily basis any credit balance in
the Canadian Operating Accounts for the sole purposes of repaying all Canadian
Swing Line Loans and Canadian Overdraft Obligations, and (ii) the
U.S. Swing Line Lender shall have the right to debit automatically on a
daily basis any credit balance in the U.S. 
Operating Accounts for the sole purposes of repaying all U.S. Swing Line
Loans and U.S. Overdraft Obligations.


 


ARTICLE V

CONDITIONS TO CREDIT EXTENSIONS


 


SECTION 5.1.  Initial Credit Extension.  The obligations of the Lenders and, if
applicable, the Issuer to fund the initial Credit Extension shall be subject to
the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Article.


 


SECTION 5.1.1.  Resolutions, etc.  The Administrative Agents shall have
received from each Obligor, as applicable, (i) a copy of a good standing
certificate, dated a date reasonably close to the Closing Date, for each such
Person and (ii) a certificate, dated the Closing Date, duly executed and
delivered by such Person’s Secretary or Assistant Secretary, managing member,
trustee or general partner, as applicable, as to


 


(a)  resolutions of each such Person’s Board of
Directors (or other managing body, in the case of other than a corporation)
then in full force and effect authorizing, to the extent relevant, all aspects
of the Transaction applicable to such Person and the 


 


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execution,
delivery and performance of each Loan Document to be executed by such Person
and the transactions contemplated hereby and thereby;


 


(b)  the incumbency and signatures of those of
its officers, managing member or general partner, as applicable, authorized to
act with respect to each Loan Document to be executed by such Person; and


 


(c)  the full force and validity of each Organic
Document of such Person and copies thereof;


 


upon which certificates each Lender Party may conclusively rely until
it shall have received a further certificate of the Secretary, Assistant
Secretary, managing member, trustee or general partner, as applicable, of any
such Person canceling or amending the prior certificate of such Person.


 


SECTION 5.1.2.  Closing Date Certificate.  The Administrative Agents shall have
received the Closing Date Certificate, dated the Closing Date and duly executed
and delivered by an Authorized Officer of ACT, in which certificate ACT shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of each such Borrower as of
such date, and, at the time each such certificate is delivered, such statements
shall in fact be true and correct.  All
documents and agreements required to be appended to the Closing Date
Certificate shall be in form and substance satisfactory to the Arrangers.


 


SECTION 5.1.3.  Consummation of Transaction.  The Arrangers shall have received evidence
satisfactory to them that (a) all actions necessary to consummate the
Acquisition have been taken in accordance with all applicable laws and that the
Acquisition shall be consummated for an aggregate net purchase price (excluding
Transaction Expenses) not to exceed $830,000,000 as adjusted under the terms of
the Purchase Agreement, with the amount of Transaction Expenses not exceeding
C$50,000,000, (b) there shall be released from escrow, and ACT shall
receive, at least C$223,600,000 (representing proceeds from an equity issuance
by ACT), and Couche-Tard U.S. shall have received the Equity Issuance and
Contribution and (c) Couche-Tard U.S. shall receive $350,000,000 in gross cash
proceeds from the issuance of the Subordinated Notes in accordance with the
terms of the applicable Transaction Document, without amendment or waiver of
any material provision thereof.  The
Administrative Agents shall have received a fully executed copy of the Purchase
Agreement and, concurrently with the execution of this Agreement, each other Transaction
Document and all other documents and instruments delivered in connection with
the consummation of the Transactions. 
The Purchase Agreement shall be in full force and effect and shall not
have been modified or waived in any material respect, nor shall there have been
any forbearance to exercise any material rights with respect to any of the
terms or provisions related to the conditions to the consummation of the
Acquisition in the Purchase Agreement unless otherwise agreed to by the
Arrangers.


 


SECTION 5.1.4.  Payment of Outstanding Indebtedness, etc.  All Indebtedness identified in Item
7.2.2(b) of the Disclosure Schedule, together with all interest, all
prepayment premiums and other amounts due and payable with respect thereto,
shall be paid in full from the proceeds 


 


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of
the initial Credit Extension and the commitments in respect of such
Indebtedness shall be terminated, and any Liens securing payment of any such
Indebtedness shall be released and the Collateral Agent shall receive all
Uniform Commercial Code Form UCC-3 termination statements or other instruments
as may be suitable or appropriate in connection therewith.


 


SECTION 5.1.5.  Delivery of Notes.  The Administrative Agents shall have
received, for the account of each Lender that has requested a Note, such
Lender’s Notes duly executed and delivered by an Authorized Officer of the
applicable Borrower.


 


SECTION 5.1.6.  Financial Information, etc.  The Administrative
Agents shall have received,


 


(a)  (i) unaudited consolidated financial
statements of ACT and its Subsidiaries for each fiscal quarterly period ended
after April 27, 2003 and (ii) unaudited consolidated statements of income
of Circle K Corp. and its Subsidiaries for the nine month period ended
September 30, 2003;


 


(b)  the most recently available projections of
ACT (which projections shall not reflect any material adverse change in the
consolidated financial condition of ACT or its Subsidiaries (assuming the
Acquisition has occurred) from what was reflected in the financial statements
or projections previously furnished to any Arranger or the Lenders); and


 


(c)  a pro  forma consolidated
balance sheet of ACT and its Subsidiaries, as of October 12, 2003, certified by
the chief financial or accounting Authorized Officer of ACT, giving effect to
the consummation of the Transactions and all the transactions contemplated by
this Agreement, which shall be satisfactory to the Arrangers.


 


SECTION 5.1.7.  Compliance Certificate.  The Administrative Agents shall have
received an initial Compliance Certificate on a pro  forma basis
as if the Transaction had been consummated and the initial Credit Extension had
been made as of October 12, 2003 and as to such items therein as each
Arranger reasonably requests, dated the Closing Date, duly executed (and with
all schedules thereto duly completed) and delivered by the chief financial or
accounting Authorized Officer of ACT.


 


SECTION 5.1.8.  Solvency, etc.  The Administrative Agents shall have
received, with counterparts for each Lender, a solvency certificate, in form
and substance satisfactory to the Arrangers, duly executed and delivered by the
chief financial or accounting Authorized Officer of ACT, dated as of the
Closing Date.


 


SECTION 5.1.9.  Guarantees.  The Administrative Agents shall have received, with counterparts
for each Lender, (i) the ACT Guaranty, dated as of the date hereof, duly
executed and delivered by an Authorized Officer of ACT, (ii) the Canadian
Subsidiary Guaranty and the U.S. Subsidiary Guaranty, each dated as of the date
hereof, duly executed and delivered by an Authorized Officer of each Material
Subsidiary of ACT and such other Subsidiaries as may be necessary to represent
at least 90% of the consolidated
assets, consolidated EBITDA and gross 


 


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revenue of ACT and its Subsidiaries (including,
after giving effect to the Acquisition, Circle K Corp.
and Circle K Enterprises and each of their Subsidiaries as may be necessary to
represent at least 90% of the
consolidated assets, consolidated EBITDA and gross revenue of ACT and its
Subsidiaries (including Circle K Corp. and its Subsidiaries)).


 


SECTION 5.1.10.  Security Agreements.  The Collateral Agent shall have received,
with counterparts for each Lender, executed counterparts of (i) the U.S.
Borrower Pledge and Security Agreement, the Canadian Borrower Pledge and
Security Agreement, the Canadian Subsidiary Pledge and Security Agreement, the
U.S. Subsidiary Pledge and Security Agreement, the Québec Security Agreements and
the Bank Act Agreements, each dated as of the date hereof, duly executed by the
applicable Obligor party thereto and (ii) immediately after giving effect to the Acquisition, a supplement to the U.S.
Borrower Pledge and Security Agreement, duly executed and delivered by an
Authorized Officer of Circle K Stores, and the U.S. Subsidiary Pledge and
Security Agreement  duly
executed and delivered by an Authorized Officer of Circle K Corp. and Circle K
Enterprises, in each case, together with


 


(a)  certificates (in the case of Capital
Securities that are securities (as defined in the UCC)) evidencing all of the
issued and outstanding Capital Securities owned by each Obligor in Subsidiaries
that are Obligors, directly owned by each Obligor, which certificates in each
case shall be accompanied by undated instruments of transfer duly executed in
blank, or, if any Capital Securities are uncertificated securities (as defined
in the UCC), confirmation and evidence satisfactory to the Administrative
Agents that the security interest therein has been granted to and perfected by
the Collateral Agent for the benefit of the Secured Parties in accordance with
Articles 8 and 9 of the UCC, as applicable, and all laws otherwise
applicable to the perfection of the pledge of such Capital Securities;


 


(b)  copies of Filing Statements or PPSA
financing statements naming each Obligor (other than, in the case of PPSA
financing statements, Dunkin Donuts Master Franchisee Québec Inc., ACT,
Dépan-Escompte Couche-Tard Inc. and ACT Financial Trust) as a debtor and the
Collateral Agent as the secured party, or other similar instruments or
documents to be filed under the UCC or PPSA of all jurisdictions as may be
necessary to perfect the security interests of the Collateral Agent for the
benefit of the Secured Parties pursuant to such Security Agreement;


 


(c)  copies (certified where available) of UCC
Requests for Information or Copies (Form UCC-11) or similar PPSA instruments,
or a similar search report dated a date reasonably near to the Closing Date,
listing all effective financing statements on personal property which name any
Obligor (under its present name and any previous names) as the debtor, together
with copies of such financing statements (none of which shall cover any
collateral described in any Loan Document except for Permitted Liens);


 


(d)  copies of applications for registration with
respect to the Québec Security Agreements naming each relevant Obligor as a
grantor and the Collateral Agent as the creditor, to be filed under the Civil
Code of Québec to publish the hypothecs on personal 


 


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property granted
in favor of the Collateral Agent in its capacity as “fondé de pouvoir” pursuant
to each Deed of Hypothec; and


 


(e)  copies of notices of intention to give
security under the Bank Act (Canada) with respect to the Bank Act Agreements,
executed and filed by each of the Canadian Borrowers at least
one (1) Business Day prior to the execution of the remaining Bank Act
Agreements.


 


The Administrative
Agents and their counsel shall be satisfied that (i) the Lien granted to the
Collateral Agent, for the benefit of the Secured Parties, in the collateral
described above is (or, in the case of Circle K Corp. and its Subsidiaries will
be) (upon the filing or registration of such Lien where appropriate) a first
priority (or local equivalent thereof) security interest, subject to Permitted
Liens; and (ii) no Liens exists on any of the collateral described above other
than the Lien created in favor of the Collateral Agent, for the benefit of the
Secured Parties, pursuant to a Loan Document and Permitted Liens.


 


SECTION 5.1.11.  Intellectual Property Security Agreement.  The Collateral Agent shall have received a
Trademark Security Agreement dated as of the Closing Date, duly executed and
delivered by each Obligor that has delivered a Security Agreement and owns
trademarks.


 


SECTION 5.1.12.  Closing Fees, Expenses, etc.  The Canadian Administrative Agent shall have
received or, contemporaneously with the initial Borrowing, shall receive all
fees, costs and expenses due and payable pursuant to Sections 3.3
and 11.3 and the U.S. Administrative Agent shall have received or
(contemporaneously with the initial Borrowing) shall receive all fees, costs
and expenses due and payable pursuant to Sections 3.3 and 11.3.  The Arrangers shall have received or
(contemporaneously with the initial Borrowing) shall receive all fees, costs
and expenses payable by the Borrowers under the Arrangers’ Fee Letter.


 


SECTION 5.1.13.  Filing Agent, etc.  All Uniform Commercial Code and PPSA
financing statements or other similar financing statements and Uniform
Commercial Code (Form UCC-3) and PPSA termination statements required pursuant
to the Loan Documents (collectively, the “Filing Statements”) shall have
been delivered to CT Corporation System or another similar filing service
company acceptable to the Administrative Agents (the “Filing Agent”).  The Filing Agent shall have acknowledged in
a writing satisfactory to the Administrative Agents and their counsel (i) the
Filing Agent’s receipt of all Filing Statements, (ii) that the Filing
Statements have either been submitted for filing in the appropriate filing
offices or will be submitted for filing in the appropriate offices within ten
days following the Closing Date and (iii) that the Filing Agent will notify the
Administrative Agents and their counsel of the results of such submissions
within 30 days following the Closing Date.


 


SECTION 5.1.14.  Insurance.  The Administrative Agents shall have received insurance
certificates, satisfactory to the Administrative Agents, evidencing coverage
required to be maintained pursuant to this Agreement.


 


SECTION 5.1.15.  Mortgage.  The Collateral Agent shall have received Mortgages for each property listed on Item 6.16(a) and Item
6.16(b) in the Disclosure Schedule, dated as of the 


 


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date
hereof, duly executed by the applicable Obligor, together with evidence of
satisfactory arrangements for the completion of all recordings and filings of
each Mortgage as may be necessary to create a valid, perfected first priority
Lien against the properties purported to be covered thereby, subject to
Permitted Liens; provided, that this condition shall be satisfied if (i) the Obligors shall have,
collectively, as of the Closing Date, satisfied the conditions in this Section
with respect to no less than 80% of their owned real property (excluding those
properties which are identified in Item (a) and Item (b) of Schedule
III hereto) and (ii) the Obligors shall have used their commercially reasonable efforts to obtain Mortgages with
respect to the properties listed on Item 6.16(b) in the Disclosure
Schedule.


 


SECTION 5.1.16.  Opinions of Counsel.  The Administrative Agents shall have
received opinions, dated the Closing Date and addressed to the Administrative
Agents and all Lenders, from


 


(a)  Davies Ward Phillips & Vineberg LLP, New
York counsel to the Obligors, in form and substance satisfactory to the
Arrangers;


 


(b)  Davies Ward Phillips & Vineberg LLP,
Canadian counsel to the Obligors, in form and substance satisfactory to the
Arrangers; and


 


(c)  local counsel to the Obligors satisfactory
to the Arrangers, in form and substance satisfactory to the Arrangers, in
Alabama, Arizona, California, Florida, Georgia, Louisiana, Nevada, North
Carolina, South Carolina, Tennessee and Texas.


 


SECTION 5.1.17.  Information pursuant to Terrorism Laws.  Each of the Borrowers shall have supplied
the Lenders and the Administrative Agents with all information required by
Section 326 of the Patriot Act (as set forth in Section 11.18 hereof) or
necessary for the Administrative Agents or any Lender to verify the identity of
such Borrower as required by Section 326 of the Patriot Act.


 


SECTION 5.1.18.  Process Agent.  The Administrative Agents shall have
received a written acceptance by the Process Agent of its appointment under
Section 11.14 hereof and under each similar provision in each other Loan
Document.


 


SECTION 5.1.19.  Perfection Certificate.  The Administrative Agents shall have
received a completed perfection certificate from ACT (on behalf of itself, the
other Obligors and Circle K Corp.) in form and substance reasonably
satisfactory to the Arrangers and duly executed by the chief financial or
accounting Authorized Officer of ACT.


 


SECTION 5.1.20.  Joinder Agreement.  The Administrative Agents shall have
received a joinder agreement in the form of Exhibit J hereto (the “Joinder
Agreement”), dated the Closing Date and duly executed (and which is deemed
to be delivered immediately after giving effect to the Acquisition) by an
Authorized Officer of Circle K Stores. 
All documents and agreements required to be appended to or delivered in
conjunction with the Joinder Agreement shall be in form and substance
satisfactory to the Arrangers.


 


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SECTION 5.2.  All Credit Extensions.  The obligation of each Lender and each
Issuer to make any Credit Extension shall be subject to the satisfaction of
each of the conditions precedent set forth below.


 


SECTION 5.2.1.  Compliance with Warranties, No Default,
etc.  Both before and after giving
effect to any Credit Extension (but, if any Default of the nature referred to
in Section 8.1.5 shall have occurred with respect to any other
Indebtedness, without giving effect to the application, directly or indirectly,
of the proceeds thereof) the following statements shall be true and correct
(such statements to be made assuming the Transactions had occurred):


 


(a)  the representations and warranties set forth
in each Loan Document shall, in each case, be true and correct in all material
respects with the same effect as if then made (unless stated to relate solely
to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date); and


 


(b)  no Default shall have then occurred and be
continuing.


 


SECTION 5.2.2.  Credit Extension Request, etc.  Subject
to Section 2.3.1, the applicable Administrative Agent shall have
received a Borrowing Request if Loans are being requested, or an Issuance
Request if a Letter of Credit is being requested or extended.  Each of the delivery of a Borrowing Request
or Issuance Request and the acceptance by the applicable Borrower of the
proceeds of such Credit Extension shall constitute a representation and
warranty by each Borrower that on the date of such Credit Extension (both
immediately before and after giving effect to such Credit Extension and the application
of the proceeds thereof) the statements made in Section 5.2.1 are true
and correct in all material respects.


 


SECTION 5.2.3.  Satisfactory Legal Form.  All documents executed or submitted pursuant
hereto by or on behalf of any Obligor shall be reasonably satisfactory in form
and substance to the Administrative Agents and their counsel; the
Administrative Agents and their counsel shall have received all information,
approvals, opinions, documents or instruments as the Administrative Agents or their
counsel may reasonably request, if either Administrative Agent believes in good
faith that a Default has occurred and is continuing.


 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES


 


In order to induce the Lender Parties to enter into this Agreement and
to make Credit Extensions hereunder, the Borrowers represent and warrant to
each Lender Party as set forth in this Article.


 


SECTION 6.1.  Organization, etc.  Each Obligor is validly organized and
existing and in good standing under the laws of the state or jurisdiction of
its incorporation or organization, is duly qualified to do business and is in
good standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification (except where the non-compliance with
which could not reasonably be expected to have a Material Adverse Effect).  Each Obligor has full power and authority
and holds all requisite governmental licenses, permits and other 


 


81

















 


approvals
(i) to enter into and perform its Obligations under each Loan Document to which
it is a party, (ii) to own and hold under lease its property and (iii) to
conduct its business substantially as currently conducted by it, except where,
in the case of clauses (ii) and (iii), the absence thereof could
not reasonably be expected to have a Material Adverse Effect.


 


SECTION 6.2.  Due Authorization, Non-Contravention, etc.  The
execution, delivery and performance by each Obligor of each Loan Document
executed or to be executed by it, each Obligor’s participation in the
consummation of all aspects of the Transaction, and the execution, delivery and
performance by each Borrower or (if applicable) any Obligor of the agreements
executed and delivered by it in connection with the Transaction are in each
case within such Person’s powers, have been duly authorized by all necessary
action, and do not


 


(a)  contravene any (i) Obligor’s Organic
Documents, (ii) court decree or order binding on or affecting any Obligor
or (iii) law or governmental regulation (including any Terrorism Law)
binding on or affecting any Obligor; or


 


(b)  result in (i) or require the creation or
imposition of, any Lien on any Obligor’s properties (except as permitted by
this Agreement) or (ii) a default under any contractual restriction
binding on or affecting any Obligor (except for any default which could not
reasonably be expected to have a Material Adverse Effect).


 


SECTION 6.3.  Government Approval, Regulation, etc.  No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or other Person
(other than those that have been, or on the Closing Date will be, duly obtained
or made and which are, or on the Closing Date will be, in full force and
effect) is required for the consummation of the Transaction or the due
execution, delivery or performance by any Obligor of any Loan Document to which
it is a party, or for the due execution, delivery and/or performance of
Transaction Documents, in each case by the parties thereto or the consummation
of the Transaction, except, in the case of the Transaction Documents, where the
absence of such authorization, approval, action, notice or filing could not
reasonably be expected to have a Material Adverse Effect.  None of the Borrowers nor any of their
Subsidiaries is an “investment company” within the meaning of the Investment
Company Act of 1940, as amended, or a “holding company”, or a “subsidiary
company” of a “holding company”, or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company”, within the meaning of the Public
Utility Holding Company Act of 1935, as amended.


 


SECTION 6.4.  Validity, etc.  Each Loan Document and each Transaction
Document to which any Obligor is a party constitutes the legal, valid and
binding obligations of such Obligor, enforceable against such Obligor in
accordance with their respective terms (except, in any case, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by
principles of equity).


 


SECTION 6.5.  Financial Information.  The financial statements of ACT furnished to
the Administrative Agents and each Lender pursuant to Section 5.1.6
have been prepared in accordance with GAAP consistently applied, and present
fairly in all material respects the consolidated financial condition of the
Persons covered thereby as at the dates thereof and the 


 


82

















 


results
of their operations for the periods then ended (subject only to any typical
adjustments resulting from year-end audits). 
The financial statements of Circle K Corp. furnished to the
Administrative Agents and each Lender pursuant to Section 5.1.6
have been prepared in accordance with U.S. generally accepted accounting
principles and present fairly in all material respects the financial condition
of Circle K Corp. and its Subsidiaries as of the date thereof and the
results of their operations for such periods, in each case assuming that
certain sites have been combined with Circle K Corp. as described in the
footnotes thereto.  All balance sheets,
all statements of income and of cash flow and all other financial information
of ACT and its Subsidiaries furnished pursuant to Section 7.1.1
have been and will for periods following the Effective Date be prepared in
accordance with GAAP, and do or will present fairly in all material respects
the consolidated financial condition of the Persons covered thereby as at the
dates thereof and the results of their operations for the periods then ended
(subject only to any typical adjustments resulting from year-end audits).


 


SECTION 6.6.  No Material Adverse Change; Solvency.  There has been no material adverse change in
the financial condition, operations, assets, business, properties or prospects
of ACT and its Subsidiaries or Circle K Corp. and its Subsidiaries, in each
case taken as a whole, since April 27, 2003 (in the case of ACT) or
December 31, 2002 (in the case of Circle K Corp.).  The Borrowers and the Guarantors, taken as a
whole on a consolidated basis, both before and after giving effect to each
Credit Extension, are Solvent.


 


SECTION 6.7.  Litigation, Labor Controversies, etc.  Except as disclosed in Item 6.7
of the Disclosure Schedule, there is no action, suit or legal proceeding
pending against (nor, to the knowledge of any Obligor, any notice of
infraction, action, suit or proceeding threatened against or in any other
manner relating adversely to) ACT, any of its Subsidiaries or any other
Obligor, or any of their respective properties, businesses, assets or revenues,
and no adverse development has occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed in Item 6.7
which (in either case) could reasonably be expected to have a Material Adverse
Effect.  There is no pending or, to the
knowledge of ACT or any of its Subsidiaries, threatened litigation, action,
proceeding or labor controversy which purports to affect the legality, validity
or enforceability of any Loan Document, the Transaction Documents or the
Transaction.


 


SECTION 6.8.  Subsidiaries.  As of the Closing Date, ACT has no
Subsidiaries that are Material Subsidiaries or Obligors, except those
Subsidiaries which are identified in Item 6.8 of the Disclosure
Schedule.


 


SECTION 6.9.  Ownership of Properties.  ACT and each of the Obligors own (a) in
the case of owned real property, good and marketable fee title to, and
(b) in the case of owned personal property, good and valid title to, or
have, in the case of leased real or personal property (situated outside the
Province of Québec), valid and enforceable leasehold interests (as the case may
be) in, all of their material properties and assets, tangible and intangible,
of any nature whatsoever, free and clear in each case of all Liens, except for
Permitted Liens.


 


SECTION 6.10.  Taxes.  All federal, provincial and state income tax
returns and other material tax returns required by law to be filed by ACT and
its Subsidiaries as well as any other 


 


83

















 


tax
returns required to be filed in any jurisdiction in which ACT or any of its
Subsidiaries perform or may from time to time perform activities have been duly
filed, and all federal, provincial and state income Taxes and other material
Taxes, assessments and other governmental charges or levies upon ACT and its
Subsidiaries and any of their respective properties, income, profits and assets
which are due and payable have been paid (except any such Taxes which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books).  The charges, accruals and reserves
on the books of ACT and its Subsidiaries in respect of Taxes are adequate in
the judgment of ACT.


 


SECTION 6.11.  Pension and Welfare Plans.  (a)  
During the twelve-consecutive-month period prior to the Effective Date
and prior to the date of any Credit Extension hereunder, no steps have been
taken to terminate any U.S. Pension Plan, and no contribution failure has
occurred with respect to any U.S. Pension Plan sufficient to give rise to a
Lien under Section 302(f) of ERISA.  No
condition exists or event or transaction has occurred with respect to any U.S.
Pension Plan which might result in the incurrence by the Borrowers or any
member of the Controlled Group of any material liability, fine or penalty.  Except as disclosed in Item 6.11(a)
of the Disclosure Schedule, neither the Borrowers nor any member of the
Controlled Group has any contingent liability with respect to any
post-retirement benefit under a U.S. Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.


 


(b)  During the
twelve-consecutive-month period prior to the Effective Date and prior to the
date of any Credit Extension hereunder, no steps have been taken to terminate
any Canadian Pension Plan, and no contribution failure has occurred with
respect to any Canadian Pension Plan that could reasonably be expected to have
a Material Adverse Effect.  No condition
exists or event or transaction has occurred with respect to any Canadian
Pension Plan which might result in the incurrence by ACT or any of its
Subsidiaries of any material liability, fine or penalty.  Except as disclosed in Item 6.11(b)
of the Disclosure Schedule, neither ACT nor any of its Subsidiaries has any
contingent liability with respect to any benefit under a Canadian Pension Plan
or Canadian Welfare Plan which could reasonably be expected to have a Material
Adverse Effect.


 


SECTION 6.12.  Environmental Warranties.  Except as set forth in Item 6.12 of
the Disclosure Schedule:


 


(a)  all facilities and property (including
underlying groundwater) owned, leased or occupied by ACT or any of its
Subsidiaries have been, and continue to be, owned, leased or occupied by ACT
and its Subsidiaries in compliance with all Environmental Laws except for any
non-compliance which could not reasonably be expected to have a Material
Adverse Effect;


 


(b)  there have been no past, and there are no
pending or, to the knowledge of ACT or any of the Borrowers, threatened (i) claims, complaints, notices or requests for
information received by ACT or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law, or (ii) complaints, notices or
inquiries to ACT or 


 


84

















 


any of its
Subsidiaries regarding any potential liability under any Environmental Law
which in either case could reasonably be expected to have a Material Adverse
Effect;


 


(c)  there have been no Releases of Hazardous
Materials at, on or under any property now or previously owned, leased or
occupied by ACT or any of its Subsidiaries that have, or could reasonably be expected
to have, a Material Adverse Effect;


 


(d)  ACT and its Subsidiaries have been issued,
hold and are in compliance with all permits, certificates, approvals, licenses,
registrations and other authorizations required by Environmental Laws except
for any non-issuance, failure to hold or non-compliance which could not
reasonably be expected to have a Material Adverse Effect;


 


(e)  no property now owned or leased by ACT or
any of its Subsidiaries, and no property previously owned or leased by ACT or
any of its Subsidiaries, is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar federal state or provincial list of sites requiring
investigation or clean-up, where such listing or proposed listing could
reasonably be expected to have a Material Adverse Effect;


 


(f)  there are no underground storage tanks,
active or abandoned, including petroleum storage tanks, on or under any
property now or previously owned, leased or occupied by ACT or any of its
Subsidiaries that have, or could reasonably be expected to have, a Material
Adverse Effect;


 


(g)  neither ACT nor any of its Subsidiaries has
directly transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
federal or state list or which is the subject of federal, state, provincial or
local enforcement actions or other investigations which may lead to material
claims against ACT or such Subsidiary for any investigation or remedial work,
damage to property, the environment, 
natural resources or personal injury, including claims under CERCLA or
Environmental Laws which could reasonably be expected to have a Material
Adverse Effect;


 


(h)  there are no polychlorinated biphenyls or
friable asbestos present at any property now or previously owned or leased by
ACT or any of its Subsidiaries that have, or could reasonably be expected to
have, a Material Adverse Effect; and


 


(i)  no conditions exist at, on or under any
properties now or previously owned, leased or occupied by ACT or any of its
Subsidiaries which, with the passage of time, or the giving of notice or both,
will give rise to liability under any Environmental Law which could reasonably
be expected to have a Material Adverse Effect.


 


SECTION 6.13.  Accuracy of Information.  None of the material factual information
heretofore or contemporaneously furnished in writing to any Secured Party by or
on behalf of any Obligor in connection with any Loan Document or any
transaction contemplated hereby 


 


85

















 


(including
the Acquisition) contained any untrue statement of a material fact, or omitted
to state any material fact necessary to make any information not misleading in
each case on the date as of which such information is dated or certified; and
no other factual information hereafter furnished in connection with any Loan
Document by or on behalf of any Obligor to any Secured Party will contain any
untrue statement of a material fact or will omit to state any material fact
necessary to make any information not misleading, in each case on the date as
of which such information is dated or certified.  Insofar as any of the factual information described above
includes assumptions, estimates, projections or opinions, no representation or
warranty is made herein with respect thereto; provided, that to the
extent any such assumptions, estimates, projections or opinions are based on
factual matters, the Borrowers have reviewed such factual matters and nothing
has come to their attention in the context of such review which would lead them
to believe that such factual matters were not or are not true and correct in
all material respects or that such factual matters omit to state any material
fact necessary to make such assumptions, estimates, projections or opinions not
misleading in any material respect.


 


SECTION 6.14.  Regulations U and X.  No Obligor is engaged in the business of
extending credit for the purpose of buying or carrying margin stock, and no
proceeds of any Credit Extensions will be used to purchase or carry margin
stock or otherwise for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation U or Regulation X.  Terms for which meanings are provided in F.R.S. Board
Regulation U or Regulation X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.


 


SECTION 6.15.  Issuance of Subordinated Debt; Status of
Obligations as Senior Indebtedness, etc. 
Each Obligor has the power and authority to incur (including by way of a
subordinated guaranty of) the Subordinated Debt as provided for under the
Subordinated Debt Documents applicable thereto and has duly authorized,
executed and delivered the Subordinated Debt Documents applicable to such
Subordinated Debt.  The High Yield
Issuers have issued, pursuant to due authorization, the Subordinated Debt under
the applicable Subordinated Debt Documents, and such Subordinated Debt
Documents constitute the legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by
principles of equity).  The
subordination provisions of the Subordinated Debt contained in the Subordinated
Debt Documents are enforceable against the holders of the Subordinated Debt by
the holder of any “Senior Indebtedness” or similar term referring to the
Obligations (as defined in the Subordinated Debt Documents).  All Obligations, including those to pay
principal of and interest (including post-petition interest, whether or not
allowed as a claim under bankruptcy or similar laws) on the Loans and
Reimbursement Obligations, and fees and expenses in connection therewith,
constitute “Senior Indebtedness” or similar term relating to the Obligations
(as defined in the Subordinated Debt Documents) and all such Obligations are
entitled to the benefits of the subordination created by the Subordinated Debt
Documents.  The Borrowers acknowledge
that each Administrative Agent, each Lender and each Issuer is entering into
this Agreement and is extending its Commitments in reliance upon the
subordination provisions of the Subordinated Debt Documents.


 


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SECTION 6.16.  Real Property.  After giving effect to the Acquisition, in
each case as of the Closing Date, (i) listed under Item 6.16(a) of the
Disclosure Schedule is each street address and county and state or other
similar jurisdiction where ACT or any of its Subsidiaries owns any retail
outlets or any material offices and distribution centers and (ii) listed under Item 6.16(b) of the Disclosure Schedule is each
street address and county and state or other similar jurisdiction where ACT or
any of its Subsidiaries leases any material real property.  Mortgages delivered pursuant to Section 5.1.15,
constitute a valid and enforceable first lien subject only to the Permitted
Liens on no less than 80% of the real property of ACT and its Subsidiaries
owned on the Closing Date (exclusive of the properties which are identified in Item
(a) and Item (b) of Schedule III hereto).  The legal description attached to each
Mortgage is, for no less than 95% of the Mortgages at any time outstanding,
true, correct and complete, and correctly identifies the real property interest
mortgaged thereunder.  There are no
leases affecting any property made subject to a Mortgage that have not been
entered into on market terms and for market rates and prices.


 


SECTION
6.17.  Obligors.  As of the Closing Date, (i) the EBITDA of
the Obligors constitutes at least 90% of the consolidated EBITDA of ACT and its
Subsidiaries, (ii) the assets of the Obligors constitutes at least 90% of
the consolidated assets of ACT and its Subsidiaries and (iii) the gross revenue
of the Obligors constitutes at least 90% or more of the consolidated gross
revenue of ACT and its Subsidiaries.


 


ARTICLE VII

COVENANTS


 


SECTION 7.1.  Affirmative Covenants.  The Borrowers agree
with each Lender, each Issuer and each Administrative Agent that until the Termination
Date has occurred, the Borrowers will, and where applicable will cause their
Subsidiaries to, perform or cause to be performed the obligations set forth
below.


 


SECTION 7.1.1.  Financial Information, Reports, Notices, etc. 
ACT will furnish each Lender and each Administrative Agent copies
of the following financial statements, reports, notices and information:


 


(a)  (i) as soon as available and in any event
within 45 days after the end of each of the first three Fiscal Quarters of
each Fiscal Year, an unaudited consolidated balance sheet of ACT and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated statements
of income and cash flow of ACT and its Subsidiaries for such Fiscal Quarter and
for the period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, and including (in each case), in
comparative form the figures for the corresponding Fiscal Quarter in, and year
to date portion of, the immediately preceding Fiscal Year, certified as complete
and correct in all material respects by the chief financial or accounting
Authorized Officer of ACT (subject to normal year-end audit adjustments);


 


87

















 


(b)  as soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of the consolidated
balance sheet of ACT and its Subsidiaries, and the related consolidated
statements of income and cash flow of ACT and its Subsidiaries for such Fiscal
Year, setting forth in comparative form the figures for the immediately
preceding Fiscal Year, audited (without any Impermissible Qualification) by
independent chartered accountants acceptable to the Administrative Agents;


 


(c)  concurrently with the delivery of the
financial information pursuant to clauses (a) and (b), a
Compliance Certificate, executed by the chief financial or accounting
Authorized Officer of ACT, (i) showing compliance with the financial covenants
set forth in Section 7.2.4 and 7.2.7, (ii) stating that no
Default has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that the Borrowers have
taken or propose to take with respect thereto), (iii) stating that no
Subsidiary has been formed or acquired since the delivery of the last
Compliance Certificate (or, if a Subsidiary has been formed or acquired since
the delivery of the last Compliance Certificate, a statement that such
Subsidiary has complied with Section 7.1.8) and (iv) in the case of
a Compliance Certificate delivered concurrently with the financial information
pursuant to clause (b) (beginning with the Compliance Certificate
for the 2005 Fiscal Year), a calculation of Excess Cash Flow;


 


(d)  as soon as possible and in any event within
three Business Days after any Obligor obtains knowledge of the occurrence of a
Default, a statement of an Authorized Officer of ACT setting forth details of
such Default and the action which such Obligor has taken and proposes to take
with respect thereto;


 


(e)  as soon as possible and in any event within
five Business Days after any Obligor obtains knowledge of (i) the
occurrence of any material adverse development with respect to any litigation,
action, proceeding or labor controversy described in Item 6.7 of
the Disclosure Schedule or (ii) the commencement of any litigation,
action, proceeding or labor controversy of any suit or proceeding that alleges
damages of $10,000,000, or is otherwise of the type and materiality described
in Section 6.7, notice thereof and, to the extent any
Administrative Agent requests, copies of all documentation relating thereto;


 


(f)  promptly after the sending or filing
thereof, copies of all reports, notices, prospectuses and registration
statements which any Obligor files with the Toronto Stock Exchange, SEC or any
other securities exchange, securities commissions or similar governmental
authority or commissions (or, if available on SEDAR, notice promptly following
such filing of any of the foregoing information);


 


(g)  promptly upon becoming aware of (i) the
institution of any steps by any Person to terminate any U.S. Pension Plan or
Canadian Pension Plan, (ii) the failure to make a required contribution to
any U.S. Pension Plan or Canadian Pension Plan if such failure is sufficient to
give rise to a Lien under Section 302(f) of ERISA or to result in a
Material Adverse Effect, (iii) the taking of any action with respect to a
U.S. Pension Plan or Canadian Pension Plan which could result in the
requirement that any Obligor furnish 


 


88

















 


a bond or other
security to the PBGC or such U.S. Pension Plan or Canadian Pension Plan, or
(iv) the occurrence of any event with respect to any U.S. Pension Plan or
Canadian Pension Plan which could result in the incurrence by any Obligor of
any material liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;


 


(h)  promptly upon receipt thereof, copies of all
“management letters” submitted to any Obligor by the independent chartered
accountants referred to in clause (b) in connection with each audit made
by such accountants;


 


(i)  (A) promptly following the mailing or
receipt of any notice or report delivered under the terms of any Subordinated
Debt, copies of such notice or report and (B) no less that three Business Days
prior to entering into any amendment, supplement, waiver or other modification
of, or forbearance from exercising any rights with respect to, any Transaction
Document, notice thereof and copies of such proposed amendment, supplement,
waiver or forbearance documents.


 


(j)  as soon as available (including promptly
following its approval by the Board of Directors of ACT) and in any event no
later than July 15th of each year, (i) the consolidated operating
budget (which shall include (i) forecasted consolidated statements of operating
income and retained earnings, shareholder equity and change in cash flow, for
the then current Fiscal Year (displayed by reference to each Fiscal Quarter)
and (ii) for the 2004 Fiscal Year and the 2005 Fiscal Year an update on and
summary of costs and expenses incurred in connection with the integration of
ACT’s businesses with the business purchased on the Closing Date) of ACT and
its Subsidiaries (displayed by reference to each Fiscal Quarter) approved by
the Board of Directors of ACT, along with the supporting documents and
information (including the assumptions upon which such budget is based) and
(ii) a certificate of the chief financial officer of ACT setting forth the
calculations required in order to determine the impact of the forecast referred
to in the foregoing clauses on the compliance with the ratios contemplated in Section 7.2.4;


 


(k)  promptly upon becoming aware that one or
more of the Obligors or any Person which owns, directly or indirectly, any
Capital Securities of any Obligor, or any other holder at any time of any
direct or indirect equitable, legal or beneficial interest in any Obligor, is
the subject of any of the Terrorism Laws, notice thereof and, to the extent any
Administrative Agent requests, copies of all documentation relating thereto;
and


 


(l)  such other financial and other information
as any Lender or Issuer through either Administrative Agent may from time to
time reasonably request.


 


SECTION 7.1.2.  Maintenance of Existence; Compliance with
Laws, etc.  ACT will, and will cause
each of its Obligors to, preserve and maintain its legal existence (except as
otherwise permitted by Section 7.2.10), and comply in all material
respects with (i) the terms of (and shall perform or cause the applicable
Subsidiary to perform) its obligations under all material agreements to which
it is a party and (ii) all applicable laws, rules, regulations and orders
binding on ACT or any of its Subsidiaries, including the payment (before the
same become delinquent), 


 


89

















 


of
all Taxes, imposed upon such Obligor or upon their property except to the
extent being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP have been set aside on the
books of such Obligor, as applicable, except, in the case of other than Taxes,
for any non-compliance therewith which could not reasonably be expected to have
a Material Adverse Effect.


 


SECTION 7.1.3.  Maintenance of Properties.  ACT will, and will cause each of its
Subsidiaries to, maintain, preserve, protect and keep their respective
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary repairs, renewals and replacements so that the
business carried on by the Obligors may be properly conducted in all material
respects at all times, unless ACT or its Subsidiaries determine in good faith
that the continued maintenance of such property is no longer economically
desirable, necessary or useful to the business of the Obligors or the
Disposition of such property is otherwise permitted by the terms of a Loan
Document.


 


SECTION 7.1.4.  Insurance.  ACT will, and will cause each of its Subsidiaries to, maintain:


 


(a)  insurance on its property with financially
sound and reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles) customarily maintained, and against
such risks (including fire and other risks insured against by extended
coverage) as are typically insured against in the same general area, by Persons
of comparable size engaged in the same or similar business as ACT and its
Subsidiaries;


 


(b)  liability insurance in customary amounts for
similar companies;


 


(c)  all worker’s compensation, employer’s
liability insurance or similar insurance as may be required under the laws of
any state or jurisdiction in which it may be engaged in business; and


 


(d)  (i) environmental insurance for third party
liability and remediation claims with respect to those sites listed on Item
7.1.4 (d)(i) of the Disclosure Schedule and (ii) environmental remediation
insurance with respect to real property located in states within the U.S. where
no “state fund” is available and states within the U.S. listed on Item 7.1.4
(d)(ii) of the Disclosure Schedule, in each case on terms and conditions
satisfactory to the Arrangers.


 


Without limiting the foregoing, all insurance policies required
pursuant to this Section shall name the Collateral Agent on behalf of the
Secured Parties as mortgagee (in the case of property insurance) or additional
insured (in the case of liability insurance), as applicable, and provide that
no cancellation or modification of the policies will be made without thirty
days’ prior written notice to the Administrative Agents.


 


SECTION 7.1.5.  Books and Records.  ACT will, and will cause each of its
Subsidiaries to, keep books and records in accordance with GAAP (or, in the
case of U.S. organized Obligors, 


 


90

















 


GAAP
or U.S. generally accepted accounting principles) which accurately reflect in
all material respects all of its business affairs and transactions and permit
each Lender Party or any of their respective representatives, at reasonable
times and intervals upon reasonable notice to ACT but not more than once per
calendar year (but in any case coordinated as a group through the Arrangers)
(unless a Default shall have occurred and be continuing, in which case such
visits and examinations may occur more often than once per year, so long as
they continue to be made by the Lender Parties as a group, coordinated through
the Arrangers), to visit each Obligor’s offices, to discuss such Obligor’s
financial matters with its officers and employees, and its independent
chartered accountants (and each Obligor hereby authorizes such independent
chartered accountant to discuss each Obligor’s financial matters with each
Lender Party or their representatives whether or not any representative of such
Obligor is present) and to examine (and photocopy extracts from) any of its
books and records.  If a Default shall
have occurred and be continuing, the Borrowers shall pay any fees of such
independent chartered accountant incurred in connection with any Lender Party’s
exercise of its rights pursuant to this Section.


 


SECTION 7.1.6.  Environmental Law Covenant.  ACT will, and will cause each of its
Subsidiaries to,


 


(a)  use and operate all of its and their
facilities and properties in material compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws except for any non-compliance with any
Environmental Law or failure to have a permit, approval, certificate, license
or other authorization relating to environmental matters which could not reasonably
be expected to have a Material Adverse Effect; and


 


(b)  promptly notify the Administrative Agents
and provide copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in respect
of, or as to compliance with, Environmental Laws (the failure to comply with
which could reasonably be expected to have a Material Adverse Effect), and
shall promptly resolve any such non-compliance with Environmental Laws and keep
its property free of any Lien imposed by any Environmental Law.


 


SECTION 7.1.7.  Use of Proceeds.  The Borrowers will apply the proceeds of the
Credit Extensions as follows:


 


(a)  to repay the Indebtedness identified in Item
7.2.2(b) of the Disclosure Schedule;


 


(b)  to pay a portion of the purchase price of
the Capital Securities to be purchased in the Acquisition, and to pay
Transaction Expenses;


 


(c)  for working capital and general corporate
purposes of the Obligors, including Permitted Acquisitions by such Persons; and


 


91

















 


(d)  for issuing Letters of Credit for the
account of the Obligors.


 


The Borrowers
agree that in no event will the proceeds of Credit Extensions be used directly
or indirectly (i) to facilitate or consummate a Hostile Take-Over or
(ii) in violation of any law or governmental regulation including any of
the Terrorism Laws and shall take all necessary action to comply with all
Terrorism Laws with respect thereto.


 


SECTION 7.1.8.  Future Guarantors, Security, etc.  Except as set forth in Section 7.1.10,
ACT will, and will cause each of its Subsidiaries to, execute any documents,
Filing Statements, agreements and instruments, and take all further action
(including filing Mortgages) that may be required under applicable law, or that
the Administrative Agents may reasonably request, in order to effectuate the
transactions contemplated by the Loan Documents and in order to grant,
preserve, protect and perfect the validity and first priority (subject to
Permitted Liens) of the Liens created or intended to be created by the Loan
Documents.  ACT will cause each of its
subsequently acquired or organized Material Subsidiaries to execute a
supplement to the Subsidiary Guaranty and each other applicable Security Document
pursuant to which such Subsidiary grants to the Collateral Agent in favor of
the Secured Parties a security interest in substantially all of its assets
(other than as set forth in Section 7.1.10).  In addition, from time to time, ACT will, and will cause its
Subsidiaries to, at their cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected Liens with
respect to such of their assets and properties (other than as set forth in Section
7.1.10) as any Administrative Agent shall designate, in order to ensure
that the Obligations shall be secured by at least 90% of the consolidated
assets, revenue and EBITDA of ACT and its Subsidiaries.  Such Liens will be created under the Loan
Documents in form and substance satisfactory to each Administrative Agent, and
ACT and the other Obligors shall deliver or cause to be delivered to each
Administrative Agent all such instruments and documents (including legal
opinions and lien searches) as any Administrative Agent shall reasonably
request to evidence compliance with this Section.  The Borrowers agree that they shall, and shall cause their
Subsidiaries to, do all things necessary to the satisfaction of the Arrangers
to ensure that at all times Persons owning at least 90% of the consolidated
assets and at least 90% of the consolidated revenue and EBITDA of ACT and its
Subsidiaries shall be primarily liable (either directly as a Borrower or
indirectly by way of a guaranty of payment pursuant to a Loan Document) for the
Obligations.


 


SECTION 7.1.9.  Rate Protection Agreements.  Unless otherwise agreed to by the Arrangers,
within 120 days following the Closing Date, the Borrowers will enter into
interest rate swap, cap, collar or similar arrangements designed to protect the
Borrowers against fluctuations in interest rates in respect of not more than
50% of the Term Loans then outstanding on terms satisfactory to the Arrangers.


 


SECTION 7.1.10.  Real Property.   In the event that the Obligors shall have
not Disposed of certain of their real property interests as set forth in clauses (b)
and (c) of Section 7.2.11 hereof, within the time limit
permitted thereunder, ACT will, or will cause each of its Subsidiaries to (as
the case may be), subject to the next two sentences, deliver to the Collateral
Agent counterparts of a Mortgage for
each property listed in Item (a) and Item (b) of Schedule
III hereto, duly executed by the applicable Obligor, together with (i)
evidence of the completion (or satisfactory arrangements for the completion) of
all recordings and filings of each such 


 


92

















 


Mortgage
as may be necessary or, in the opinion of the Administrative Agents, desirable
to create a valid, perfected first priority Lien against the properties
purported to be covered thereby and (ii) such other approvals, opinions, or
documents as any Administrative Agent may request (excluding title insurance,
surveys, title searches and similar documents) in form and substance
satisfactory to such Administrative Agent. 
Notwithstanding anything to the contrary herein, ACT shall, or shall
cause its Subsidiaries to (as the case may be), within 120 days after the
Closing Date and within 60 days following the last day of the second and fourth
Fiscal Quarter of each Fiscal Year thereafter, have the Obligations hereunder
secured by no less than 90% of ACT’s and its Subsidiaries’ fee owned real
property; provided, that commencing on the 121st day
following the Closing Date, ACT and its Subsidiaries shall not have to deliver
any Mortgage to comply with the foregoing clause until such time as the number
of fee owned properties required to be mortgaged exceeds 25; provided  further,
that until such time as the Obligors are no longer permitted to Dispose of assets
under the Permitted Sale-Leaseback or as a Permitted Store Closure pursuant to clauses
(b) and (c) of Section 7.2.11 hereunder, the properties
listed in Item (a) and Item (b) of Schedule III
hereto, as the case may be, shall not be considered “fee owned real property”
for purposes of calculating the foregoing percentage.


 


SECTION 7.1.11.  Senior Secured Bank Debt Rating.  ACT shall use its best efforts to ensure
that its senior secured bank debt is publicly rated by both S&P and Moody’s
and ACT shall promptly notify the Administrative Agents in the event either
S&P or Moody’s ceases to continue to maintain such ratings.


 


SECTION 7.2.  Negative Covenants.  The Borrowers covenant and agree with each
Lender, each Issuer and each Administrative Agent that until the Termination
Date has occurred, the Borrowers will, and will cause their Subsidiaries to,
perform or cause to be performed the obligations set forth below.


 


SECTION 7.2.1.  Business Activities.  ACT will not, and will not permit any of its
Subsidiaries to, engage in any businesses which are not the same, ancillary or
related to the businesses in which ACT and its Subsidiaries are engaged in on
the date of this Agreement.


 


SECTION 7.2.2.  Indebtedness.  ACT will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness,
other than:


 


(a)  Indebtedness in respect of the Obligations;


 


(b)  until the Closing Date, Indebtedness that is
to be repaid in full as further identified in Item 7.2.2(b) of the Disclosure
Schedule;


 


(c)  Indebtedness existing as of the Effective
Date which is identified in Item 7.2.2(c) of the Disclosure
Schedule, and refinancing of such Indebtedness in a principal amount not in
excess of that which is outstanding on the Effective Date;


 


(d)  unsecured Indebtedness (i) incurred in the
ordinary course of business of ACT and its Subsidiaries and (ii) in respect of
performance, surety or appeal bonds provided in the ordinary course of
business, but excluding (in each case), Indebtedness 


 


93

















 


incurred through
the borrowing of money or Contingent Liabilities in respect of borrowed money;


 


(e)  Indebtedness (i) in respect of
industrial revenue bonds or other similar governmental or municipal bonds, (ii)
evidencing the deferred purchase price of newly acquired property or incurred
to finance the acquisition of equipment of ACT and its Subsidiaries (pursuant
to purchase money mortgages or otherwise, whether owed to the seller or a third
party) used in the ordinary course of business of ACT and its Subsidiaries (provided,
that such Indebtedness is incurred within 60 days of the acquisition of such
property) and (iii) in respect of Capitalized Lease Liabilities; provided,
that the aggregate amount of all Indebtedness outstanding pursuant to this
clause shall not at any time exceed $25,000,000;


 


(f)  Indebtedness of ACT or any Subsidiary owing
to ACT or any other Subsidiary, which Indebtedness


 


(i)  if incurred by a Subsidiary that is not an
Obligor shall not (when aggregated (without duplication) with the amount of
Investments made by the Borrowers and the Subsidiary Guarantors in Subsidiaries
that are not Obligors under clause (d)(i) of Section 7.2.5),
exceed $10,000,000; and


 


(ii)  shall be subordinated on terms and
conditions satisfactory to the Arrangers;


 


(g)  (i) unsecured Subordinated Debt of the High
Yield Issuers incurred pursuant to the terms of the Subordinated Debt Documents
in a principal amount not to exceed $350,000,000, and unsecured Contingent
Liabilities of ACT and the Guarantors in respect of such Subordinated Debt, but
only if such Contingent Liabilities are subordinated to the Obligations on
substantially the same terms as the Subordinated Debt of the High Yield Issuers
is subordinated to the Obligations, (ii) other unsecured Indebtedness of ACT or
any of its Subsidiaries subordinated in right of payment to the Obligations
pursuant to documentation containing terms substantially the same as in the
Subordinated Debt Documents, (iii) other unsecured Indebtedness of ACT or any
of its Subsidiaries subordinated in right of payment to the Obligations
pursuant to documentation containing redemption and other prepayment events,
maturities, amortization schedules, covenants, events of default, remedies,
acceleration rights, subordination provisions and other material terms
satisfactory to the Required Lenders, and (iv) refinancings of such
Subordinated Debt and Contingent Liabilities in respect thereof which continue
to satisfy the terms of clauses (g)(ii) or (g)(iii); provided
that in the case of clauses (g)(ii) and (g)(iii) the Net Debt
Proceeds from the issuance of such Subordinated Debt are applied to prepay
Loans in accordance with Section 3.1.1 and 3.1.2;


 


(h)  Indebtedness of a Person existing at the
time such Person became a Subsidiary of ACT, but only if such Indebtedness was
not created or incurred in contemplation of such Person becoming a Subsidiary
and the aggregate outstanding 


 


94

















 


amount of all
Indebtedness or other obligations or liabilities existing pursuant to this
clause does not exceed $35,000,000 at any time; and


 


(i)  other unsecured Indebtedness of ACT and its
Subsidiaries (other than Indebtedness of Foreign Subsidiaries owing to an
Obligor) in an aggregate amount at any time outstanding not to exceed
$50,000,000;


 


provided, that no Indebtedness otherwise permitted by
clauses (c), (e), (f), (g), (h) or (i)
shall be assumed, created or otherwise incurred if a Default has occurred and
is then continuing or would result therefrom other than the refinancing of
Indebtedness existing as of the date of such Default.


 


SECTION 7.2.3.  Liens.  ACT will not, and will not permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien upon any of
its property (including Capital Securities of any Person), revenues or assets,
whether now owned or hereafter acquired, except as follows (collectively, the “Permitted
Liens”):


 


(a)  Liens securing payment of the Obligations;


 


(b)  until the Closing Date, Liens securing
payment of Indebtedness described in clause (b) of Section 7.2.2;


 


(c)  Liens existing as of the Effective Date and,
in respect of personal property, disclosed in Item 7.2.3(c) of the
Disclosure Schedule securing Indebtedness or other obligations or liabilities
described in clause (c) of Section 7.2.2, and
refinancings of such Indebtedness or other obligations or liabilities; provided,
that no such Lien shall encumber any additional property and the principal
amount of Indebtedness or other obligations and liabilities secured by such
Lien is not increased from that existing on the Effective Date;


 


(d)  Liens securing Indebtedness of the type
permitted under clause (e) of Section 7.2.2; provided,
that (i) such Lien is granted within 60 days after such Indebtedness is
incurred, and (ii) such Lien secures only the assets that are the subject
of the Indebtedness referred to in such clause;


 


(e)  Liens securing Indebtedness, obligations or
liabilities permitted by clause (h) of Section 7.2.2; provided,
that such Liens existed prior to such Person becoming a Subsidiary, were not
created in anticipation thereof and attach only to specific tangible assets of
such Person (and not assets of such Person generally);


 


(f)  Liens in favor of carriers, warehousemen,
mechanics, materialmen, architects, engineers, suppliers of material,
contractors, subcontractors and landlords granted in the ordinary course of
business or at law for amounts not overdue or being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;


 


95

















 


(g)  Liens incurred or deposits made in the
ordinary course of business in connection with worker’s compensation,
unemployment insurance or other forms of governmental insurance or benefits, or
to secure performance of tenders, statutory obligations, bids, leases or other
similar obligations (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety and appeal bonds
or performance bonds;


 


(h)  judgment Liens in existence for less than
45 days after the entry thereof or with respect to which execution has
been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies and
which do not otherwise result in an Event of Default under Section 8.1.6;


 


(i)  easements, servitudes, rights-of-way, zoning
restrictions, minor defects or irregularities in title and other similar
encumbrances not interfering in any material respect with the value or use of
the property to which such Lien is attached;


 


(j)  Liens for Taxes not at the time delinquent
or thereafter payable without penalty or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;


 


(k)  undetermined or inchoate Liens (including
priority claims) which have not at such time been filed or registered in
accordance with applicable law or which relate to obligations not due or
delinquent;


 


(l)  Liens resulting from the right reserved to
or vested in any Governmental Authority by any statutory provision, or by the
terms of any lease, license, franchise, grant or permit of ACT or any
Subsidiary, to terminate any such lease, license, franchise, grant or permit,
or to require annual or other payments as a condition to the continuance thereof;
and


 


(m)  other Liens securing Indebtedness or other
obligations in an amount not to exceed in the aggregate $2,000,000 at any time
outstanding.


 


SECTION 7.2.4.  Financial Condition and Operations.  ACT will not permit any of the events set
forth below to occur.


 


(a)  The Senior Secured Leverage Ratio as of the
last day of any Fiscal Quarter occurring during any period set forth below to
be greater than the ratio set forth opposite such period:


 




	
  Period

  	
   

  	
  Senior
  Secured Leverage

  Ratio

  	
   

  
	
  04/24/04 through (and including) 04/24/05

  	
   

  	
  2.50:1

  	
   

  
	
  04/25/05 through (and including) 04/30/06

  	
   

  	
  2.25:1

  	
   

  
	
  05/01/06 and thereafter

  	
   

  	
  2.00:1

  	
   

  






 


96

















 


(b)  The Adjusted Leverage Ratio as of the last
day of any Fiscal Quarter occurring during any period set forth below to be
greater than the ratio set forth opposite such period:


 




	
  Period

  	
   

  	
  Adjusted Leverage

  Ratio

  	
   

  
	
  04/24/04 through (and including) 04/30/06

  	
   

  	
  4.75:1

  	
   

  
	
  05/01/06 through (and including) 04/29/07

  	
   

  	
  4.50:1

  	
   

  
	
  04/30/07 through (and including) 04/27/08

  	
   

  	
  4.25:1

  	
   

  
	
  04/28/08 and thereafter

  	
   

  	
  4.00:1

  	
   

  






 


(c)  The Fixed Charge Coverage Ratio as of the
last day of any Fiscal Quarter occurring during any period set forth below to
be less than the ratio set forth opposite such period:


 




	
  Period

  	
   

  	
  Fixed
  Charge

  Coverage Ratio

  	
   

  
	
  04/24/04 through (and including) 07/17/05

  	
   

  	
  1.10:1

  	
   

  
	
  07/18/05 and thereafter

  	
   

  	
  1.15:1

  	
   

  






 


(d)  The Interest Coverage Ratio as of the last
day of any Fiscal Quarter occurring during any period set forth below to be
less than the ratio set forth opposite such period:


 




	
  Period

  	
   

  	
  Interest
  Coverage

  Ratio

  	
   

  
	
  04/24/04 and thereafter

  	
   

  	
  4.00:1

  	
   

  






 


SECTION 7.2.5.  Investments.  ACT will not, and will not permit any of its
Subsidiaries to, purchase, make, incur, assume or permit to exist any
Investment in any other Person, except:


 


(a)  Investments existing on the Effective Date
and identified in Item 7.2.5(a) of the Disclosure Schedule;


 


(b)  Cash Equivalent Investments;


 


97

















 


(c)  Investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the ordinary course of
business;


 


(d)  Investments by way of contributions to
capital or purchases of Capital Securities (i) by ACT in any of its
Subsidiaries or by any Subsidiary in other Subsidiaries; provided, that
the aggregate amount of intercompany loans made pursuant to clause (f)(i)
of Section 7.2.2 and Investments under this clause made by an Obligor in
Subsidiaries that are not Obligors shall not exceed (without duplication) the
amount set forth in clause (f)(i) of Section 7.2.2 at any time,
or (ii) by any Subsidiary in any Borrower;


 


(e)  Investments constituting (i) accounts
receivable arising, (ii) trade debt granted, or (iii) deposits made
in connection with the purchase price of goods or services, in each case in the
ordinary course of business;


 


(f)  Investments by way of the acquisition of
Capital Securities constituting Permitted Acquisitions otherwise permitted
pursuant to clause (b) of Section 7.2.10;


 


(g)  Investments consisting of any deferred
portion of the sales price received by ACT or any of its Subsidiaries in
connection with any Disposition permitted under Section 7.2.11;


 


(h)  to the extent permitted by applicable law,
Investments resulting from reasonable and customary loans or advances to
employees in the ordinary course of business (including in connection with
expenses associated with relocation of management and employees) in an
aggregate amount not to exceed $1,000,000 at any one time outstanding;


 


(i)  Investments consisting of Indebtedness made
pursuant to Section 7.2.2; and


 


(j)  other Investments in an amount not to exceed
$35,000,000 over the term of this Agreement;


 


provided, that


 


(k)  any Investment which when made complies with
the requirements of the definition of the term “Cash Equivalent Investment” may
continue to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements; and


 


(l)  no Investment otherwise permitted by clauses (d)(i)
(in the case of Investments in other than Obligors), (f) or (i)
shall be permitted to be made if any Default has occurred and is continuing or
would result therefrom.


 


SECTION 7.2.6.  Restricted Payments, etc.  ACT will not, and will not permit any of its
Subsidiaries to, declare or make a Restricted Payment, or make any deposit for
any Restricted 


 


98

















 


Payment,
other than Restricted Payments made by Subsidiaries to ACT, a Borrower or
wholly-owned Subsidiaries; provided, that ACT may make normal course
issuer bids for the repurchase or redemption of Capital Securities of ACT but
only to the extent that (a) no Default has occurred and is continuing or would
result therefrom and (b) the maximum amount of such Restricted Payments does
not exceed C$5,000,000 in any Fiscal Year.


 


SECTION 7.2.7.  Capital Expenditures, etc.  Subject (in the case of
Capitalized Lease Liabilities), to clause (e) of Section 7.2.2,
ACT will not, and will not permit any of its Subsidiaries to make Capital
Expenditures (excluding Capital Expenditures actually made in order to comply
with ADA Agreement, up to a maximum amount of $18,600,000) for the period
(i) commencing on the Effective Date and ending on April 30, 2004, in
excess of C$62,500,000 and (ii) for each Fiscal Year thereafter in an
annual amount in excess of the sum of the then applicable Reinvestment Amount
(to the extent not previously expended or applied to a prepayment of Term
Loans) plus the amount set forth below opposite the applicable Adjusted
Leverage Ratio that is in the Compliance Certificate delivered with ACT’s
audited annual financial statements pursuant to clause (b) of Section
7.1.1:


 




	
  Adjusted
  Leverage

  Ratio

  	
   

  	
  Capital 

  Expenditure Amount

  	
   

  
	
  > 4.50:1

  	
   

  	
  C$

  	
  150,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  > 4.00:1 but < 4.50:1

  	
   

  	
  C$

  	
  175,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  > 3.75:1 but < 4.00:1

  	
   

  	
  C$

  	
  200,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  < 3.75:1

  	
   

  	
  The maximum
  amount of

  Capital Expenditures that

  can be made without

  causing a Default under the

  then applicable Fixed

  Charge Coverage Ratio.

  	
   

  






 


 


SECTION 7.2.8.  No Prepayment of Subordinated Debt.  ACT will not, and will not permit any of its
Subsidiaries to,


 


(a)  make any payment or prepayment of principal
of, or premium or interest on, any Subordinated Debt other than (in the case of
interest) on the stated, scheduled date for payment of interest set forth in
the applicable Subordinated Debt Documents (together with any withholding tax
gross-ups), or which would otherwise violate the terms of this Agreement or the
applicable Subordinated Debt Documents;


 


(b)  redeem, retire, purchase, defease or
otherwise acquire any Subordinated Debt; or


 


99

















 


(c)  make any deposit (including the payment of
amounts into a sinking fund or other similar fund) for any of the foregoing
purposes.


 


Furthermore, (i) ACT will not, and will not permit any Subsidiary to,
designate any Indebtedness other than the Obligations as “Designated Senior
Indebtedness” (or any analogous term) in any Subordinated Debt Document and
(ii) shall at all times maintain the designation of the Obligations as
“Designated Senior Indebtedness” (or any analogous term) in all Subordinated
Debt Documents.


 


SECTION 7.2.9.  Issuance of Capital Securities.  ACT will not, and will not permit any of its
Subsidiaries to, issue any Capital Securities (whether for value or otherwise)
to any Person other than, (i) in the case of ACT, (A) if the Loans are
contemporaneously repaid with the Net Equity Proceeds in accordance with clause
(e) of Section 3.1.1, (B) Capital Securities issued under any stock
option plan or as a result of the exercise of stock options, (C) Capital
Securities issued by way of stock dividends and (D) Capital Securities issued
in connection with any change in ACT’s capital stock (including stock
subdivisions), or (ii) in the case of its Subsidiaries, to a Borrower or
another wholly-owned Subsidiary.


 


SECTION 7.2.10.  Consolidation, Merger, Permitted Acquisitions, etc. 
ACT will not, and will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with, any other
Person, or purchase or otherwise acquire all or substantially all of the assets
of any Person (or any division thereof), except


 


(a)  any Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, a Borrower or any other
Subsidiary (provided, that a Guarantor may only liquidate or dissolve
into, or merge with and into, a Borrower or another Guarantor and ACT must
continue to be the surviving entity, remaining organized as a corporation under
the laws of the Province of Québec, in any merger or other business combination
in which it takes part), and the assets or Capital Securities of any Subsidiary
may be purchased or otherwise acquired by a Borrower or any other Subsidiary (provided,
that the assets or Capital Securities of any Guarantor may only be purchased or
otherwise acquired by a Borrower or another Guarantor); provided, further,
that in no event shall any Subsidiary consolidate with or merge with and into
any other Subsidiary unless after giving effect thereto, the Collateral Agent
shall have (for the benefit of the Secured Parties) a perfected pledge of, and
security interest in and to, at least the same percentage of the issued and
outstanding interests of Capital Securities (on a fully diluted basis) and
other assets of the surviving Person as the Collateral Agent had immediately
prior to such merger or consolidation, subject to Permitted Liens, in form and
substance satisfactory to the Administrative Agents and their counsel, pursuant
to such documentation and opinions as shall be necessary in the opinion of the
Administrative Agents to create, perfect or maintain the same collateral position
of the Secured Parties therein as prior to such transaction; and


 


(b)  so long as (i) no Default has occurred and
is continuing or would occur after giving effect thereto, ACT or any of its
Subsidiaries may consummate one or more Permitted Acquisitions; provided,
that the aggregate purchase price for any such 


 


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Permitted
Acquisition does not exceed $50,000,000, and (ii) in the case of a Permitted
Acquisition of Capital Securities, such Permitted Acquisition shall result in
the acquisition of a majority-owned Canadian or U.S. Subsidiary.


 


SECTION 7.2.11.  Permitted Dispositions.


 


(a)  Except as set forth in clauses (b)
and (c) below, ACT will not, and will not permit any of its Subsidiaries
to, Dispose of any of such Person’s assets (including accounts receivable and
Capital Securities of Subsidiaries) to any Person in one transaction or series
of transactions unless (i) such Disposition is inventory or obsolete, damaged,
worn out, surplus or outdated property Disposed of in the ordinary course of
its business, (ii) such Disposition is permitted by Section 7.2.10,
(iii) (A) such Disposition is for fair market value and the consideration
received consists of no less than 75% cash (or Cash Equivalent Investments) (provided,
that satisfaction of the requirement in this clause (iii)(A) shall not be
required in the case of a Disposition of any Underperforming Store),
(B) the Net Disposition Proceeds received from such Disposition, together
with the Net Disposition Proceeds of all other assets Disposed of pursuant to
this clause does not exceed (individually or in the aggregate) $25,000,000 in
any Fiscal Year, and (C) the Net Disposition Proceeds from such
Disposition are applied in accordance with Sections 3.1.1 and 3.1.2.


 


(b)  The Obligors may Dispose of assets under (i)
the Permitted Sale-Leaseback and (ii) Section 7.2.15; provided,
that all Net Disposition Proceeds received in connection therewith (in the case
of clause (b) of Section 7.2.15, only to the extent such Net
Disposition Proceeds have not been applied to fund the purchase price of the
assets acquired and subject to such sale and leaseback as permitted thereunder)
are used to prepay the outstanding principal amount of the Loans to the extent
required by, and in accordance with, Sections 3.1.1 and 3.1.2.


 


(c)  The Obligors may Dispose of assets as part
of a Permitted Store Closure provided that (i) such Permitted Store Closure is
consummated within twelve months after the Closing Date (unless otherwise
extended by the Administrative Agents) and (ii) all Net Disposition
Proceeds received in connection with each such Permitted Store Closure are
applied in accordance with Sections 3.1.1 and 3.1.2.


 


SECTION 7.2.12.  Modification of Certain Agreements.  ACT will not, and will not permit any of its
Subsidiaries to, consent to any amendment, supplement, waiver or other
modification of, or enter into any forbearance from exercising any rights with
respect to the terms or provisions contained in,


 


(a)  (i) the Transaction Documents to which
Obligor is a party (other than the Subordinated Debt Documents) if the result
thereof could reasonably be expected to have a material and adverse effect on
the Lenders or (ii) the Organic Documents of any Obligor, if the result thereof
could reasonably be expected to have a Material Adverse Effect (it being agreed
that any modification of any such Organic Document or Transaction Document
would not have an adverse effect on the Lenders or Material 


 


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Adverse Effect, as
the case may be, if such modification is made to effectuate a transaction
otherwise permitted by the terms of any Loan Document); or


 


(b)  the Subordinated Debt Documents, other than
any amendment, supplement, waiver or modification for which no fee is payable
to the holders of the Subordinated Debt and which (i) extends the date or
reduces the amount of any required repayment, prepayment or redemption of the
principal of such Subordinated Debt, (ii) reduces the rate or extends the date
for payment of the interest, premium (if any) or fees payable on such
Subordinated Debt or (iii) makes the covenants, events of default or remedies
in such Subordinated Debt Documents less restrictive on the Obligors.


 


SECTION 7.2.13.  Transactions with Affiliates.  ACT will not, and will not permit any of its
Subsidiaries to, enter into or cause or permit to exist any arrangement,
transaction or contract (including for the purchase, lease or exchange of
property or the rendering of services) with any of its other Affiliates, unless
such arrangement, transaction or contract (i) is on fair and reasonable
terms no less favorable to ACT or such Subsidiary than it could obtain in an
arm’s-length transaction with a Person that is not an Affiliate and
(ii) is of the kind which would be entered into by a prudent Person in the
position of ACT or such Subsidiary with a Person that is not one of its
Affiliates.  The terms of this Section
shall not apply to transactions by and among Obligors or to the terms of any
shareholder (or similar) agreements between ACT and Metro Inc. (or its
Affiliates), as they relate to equity ownership in ACT, including rights to
purchase Capital Securities of ACT.


 


SECTION 7.2.14.  Restrictive Agreements, etc.  ACT
will not, and will not permit any of its Subsidiaries to, enter into any
agreement prohibiting


 


(a)  the creation or assumption of any Lien
securing payment of the Obligations upon its properties, revenues or assets,
whether now owned or hereafter acquired;


 


(b)  the ability of any Obligor to amend or
otherwise modify any Loan Document; or


 


(c)  the ability of any Subsidiary that is not an
Obligor to make any payments, directly or indirectly, to any Obligor, including
by way of dividends, advances, repayments of loans, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on investments.


 


The foregoing prohibitions shall not apply to restrictions contained
(i) in any Loan Document or (ii) in the case of clause (a),
any agreement governing any Indebtedness permitted by clauses (c)
or (e) of Section 7.2.2 as to the assets financed with the
proceeds of such Indebtedness.


 


SECTION 7.2.15.  Sale and Leaseback.  ACT will not, and will not permit any of its
Subsidiaries to, directly or indirectly enter into any agreement or arrangement
providing for the sale or transfer by it of any property (now owned or
hereafter acquired) to a Person and the subsequent lease or rental of such
property or other similar property from such Person, other than (a) the
Permitted Sale-Leaseback; (b) sale and leasebacks of real property not owned by
ACT or 


 


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its
Subsidiaries as of the Closing Date in an amount not to exceed $35,000,000 in
any Fiscal Year, provided the Net Disposition Proceeds of such sale and
leaseback (under this clause (b)) are applied in accordance with clause
(i) of Section 3.1.1 and Section 3.1.2 or, to the extent such
Net Disposition Proceeds result from a sale and leaseback that is consummated
within four months following the acquisition of the property that is the
subject of such sale and leaseback, to fund the purchase price of the assets
acquired in connection with such sale and leaseback (and in such event no
repayment of the Term Loans would be required); and (c) sale and leasebacks of
real property owned by ACT or its Subsidiaries as of the Closing Date (after
giving effect to the Acquisition) in an amount not to exceed $50,000,000 in any
Fiscal Year, provided,  that the Net
Disposition Proceeds of such sale and leaseback (under this clause (c))
are applied in accordance with clause (i) of Section 3.1.1 and Section
3.1.2.


 


ARTICLE VIII

EVENTS OF DEFAULT


 


SECTION 8.1.  Listing of Events of Default.  Each of the following events or occurrences
described in this Article shall constitute an “Event of Default”.


 


SECTION 8.1.1.  Non-Payment of Obligations.  Any Borrower shall default in the payment or
prepayment when due of


 


(a)  any principal of any Loan, or any
Reimbursement Obligation or any deposit of cash for collateral purposes
pursuant to Section 2.6.4; or


 


(b)  any interest on the Loans or any fee
described in Article III or any other monetary Obligation, and such
default shall continue unremedied for a period of three Business Days after
such amount was due.


 


SECTION 8.1.2.  Breach of Warranty.  Any representation or warranty of any
Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be
incorrect when made or deemed to have been made in any material respect.


 


SECTION 8.1.3.  Non-Performance of Certain Covenants and
Obligations.  ACT or any Borrower
shall fail to execute and deliver the Offer to Prepay as required (and within
the period set forth in) clause (d) of Section 3.1.2, or shall
default in the due performance or observance of any of its obligations under Section
7.1.1, Section 7.1.7 or Section 7.2.


 


SECTION 8.1.4.  Non-Performance of Other Covenants and
Obligations.  Any Obligor shall default
in the due performance and observance of any other agreement contained in any
Loan Document executed by it, and such default shall continue unremedied for a
period of 30 days after the earlier to occur of (i) notice thereof given
to ACT by either Administrative Agent or any Lender or (ii) the date on which
any Obligor has knowledge of such default.


 


SECTION 8.1.5.  Default on Other Indebtedness.  A default shall occur and be continuing in
the payment of any amount when due (subject to any applicable grace period),
whether by 


 


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acceleration
or otherwise, of any principal or stated amount of, rental payments on, or
interest or fees on, any Indebtedness (other than Indebtedness described in Section 8.1.1)
of ACT or any of its Subsidiaries or any other Obligor having a principal or
stated amount, individually or in the aggregate, in excess of $10,000,000 (or
the Canadian Dollar Equivalent thereof, if applicable), or a default shall
occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of
such Indebtedness, or any trustee or agent for such holders, to cause or
declare such Indebtedness to become due and payable or to require such
Indebtedness to be prepaid, redeemed, purchased or defeased, or require an offer
to purchase or defease such Indebtedness to be made, prior to its expressed
maturity.


 


SECTION 8.1.6.  Judgments.  Any final judgment or order for the payment of money individually
or in the aggregate in excess of $10,000,000 (or the Canadian Dollar Equivalent
thereof, if applicable) (exclusive of any amounts fully covered by insurance
(less any applicable deductible) and as to which the insurer has acknowledged
its responsibility to cover such judgment or order) shall be rendered against
ACT or any of its Subsidiaries or any other Obligor and such judgment shall not
have been vacated or discharged or stayed or bonded pending appeal within
30 days after the entry thereof or enforcement proceedings shall have been
commenced by any creditor upon such judgment or order.


 


SECTION 8.1.7.  Pension Plans.  Any of the following events shall occur with
respect to any U.S. Pension Plan or Canadian Pension Plan, as the case may be


 


(a)  the institution of any steps by any
Borrower, any member of its Controlled Group or any other Person to terminate a
U.S. Pension Plan if, as a result of such termination, any Borrower or any such
member could be required to make a contribution to such U.S. Pension Plan, or
could reasonably expect to incur a liability or obligation to such U.S. Pension
Plan, in excess of $5,000,000; or


 


(b)  a contribution failure occurs with respect
to any U.S. Pension Plan sufficient to give rise to a Lien under section 302(f)
of ERISA; or


 


(c)  any of the following events shall occur with
respect to any Canadian Pension Plan or Canadian Welfare Plan:  (i) the institution of any steps by
ACT, a Subsidiary or any other Person to terminate any Canadian Pension Plan
if, as a result of such termination, ACT or any of its Subsidiary is required
to make an additional contribution to such Canadian Pension Plan, or could
reasonably be expected to incur a liability or obligation to such Canadian
Pension Plan, in an amount in excess of $5,000,000; (ii) a contribution
failure occurs with respect to any Canadian Pension Plan in an amount in excess
of $5,000,000, or the Canadian Dollar Equivalent thereof; or (iii) the
occurrence of any event with respect to any Canadian Pension Plan that results
in or would reasonably be likely to result in the incurrence by ACT or any of
its Subsidiaries of any liability, fine or penalty, or any increase in a
liability, including without limitation a contingent liability, of ACT or any
of its Subsidiaries in an amount in excess of 


 


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$5,000,000, or the
Canadian Dollar Equivalent thereof, with respect to any Canadian Pension Plan
or Canadian Welfare Plan benefit.


 


SECTION 8.1.8.  Change in Control.  Any Change in Control shall occur.


 


SECTION 8.1.9.  Bankruptcy, Insolvency, etc.  ACT, any of its Material Subsidiaries or any
other Obligor shall


 


(a)  become insolvent or generally fail to pay,
or admit in writing its inability or unwillingness generally to pay, debts as
they become due;


 


(b)  apply for, consent to, or acquiesce in the
appointment of a trustee, receiver, sequestrator or other custodian for any
substantial part of the property of any thereof, or make a general assignment
for the benefit of creditors;


 


(c)  in the absence of such application, consent
or acquiescence in or permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days; provided, that
ACT, each Subsidiary and each other Obligor hereby expressly authorizes each
Secured Party to appear in any court conducting any relevant proceeding during
such 60-day period to preserve, protect and defend their rights under the Loan
Documents;


 


(d)  permit or suffer to exist the commencement
of any bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law or any dissolution, winding up or
liquidation proceeding, in respect thereof, and, if any such case or proceeding
is not commenced by ACT, any Subsidiary or any Obligor, such case or proceeding
shall be consented to or acquiesced in by ACT, such Subsidiary or such Obligor,
as the case may be, or shall result in the entry of an order for relief or
shall remain for 60 days undismissed; provided, that ACT, each
Subsidiary and each Obligor hereby expressly authorizes each Secured Party to
appear in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan Documents;
or


 


(e)  take any action authorizing, or in
furtherance of, any of the foregoing.


 


SECTION 8.1.10.  Impairment of Security, etc.  Any Loan Document or any Lien granted
thereunder shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of any Obligor party thereto; any Obligor or any other
party shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any
Loan Document; any Lien securing any Obligation shall, in whole or in part,
cease to be a perfected first priority Lien (subject to Sections 7.1.8
and 7.1.10, and Permitted Liens); provided, that the foregoing
shall only constitute an Event of Default (i) in the case of unenforceability
or other impairment of real property collateral as a result of the legal
description not adequately or accurately describing the real property subject
to a Mortgage, if such 


 


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inadequacies
or inaccuracies exist for more than 5% of the Mortgages then in effect or (ii)
in the case of Mortgages delivered pursuant to Section 5.1.15 on the
Closing Date, if more than 5% of such Mortgages are not accepted for recording
in the applicable jurisdictions within 30 days following the Closing Date.


 


SECTION 8.1.11.  Failure of Subordination.  Unless otherwise waived or consented to by
the Administrative Agents, the Lenders and the Issuers in writing, the
subordination provisions relating to any Subordinated Debt in excess of
C$10,000,000 (the “Subordination Provisions”) shall fail to be
enforceable by the Administrative Agents, the Lenders and the Issuers in
accordance with the terms thereof, or the monetary Obligations shall fail to
constitute “Senior Indebtedness” (or similar term) referring to the
Obligations; or ACT or any of its Subsidiaries shall, directly or indirectly,
disavow or contest in any manner (i) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (ii) that the
Subordination Provisions exist for the benefit of the Administrative Agents,
the Lenders and the Issuers or (iii) that all payments of principal of or
premium and interest on the Subordinated Debt, or realized from the liquidation
of any property of any Obligor, shall be subject to any of such Subordination
Provisions.


 


SECTION 8.1.12.  Event Of Default Under Material Sale
Lease-Back Documents.  An event of
default shall occur and be continuing under any Sale Lease-Back Document
pursuant to which, under the terms of such Sale Lease-Back Document, an amount
in excess of $10,000,000 (or the Canadian Dollar Equivalent thereof) has been,
or can be (subject to any applicable grace period), accelerated and become
immediately due and payable.


 


SECTION 8.2.  Action if Bankruptcy.  If any Event of Default described in clauses
(a) through (e) of Section 8.1.9 with respect to any Borrower
shall occur, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations (including Reimbursement Obligations) shall
automatically be and become immediately due and payable, without notice or
demand to any Person and each Obligor shall automatically and immediately be
obligated to Cash Collateralize all Letter of Credit Outstandings and Canadian
BAs.


 


SECTION 8.3.  Action if Other Event of Default.  If any Event of Default (other than any
Event of Default described in clauses (a) through (e) of Section
8.1.9 with respect to any Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agents, upon
the direction of the Required Lenders, shall by notice to ACT declare all or
any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the Commitments
shall terminate and the Borrowers shall automatically and immediately be
obligated to Cash Collateralize all Letter of Credit Outstandings and Canadian
BAs.


 


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ARTICLE IX

THE ADMINISTRATIVE AGENTS AND THE COLLATERAL AGENT


 


SECTION 9.1.  Actions.  (a)   Each Canadian
Facility Lender and each U.S. Revolving Loan Lender hereby appoints National
Bank of Canada as its Canadian Administrative Agent under and for purposes of
each Loan Document and each U.S. Term Loan Lender hereby appoints Canadian
Imperial Bank of Commerce as its U.S. Administrative Agent under and for
purposes of each Loan Document.  Each
Lender authorizes the applicable Administrative Agent to act on behalf of such
Lender under each Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by any
Administrative Agent (with respect to which such Administrative Agent agrees
that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of applicable
law), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of such Administrative Agent by the terms hereof and
thereof, together with such powers as may be incidental thereto.  Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) its Administrative
Agent, pro  rata according to such Lender’s proportionate Total
Exposure Amount, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may
at any time be imposed on, incurred by, or asserted against, any Administrative
Agent in any way relating to or arising out of any Loan Document, (including
attorneys’ fees), and as to which such Administrative Agent is not reimbursed
by the Borrowers; provided, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, claims,
costs or expenses which are determined by a court of competent jurisdiction in
a final proceeding to have resulted from such Administrative Agent’s gross
negligence or willful misconduct.  No
Administrative Agent shall be required to take any action under any Loan
Document, or to prosecute or defend any suit in respect of any Loan Document,
unless it is indemnified hereunder to its satisfaction.  If any indemnity in favor of such
Administrative Agent shall be or become, in such Administrative Agent’s
determination, inadequate, such Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.  Each Administrative Agent is hereby authorized and directed to
release collateral that is permitted to be sold or released pursuant to the
terms of the Loan Documents.


 


(b)  Each
Secured Party hereby appoints National Bank of Canada as the Collateral Agent
under this Agreement and under each Loan Document, and hereby authorizes the
Collateral Agent to take such action on its behalf and to exercise such rights,
remedies, powers and privileges under this Agreement and each other Loan
Document as are specifically authorized to be exercised by the Collateral Agent
by the terms hereof or thereof, together with such rights, remedies, powers and
privileges as are reasonably incidental thereto, in each case subject to the
terms and conditions hereof and thereof, as the case may be.  The Collateral Agent may appoint a “fondé de
pouvoir” under the Québec Security Agreements. 
The Collateral Agent may execute any of its duties as agent hereunder by
or through agents or employees and shall be entitled to retain experts (including
legal counsel) and to act in reliance upon the advice of such experts
concerning all matters pertaining to the agencies hereby created and its duties
hereunder, and shall not be liable for any action taken or omitted to be taken
by it in good faith in accordance 


 


107

















 


with
the advice of such experts selected by it. 
The relationship between the Collateral Agent, on the one hand, and each
of the Secured Parties, on the other, is that of agent and principal only, and
nothing herein shall be deemed to constitute the Collateral Agent a trustee for
the Secured Parties or impose on the Collateral Agent any obligations other
than those for which express provision is made herein or in any other Loan
Document.  Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Collateral Agent, pro rata according to such Lender’s proportionate Total
Exposure Amount, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may
at any time be imposed on, incurred by, or asserted against, the Collateral
Agent in any way relating to or arising out of any Loan Document, (including
attorneys’ fees), and as to which the Collateral Agent is not reimbursed by the
Borrowers; provided, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from the Collateral Agent’s gross negligence or
willful misconduct.  The Collateral
Agent shall not be required to take any action under any Loan Document, or to
prosecute or defend any suit in respect of any Loan Document, unless it is
indemnified hereunder to its satisfaction. 
If any indemnity in favor of the Collateral Agent shall be or become, in
the Collateral Agent’s determination, inadequate, the Collateral Agent may call
for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.  The Collateral Agent is hereby authorized
and directed to release collateral that is permitted to be Disposed or released
pursuant to the terms of the Loan Documents, in which case the Collateral Agent
shall, or shall cause its “fondé de pouvoir” to, execute and deliver all
instruments and other documents necessary or advisable (without recourse and
without representation or warranty) to release collateral within ten (10) Business
Days of ACT’s request, provided that such instruments or other documents may be
held in escrow pending a Disposition.


 


SECTION 9.2.  Funding Reliance, etc.  Unless the applicable Administrative Agent
shall have been notified in writing by any Lender by 3:00 p.m., Montréal
time, on the Business Day prior to a Borrowing that such Lender will not make
available the amount which would constitute its Percentage of such Borrowing on
the date specified therefor, such Administrative Agent may assume that such Lender
has made such amount available to such Administrative Agent and, in reliance
upon such assumption, make available to the applicable Borrower a corresponding
amount.  If and to the extent that such
Lender shall not have made such amount available to such Administrative Agent,
such Lender and each Borrower severally agrees to repay such Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such Administrative Agent made such amount
available to the applicable Borrower to the date such amount is repaid to such
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing (in the case of the Borrowers) and (in the case of a
Lender), at the Federal Funds Rate (for the first two Business Days after which
such amount has not been repaid), and thereafter at the interest rate
applicable to Loans comprising such Borrowing.


 


SECTION 9.3.  Exculpation.  No Administrative Agent or any of its
directors, officers, employees or 


 


108

















 


agents,
or the Collateral Agent or any of its directors, officers, employees or agents,
shall be liable to any Secured Party for any action taken or omitted to be
taken by it under any Loan Document, or in connection therewith, except for its
own willful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of any Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by any Obligor of its Obligations. 
Any such inquiry which may be made by any Administrative Agent shall not
obligate it to make any further inquiry or to take any action.  Each Administrative Agent and the Collateral
Agent shall be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing which such
Administrative Agent or the Collateral Agent believes to be genuine and to have
been presented by a proper Person.


 


SECTION 9.4.  Successor.  (a)   The Canadian
Administrative Agent may resign as such at any time upon at least 30 days’
prior notice to ACT, the Canadian Facility Lenders and the U.S. Revolving Loan
Lenders.  If the Canadian Administrative
Agent at any time shall resign, the Required Lenders may appoint another
Canadian Facility Lender or U.S. Revolving Loan Lender reasonably acceptable to
ACT as a successor Canadian Administrative Agent which shall thereupon become
the Canadian Administrative Agent hereunder.  If no successor Canadian Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Canadian Administrative Agent’s giving
notice of resignation, then the retiring Canadian Administrative Agent may, on
behalf of the Canadian Facility Lenders and the U.S. Revolving Loan Lenders,
appoint a successor Canadian Administrative Agent, which shall be one of the
Canadian Facility Lenders or U.S. Revolving Loan Lenders or a commercial
banking institution organized under the laws of Canada (or any Province
thereof), and having a combined capital and surplus of at least C$250,000,000; provided,
that if such retiring Canadian Administrative Agent is unable to find a
commercial banking institution which is willing to accept such appointment and
which meets the qualifications set forth in above, the retiring Canadian
Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Canadian Facility Lenders and the U.S. Revolving Loan Lenders
shall assume and perform all of the duties of the Canadian Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
as provided for above.  Upon the
acceptance of any appointment as Canadian Administrative Agent hereunder by a
successor Canadian Administrative Agent, such successor Canadian Administrative
Agent shall be entitled to receive from the retiring Canadian Administrative
Agent such documents of transfer and assignment as such successor Canadian
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Canadian Administrative Agent, and the retiring Canadian Administrative Agent
shall be discharged from its duties and obligations under the Loan
Documents.  After any retiring Canadian
Administrative Agent’s resignation hereunder as the Canadian Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Canadian
Administrative Agent under the Loan Documents, and Section 11.3 and Section
11.4 shall continue to inure to its benefit.


 


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(b)  The U.S.
Administrative Agent may resign as such at any time upon at least 30 days’
prior notice to ACT and the U.S. Term Loan Lenders.  If the U.S. Administrative Agent at any time shall resign, the
Required Lenders may appoint another U.S. Term Loan Lender reasonably
acceptable to ACT as a successor U.S. Administrative Agent which shall
thereupon become the U.S. Administrative Agent hereunder.  If no successor U.S. Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring U.S. Administrative
Agent’s giving notice of resignation, then the retiring U.S. Administrative
Agent may, on behalf of the U.S. Term Loan Lenders, appoint a successor U.S.
Administrative Agent, which shall be one of the U.S. Term Loan Lenders or a
commercial banking institution organized under the laws of the United States
(or any State thereof) or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$250,000,000; provided, that if such retiring U.S. Administrative Agent
is unable to find a commercial banking institution which is willing to accept
such appointment and which meets the qualifications set forth in above, the
retiring U.S. Administrative Agent’s resignation shall nevertheless thereupon
become effective and the U.S. Term Loan Lenders shall assume and perform all of
the duties of the U.S. Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor as provided for above.  Upon the acceptance of any appointment as
U.S. Administrative Agent hereunder by a successor U.S. Administrative Agent,
such successor U.S. Administrative Agent shall be entitled to receive from the
retiring U.S. Administrative Agent such documents of transfer and assignment as
such successor U.S. Administrative Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring U.S. Administrative Agent, and the retiring U.S.
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents.  After any retiring
U.S. Administrative Agent’s resignation hereunder as the U.S. Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the U.S. Administrative
Agent under the Loan Documents, and Section 11.3 and Section 11.4
shall continue to inure to its benefit.


 


(c)  The
Collateral Agent may resign as such at any time upon at least 30 days’ prior
notice to ACT and the Lenders.  If the
Collateral Agent at any time shall resign, the Required Lenders may appoint
another Lender acceptable to ACT as a successor Collateral Agent which shall
thereupon become the Collateral Agent hereunder.  If no successor Collateral Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Collateral Agent’s giving notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders, appoint a successor
Collateral Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of Canada (or any Province thereof), and
having a combined capital and surplus of at least C$250,000,000; provided,
that if such retiring Collateral Agent is unable to find a commercial banking
institution which is willing to accept such appointment and which meets the
qualifications set forth in above, the retiring Collateral Agent’s resignation
shall nevertheless thereupon become effective and the Lenders shall assume and
perform all of the duties of the Collateral Agent hereunder until such time, if
any, as the Required Lenders appoint a successor as provided for above.  Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall be entitled to receive from 


 


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the
retiring Collateral Agent such documents of transfer and assignment as such
successor Collateral Agent may reasonably request, and shall thereupon succeed
to and become vested with all rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under the Loan Documents.  After any retiring Collateral Agent’s
resignation hereunder as the Collateral Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Collateral Agent under the Loan Documents, and Section 11.3
and Section 11.4 shall continue to inure to its benefit.


 


SECTION 9.5.  Loans by National Bank of Canada and
Canadian Imperial Bank of Commerce. 
Each of National Bank of Canada and Canadian Imperial Bank of Commerce
shall have the same rights and powers with respect to (x) the Credit
Extensions made by it or any of its Affiliates, and (y) the Notes held by
it or any of its Affiliates as any other Lender and may exercise the same as if
it were not an Agent.  Each of National
Bank of Canada and Canadian Imperial Bank of Commerce and their Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with ACT or any Subsidiary or Affiliate of ACT as if National Bank of
Canada and Canadian Imperial Bank of Commerce were not an Agent hereunder.


 


SECTION 9.6.  Credit Decisions.  Each Lender acknowledges that it has,
independently of the Agents and each other Lender, and based on such Lender’s
review of the financial information of the Obligors, the Loan Documents (the
terms and provisions of which being satisfactory to such Lender) and such other
documents, information and investigations as such Lender has deemed
appropriate, made its own credit decision to extend its Commitments.  Each Lender also acknowledges that it will,
independently of the Agents and each other Lender, and based on such other
documents, information and investigations as it shall deem appropriate at any
time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
the Loan Documents.


 


SECTION 9.7.  Copies, etc.  Each Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to such Administrative Agent by a Borrower pursuant to the terms of the
Loan Documents (unless concurrently delivered to the Lenders by a Borrower).  Each Administrative Agent will distribute to
each Lender each document or instrument received for its account and copies of
all other communications received by such Administrative Agent from the
Borrowers for distribution to the Lenders by such Administrative Agent in
accordance with the terms of the Loan Documents.


 


SECTION 9.8.  Reliance by Administrative Agents and
Collateral Agent.  Each
Administrative Agent and the Collateral Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by such Administrative Agent or such Collateral
Agent.  As to any matters not expressly
provided for by the Loan Documents, each Administrative Agent and the
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, thereunder in accordance with instructions given by the
Required Lenders or all of the Lenders as is required in 


 


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such
circumstance, and such instructions of such Lenders and any action taken or
failure to act pursuant thereto shall be binding on all Secured Parties.  For purposes of applying amounts in
accordance with this Section, each Administrative Agent and the Collateral
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with any Obligor for a determination (which such
Secured Party agrees to provide or cause to be provided upon request of such
Administrative Agent or such Collateral Agent) of the outstanding Obligations
owed to such Secured Party under any Rate Protection Agreement.  Unless it has actual knowledge evidenced by
way of written notice from any such Secured Party and ACT to the contrary, each
Administrative Agent and the Collateral Agent, in acting in such capacity under
the Loan Documents, shall be entitled to assume that no Rate Protection
Agreements or Obligations in respect thereof are in existence or outstanding
between any Secured Party and any Obligor.


 


SECTION 9.9.  Defaults.  Neither the Administrative Agents nor the Collateral Agent shall
be deemed to have knowledge or notice of the occurrence of a Default unless
such Administrative Agent or such Collateral Agent has received a written
notice from a Lender or ACT specifying such Default and stating that such
notice is a “Notice of Default”.  In the
event that any Administrative Agent or the Collateral Agent receives such a
notice of the occurrence of a Default, such Administrative Agent or such
Collateral Agent shall give prompt notice thereof to the Lenders.  Each Administrative Agent and the Collateral
Agent shall (subject to Section 11.1) take such action with respect to
such Default as shall be directed by the Required Lenders; provided,
that unless and until such Administrative Agent or such Collateral Agent shall have
received such directions, each Administrative Agent and the Collateral Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the
best interest of the Secured Parties except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders or all Lenders.


 


SECTION 9.10.  Information to the Canadian Administrative
Agent.  Each Issuer and each
Swing Line Lender shall promptly provide to the Canadian Administrative
Agent information concerning (i) in the case of each such Issuer, Letters
of Credit issued by it, and (ii) in the case of each such Swing Line
Lender, the Swing Line Loans made by it, the whole as the Canadian
Administrative Agent may from time to time request.


 


ARTICLE X

GUARANTY PROVISIONS


 


SECTION 10.1.  Borrower Guaranty Provisions.  Each Borrower acknowledges and agrees that,
whether or not specifically indicated as such in any Loan Document, all
Obligations shall be joint and several Obligations of each individual Borrower,
and in furtherance of such joint and several Obligations, each Borrower hereby
irrevocably guarantees the payment of all Obligations of each Borrower as set
forth below.


 


SECTION 10.2.  Borrower Guaranty.  Each Borrower hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the full and punctual
payment when due, 


 


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whether
at stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations (other than, in the case of Depan-Escompte
Couche-Tard Inc., those of ACT); provided, that each Borrower shall only
be liable under this Agreement for the maximum amount of such liability that
can be hereby incurred without rendering this Agreement, as it relates to such
Borrower, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount.  This guaranty constitutes a guaranty of payment when due and not
of collection, and each Borrower specifically agrees that it shall not be
necessary or required that any Secured Party exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Obligor or any
other Person before or as a condition to the obligations of such Borrower
hereunder.


 


SECTION 10.3.  Guaranty Absolute, etc.  The guaranty agreed to above
shall in all respects be a continuing, absolute, unconditional and irrevocable
guaranty of payment, and shall remain in full force and effect until the
Termination Date.  Each Borrower jointly
and severally guarantees that the Obligations will be paid strictly in
accordance with the terms of each Loan Document under which such Obligations
arise, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Secured Party
with respect thereto.  The liability of
each Borrower under this Agreement shall be joint and several, absolute,
unconditional and irrevocable irrespective of


 


(a)  any lack of validity, legality or
enforceability of any Loan Document;


 


(b)  the failure of any Secured Party to assert
any claim or demand or to enforce any right or remedy against any Obligor or
any other Person (including any other guarantor) under the provisions of any
Loan Document or otherwise, or   to exercise
any right or remedy against any other guarantor (including any Obligor) of, or
collateral securing, any Obligations;


 


(c)  any change in the time, manner or place of
payment of, or in any other term of, all or any part of the Obligations, or any
other extension, compromise or renewal of any Obligation;


 


(d)  any reduction, limitation, impairment or
termination of any Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to (and
each Borrower hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, irregularity, compromise, unenforceability of, or any other event
or occurrence affecting, any Obligations or otherwise;


 


(e)  any amendment to, rescission, waiver, or
other modification of, or any consent to or departure from, any of the terms of
any Loan Document;


 


(f)  any addition, exchange, release, surrender
or non-perfection of any collateral, or any amendment to or waiver or release
or addition of, or consent to or departure from, any other guaranty held by any
Secured Party securing any of the Obligations; or


 


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(g)  any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge of, any
Obligor, any surety or any guarantor.


 


SECTION 10.4.  Reinstatement, etc.  Each Borrower agrees that its guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Secured Party, upon the insolvency,
bankruptcy or reorganization of any other Borrower, any other Obligor or
otherwise, all as though such payment had not been made.


 


SECTION 10.5.  Waiver, etc.  Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Agreement and any requirement that any Secured Party
protect, secure, perfect or insure any Lien, or any property subject thereto,
or exhaust any right or take any action against any other Obligor or any other
Person (including any other guarantor) or entity or any collateral securing the
Obligations, as the case may be.


 


SECTION 10.6.  Postponement of Subrogation, etc.  Each
Borrower agrees that it will not exercise any rights which it may
acquire by way of rights of subrogation under any Loan Document to which it is
a party, nor shall any Borrower seek or be entitled to seek any contribution or
reimbursement from any Obligor, in respect of any payment made hereunder, under
any other Loan Document or otherwise, until following the Termination
Date.  Any amount paid to any Borrower
on account of any such subrogation rights prior to the Termination Date shall
be held in trust for the benefit of the Secured Parties and shall immediately
be paid and turned over to the Collateral Agent for the benefit of the Secured
Parties in the exact form received by such Borrower (duly endorsed in favor of
the Collateral Agent, if required), to be credited and applied against the
Obligations, whether matured or unmatured, in accordance with Section 4.7;
provided, that (a) if any Borrower has made payment to the Secured
Parties of all or any part of the Obligations; and (b) the Termination Date has occurred; then at such Borrower’s request,
the Administrative Agents, (on behalf of the Secured Parties) will, at the
expense of such Borrower, execute and deliver to such Borrower appropriate
documents (without recourse and without representation or warranty) necessary
to evidence the transfer by subrogation to such Borrower of an interest in the
Obligations resulting from such payment. 
In furtherance of the foregoing, at all times prior to the Termination
Date each Borrower shall refrain from taking any action or commencing any
proceeding against the any Obligor (or its successors or assigns, whether in
connection with a bankruptcy proceeding or otherwise) to recover any amounts in
the respect of payments made under any Loan Document to any Secured Party.


 


ARTICLE XI

MISCELLANEOUS PROVISIONS


 


SECTION 11.1.  Waivers, Amendments, etc.  The provisions of each Loan Document (other
than Rate Protection Agreements, Letters of Credit, the Arranger Fee Letter,
the Compensation Agreements and each Administrative Agent Fee Letter (which
documents may be amended or otherwise modified in accordance with the terms
thereof)) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and 


 


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consented
to by the Borrowers and the Required Lenders; provided, that no such
amendment, modification or waiver shall:


 


(a)  modify this Section or change or waive any
provision of Section 4.8 or Section 2.2  requiring pro rata treatment of the Lenders, or the sharing of
payments by all Lenders, in each case without the consent of all Lenders;


 


(b)  increase the aggregate amount of any Credit
Extensions required to be made by a Lender pursuant to its Commitments, extend
the final Commitment Termination Date of Credit Extensions made (or
participated in) by a Lender or extend the final Stated Maturity Date for any
Lender’s Loan, in each case without the consent of such Lender (it being
agreed, however, that any vote to rescind any acceleration made pursuant to Section
8.2 and Section 8.3 of amounts owing with respect to the Loans and
other Obligations shall only require the vote of the Required Lenders);


 


(c)  extend any date fixed for the payment of
principal pursuant to clauses (c) and (d) of Section 3.1.1,
reduce the principal amount of or rate of interest on any Lender’s Loan, reduce
any fees described in Article III payable to any Lender or extend the
date on which interest or fees are payable in respect of such Lender’s Loans,
in each case without the consent of such Lender;


 


(d)  reduce the percentage set forth in the
definition of “Required Lenders” or modify any requirement hereunder that any
particular action be taken by all Lenders without the consent of all Lenders;


 


(e)  increase the Stated Amount of any Letter of
Credit unless consented to by the Issuer of such Letter of Credit;


 


(f)  except as otherwise expressly provided in a
Loan Document, release (i) any Borrower from its Obligations under the Loan
Documents or any Guarantor from its obligations under any Loan Document or
(ii) all or substantially all of the collateral under the Loan Documents,
in each case without the consent of all Lenders;


 


(g)  (i) amend, modify or waive clause (b)
of Section  3.1.1 or (ii) have
the effect (either immediately or at some later time) of enabling any Borrower
to satisfy a condition precedent to the making of a Revolving Loan or the
issuance of a Letter of Credit unless such amendment, modification or waiver
shall have been consented to by the Lenders holding a majority of the aggregate
amount of the then outstanding Revolving Loan Commitments; or


 


(h)  affect adversely the interests, rights or
obligations of either Administrative Agent (in its capacity as an
Administrative Agent), either Swing Line Lender (in its capacity as the Swing
Line Lender) or any Issuer (in its capacity as Issuer), unless consented to by
such Administrative Agent, such Swing Line Lender or such Issuer, as the case
may be.


 


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No failure or delay on the part of any Secured Party in exercising any
power or right under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or
right.  No notice to or demand on any
Obligor in any case shall entitle it to any notice or demand in similar or
other circumstances.  No waiver or
approval by any Secured Party under any Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions.  No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.


 


SECTION 11.2.  Notices; Time.  All notices and other communications
provided under each Loan Document shall be in writing (including by facsimile)
and addressed, delivered or transmitted, if to ACT, a Borrower, an
Administrative Agent, a Lender or Issuer to the applicable Person at its
address or facsimile number set forth on Schedule II hereto or set forth
in the Lender Assignment Agreement, or at such other address or facsimile
number as may be designated by such party in a notice to the other parties (provided,
that any notices or communications by any Secured Party to one or more Obligors
need only be delivered to ACT to satisfy the requirements of this Section, and
each Obligor agrees that notice received by ACT shall be deemed received by
each Obligor upon ACT’s receipt).  Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
the confirmation of transmission thereof is received by the transmitter.  Electronic
mail and Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 7.1.1, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose. The parties
hereto agree that delivery of an executed counterpart of a signature page to
this Agreement and each other Loan Document by facsimile or other electronic
communication shall be effective as delivery of an original executed
counterpart of this Agreement or such other Loan Document.  Unless otherwise indicated, all references
to the time of a day in a Loan Document shall refer to New York time.


 


SECTION 11.3.  Payment of Costs and Expenses.  The Borrowers shall pay on demand all
reasonable expenses of the Arrangers (including the reasonable fees and
out-of-pocket expenses of Mayer, Brown, Rowe & Maw LLP, U.S. counsel to the
Arrangers and Fasken Martineau DuMoulin LLP, Canadian counsel to the Arrangers)
in connection with


 


(a)  (i) travel, courier, reproduction,
printing, delivery and other out-of-pocket expenses of the Arrangers associated
with the syndication of the Obligations and (ii) with the legal due
diligence, preparation, execution and delivery, administration, amendment,
waiver or modification (including, without limitation, proposed amendments,
waivers or modifications) of the Arrangers’ commitment letter to ACT and the
other documents related thereto;


 


(b)  the negotiation, preparation, execution and
delivery of each Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to any Loan
Document as may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated; and


 


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(c)  the filing or recording of any Loan Document
(including the Filing Statements) and all amendments, supplements, amendment
and restatements and other modifications to any thereof, searches made
following the Effective Date in jurisdictions where Filing Statements (or other
documents evidencing Liens in favor of the Secured Parties) have been recorded
and any and all other documents or instruments of further assurance required to
be filed or recorded by the terms of any Loan Document; and


 


(d)  the preparation and review of the form of
any document or instrument relevant to any Loan Document.


 


Each Borrower further agrees to pay, and to save each Secured Party
harmless from all liability for, any stamp or other taxes which may be payable
in connection with the execution or delivery of each Loan Document, the Credit
Extensions or the issuance of the Notes. 
Each Borrower also agrees to reimburse each Agent upon demand for all
reasonable out-of-pocket expenses (including the fees and expenses of one U.S.
counsel, one Canadian counsel and local counsel (if any) for the Agents)
incurred by such Agent in connection with (x) the negotiation of any
restructuring or “work-out” with any Obligor, whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.


 


SECTION 11.4.  Indemnification.  (a)  
In consideration of the execution and delivery of this Agreement by each
Lender Party, the Borrowers hereby indemnify, exonerate and hold each Lender
Party and each of their respective officers, directors, employees, trustees,
advisors and agents (collectively, the “Indemnified Parties”) free and
harmless from and against any and all actions, claims, causes of action, suits,
losses, costs, liabilities, obligations and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys’ fees and disbursements of one U.S. counsel and one
Canadian counsel for all Lenders (and local counsel, if any), whether incurred
in connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the “Indemnified Liabilities”),
but only to the extent incurred by the Indemnified Parties or any of them as a
result of, or arising out of, or relating to the relationship created between
the Indemnified Parties and the Obligors under the Loan Documents and


 


(i)  any transaction financed or
to be financed in whole or in part, directly or indirectly, with the proceeds
of any Credit Extension, including all Indemnified Liabilities arising in
connection with the Transaction;


 


(ii)  the entering into and
performance of any Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Obligor as the result of any
determination by the Required Lenders pursuant to Article V not to
fund any Credit Extension, provided that any such action is resolved in favor
of such Indemnified Party);


 


(iii)  any untrue statement made
by any Obligor or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact necessary in 


 


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order
to make a statement not misleading in light of the circumstances under which it
was made;


 


(iv)  any investigation,
litigation or proceeding related to any acquisition or proposed acquisition by
any Obligor or any Subsidiary thereof of all or any portion of the Capital
Securities or assets of any Person in which Credit Extensions are proposed to
be used, or used, as a financing source, whether or not an Indemnified Party is
party thereto;


 


(v)  any investigation,
litigation or proceeding related to any environmental cleanup, audit,
compliance or other matter relating to the protection of the environment or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;


 


(vi)  the presence on or under,
or the escape, seepage, leakage, spillage, discharge, emission, discharging or
releases from, any real property owned or operated by any Obligor or any
Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or arising
under any Environmental Law), regardless of whether caused by, or within the
control of, such Obligor or Subsidiary; or


 


(vii)  each Lender’s
Environmental Liability (the indemnification herein shall survive repayment of
the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any
Lender’s Environmental Liability, regardless of whether caused by, or within
the control of, such Obligor or such Subsidiary).


 


Each Obligor and
its successors and assigns hereby waive, release and agree not to make any
claim, or bring any cost recovery action against, any Indemnified Party under
CERCLA or any state equivalent, or any similar law now existing or hereafter
enacted.  It is expressly understood and
agreed that to the extent that any Indemnified Party is strictly liable under
any Environmental Laws, each Obligor’s obligation to such Indemnified Party
under this indemnity shall likewise be based upon strict liability (i.e.
without regard to fault on the part of any Obligor with respect to the
violation or condition which results in liability of an Indemnified
Party).  No Indemnified Party will have
any liability (whether direct or indirect, in contract, tort or otherwise) to
any Obligor or any Person asserting claims on behalf of an Obligor arising out
of or in connection with any transactions contemplated by any Loan Document or
the engagement of or performance of services by any Indemnified Party
thereunder except to the extent that any damages are found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
solely from the gross negligence or willful misconduct of the Indemnified
Party.  If for any reason other than in
accordance with the Loan Documents, the foregoing indemnity is unavailable to an
Indemnified Party or insufficient to hold an Indemnified Party harmless, then
the Borrowers will contribute to the amount paid or payable by an Indemnified
Party as a result of such Indemnified Liabilities in such proportion as is
appropriate to reflect the relative benefits to the Borrowers and/or their
stockholders on the one hand, and the Indemnified Parties on the other hand, in
connection with the matters covered by the Loan Documents or, if the foregoing
allocation is not permitted by applicable law, not only such relative benefits
but also the relative faults of such parties as well as any relevant equitable
considerations.  Each Borrower agrees
that 


 


118

















 


for purposes of
this paragraph the relative benefits to such Borrower and/or its stockholders
and the Indemnified Parties in connection with the matters covered by the Loan
Documents will be deemed to be in the same proportion that the total value paid
or received or to be paid or received by such Borrower and/or its stockholders
in connection with the transactions contemplated by the Loan Documents, whether
or not consummated, bears to the fees paid to the Indemnified Parties under the
Loan Documents; provided, that in no event will the total contribution
of all Indemnified Parties to all such Indemnified Liabilities exceed the
amount of fees actually received and retained by the Indemnified Parties under
the Loan Documents (excluding any amounts received by Indemnified Parties as
reimbursement of expenses).  Relative
fault shall be determined by reference to, among other things, whether any
alleged untrue statement or omission or any alleged conduct relates to
information provided by any Obligor or other conduct by any Obligor (or its
employees or other agents) on the one hand, or by the Indemnified Parties, on
the other hand.


 


(b)  If a claim
is made, or an action, suit or proceeding is instituted, against an Indemnified
Party as to which the Obligors may have an indemnification obligation under a
Loan Document (each a “Claim”), such Indemnified Party shall notify the
Obligors in writing of the Claim; provided that the failure to provide such
notice promptly shall not release the Obligors from any of its obligations to
indemnify unless (and only to the extent that) such failure shall prevent the
Obligors from contesting, or materially and adversely affects the ability of
the Obligors to contest such Claim. In addition, upon delivery by the Obligors
to such Indemnified Party of a written acknowledgement of the Obligors’
obligations to indemnify such Indemnified Parties in accordance with the terms
of this Agreement in respect of such Claim, the Obligors shall be entitled, at
their own expense, to participate in, and, to the extent that the Obligors
desire, to assume and control the defense thereof through their own counsel
(who shall be subject to the reasonable approval of the affected Indemnified
Party); provided, however, that if the Obligors are controlling any
proceedings, the Obligors shall keep such Indemnified Party fully apprised of
the status of such proceedings and shall provide such Indemnified Party with
all information with respect to such proceedings as such Indemnified Party
shall reasonably request. The Obligors shall indicate their election to assume
such defense by written notice to the Indemnified Party within 30 days
following receipt of such Indemnified Party’s notice of the Claim. The Obligors
shall not be entitled to assume and control (but may, at their own expense,
participate in) the defense of any such Claim if and to the extent that:


 


(i)  in the reasonable opinion
of such Indemnified Party acting in good faith, such proceeding involves any
risk of imposition of criminal liability on such Indemnified Party or the
control of such action, suit or proceeding would involve an actual or potential
conflict of interest as between the Indemnified Party and the Obligors, such
that it is advisable for such Indemnified Party to be represented by separate
counsel; or


 


(ii)  such proceeding involves
Claims not fully indemnified by the Obligors which the Obligors and the
Indemnified Party have been unable to sever from the indemnified Claim(s); or


 


(iii)  there are one or more
defenses available to the Indemnified Party that are different from or in
addition to those available to the Obligors.


 


119

















 


(c)  Except in
the circumstances described in clause (b) of Section 11.4, the
Obligors may enter into any settlement or other compromise with respect to any
Claim without the prior written consent of the Indemnified Parties, except in
the case of a settlement involving an admission of liability of such
Indemnified Parties, in which case the prior written consent of the Indemnified
Parties shall be obtained. Unless an Event of Default shall have occurred and
be continuing, no Indemnified Parties shall enter into any settlement or other
compromise with respect to any Claim for which the Obligors have in writing
agreed to fully indemnify without the prior written consent of the Obligors,
which consent may be withheld by the Obligors acting reasonably. Upon payment
in full of any Claim to or on behalf of an Indemnified Parties, the Obligors,
without any further action, shall be subrogated in and to all claims, rights
and recourses that such Indemnified Parties may have relating thereto (other
than claims in respect of insurance policies maintained by such Indemnified
Parties at its own expense).


 


(d) 
Notwithstanding the foregoing, the Obligors shall not be obligated to
indemnify a particular Indemnified Party for any Indemnified Liabilities to the
extent that a court of competent jurisdiction determines in a final judgment
that such Indemnified Liabilities resulted from:


 


(i)  the gross negligence,
fraud, wilful misconduct or wilful illegal acts of any such Indemnified Party;


 


(ii)  the failure on the part of
any Indemnified Party to perform any of its material covenants or obligations
contained in any Loan Document to which it is a party, or a breach by such
Indemnified Party of any material representation or warranty made by such
Indemnified Party under the Loan Documents to which it is a party or in any
certificate or other document delivered by any Indemnified Party pursuant
hereto or in connection with any Loan Document being found to be false or incorrect
in any material respect so as to make it materially misleading when made;


 


(iii)  a Claim of any Lender
against any defaulting Lender or any Claim of any Indemnified Party for
expenses which such Indemnified Party is obligated to bear hereunder;


 


(iv)  the failure of any
Administrative Agent to distribute, in accordance with the terms of any Loan
Document, any amounts received and to be distributed by it thereunder, to the
extent the Borrower has satisfied all of its obligations in connection therewith;
or


 


(v)  a Claim of any
Administrative Agent arising from the act or process of syndicating or selling
interests in respect of any of the Loans or Loan Documents, except to the
extent such Claim arises from any information provided or failed to be provided
by the Borrower to any Indemnified Party.


 


(e)  Each
Borrower agrees not to enter into any waiver, release or settlement of any
legal proceeding (whether or not any Indemnified Party is a formal party to
such proceeding) in respect of which indemnification may be sought hereunder,
unless such waiver, release or 


 


120

















 


settlement
(i) includes an unconditional release of each Indemnified Party from all
liability arising out of such proceeding and (ii) does not contain any factual
or legal admission by or with respect to any Indemnified Party or any adverse
statement with respect to the character, professionalism, expertise or
reputation of any Indemnified Party or any action or inaction of any Indemnified
Party.


 


(f)  The
indemnity, reimbursement and contribution obligations of the Borrowers
hereunder will be in addition to any liability which the Borrowers may have at
common law or otherwise to any Indemnified Party and will be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Borrowers or an Indemnified Party.


 


SECTION 11.5.  Survival.  The obligations of the Borrowers under Sections 4.3, 4.4,
4.5, 4.6, 11.3 and 11.4, and the obligations of the
Lenders under Section 9.1, shall in each case survive any assignment
from one Lender to another (in the case of Sections 11.3 and 11.4)
and the occurrence of the Termination Date. 
The representations and warranties made by each Obligor in each Loan
Document shall survive the execution and delivery of such Loan Document.


 


SECTION 11.6.  Severability.  Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.


 


SECTION 11.7.  Headings.  The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such
Loan Document or any provisions thereof.


 


SECTION 11.8.  Execution in Counterparts, Effectiveness,
etc.  This Agreement may be executed
by the parties hereto in several counterparts, each of which shall be an
original and all of which shall constitute together but one and the same
agreement.  This Agreement shall become
effective when counterparts hereof executed on behalf of each Borrower, each
Administrative Agent and each Lender (or notice thereof satisfactory to each
Administrative Agent), shall have been received by each Administrative Agent.


 


SECTION 11.9.  Governing Law; Entire Agreement.  EACH LOAN DOCUMENT (OTHER THAN THE LETTERS
OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK).  EACH LETTER OF CREDIT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE
INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS 


 


121

















 


NOT
GOVERNED BY THE ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK.  The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
thereof and supersede any prior agreements, written or oral, with respect
thereto.


 


SECTION 11.10.  Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, that no Borrower may (unless otherwise
provided for in this Agreement) assign or transfer its rights or obligations
hereunder without the consent of all Lenders.


 


SECTION 11.11.  Sale and Transfer of Credit Extensions;
Participations in Credit Extensions Notes. 
Each Lender may assign, or sell participations in, its Loans, Letters of
Credit and Commitments to one or more other Persons in accordance with the
terms set forth below.


 


(a)  Any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at the
time owing to it); provided, that:


 


(i)  except in the case of (A) an assignment of
the entire remaining amount of the assigning Lender’s Commitments and the Loans
at the time owing to it or (B) an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of
the Commitments (which for this purpose includes Loans outstanding thereunder)
or principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment (determined as of the date the Lender Assignment
Agreement with respect to such assignment is delivered to the applicable
Administrative Agent) shall not be less than C$1,000,000 (in the case of Loans
or Commitments of Canadian Facility Lenders) and $1,000,000 (in the case of Loans
of U.S. Facility Lenders), unless the Canadian Administrative Agent (in the
case of an assignment by a Canadian Facility Lender) or the U.S. Administrative
Agent (in the case of an assignment by a U.S. Facility Lender) and, in the
event such assignment would result in any increase in the cost of the Loans to
the Borrowers, ACT otherwise consents (such consent not to be unreasonably
withheld or delayed, provided that any increase in such cost shall be a reason
sufficient to withhold such consent);


 


(ii)  each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans and/or the
Commitments assigned, except that this clause shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
tranches on a non-pro  rata basis; and


 


(iii)  the parties to each assignment shall execute
and deliver to the applicable Administrative Agent a Lender Assignment Agreement,
together with a processing and recordation fee of C$3,500 (in the case of an
assignment by a Canadian Facility Lender) or $3,500 (in the case of an
assignment by a U.S. Facility Lender) and if the Eligible Assignee is not
already Lender, administrative 


 


122

















 


details
information with respect to such Eligible Assignee and applicable tax forms.


 


(b)  Subject to acceptance and recording thereof
by the applicable Administrative Agent pursuant to clause (c), from and
after the effective date specified in each Lender Assignment Agreement, (i) the
Eligible Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Lender Assignment Agreement, have the rights and
obligations of a Lender under this Agreement, and (ii) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Lender
Assignment Agreement, subject to Section 11.5, be released from its
obligations under this Agreement (and, in the case of a Lender Assignment
Agreement covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto, but shall
continue to be entitled to the benefits of any provisions of this Agreement
which by their terms survive the termination of this Agreement).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with clauses
(a) and (b) shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with clause (d).  IF
THE CONSENT OF ACT TO AN ASSIGNMENT OR TO AN ELIGIBLE ASSIGNEE IS REQUIRED
HEREUNDER (INCLUDING A CONSENT TO AN ASSIGNMENT WHICH DOES NOT MEET THE MINIMUM
ASSIGNMENT THRESHOLDS SPECIFIED IN THIS SECTION), ACT SHALL BE DEEMED TO HAVE
GIVEN ITS CONSENT TEN BUSINESS DAYS AFTER THE DATE NOTICE THEREOF HAS BEEN
DELIVERED BY THE ASSIGNING LENDER (THROUGH THE APPLICABLE ADMINISTRATIVE AGENT
OR CLEARPAR, LLC) UNLESS SUCH CONSENT IS EXPRESSLY REFUSED BY ACT PRIOR TO SUCH
TENTH BUSINESS DAY.


 


(c)  The applicable Administrative Agent shall
record each assignment made in accordance with this Section in the applicable
Register pursuant to Section 2.7. 
Each Register shall be available for inspection by ACT and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.


 


(d)  Any Lender may, without the consent of, or
notice to, the Borrowers or the Administrative Agents, sell participations to
one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitments and/or the Loans owing to it); provided,
that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (iii) the Borrowers, the
Administrative Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided, that such agreement or instrument may
provide that such Lender will not, 


 


123

















 


without the
consent of the Participant, agree to any amendment, modification or waiver with
respect to any of the items set forth in clauses (a) through (d)
or (f) of Section 11.1, in each case except as otherwise
specifically provided in a Loan Document. 
Subject to clause (e), each Borrower agrees that each Participant
shall be entitled to the benefits of Sections 4.3, 4.4, 4.5,
4.6, 7.1.1, 11.3 and 11.4 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to clause
(b).  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 4.9
as though it were a Lender, provided such Participant agrees to be subject to Section
4.8 as though it were a Lender.


 


(e)  A Participant shall not be entitled to
receive any greater payment under Sections 4.3, 4.4, 4.5, 4.6,
11.3 and 11.4 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with ACT’s prior
written consent.  A Participant that
would be a Non-U.S. Facility Lender if it were a Lender shall not be entitled
to the benefits of Section 4.6 unless ACT is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with the requirements set forth in Section
4.6 as though it were a Lender.  In
addition, if at the time of the sale of such participation, any greater Taxes
subject to payment under Section 4.6 would apply to the Participant than
applied to the applicable Lender, then such Participant shall not be entitled
to any payment under Section 4.6 with respect to the portion of such
Taxes as exceeds the Taxes applicable to the Lender at the time of the sale of
the participation unless the Participant’s request for ACT’s prior written
consent for the Participation described in the first sentence of this clause
states that such greater Taxes would be applicable to such Participant.


 


(f)  Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided, that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


SECTION 11.12.  Other Transactions.  Nothing contained herein shall preclude any
Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents, with ACT
or any of its Affiliates in which ACT or such Affiliate is not restricted
hereby from engaging with any other Person.


 


SECTION 11.13.  Forum Selection and Consent to
Jurisdiction.  ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE ADMINISTRATIVE AGENTS, THE LENDERS, ANY ISSUER OR ANY
BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED  


 


124

















 


HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENTS’ OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.


 


SECTION 11.14.  Service of Process, Appointment of
Process Agent.  EACH BORROWER THAT
IS NOT ORGANIZED IN THE UNITED STATES (OR A STATE THEREOF) HEREBY IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM (THE “PROCESS AGENT”), WITH AN
OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW YORK
10016, UNITED STATES, AS ITS AGENT TO RECEIVE, ON ITS BEHALF AND ON BEHALF OF
ITS PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER
PROCESS WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING DESCRIBED IN SECTION
11.13.  SUCH SERVICE MAY BE MADE BY
MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH OBLIGOR IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT’S ABOVE ADDRESS, AND SUCH OBLIGOR HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON
ITS BEHALF.  AS AN ALTERNATIVE METHOD OF
SERVICE, EACH BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 11.2.


 


SECTION 11.15.  Waiver of Jury Trial.  EACH ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH ADMINISTRATIVE
AGENT, SUCH LENDER, SUCH ISSUER OR SUCH BORROWER IN CONNECTION THEREWITH.  EACH BORROWER ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN 


 


125

















 


DOCUMENT
TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
EACH ADMINISTRATIVE AGENT, EACH LENDER AND EACH ISSUER ENTERING INTO THE LOAN
DOCUMENTS.


 


SECTION 11.16.  Judgment Currency.   If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
due hereunder, under any Note or under any other Loan Document in another
currency into U.S. Dollars or into Canadian Dollars, as the case may be, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which, in accordance with
normal banking procedures, the applicable Secured Party could purchase such
other currency with U.S. Dollars in New York City or Canadian Dollars in
Montréal, at the close of business on the Business Day immediately preceding
the day on which final judgment is given, together with any premiums and costs
of exchange payable in connection with such purchase.


 


SECTION 11.17.  Tax Matters Disclosure.  Notwithstanding anything contained in this
Agreement to the contrary, and notwithstanding any other express or implied
agreement or understanding to the contrary, each party to this Agreement (and
each such party’s respective Affiliates and such party’s and such Affiliates’
employees, representatives or other agents) may disclose to any and all persons
without limitation of any kind, the “tax treatment” and “tax structure” (in
each case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated by this Agreement and all materials of any kind that
are provided to such party (including opinions or other tax analyses) relating
to such tax treatment and tax structure; provided, that with
respect to any document or similar item that in either case contains
information concerning such tax treatment or tax structure of the transactions contemplated
by this Agreement as well as other
information, this sentence shall only apply to such portions of the document or
similar item that are relevant to understanding the purported or claimed United
States federal tax treatment or United States federal tax structure of the
transactions contemplated by this Agreement


 


SECTION 11.18.  Patriot Act Notification.   The following notification is provided to
the Borrowers pursuant to Section 326 of the Patriot Act:


 


IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT.  To help the government fight the funding of
terrorism and money laundering activities, federal law requires all financial
institutions to obtain, verify, and record information that identifies each
person or entity that opens an account, including any deposit account, treasury
management account, loan, other extension of credit, or other financial
services product.  What this means for a
Borrower:   When a Borrower opens an
account, the Administrative Agents and the Lenders will ask for such Borrower’s
name, tax identification number, business address, and other information that
will allow the Administrative Agents and the Lenders to identify such
Borrower.  The Administrative Agents and
the Lenders may also ask to see such Borrower’s legal organization documents or
other identifying documents.


 


126

















 


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


 


	
   

  	
  ALIMENTATION COUCHE-TARD INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Executive Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  Canadian Borrowers:

  
	
   

  	
   

  
	
   

  	
  DEPAN-ESCOMPTE COUCHE-TARD INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Executive Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  COUCHE-TARD INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Executive Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  MAC’S CONVENIENCE
  STORES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Executive Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  COUCHE-TARD/MAC’S L.P.

  
	
   

  	
   

  
	
   

  	
  By: 3887961 Canada
  Inc., its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President, Finances

  
					



 

















 


	
   

  	
  U.S.
  Borrowers:

  
	
   

  	
   

  
	
   

  	
  COUCHE-TARD U.S. L.P.

  
	
   

  	
  (formerly known as
  9103-4793 Delaware L.P.)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  COUCHE-TARD FINANCING
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  MAC’S CONVENIENCE
  STORES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Fortin

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  



 


ii

















 


COUNTERPART TO CREDIT AGREEMENT


 


The
undersigned hereby executes this counterpart to the Credit Agreement dated as
of December 17, 2003 among Alimentation Couche-Tard Inc., certain of its
Canadian and U.S. wholly-owned Subsidiaries, as the Borrowers, the various
financial institutions and other Persons from time to time parties thereto, as
the Lenders, National Bank of Canada, as the Canadian Administrative Agent and
Collateral Agent and Canadian Imperial Bank of Commerce, as the U.S.
Administrative Agent, and, as of the date hereof, assumes all of the rights and
obligations of a “U.S. Borrower” hereunder.


 


Date:  December 17, 2003


 


 


	
   

  	
  CIRCLE K STORES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dale Pettit

  	
   

  
	
   

  	
   

  	
  Title:  Authorized Signatory

  



 


iii

















 


	
   

  	
  NATIONAL
  BANK OF CANADA,

  
	
   

  	
  as
  the Canadian Administrative Agent, Collateral

  Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gilles Morin

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dominique Parizeau

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  CANADIAN IMPERIAL BANK
  OF

  COMMERCE,

  
	
   

  	
  as the U.S.
  Administrative Agent and as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas Cornett

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geraldine Kerr

  	
   

  
	
   

  	
   

  	
  Title:  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL BANK
  FINANCIAL,

  
	
   

  	
  as an Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dominique Parizeau

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
  as an Arranger and a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Evans

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marc Daigneault

  	
   

  
	
   

  	
   

  	
  Title:  Director

  



 


iv

















 


	
   

  	
  CIBC
  WORLD MARKETS CORP.,

  
	
   

  	
  as
  an Arranger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas Cornett

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  CAISSE DE DÉPÔT ET PLACEMENT DU

  QUÉBEC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jean-Pierre Jetté

  	
   

  
	
   

  	
   

  	
  Title:  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Diane C. Favreau

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF
  TOKYO-MITSUBISHI (CANADA), as

  
	
   

  	
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Amos W. Simpson

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President and

  
	
   

  	
   

  	
   

  	
  General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  CAISSE CENTRALE DESJARDINS, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Labelle

  	
   

  
	
   

  	
   

  	
  Title:  Senior Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sylvain Gascon

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
					



 


v

















 


	
   

  	
  BANK OF MONTREAL, as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruno Jarry

  	
   

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruno Lemay

  	
   

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP PARIBAS (Canada),
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Patricia Bentolila

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank L. Shaw

  	
   

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  THE TORONTO-DOMINION
  BANK, as Canadian

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yves Bergeron

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director and Unit Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Serge Cloutier

  	
   

  
	
   

  	
   

  	
  Title:  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Pierre Bouffard

  	
   

  
	
   

  	
   

  	
  Title:  Senior Manager, Consumer Products

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Suzanne Kaicher

  	
   

  
	
   

  	
   

  	
  Title:  Manager, Consumer Products

  



 


vi

















 


	
   

  	
  NATIONAL CITY BANK,
  CANADA BRANCH

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bill Hines

  	
   

  
	
   

  	
   

  	
  Title:  Senior Vice President, Principal Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kenneth Argue

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RABOBANK
  NEDERLAND, CANADIAN

  BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Khurram
  Khan

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President, Relationship Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David L. Streeter

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Cooperatieve
  Centrale Raiffeisen-Boerenleenbank

  B.A., “Rabobank International”, New York Branch,

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David L. Streeter

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  



 


vii

















 


	
   

  	
  Bank
  of America National Association, Canada

  Branch, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nelson Lam

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Bank
  One, NA, Canada Branch, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey Coleman

  	
   

  
	
   

  	
   

  	
  Title:  Associate Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Congress Financial
  Corporation Canada, as a

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kathleen Reedy

  	
   

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UNITED OVERSEAS BANK
  LIMITED, as a

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jin Koh

  	
   

  
	
   

  	
   

  	
  Title:  General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Winnie Chew

  	
   

  
	
   

  	
   

  	
  Title:  Senior Manager

  



 


viii

















 


	
   

  	
  ALBERTA TREASURY
  BRANCHES, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert L. Mann

  	
   

  
	
   

  	
   

  	
  Title:  Corporate Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond S. Wells

  	
   

  
	
   

  	
   

  	
  Title:  Corporate Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  CANADIAN WESTERN BANK,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Hallson

  	
   

  
	
   

  	
   

  	
  Title:  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Malcolm Ogrodnick

  	
   

  
	
   

  	
   

  	
  Title:  Manager, Commercial Banking

  
	
   

  	
   

  	
   

  
	
   

  	
  LAURENTIAN BANK OF
  CANADA, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alain Goyette

  	
   

  
	
   

  	
   

  	
  Title:  Senior Manager, Corporate Banking

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michel Gendron

  	
   

  
	
   

  	
   

  	
  Title:  Vice President, Corporate Banking

  
	
   

  	
   

  	
   

  
	
   

  	
  SUMITOMO MITSUI BANKING

  CORPORATION OF CANADA as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Elwood R. Langley

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  



 


ix

















 


	
   

  	
  NATIONAL BANK OF CANADA
  New York

  Branch,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Vincent Lima

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yvon La Plante

  	
   

  
	
   

  	
   

  	
  Title:  Vice President & Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Scotiabanc Inc., as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Zarrett

  	
   

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  NEW
  YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J. William Rhodes

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  BNP Paribas Dublin
  Branch,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deirdre Geoghegan

  	
   

  
	
   

  	
   

  	
  Title:  Head of Offshore Group

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kevin Farnan

  	
   

  
	
   

  	
   

  	
  Title:  Manager, Corporate Banking

  



 


x

















 


	
   

  	
  Bank
  of Montreal, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bruce Pietka

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Toronto Dominion
  (Texas), Inc.,

  
	
   

  	
  as U.S. Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Warren Finlay

  	
   

  
	
   

  	
   

  	
  Title:  President

  
	
   

  	
   

  	
   

  
	
   

  	
  National City Bank of
  Indiana,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Stehlik

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  COOPERATIVE CENTRALE
  RAIFFEISEN-

  BOERENLEENBANK B.A., “RABOBANK

  INTERNATIONAL’, NEW YORK BRANCH, as a

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brett Delfing

  	
   

  
	
   

  	
   

  	
  Title:  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ot Quast

  	
   

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Bank of America, N.A.,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Temple H. Abney

  	
   

  
	
   

  	
   

  	
  Title:  Vice-President

  



 


xi

















 


	
   

  	
  Bank One, NA, as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey Coleman

  	
   

  
	
   

  	
   

  	
  Title:  Associate Director

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kathleen Reedy

  	
   

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  UNITED OVERSEAS BANK
  LIMITED, NEW

  YORK AGENCY, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kwong Yew Wong

  	
   

  
	
   

  	
   

  	
  Title:  Agent & General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Philip Cheong

  	
   

  
	
   

  	
   

  	
  Title:  VP & Deputy General Manager

  



 


xii