Exhibit 10.1


AMENDED AND RESTATED CREDIT AGREEMENT



Dated as of May 30, 2007



among



LKQ CORPORATION,

as the Company,


LKQ
DELAWARE LLP,

as the Canadian Company,


BANK OF AMERICA, N.A.,

as Administrative Agent,



BANK OF AMERICA, N.A., BY ITS CANADA BRANCH,

as BOA Canada,



LASALLE BANK NATIONAL ASSOCIATION,

as Syndication Agent,



JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Documentation Agent,



NATIONAL CITY BANK,

as Co-Agent,



BANC OF AMERICA SECURITIES LLC,

as Arranger,



and



THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO


 



   
 















TABLE OF CONTENTS


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
  1.1.

  	
   

  	
  Defined Terms.

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
  1.2.

  	
   

  	
  Other Interpretive
  Provisions.

  	
   

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  Defined Terms.

  	
   

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  The Agreement.

  	
   

  	
  29

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  Certain Common Terms.

  	
   

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (d)

  	
   

  	
  Performance; Time.

  	
   

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (e)

  	
   

  	
  Contracts.

  	
   

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (f)

  	
   

  	
  Laws.

  	
   

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (g)

  	
   

  	
  Captions.

  	
   

  	
  30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (h)

  	
   

  	
  Independence of
  Provisions.

  	
   

  	
  31

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (i)

  	
   

  	
  Interpretation.

  	
   

  	
  31

  	
   

  
	
   

  	
   

  	
  1.3.

  	
   

  	
  Accounting Principles.

  	
   

  	
  31

  	
   

  
	
   

  	
   

  	
  1.4.

  	
   

  	
  Exchange Rates;
  Currency Equivalents.

  	
   

  	
  31

  	
   

  
	
   

  	
   

  	
  1.5.

  	
   

  	
  Lenders.

  	
   

  	
  32

  	
   

  
	
   

  	
   

  	
  1.6.

  	
   

  	
  Letter of Credit
  Amounts.

  	
   

  	
  32

  	
   

  
	
   

  	
   

  	
  1.7.

  	
   

  	
  Canadian Loan
  Currencies.

  	
   

  	
  32

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II THE CREDITS

  	
   

  	
  33

  	
   

  
	
   

  	
   

  	
  2.1.

  	
   

  	
  Amounts and Terms of
  Commitments.

  	
   

  	
  33

  	
   

  
	
   

  	
   

  	
  2.1A

  	
   

  	
  Amounts and Terms of
  Canadian Commitments.

  	
   

  	
  33

  	
   

  
	
   

  	
   

  	
  2.2.

  	
   

  	
  Notes.

  	
   

  	
  34

  	
   

  
	
   

  	
   

  	
  2.3.

  	
   

  	
  Procedure for Revolving
  Borrowing and Issuance of Letters of Credit.

  	
   

  	
  35

  	
   

  
	
   

  	
   

  	
  2.3A

  	
   

  	
  Procedure for Canadian
  Borrowing and Issuance of Canadian Letters of Credit.

  	
   

  	
  36

  	
   

  
	
   

  	
   

  	
  2.4.

  	
   

  	
  U.S. Conversion and
  Continuation Elections.

  	
   

  	
  38

  	
   

  
	
   

  	
   

  	
  2.4A

  	
   

  	
  Canadian Conversion and
  Continuation Elections.

  	
   

  	
  40

  	
   

  
	
   

  	
   

  	
  2.5.

  	
   

  	
  Voluntary Termination
  or Reduction of Commitments and Canadian Commitments.

  	
   

  	
  42

  	
   

  
	
   

  	
   

  	
  2.6.

  	
   

  	
  Optional Prepayments.

  	
   

  	
  42

  	
   

  
	
   

  	
   

  	
  2.7.

  	
   

  	
  Mandatory Prepayments
  of Loans for Asset Dispositions and Events of Loss.

  	
   

  	
  44

  	
   

  
	
   

  	
   

  	
  2.8.

  	
   

  	
  Repayment.

  	
   

  	
  45

  	
   

  
	
   

  	
   

  	
  2.9.

  	
   

  	
  Interest.

  	
   

  	
  45

  	
   

  
	
   

  	
   

  	
  2.10.

  	
   

  	
  Fees.

  	
   

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  Fee Letter.

  	
   

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  Non-Use Fee.

  	
   

  	
  46

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  Letter of Credit Fees.

  	
   

  	
  47

  	
   

  
	
   

  	
   

  	
  2.11.

  	
   

  	
  Computation of Fees and
  Interest.

  	
   

  	
  47

  	
   

  
	
   

  	
   

  	
  2.12.

  	
   

  	
  Payments by the Company
  and the Canadian Company.

  	
   

  	
  49

  	
   

  
	
   

  	
   

  	
  2.13.

  	
   

  	
  Payments by the U.S.
  Lenders to the Administrative Agent.

  	
   

  	
  50

  	
   

  



 



 i
 









 


	
   

  	
   

  	
  2.13A

  	
   

  	
  Payments by the
  Canadian Lenders to BOA Canada.

  	
   

  	
  51

  	
   

  
	
   

  	
   

  	
  2.14.

  	
   

  	
  Sharing of Payments,
  Etc. for U.S. Lenders

  	
   

  	
  52

  	
   

  
	
   

  	
   

  	
  2.14A

  	
   

  	
  Sharing of Payments,
  Etc. for Canadian Lenders

  	
   

  	
  52

  	
   

  
	
   

  	
   

  	
  2.15.

  	
   

  	
  Certain Letter of
  Credit and Canadian Letter of Credit Provisions.

  	
   

  	
  53

  	
   

  
	
   

  	
   

  	
  2.16.

  	
   

  	
  Swing Line Loans.

  	
   

  	
  59

  	
   

  
	
   

  	
   

  	
  2.17.

  	
   

  	
  Aggregate Commitment
  Increase Option.

  	
   

  	
  61

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III TAXES,
  YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  62

  	
   

  
	
   

  	
   

  	
  3.1.

  	
   

  	
  Taxes.

  	
   

  	
  62

  	
   

  
	
   

  	
   

  	
  3.2.

  	
   

  	
  Illegality.

  	
   

  	
  66

  	
   

  
	
   

  	
   

  	
  3.3.

  	
   

  	
  Increased Costs and
  Reduction of Return.

  	
   

  	
  66

  	
   

  
	
   

  	
   

  	
  3.4.

  	
   

  	
  U.S. Lender Funding
  Losses.

  	
   

  	
  67

  	
   

  
	
   

  	
   

  	
  3.4A

  	
   

  	
  Canadian Lender Funding
  Losses.

  	
   

  	
  68

  	
   

  
	
   

  	
   

  	
  3.5.

  	
   

  	
  Inability to Determine
  Rates.

  	
   

  	
  68

  	
   

  
	
   

  	
   

  	
  3.6.

  	
   

  	
  Certificates of the
  Lenders.

  	
   

  	
  69

  	
   

  
	
   

  	
   

  	
  3.7.

  	
   

  	
  Replacement of Certain
  Lenders.

  	
   

  	
  69

  	
   

  
	
   

  	
   

  	
  3.8.

  	
   

  	
  Survival.

  	
   

  	
  70

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV CONDITIONS
  PRECEDENT

  	
   

  	
  70

  	
   

  
	
   

  	
   

  	
  4.1.

  	
   

  	
  Conditions of Initial
  Loans.

  	
   

  	
  70

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  Credit Agreement,
  Revolving Notes and Canadian Loan Notes.

  	
   

  	
  70

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  Resolutions;
  Incumbency.

  	
   

  	
  70

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  Articles of
  Incorporation; By-laws and Good Standing.

  	
   

  	
  71

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (d)

  	
   

  	
  Loan Party Guaranties.

  	
   

  	
  71

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (e)

  	
   

  	
  [Intentionally
  Omitted].

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (f)

  	
   

  	
  [Intentionally
  Omitted].

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (g)

  	
   

  	
  Legal Opinions.

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (h)

  	
   

  	
  Payment of Fees.

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (i)

  	
   

  	
  Closing Certificate.

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (j)

  	
   

  	
  Financial Statements.

  	
   

  	
  72

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (k)

  	
   

  	
  Consents.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (l)

  	
   

  	
  Due Diligence.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (m)

  	
   

  	
  Other Documents.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
  4.2.

  	
   

  	
  Conditions to All
  Borrowings and Issuance of Letters of Credit.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  Notice of Borrowing or
  Continuation/Conversion.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  Continuation of
  Representations and Warranties.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  No Existing Default.

  	
   

  	
  73

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  74

  	
   

  
	
   

  	
   

  	
  5.1.

  	
   

  	
  Corporate Existence and
  Power.

  	
   

  	
  74

  	
   

  
	
   

  	
   

  	
  5.2.

  	
   

  	
  Corporate
  Authorization; No Contravention.

  	
   

  	
  74

  	
   

  
	
   

  	
   

  	
  5.3.

  	
   

  	
  Governmental
  Authorization.

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
  5.4.

  	
   

  	
  Binding Effect.

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
  5.5.

  	
   

  	
  Litigation.

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
  5.6.

  	
   

  	
  No Default.

  	
   

  	
  75

  	
   

  
	
   

  	
   

  	
  5.7.

  	
   

  	
  Use of Proceeds; Margin
  Regulations.

  	
   

  	
  76

  	
   

  



 



 ii
 









 


	
   

  	
   

  	
  5.8.

  	
   

  	
  Title to Properties.

  	
   

  	
  76

  	
   

  
	
   

  	
   

  	
  5.9.

  	
   

  	
  Taxes.

  	
   

  	
  76

  	
   

  
	
   

  	
   

  	
  5.10.

  	
   

  	
  Financial Condition.

  	
   

  	
  76

  	
   

  
	
   

  	
   

  	
  5.11.

  	
   

  	
  Environmental Matters.

  	
   

  	
  77

  	
   

  
	
   

  	
   

  	
  5.12.

  	
   

  	
  Regulated Entities.

  	
   

  	
  78

  	
   

  
	
   

  	
   

  	
  5.13.

  	
   

  	
  No Burdensome
  Restrictions.

  	
   

  	
  78

  	
   

  
	
   

  	
   

  	
  5.14.

  	
   

  	
  Solvency.

  	
   

  	
  78

  	
   

  
	
   

  	
   

  	
  5.15.

  	
   

  	
  Labor Relations.

  	
   

  	
  78

  	
   

  
	
   

  	
   

  	
  5.16.

  	
   

  	
  Copyrights, Patents,
  Trademarks and Licenses, etc.

  	
   

  	
  78

  	
   

  
	
   

  	
   

  	
  5.17.

  	
   

  	
  Subsidiaries;
  Capitalization.

  	
   

  	
  79

  	
   

  
	
   

  	
   

  	
  5.18.

  	
   

  	
  Broker’s; Transaction
  Fees.

  	
   

  	
  79

  	
   

  
	
   

  	
   

  	
  5.19.

  	
   

  	
  Insurance.

  	
   

  	
  79

  	
   

  
	
   

  	
   

  	
  5.20.

  	
   

  	
  Business Locations.

  	
   

  	
  79

  	
   

  
	
   

  	
   

  	
  5.21.

  	
   

  	
  Full Disclosure.

  	
   

  	
  80

  	
   

  
	
   

  	
   

  	
  5.22.

  	
   

  	
  ERISA Matters.

  	
   

  	
  80

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI AFFIRMATIVE
  COVENANTS

  	
   

  	
  81

  	
   

  
	
   

  	
   

  	
  6.1.

  	
   

  	
  Financial Statements.

  	
   

  	
  81

  	
   

  
	
   

  	
   

  	
  6.2.

  	
   

  	
  Certificates; Other
  Information.

  	
   

  	
  82

  	
   

  
	
   

  	
   

  	
  6.3.

  	
   

  	
  Notices.

  	
   

  	
  83

  	
   

  
	
   

  	
   

  	
  6.4.

  	
   

  	
  Preservation of
  Corporate Existence, Etc.

  	
   

  	
  85

  	
   

  
	
   

  	
   

  	
  6.5.

  	
   

  	
  Maintenance of
  Property.

  	
   

  	
  85

  	
   

  
	
   

  	
   

  	
  6.6.

  	
   

  	
  Insurance.

  	
   

  	
  85

  	
   

  
	
   

  	
   

  	
  6.7.

  	
   

  	
  Payment of Obligations.

  	
   

  	
  86

  	
   

  
	
   

  	
   

  	
  6.8.

  	
   

  	
  Compliance with Laws.

  	
   

  	
  87

  	
   

  
	
   

  	
   

  	
  6.9.

  	
   

  	
  Inspection of Property
  and Books and Records.

  	
   

  	
  87

  	
   

  
	
   

  	
   

  	
  6.10.

  	
   

  	
  Environmental Laws.

  	
   

  	
  87

  	
   

  
	
   

  	
   

  	
  6.11.

  	
   

  	
  Use of Proceeds.

  	
   

  	
  88

  	
   

  
	
   

  	
   

  	
  6.12.

  	
   

  	
  Solvency.

  	
   

  	
  88

  	
   

  
	
   

  	
   

  	
  6.13.

  	
   

  	
  Subsidiaries.

  	
   

  	
  88

  	
   

  
	
   

  	
   

  	
  6.14.

  	
   

  	
  Further Assurances.

  	
   

  	
  89

  	
   

  
	
   

  	
   

  	
  6.15.

  	
   

  	
  Depository Accounts.

  	
   

  	
  89

  	
   

  
	
   

  	
   

  	
  6.16.

  	
   

  	
  Post Closing Covenant.

  	
   

  	
  89

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII NEGATIVE
  COVENANTS

  	
   

  	
  90

  	
   

  
	
   

  	
   

  	
  7.1.

  	
   

  	
  Limitation on Liens.

  	
   

  	
  90

  	
   

  
	
   

  	
   

  	
  7.2.

  	
   

  	
  Disposition of Assets.

  	
   

  	
  92

  	
   

  
	
   

  	
   

  	
  7.3.

  	
   

  	
  Consolidations and
  Mergers.

  	
   

  	
  92

  	
   

  
	
   

  	
   

  	
  7.4.

  	
   

  	
  Loans and Investments.

  	
   

  	
  93

  	
   

  
	
   

  	
   

  	
  7.5.

  	
   

  	
  Limitation on
  Indebtedness.

  	
   

  	
  94

  	
   

  
	
   

  	
   

  	
  7.6.

  	
   

  	
  Transactions with
  Affiliates.

  	
   

  	
  94

  	
   

  
	
   

  	
   

  	
  7.7.

  	
   

  	
  Use of Proceeds.

  	
   

  	
  95

  	
   

  
	
   

  	
   

  	
  7.8.

  	
   

  	
  Contingent Obligations.

  	
   

  	
  95

  	
   

  
	
   

  	
   

  	
  7.9.

  	
   

  	
  Joint Ventures.

  	
   

  	
  95

  	
   

  
	
   

  	
   

  	
  7.10.

  	
   

  	
  Unconditional Purchase
  Options.

  	
   

  	
  95

  	
   

  



 



 iii
 









 


	
   

  	
   

  	
  7.11.

  	
   

  	
  Restricted Payments.

  	
   

  	
  95

  	
   

  
	
   

  	
   

  	
  7.12.

  	
   

  	
  [Intentionally
  Omitted].

  	
   

  	
  96

  	
   

  
	
   

  	
   

  	
  7.13.

  	
   

  	
  Fixed Charge Coverage
  Ratio.

  	
   

  	
  96

  	
   

  
	
   

  	
   

  	
  7.14.

  	
   

  	
  Senior Funded Debt to
  EBITDA Ratio.

  	
   

  	
  96

  	
   

  
	
   

  	
   

  	
  7.15.

  	
   

  	
  Total Funded Debt to
  EBITDA Ratio.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.16.

  	
   

  	
  Change in Business.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.17.

  	
   

  	
  Change in Structure.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.18.

  	
   

  	
  Accounting Changes.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.19.

  	
   

  	
  Other Contracts.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.20.

  	
   

  	
  Management Fees.

  	
   

  	
  97

  	
   

  
	
   

  	
   

  	
  7.21.

  	
   

  	
  Subsidiaries.

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
  7.22.

  	
   

  	
  Pension Plans.

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
  7.23.

  	
   

  	
  Amendment of Documents.

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII EVENTS OF
  DEFAULT

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
  8.1.

  	
   

  	
  Event of Default.

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  Non-Payment.

  	
   

  	
  98

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  Representation or
  Warranty.

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  Specific Defaults.

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (d)

  	
   

  	
  Other Defaults.

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (e)

  	
   

  	
  Cross-Default.

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (f)

  	
   

  	
  Insolvency; Voluntary
  Proceedings.

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (g)

  	
   

  	
  Involuntary
  Proceedings.

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (h)

  	
   

  	
  Monetary Judgments.

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (i)

  	
   

  	
  Non-Monetary
  Judgments.

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (j)

  	
   

  	
  Change of Control.

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (k)

  	
   

  	
  Adverse Change.

  	
   

  	
  101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (l)

  	
   

  	
  Loan Party Defaults.

  	
   

  	
  101

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (m)

  	
   

  	
  ERISA Liabilities.

  	
   

  	
  101

  	
   

  
	
   

  	
   

  	
  8.2.

  	
   

  	
  Remedies.

  	
   

  	
  101

  	
   

  
	
   

  	
   

  	
  8.3.

  	
   

  	
  Rights Not Exclusive.

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX THE AGENTS

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
  9.1.

  	
   

  	
  Appointment and
  Authorization.

  	
   

  	
  102

  	
   

  
	
   

  	
   

  	
  9.2.

  	
   

  	
  Delegation of Duties.

  	
   

  	
  103

  	
   

  
	
   

  	
   

  	
  9.3.

  	
   

  	
  Liability of the
  Administrative Agent and BOA Canada.

  	
   

  	
  103

  	
   

  
	
   

  	
   

  	
  9.4.

  	
   

  	
  Reliance by the
  Administrative Agent and BOA Canada.

  	
   

  	
  104

  	
   

  
	
   

  	
   

  	
  9.5.

  	
   

  	
  Notice of Default.

  	
   

  	
  104

  	
   

  
	
   

  	
   

  	
  9.6.

  	
   

  	
  Credit Decision.

  	
   

  	
  105

  	
   

  
	
   

  	
   

  	
  9.7.

  	
   

  	
  Indemnification.

  	
   

  	
  105

  	
   

  
	
   

  	
   

  	
  9.8.

  	
   

  	
  Agents in their
  Individual Capacity.

  	
   

  	
  106

  	
   

  
	
   

  	
   

  	
  9.9.

  	
   

  	
  Successor
  Administrative Agent.

  	
   

  	
  107

  	
   

  
	
   

  	
   

  	
  9.10.

  	
   

  	
  Syndication Agent,
  Documentation Agent and Co-Agent.

  	
   

  	
  108

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
   

  	
  108

  	
   

  
	
   

  	
   

  	
  10.1.

  	
   

  	
  Amendments and Waivers.

  	
   

  	
  108

  	
   

  



 



 iv
 









 


	
   

  	
   

  	
  10.2.

  	
   

  	
  Notices.

  	
   

  	
  109

  	
   

  
	
   

  	
   

  	
  10.3.

  	
   

  	
  No Waiver; Cumulative
  Remedies.

  	
   

  	
  110

  	
   

  
	
   

  	
   

  	
  10.4.

  	
   

  	
  Costs and Expenses.

  	
   

  	
  110

  	
   

  
	
   

  	
   

  	
  10.5.

  	
   

  	
  Indemnity.

  	
   

  	
  111

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (a)

  	
   

  	
  General Indemnity.

  	
   

  	
  111

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (b)

  	
   

  	
  Environmental
  Indemnity.

  	
   

  	
  111

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  	
  Survival; Defense.

  	
   

  	
  112

  	
   

  
	
   

  	
   

  	
  10.6.

  	
   

  	
  Marshalling; Payments
  Set Aside.

  	
   

  	
  112

  	
   

  
	
   

  	
   

  	
  10.7.

  	
   

  	
  Successors and Assigns.

  	
   

  	
  113

  	
   

  
	
   

  	
   

  	
  10.8.

  	
   

  	
  Assignments,
  Participations, etc.

  	
   

  	
  113

  	
   

  
	
   

  	
   

  	
  10.9.

  	
   

  	
  Set-off.

  	
   

  	
  117

  	
   

  
	
   

  	
   

  	
  10.10.

  	
   

  	
  Collateral Accounts.

  	
   

  	
  117

  	
   

  
	
   

  	
   

  	
  10.11.

  	
   

  	
  Notification of
  Addresses, Lending Offices, Etc.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.12.

  	
   

  	
  Counterparts.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.13.

  	
   

  	
  Severability.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.14.

  	
   

  	
  No Third Parties
  Benefited.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.15.

  	
   

  	
  Time.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.16.

  	
   

  	
  Governing
  Law and Jurisdiction.

  	
   

  	
  119

  	
   

  
	
   

  	
   

  	
  10.17.

  	
   

  	
  Waiver
  of Jury Trial.

  	
   

  	
  120

  	
   

  
	
   

  	
   

  	
  10.18.

  	
   

  	
  Automatic Debits of
  Fees.

  	
   

  	
  121

  	
   

  
	
   

  	
   

  	
  10.19.

  	
   

  	
  Entire Agreement;
  Release.

  	
   

  	
  121

  	
   

  
	
   

  	
   

  	
  10.20.

  	
   

  	
  Judgment Currency.

  	
   

  	
  121

  	
   

  
	
   

  	
   

  	
  10.21.

  	
   

  	
  Patriot Act.

  	
   

  	
  122

  	
   

  



 



 v















AMENDED AND RESTATED
CREDIT AGREEMENT


This
AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of May 30, 2007, among
LKQ Corporation, a Delaware corporation (the “Company”), LKQ Delaware LLP, a
Delaware limited liability partnership having two Alberta unlimited liability
companies as its partners (the “Canadian Company”), the financial institutions
from time to time party to this Amended and Restated Credit Agreement
(collectively, the “Lenders”; individually, a “Lender”), Bank of America, N.A.,
as Administrative Agent for the Lenders, Bank of America, N.A., by its Canada
branch, as BOA Canada, LaSalle Bank National Association, as Syndication Agent
for the Lenders, JPMorgan Chase Bank, National Association, as Documentation
Agent for the Lenders, National City Bank, as Co-Agent for the Lenders and Banc
of America Securities LLC, as Arranger. 
This Amended and Restated Credit Agreement shall amend, restate,
supersede and replace in its entirety that certain Credit Agreement dated as of
February 17, 2004, as amended or otherwise modified through the date hereof, by
and among the Company, the U.S. Lenders, Administrative Agent, LaSalle Bank
National Association, as syndication agent for the U.S. Lenders, JPMorgan Chase
Bank, National Association (as successor to Bank One, NA), as documentation
agent for the U.S. Lenders, National City Bank, as co-agent for the U.S.
Lenders and Banc of America Securities LLC, as arranger (the “Original Credit
Agreement”).


WHEREAS,
pursuant to the Original Credit Agreement, the U.S. Lenders made available to
the Company a revolving credit facility upon the terms and conditions set forth
therein; and


WHEREAS,
the U.S. Lenders and the Company have agreed to amend and restate the Original
Credit Agreement, and the Canadian Lenders and the Canadian Company have agreed
to become party to this Amended and Restated Credit Agreement, in order to
provide for a revolving credit facility to the Company and the Canadian Company
upon the terms and conditions set forth in this Amended and Restated Credit
Agreement.


NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree as follows:


ARTICLE I

DEFINITIONS


1.1.          Defined Terms.


In
addition to the terms defined elsewhere in this Amended and Restated Credit
Agreement, the following terms have the following meanings:


“Acquisition”
means the acquisition by the Company or any of its Subsidiaries of all or
substantially all of the Properties of any Person or a division or 













business of any Person, or all or substantially all of
the stock or other ownership interests of any Person, including, without
limitation, by means of a merger or other combination.


“Administrative
Agent” means BOA in its capacity as (i) administrative agent for the Lenders
hereunder, and (ii) provider of Swing Line Loans hereunder, as the context
requires, and any successor administrative agent.


“Administrative
Agent-Related Persons” means BOA and any successor administrative agent
arising under Section 9.9, together with Affiliates of BOA (including BOA
Canada) or any such successor administrative agent, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


“Administrative
Agent’s Payment Office” means the address for payments set forth on the
signature page hereto in relation to the Administrative Agent or such other
address as the Administrative Agent may from time to time specify in accordance
with Section 10.2.


“Affiliate”
means, as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person.  A Person shall be deemed to
control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of the other Person, whether through the ownership of voting
securities, by contract or otherwise. 
Without limitation, any director, executive officer or beneficial owner
of 5% or more of the equity of a Person shall for the purposes of this Amended
and Restated Credit Agreement, be deemed to control the other Person.  Notwithstanding the foregoing, no Lender
shall be deemed an “Affiliate” of the Company, the Canadian Company or of any
other Loan Party.


“Agents”
means, collectively, the Administrative Agent, BOA Canada, the Syndication
Agent, the Documentation Agent and the Co-Agent.


“Aggregate
Commitment” means the combined Commitments of the Lenders, in the aggregate
principal amount of Two Hundred and Five Million Dollars ($205,000,000), as
such amount may be increased pursuant to Section 2.17 or reduced from time to
time pursuant to Section 2.5.


“Agreement”
means this Amended and Restated Credit Agreement.


“Alternative
Base Rate” means



 2
 









(a)           in the case of Revolving Loans, for
any day the higher of (i) the rate of interest in effect for such day as
publicly announced from time to time by BOA in Chicago, Illinois, as its “reference
rate” (such rate set by BOA based upon various factors including BOA’s costs
and desired return, general economic conditions and other factors, and used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate) and (ii) the Federal Funds Rate plus
..50%;


(b)           in the case of the Canadian Loans
denominated in Canadian Dollars, for any day a fluctuating rate per annum equal
to the higher of (i) the CDOR Rate plus 0.50% and (ii) the Canadian
Prime Rate; and


(c)           in the case of Canadian Loans
denominated in Dollars, for any day a fluctuating rate per annum equal to the
higher of (i) the rate which BOA Canada in Toronto, Ontario announces from time
to time as the “reference rate” (as described above) of interest for loans in
Dollars to its Canadian borrowers; and (ii) the Federal Funds Rate plus
0.50%.


Any
change in the reference rate announced by BOA or BOA Canada shall take effect
at the opening of business on the day specified in the public announcement of
such change.


“Applicable Margin” means
at any time (a) with respect to the unpaid principal amount of each IBOR
Loan, the applicable percentage set forth below in the column entitled “Applicable
Margin for IBOR Loans” opposite the Total Funded Debt to EBITDA Ratio in effect
at such time; (b) with respect to the unpaid principal amount of each
Eurodollar Rate Loan, the applicable percentage set forth below in the column
entitled “Applicable Margin for Eurodollar Rate Loans” opposite the Total
Funded Debt to EBITDA Ratio in effect at such time; (c) with respect to
the unpaid principal amount of each Base Rate Loan, the applicable percentage
set forth below in the column entitled “Applicable Margin for Base Rate Loans”
opposite the Total Funded Debt to EBITDA Ratio in effect at such time;
(d) with respect to the unpaid principal amount of each Optional Floating
Rate Loan, the applicable percentage set forth below in the column entitled “Applicable
Margin for Optional Floating Rate Loans” opposite the Total Fund Debt to EBITDA
Ratio in effect at such time; and (e) with respect to the non-use fees
described in subsection 2.10(b), the applicable percentage set forth below in
the column entitled “Applicable Margin for Non-Use Fees” opposite the Total
Funded Debt to EBITDA Ratio in effect at such time, as follows:



 3
 









 


	
  Level

  	
   

  	
  Total Funded Debt

  to EBITDA Ratio

  	
   

  	
  Applicable

  Margin For

  IBOR Loans

  	
   

  	
  Applicable Margin

  For Eurodollar

  Rate Loans

  	
   

  	
  Applicable

  Margin For Base

  Rate Loans

  	
   

  	
  Applicable Margin

  For Optional

  Floating Rate Loans

  	
   

  	
  Applicable

  Margin For

  Non-Use Fees

  	
   

  
	
  1

  	
   

  	
  Less
  than or equal to 1.0 : 1.0

  	
   

  	
  0.875

  	
  %

  	
  0.875

  	
  %

  	
  0

  	
  %

  	
  0.875

  	
  %

  	
  0.20

  	
  %

  
	
  2

  	
   

  	
  Greater
  than 1.00 : 1.0 but less than or equal to 1.50 : 1.0

  	
   

  	
  1.000

  	
  %

  	
  1.000

  	
  %

  	
  0

  	
  %

  	
  1.000

  	
  %

  	
  0.25

  	
  %

  
	
  3

  	
   

  	
  Greater
  than 1.50 : 1.0 but less than or equal to 2.00 : 1.0

  	
   

  	
  1.250

  	
  %

  	
  1.250

  	
  %

  	
  0

  	
  %

  	
  1.250

  	
  %

  	
  0.30

  	
  %

  
	
  4

  	
   

  	
  Greater
  than 2.00 : 1.0 but less than or equal to 2.75 : 1.0

  	
   

  	
  1.375

  	
  %

  	
  1.375

  	
  %

  	
  0

  	
  %

  	
  1.375

  	
  %

  	
  0.35

  	
  %

  
	
  5

  	
   

  	
  Greater than 2.75 : 1.0

  	
   

  	
  1.625

  	
  %

  	
  1.625

  	
  %

  	
  0

  	
  %

  	
  1.625

  	
  %

  	
  0.40

  	
  %

  



 


The
initial Applicable Margin for IBOR Loans, Eurodollar Rate Loans, Base Rate
Loans, Optional Floating Rate Loans, and Non-Use Fees shall be set at Level 2
in the above table and each initial Applicable Margin shall remain in effect
until the delivery of the Company’s financial statements, and related
Compliance Certificate, with respect to the fiscal quarter ending June 30,
2007.  Thereafter, the Applicable Margin
shall be based on the Total Funded Debt to EBITDA Ratio in effect as set forth
in the Compliance Certificate most recently delivered by the Company to the
Administrative Agent.  Changes in the
Applicable Margin resulting from a change in the Total Funded Debt to EBITDA
Ratio shall become effective upon delivery by the Company to the Administrative
Agent of a new Compliance Certificate pursuant to subsection 6.2(b).  If the Company shall fail to deliver a
Compliance Certificate within 45 days after the end of any fiscal quarter (or
within 60 days after the end of any fiscal quarter that is the last fiscal
quarter in any fiscal year) as required pursuant to subsection 6.2(b), the
Applicable Margin from and including the 46th day after the end of such fiscal
quarter (or the 61st day after the end of such fiscal quarter for any fiscal
quarter that is the last fiscal quarter in any fiscal year), to but not
including the date the Company delivers to the Administrative Agent a Compliance
Certificate shall conclusively be presumed to equal the highest Applicable
Margin specified in the above chart for the type of loan or fee.  Whenever a change in the Total Funded Debt to
EBITDA Ratio results in an adjustment to the Applicable Margin, the Company
shall deliver to the Administrative Agent, together with the required
Compliance Certificate, a Pricing Change Certificate.


“Assignee”
has the meaning specified in subsection 10.8(a).


“Assignment
and Acceptance” has the meaning specified in subsection 10.8(a).


“Attorney
Costs” means and includes all reasonable disbursements and reasonable fees of
any law firm or other external counsel, the reasonable allocated cost of
internal legal services and all reasonable disbursements of internal counsel.



 4
 









“Bankruptcy
Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et
seq.).


“Base
Rate Loan” means a Loan that bears interest based on the Alternative Base Rate.


“BIA”
means The Bankruptcy and Insolvency Act (Canada) (or any successor statute), as
amended from time to time, and includes all regulations thereunder.


“BOA”
means Bank of America, N.A., a national banking association.


“BOA
Canada” means Bank of America, N.A., by its Canadian branch, in its capacity as
Canadian administrative agent for the Canadian Lenders hereunder, and any
successor Canadian administrative agent for the Canadian Lenders.


“BOA
Canada’s Payment Office” means the address for Canadian payments set forth on
the signature page hereto in relation to BOA Canada or such other address as
BOA Canada may from time to time specify in accordance with Section 10.2.


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


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in Chicago or San Francisco are authorized or required by law
to close; provided, that (a) with respect to all notices,
determinations, continuances, conversions, fundings and payments in connection
with IBOR Loans or Eurodollar Rate Loans, a Business Day shall not include any
day on which trading by and between banks in Dollar deposits or Canadian Dollar
deposits, as applicable, may not be carried on in the applicable interbank
market and (b) with respect to all notices, disbursements or payments by
or to BOA Canada, the Canadian Lenders, the Canadian Company or the Company
with respect to a Canadian Loan, any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Requirements of
Law of, or are in fact closed in, the jurisdiction of BOA Canada’s Canadian
Lending Office.


“Canadian
Base Rate Loan” means a Loan that bears interest based at the rate set forth in
clause (b) or clause (c) of the definition of Alternative Base Rate.


“Canadian
Borrowing” means a borrowing hereunder consisting of Loans made to the Canadian
Company on the same day by the Canadian Lenders pursuant to Article II.


“Canadian
Commitment” means, with respect to each Canadian Lender, the product of such
Canadian Lender’s Commitment Percentage multiplied by the Canadian Sublimit.


“Canadian
Company” has the meaning specified in the introductory clause hereto.



 5
 









“Canadian
Disbursement Date” has the meaning specified in subsection 2.15(b)(ii).


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


“Canadian
Issuer” means BOA Canada, in its capacity as issuer of the Canadian Letters of
Credit (or any other Person to whom BOA Canada may assign its obligations
pursuant to subsection 10.8(g)).


“Canadian
LC Amount” means at any time the aggregate undrawn face amount of all Canadian
Letters of Credit.


“Canadian
Lender” means each Lender that has a Canadian Commitment or is the holder of a
Canadian Loan or is a participant in a Canadian Letter of Credit; and (except
with respect to LaSalle Bank National Association) such Lender shall be (i) a
Lender which is resident in Canada for the purposes of the Income Tax Act
(Canada), or (ii) a Lender which is an “authorized foreign bank”, as defined in
section 2 of the Bank Act (Canada) and Section 248 of the Income Tax Act
(Canada), which holds all loans to the Canadian Company hereunder and receives
all amounts payable by the Canadian Company hereunder or under the other Loan
Documents as part of its “Canadian banking business”, for purposes of the
Income Tax Act (Canada), with the result that such Lender is deemed to be
resident in Canada for the purposes of Part XIII of the Income Tax Act
(Canada), in respect of any amount paid or credited or to be paid or credited
to that Lender hereunder.  In the event
that the requirements for a Canadian Lender to qualify as an “authorized
foreign bank” which is deemed to be resident of Canada for purposes of Part
XIII of the Income Tax Act (Canada) as enacted or from time to time are
different from the requirements set out above, then in order to qualify as a
Canadian Lender, such Lender shall meet all such requirements in force from
time to time.


“Canadian
Lending Office” means, with respect to each Canadian Lender, the office of that
such Canadian Lender designated as such in the signature pages hereto or such
other office of such Canadian Lender as it may from time to time specify to the
Company, the Canadian Company, the Administrative Agent and BOA Canada.


“Canadian
Letters of Credit” means standby or documentary letters of credit issued by
Canadian Issuer for the account of the Canadian Company.


“Canadian
Letter of Credit Sublimit” has the meaning specified in subsection 2.3A(f).


“Canadian
Loan” has the meaning specified in Section 2.1A.


“Canadian
Loan Note” means a promissory note of the Canadian Company payable to the order
of a Canadian Lender, in substantially the form of Exhibit F-2,
evidencing the aggregate indebtedness of the Canadian Company to such Canadian
Lender resulting from Canadian Loans made by such Canadian Lender.



 6
 









“Canadian
Obligations” means all Loans, and other Indebtedness, advances, debts,
liabilities, obligations, covenants and duties owing by the Canadian Company to
any Canadian Lender, any Agent, the Canadian Issuer, or any other Person
required to be indemnified, that arises under any Loan Document or in
connection with any interest rate cap, collar, swap or other agreement or
arrangement designed to protect such Person against fluctuations in interest
rates, in each case, whether or not for the payment of money, whether arising
by reason of an extension of credit, loan, guaranty, reimbursement obligations
with respect to Canadian Letters of Credit, indemnification or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired.


“Canadian
OpCo Parent” means 1323342 Alberta ULC, an Alberta unlimited liability company
formed by the Company to own stock or other equity interests of those
Subsidiaries of the Company operating in, and formed under the laws of, a
Province of Canada.


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


“Canadian
Sublimit” means, for any fiscal month, the amount set forth on the Canadian
Sublimit Certificate delivered in accordance with subsection 6.2(f) during the
month immediately prior to the first day of such fiscal month; provided that
(a) the initial Canadian Sublimit shall be $45,000,000 and shall remain in
effect until July 1, 2007, (b) in no event shall the Canadian Sublimit be
less than the sum of the aggregate principal amount of all outstanding Canadian
Loans and the Canadian LC Amount and (c) in no event shall the Canadian
Sublimit exceed the Maximum Canadian Sublimit. 
If the Company shall fail to deliver a Canadian Sublimit Certificate as
required pursuant to subsection 6.2(f), the Canadian Sublimit beginning on the
first day of the month immediately following failure, and continuing until a
Canadian Sublimit Certificate is delivered in accordance with subsection
6.2(f), shall conclusively be presumed to equal to the sum of the aggregate
principal amount of all outstanding Canadian Loans and the Canadian LC Amount
as calculated on such first day of the month. 
The Canadian Sublimit is part of, and not in addition to, the Aggregate
Commitments.


“Canadian
Sublimit Certificate” means a certificate duly completed and executed by a
Responsible Officer of the Company, substantially in the form of Exhibit I
hereto.


“Capital
Adequacy Regulation” means any guideline, request or directive of any central
bank or other Governmental Authority, or any other law, rule or regulation, 



 7
 









whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a
bank.


“Capital
Expenditures” means, for any period and with respect to any Person, the
aggregate of all expenditures paid by such Person and its Subsidiaries for the
acquisition or leasing of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during such
period) which should be capitalized under GAAP on a consolidated balance sheet
of such Person and its Subsidiaries.


“Capital
Lease” means, with respect to any Person, any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease on a
consolidated balance sheet of such Person.


“Capital
Lease Obligations” means, with respect to any Person, without duplication, the
principal component of all monetary obligations of such Person or any of its
Subsidiaries under Capital Leases of such Person or any such Subsidiary.


“Cash Equivalents” means:


(a)           securities
issued or fully guaranteed or insured by the United States Government or the
Canadian Government or any agency thereof and backed by the full faith and
credit of the United States or Canada having maturities of not more than six
months from the date of acquisition;


(b)           certificates
of deposit, time deposits, Eurodollar time deposits, repurchase agreements,
reverse repurchase agreements, or bankers’ acceptances, having in each case a
tenor of not more than six months, issued by any bank, or by any U.S. or Canadian
commercial bank or any branch or agency of a non-U.S. or non-Canadian
bank licensed to conduct business in the U.S. or Canada having combined capital
and surplus of not less than One Hundred Million Dollars ($100,000,000) whose
short term securities are rated at least A-1 by Standard & Poor’s
Corporation and P-1 by Moody’s Investors Service Inc., and not subject to
any right of setoff by such issuer (other than any such issuer that is also a
Lender); and


(c)           commercial
paper of an issuer rated at least A-1 by Standard & Poor’s
Corporation or P-1 by Moody’s Investors Service Inc. and in either case
having a tenor of not more than six months.


“CCAA”
means Companies’ Creditors Arrangement Act (Canada), (or any successor
statute), as amended from time to time, and includes all regulations
thereunder.


“CDOR
Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to
the nearest whole multiple of 1/100 of 1%) which is the arithmetic average of
the “BA 1 month” rates applicable to Canadian Dollar bankers’ acceptances
identified as such on the Reuters Screen CDOR Page at approximately 10:00 a.m.
on such day (as adjusted by BOA Canada after 10:00 a.m. (Toronto time) to
reflect any error in any posted 



 8
 









rate or in the posted average per annum rate).  If such rate does not appear on the Reuters
Screen CDOR Page as contemplated above, then the CDOR Rate on any day shall be
the rate quoted by BOA Canada.


“CERCLA”
has the meaning specified in the definition of “Environmental Laws.”


“Change
of Control” means, with respect to any Person, an event or series of events by
which:


(a)           any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding
the Flynn Group and excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire (such right, an “option
right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 30% or more of the equity
securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a fully diluted basis
(and, taking into account all such securities that such person or group
has the right to acquire pursuant to any option right); or


(b)           during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of such Person cease to be composed of individuals: (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing
body was approved or recommended by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (iii) whose election or nomination
to that board or other equivalent governing body was approved or recommended by
individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii),
any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs solely as a result of
an actual or threatened solicitation of proxies or consents for the election of
such director by any person or group other than the Flynn Group and other than
a solicitation for the election of one or more directors by or on behalf of the
board of directors).


“Closing
Date” means the date on which all conditions precedent set forth in Section 4.1
are satisfied or waived by the Administrative Agent and all the Lenders.


“Co-Agent”
means NCB, in its capacity as co-agent for the Lenders hereunder.


 



 9















“Code”
means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.


“Collateral
Account” means collectively the Collateral Account — US and the Collateral
Account — Canada and any other collateral account maintained pursuant to
Section 10.10.


“Collateral
Account — Canada” has the meaning specified in Section 10.10.


“Collateral
Account — US” has the meaning specified in Section 10.10.


“Commitment”,
with respect to each U.S. Lender, has the meaning specified in Section 2.1.


“Commitment
Percentage” means as to any Lender, the percentage equivalent of such U.S.
Lender’s Commitment, or, in the case of a Canadian Lender, its related U.S.
Lender’s Commitment, divided by the Aggregate Commitment.


“Company”
has the meaning specified in the introductory clause hereto.


“Compliance
Certificate” means a certificate duly completed and executed by a Responsible
Officer of the Company, substantially in the form of Exhibit A
hereto.


“Consolidated
Net Cash Interest Expense” means, as to any Person for any period, gross
consolidated cash interest expense payable by such Person during such period
(including all commissions, discounts, fees and other charges paid in
connection with standby letters of credit and similar instruments) in respect of
all Indebtedness (including without limitation Subordinated Debt and Seller
Debt) for such Person, plus (a) the portion of the upfront costs
and expenses for Rate Contracts (to the extent not included in gross
consolidated interest expense) of such Person fairly allocated to such Rate
Contracts as expenses and payable by such Person during such period, plus
(b) fees payable by such Person pursuant to Section 2.10 (to the extent
not included in gross consolidated interest expense) during such period, plus
(c) the portion of any payments made by such Person in respect of Capital
Leases of such Person allocated to interest expense (to the extent not included
in gross consolidated interest expense) during such period, less
(d) interest income of such Person for such period and Rate Contracts
payments received by such Person during such period; less (e) in
the case of the Company, fees paid by the Company during such period pursuant
to Section 2.10(a); all as determined in accordance with GAAP for such Person
and its Subsidiaries.


“Contingent
Obligation” means, as to any Person, (a) any Guaranty Obligation of that
Person; and (b) any direct or indirect obligation or liability, contingent
or otherwise, of that Person, (i) in respect of any Surety Instrument
issued for the account of that Person or as to which that Person is otherwise
liable for reimbursement of drawings or payments, (ii) to purchase any
materials, supplies or other Property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other Property, or for 



 10
 









such services, shall be made regardless of whether
delivery of such materials, supplies or other Property is ever made or
tendered, or such services are ever performed or tendered, or (iii) in
respect of any Rate Contract that is not entered into in connection with a bona
fide hedging operation that provides benefits to such Person.  The amount of any Contingent Obligation shall
(subject, in the case of Guaranty Obligations, to the last sentence of the
definition of “Guaranty Obligation”) be deemed equal to the maximum reasonably
anticipated liability in respect thereof, and shall, with respect to item
(b)(iii) of this definition, be marked to market on a current basis.


“Contractual
Obligations” means, as to any Person, any obligation or liability under any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement
to which such Person is a party or by which it or any of its property is bound.


“Conversion
Date” means any date on which (a) the Company converts a U.S. Base Rate
Loan to an IBOR Loan, an IBOR Loan to a U.S. Base Rate Loan, a U.S. Base Rate
Loan to an Optional Floating Rate Loan, a Optional Floating Rate Loan to a U.S.
Base Rate Loan or an Optional Floating Rate Loan to an IBOR Loan or
(b) the Canadian Company converts a Canadian Base Rate Loan to a
Eurodollar Rate Loan or a Eurodollar Rate Loan to a Canadian Base Rate Loan.


“Default”
means any event or circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied during such time)
constitute an Event of Default.


“Disbursement
Date” has the meaning specified in subsection 2.15(b)(i).


“Disposition”
means (i) the sale, lease, conveyance or other disposition of Property,
other than sales or other dispositions expressly permitted under subsection
7.2(a) or 7.2(b), and (ii) the sale or transfer by the Company or any
Subsidiary of the Company of any equity securities issued by any Subsidiary of
the Company to any Person other than the Company or any Subsidiary of the
Company.


“Documentation
Agent” means JPMorgan, in its capacity as documentation agent for the Lenders
hereunder.


“Dollar
Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in
Canadian Dollars, the equivalent amount thereof in Dollars as determined by BOA
Canada or the Canadian Issuer, as the case may be, at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of Dollars with Canadian Dollars.


“Dollars”
and “$” each mean lawful money of the United States.


“Domestic
Lending Office” means, with respect to each U.S. Lender, the office of that
such U.S. Lender designated as such in the signature pages hereto or such 



 11
 









other office of such U.S. Lender as it may from time
to time specify to the Company and the Administrative Agent.


“Domestic
Subsidiary” means any direct or indirect Subsidiary of the Company which is
incorporated or organized under the laws of any state of the United States of
America or the District of Columbia.


“EBITDA”
means, for any period, for any Person, determined for such Person and its
Subsidiaries on a consolidated basis and in accordance with GAAP, the sum of
(a) the net income (or net loss) for such period, plus (b) all
amounts treated as expenses for depreciation and the amortization of
intangibles of any kind to the extent included in the determination of such net
income (or loss), plus (c) all amounts treated as expenses for
interest to the extent included in the determination of such net income (or
loss), plus (d) all accrued taxes on or measured by income to the
extent included in the determination of such net income (or loss), plus
(e) the effect of financial accounting standard 142 related to goodwill, plus
(f) non-cash compensation expenses related to the application of financial
accounting standard 123R related to share-based payments, plus
(g) non-cash charges other than those described in clauses (e) and (f)
above, in an aggregate amount not in excess of $5,000,000 in any period, or
such greater amount as Administrative Agent shall have approved in its
reasonable judgment; provided, however, that net income (or loss)
shall be computed for these purposes without giving effect to extraordinary
losses or extraordinary gains; provided, further, that EBITDA of
the Company and its Subsidiaries for any period shall include pro forma EBITDA,
for such period, of the target of any Permitted Acquisition consummated during
such period, including any add-backs and adjustments to EBITDA listed on Schedule 1.1(a)
and any other add-backs and adjustments to EBITDA approved by all Lenders.


“EBITDAR”
means, for any period, for any Person, determined for such Person and its
Subsidiaries on a consolidated basis and in accordance with GAAP, EBITDA for
such period plus all rental payments made by the Company and its
Subsidiaries during such period.


“Eligible
Canadian Affiliate” means a Person which is an Affiliate of a U.S. Lender
or the Canadian branch or office of a U.S. Lender, which Affiliate, branch
or office makes loans in Canadian Dollars of the type being made hereunder in
Canada and (i) is a resident of Canada for income tax purposes, or
(ii) is an “authorized foreign bank”, as defined in section 2 of the Bank Act (Canada) and
Section 248 of the Income Tax Act
(Canada), which would hold all loans to the Canadian Company hereunder and
would receive all amounts payable by the Canadian Company hereunder or under
the other Loan Documents as part of such Affiliate’s “Canadian banking business”,
for purposes of the Income Tax Act
(Canada), with the result that such Affiliate would be deemed to be resident in
Canada for the purposes of Part XIII of the Income Tax Act (Canada), in respect of any amount paid or
credited or to be paid or credited to that Affiliate hereunder.  In the event that the requirements for an
Eligible Canadian Affiliate to qualify as an “authorized foreign bank” which is
deemed to be resident of Canada for purposes of Part XIII of the Income Tax Act (Canada) as enacted or
from time to time are different 



 12
 









from the requirements set out above, then in order to
qualify as an Eligible Canadian Affiliate, such Affiliate shall meet all such
requirements in force from time to time.


“Environmental
Claims” means all claims, however asserted, by any Governmental Authority or
other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal, remedial
or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental, placement, spills, leaks, discharges, emissions or
releases) of any Hazardous Material at, in, or from Property, whether or not
owned by the Company or any of its Subsidiaries.


“Environmental
Laws” means all federal, state, local, provincial or foreign laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to environmental,
health, safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (“CERCLA”), the Clean Air Act,
the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act,
the Federal Resource Conservation and Recovery Act, the Toxic Substances
Control Act, the Emergency Planning and Community Right-to-Know
Act.


“Environmental
Permits” has the meaning specified in subsection 5.11(b).


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated thereunder.


“ERISA
Affiliate” means any corporation, partnership, or other trade or business
(whether or not incorporated) that is, along with the Company and/or the
Canadian Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in Sections 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA, or a member of the
same affiliated service group within the meaning of Section 414(m) of the Code.


“Eurodollar
Base Rate” means, for any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by BOA Canada from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in Canadian Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period.  If such rate is
not available at such time for any reason, then the “Eurodollar Base Rate” for
such Interest Period shall 



 13
 









be the rate per annum determined by BOA Canada to be
the rate at which deposits in Canadian Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by BOA Canada and with
a term equivalent to such Interest Period would be offered by BOA’s London
Branch (or other BOA branch or Affiliate) to major banks in the London or other
offshore interbank market for Canadian Dollars at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


“Eurodollar
Rate” means, for any Interest Period with respect to any Eurodollar Rate Loan,
a rate per annum determined by BOA Canada to be equal to the quotient obtained
by dividing (a) the Eurodollar Base Rate for such Eurodollar Rate Loan for such
Interest Period by (b) one minus the Eurodollar Reserve Percentage for such
Eurodollar Rate Loan for such Interest Period.


“Eurodollar
Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar
Rate.  Eurodollar Rate Loans shall be
denominated in Canadian Dollars.


“Eurodollar
Reserve Percentage” means for any day for any Interest Period the maximum
reserve percentage (expressed as a decimal, rounded upward to the nearest
1/100th of 1%) in effect on such day (whether or not applicable to any Lender)
under regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities” under
Regulation D of the Federal Reserve Board) having a term comparable to such
Interest Period.


“Event
of Default” means any of the events or circumstances specified in Section 8.1.


“Event
of Loss” means, with respect to any Property, any of the following:  (a) any loss, destruction or damage of
such Property; or (b) any actual condemnation, seizure or taking, by
exercise of the power of eminent domain or otherwise, of such Property, or
confiscation of such Property or the requisition of the use of such Property.


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the regulations
promulgated thereunder.


“Existing
Letters of Credit” has the meaning specified in subsection 2.3(g).


“Federal
Funds Rate” means, for any day, the rate per annum set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such successor, “H.15(519)”)
for such day (or, if such day is not a Business Day, for the 



 14
 









Business Day preceding such day) opposite the caption “Federal
Funds (Effective)”.  If on any day upon
which the Federal Funds Rate is to be determined the rate for such day (or, if
such day is not a Business Day, for the Business Day preceding such day) is not
yet published in H.15(519), the rate for such day, for purposes of such
determination, will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the Federal Reserve Bank
of New York (including any such successor, the “Composite 3:30 p.m. Quotation”)
for such day (or, if such day is not a Business Day, for the Business Day
preceding such day) under the caption “Federal Funds Effective Rate.”  If on any day upon which the Federal Funds
Rate is to be determined the rate for such day (or, if such day is not a
Business Day, for the Business Day preceding such day) is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day,
for purposes of such determination, will be the arithmetic mean as determined
by the Administrative Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York time) on that day (or, if
such day is not a Business Day, on the Business Day preceding such day) by each
of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.


“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System, or
any entity succeeding to any of its principal functions.


“Fee
Letter” has the meaning specified in subsection 2.10(a).


“Fixed
Charge Coverage Ratio” means, for any period, the ratio of (a) EBITDAR for
the Company for such period less Maintenance Capital Expenditures of the
Company during such period, less cash federal, state, local and foreign
income taxes of the Company paid during such period, excluding deferred taxes to
(b) Fixed Charges for such period.


“Fixed
Charges” means, with respect to any fiscal period of the Company on a
consolidated basis, without duplication, Consolidated Net Cash Interest Expense
of the Company during such period, scheduled principal payments of Indebtedness
of the Company (excluding mandatory prepayments of the Loans pursuant to
Section 2.7) during such period, and rent payments made by the Company during
such period.


“Flynn
Group” means (a) Donald Flynn, (b) the spouse, lineal descendants and
spouses of the lineal descendents of Donald Flynn, (c) trusts created in
whole or in part for the benefit of any or all of the Persons named in clauses
(a) and (b) above, and estates and legal representatives of the Persons named
in clauses (a) and (b) above, and (d) any corporation, limited liability company,
partnership, or other entity controlled by the Persons named in clauses (a) and
(b) above.


“Form
W-8BEN” has the meaning specified in subsection 3.1(f).


“Form
W-8ECI” has the meaning specified in subsection 3.1(f).


“Funded
Debt” means, at any time, for any Person, determined for such Person and its
Subsidiaries on a consolidated basis and in accordance with GAAP, the sum 



 15
 









of the following, without duplication:
(i) Indebtedness for borrowed money, (ii) Capital Lease Obligations
and (iii) purchase money Indebtedness; but shall specifically exclude
unsecured guaranties acceptable to the Administrative Agent.


“GAAP”
means generally accepted accounting principles set forth from time to time in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which
are applicable to the circumstances as of the date of determination.


“Governmental
Authority” means any nation or government, any state, province, municipality or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.


“Guaranty
Obligation” means, as applied to any Person, any direct or indirect liability
of that Person with respect to any Indebtedness, lease, dividend, Surety
Instrument or other obligation (the “primary obligations”) of another Person
(the “primary obligor”), including any obligation of that Person, whether or
not contingent, (a) to purchase, repurchase or otherwise acquire such
primary obligations or any property constituting direct or indirect security
therefor, or (b) to advance or provide funds (i) for the payment or
discharge of any such primary obligation, or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial condition
of the primary obligor, or (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold harmless the holder
of any such primary obligation against loss in respect thereof; in each case
(a), (b), (c) or (d), including arrangements wherein the rights and remedies of
the holder of the primary obligation are limited to repossession or sale of
certain property of such Person.  The
amount of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof.


“Hazardous
Materials” means all those substances which are regulated by, or which may form
the basis of liability under, any Environmental Law, including all substances
identified under any Environmental Law as a pollutant, contaminant, hazardous
waste, hazardous constituent, special waste, hazardous substance, hazardous
material, or toxic substance, or petroleum or petroleum derived substance or
waste.



 16
 









“IBOR”
means, for each Interest Period in respect of IBOR Loans comprising part of the
same Revolving Borrowing, an interest rate per annum (rounded upward to the
nearest 1/100th of 1%) determined pursuant to the following formula:




	
  IBOR

  	
   

  	
  =

  	
   

  	
  Non-Adjusted
  IBOR      

  
	
   

  	
   

  	
   

  	
   

  	
  1.00 -
  Eurodollar Reserve Percentage

  






 


The
IBOR shall be adjusted automatically as of the effective date of any change in
the Eurodollar Reserve Percentage.


“IBOR
Loan” means a Loan that bears interest based on the IBOR.


“Indebtedness”
of any Person means, without duplication, (a) all indebtedness for
borrowed money; (b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services (other than trade payables
entered into in the ordinary course of business pursuant to ordinary terms);
(c) all non-contingent reimbursement or payment obligations with respect
to Surety Instruments; (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
respect to Property acquired by the Person (even though the rights and remedies
of the seller or bank under such agreement in the event of default are limited
to repossession or sale of such property); (f) all Capital Lease
Obligations; (g) all net obligations with respect to Rate Contracts;
(h) all indebtedness referred to in clauses (a) through (g) above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including accounts and contracts rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (a) through (g) above.


“Indemnified
Liabilities” has the meaning specified in subsection 10.5(a).


“Indemnified
Person” has the meaning specified in subsection 10.5(a).


“Insolvency
Proceeding” means (a) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors; in each case undertaken under U.S. Federal, State, Canadian or other
foreign law, including the Bankruptcy Code, the BIA and the CCAA.


“Interest
Payment Date” means, with respect to any IBOR Loan or any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan and, 



 17
 









with respect to any Base Rate Loan or any Optional
Floating Rate Loan, the last Business Day of each calendar quarter.


“Interest
Period” means, with respect to any IBOR Loan or any Eurodollar Rate Loan, the
period commencing on the Business Day the Loan is disbursed or continued or on
the Conversion Date on which a Loan is converted to an IBOR Loan or a
Eurodollar Rate Loan and ending on the date one, two or three months
thereafter, as selected by the Company in its Notice of Borrowing, or Notice of
Conversion/Continuation, or by the Canadian Company in its Notice of Canadian
Borrowing or Notice of Canadian Conversion/Continuation, as applicable;


provided, that:


(i)            if
any Interest Period pertaining to an IBOR Loan or a Eurodollar Rate Loan would
otherwise end on a day which is not a Business Day, that Interest Period shall
be extended to the next succeeding Business Day unless, in the case of an IBOR
Loan or a Eurodollar Rate Loan, the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day; and


(ii)           any
Interest Period pertaining to an IBOR Loan or a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period.


“Inventory”
means any and all “inventory” (as defined in the UCC) now owned or hereafter
acquired by each Loan Party, wherever located, including without limitation
finished goods, raw materials, work in process and other materials and supplies
(including packaging and shipping materials) used or consumed in the
manufacture or production thereof, and goods which are returned to or
repossessed by any Loan Party.


“Issuer”
means BOA, in its capacity as issuer of the Letters of Credit (or any other
Person to whom BOA may assign its obligations pursuant to subsection 10.8(g)).


“Joint
Venture” means a single-purpose corporation, partnership, joint venture or
other legal arrangement (whether created pursuant to contract or conducted
through a separate legal entity) now or hereafter formed by the Company or any
of its Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.


“JPMorgan”
means JPMorgan Chase Bank, National Association.


“LaSalle”
means LaSalle Bank National Association.



 18
 









“LC
Amount” means at any time the aggregate undrawn face amount of all Letters of
Credit and Canadian Letters of Credit.


“Lender”
has the meaning specified in the introductory clause hereto, and, as the
context requires, includes the Administrative Agent in its capacity as the
provider of Swing Line Loans hereunder, the U.S. Lenders and the Canadian
Lenders.


“Lending
Office” means, with respect to any Lender, the office or offices of such Lender
specified as its “Lending Office” or “Domestic Lending Office” or “Canadian
Lending Office” or “Offshore Lending Office”, as the case may be, opposite its
name on the applicable signature page hereto, or such other office or offices
of such Lender as it may from time to time notify the Company and the
Administrative Agent.


“Letters
of Credit” means standby or documentary letters of credit issued by Issuer for
the account of the Company.


“Letter
of Credit Sublimit” has the meaning specified in subsection 2.3(f).


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, charge or
deposit arrangement, encumbrance, lien (statutory or other) or other security
interest or preferential arrangement of any kind or nature whatsoever
(including those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a Capital
Lease Obligation or any financing lease having substantially the same economic
effect as any of the foregoing) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of a lessor under
an Operating Lease.


“Loan”
means an extension of credit by a U.S. Lender to the Company pursuant to
Article II (which may be a U.S. Base Rate Loan or an IBOR Loan), or a Swing
Line Loan (which may be a U.S. Base Rate Loan or an Optional Floating Rate
Loan) or an extension of credit by a Canadian Lender to the Canadian Company
pursuant to Article II (which may be a Canadian Base Rate Loan or a Eurodollar
Rate Loan) .


“Loan
Documents” means this Agreement, the Revolving Notes, the Canadian Loan Notes,
the Loan Party Guaranties and all documents delivered to the Administrative
Agent in connection therewith and all Rate Contracts between the Company and
any U.S. Lender or between the Canadian Company and any Canadian Lender.


“Loan
Party” means the Company and each Subsidiary of the Company.


“Loan
Party Guaranty” means (a) the Guaranty of the Obligations and the Canadian
Obligations executed by each then-existing Domestic Subsidiary of the Company
(other than the Canadian Company) and delivered to the Administrative Agent on
the Closing Date, and each Guaranty of the Obligations and the Canadian
Obligations subsequently executed by a Domestic Subsidiary of the Company
(other than the Canadian Company) and delivered to the Administrative Agent, as
each is amended from time to 



 19
 









time hereafter, (b) the Guaranty of the
Obligations executed by the Canadian Company and delivered to the
Administrative Agent on the Closing Date, as such Guaranty is amended from time
to time hereafter, (c) the Guaranty of the Canadian Obligations executed
by the Company and delivered to the Administrative Agent on the Closing Date,
as such Guaranty is amended from time to time hereafter, and (d) each
Guaranty delivered pursuant to Section 6.13.


“Maintenance
Capital Expenditures” means, with respect to any Person, any Capital
Expenditures that are made either to (a) replace or repair an existing
capital asset or (b) extend the useful life of an existing capital asset.


“Majority
Lenders” means at any time, U.S. Lenders having 51% or more of the Aggregate
Commitment or, if the Commitments have been terminated pursuant to Section 8.2,
Lenders holding in the aggregate 51% or more of the sum of the aggregate unpaid
principal amount of the Loans and the LC Amount (with the aggregate amount of
each U.S. Lender’s participation in Letters of Credit and Swing Line Loans and
of each Canadian Lender’s participation in Canadian Letters of Credit being
deemed “held” by such Lender for purposes of this definition).


“Margin
Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the Federal Reserve Board.


“Material
Acquisition” means an Acquisition with respect to which the Total Consideration
payable exceeds $5,000,000.


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, assets, liabilities
(actual or contingent) or condition (financial or otherwise) of the Company or
the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company, or the other Loan Parties taken as a
whole, to perform under the Loan Documents; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability of any
Loan Document.


“Material
Loan Party” means, at any time, any Loan Party (other than the Company or the
Canadian Company) (i) the gross revenues of which for the fiscal year most
recently ended are 15% or more of the consolidated gross revenues of the
Company and its Subsidiaries for such fiscal year or (ii) the aggregate
book value of the assets of which at such time are 15% or more of the aggregate
book value of the consolidated assets of the Company and its Subsidiaries at
such time, all as determined in accordance with GAAP.


“Maximum
Canadian Sublimit” means an amount equal to the lesser of
(a) $100,000,000, as such amount may be reduced from time to time pursuant
to Section 2.5 and (b) the Aggregate Commitments.



 20















“Multiemployer
Plan” means a “multiemployer plan,” as defined in Section 4001(a)(3) of
ERISA, that is maintained for the employees of the Company, the Canadian
Company or any ERISA Affiliate.


“NCB”
means National City Bank.


“Net
Proceeds” means proceeds in cash, checks or other cash equivalent financial
instruments (including Cash Equivalents) as and when received by the Person
making a Disposition, net of: (a) the direct costs relating to such
Disposition excluding amounts payable to any Affiliate of the Person making the
Disposition, (b) taxes paid or payable as a result thereof, and
(c) amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on the
assets which are the subject of such Disposition but only if such Lien is
permitted under the Loan Documents.  “Net
Proceeds” shall also include proceeds paid on account of any Event of Loss, net
of: (i) all money actually, and permitted under the Loan Documents to be,
applied to repair, replace, restore or substitute for the damaged Property,
(ii) all of the costs and expenses reasonably incurred in connection with
the collection of such proceeds, award or other payments, (iii) taxes paid
or payable as a result thereof, and (iv) any amounts retained by or paid
to parties having superior rights to such proceeds, awards or other payments
but only if such superior rights are permitted under the Loan Documents.


“Net
Worth” means shareholders’ equity of the Company as determined in accordance with
GAAP.


“Non-Adjusted
IBOR” means the rate of interest per annum determined by the Administrative
Agent to be the rate of interest per annum (rounded upward to the nearest
1/100th of 1%) notified to the Administrative Agent by the Reference Bank as
the rate of interest at which Dollar deposits in the approximate amount of the
principal amount of the Loan to be made or continued as, or converted into, an
IBOR Loan by the Reference Bank and having a maturity comparable to the
Interest Period for such IBOR Loan would be offered to major banks in the
offshore dollar interbank market at their request at or about 11:00 a.m. (New
York City time) on the second Business Day prior to the commencement of such
Interest Period.


“Notice
of Borrowing” means (i) with respect to a Revolving Borrowing, a notice
given by the Company to the Administrative Agent pursuant to Section 2.3, in
substantially the form of Exhibit B-1 and (ii) with respect to
a Swing Line Borrowing, a notice given by the Company to the Administrative Agent
pursuant to Section 2.16, in substantially the form of Exhibit C.


“Notice
of Canadian Borrowing” means with respect to a Canadian Borrowing, a notice
given by the Canadian Company to BOA Canada (with a copy to the Administrative
Agent) pursuant to Section 2.3A, in substantially the form of Exhibit B-2.



 21
 









“Notice
of Canadian Conversion/Continuation” means a notice given by the Canadian
Company to BOA Canada (with a copy to the Administrative Agent) pursuant to
Section 2.4A, in substantially the form of Exhibit D-2.


“Notice
of Conversion/Continuation” means a notice given by the Company to the
Administrative Agent pursuant to Section 2.4, in substantially the form of Exhibit D-1.


“Notice
of Lien” means any “notice of lien” or similar document intended to be filed or
recorded with any court, registry, recorder’s office, central filing office or
other Governmental Authority for the purpose of evidencing, creating,
perfecting or preserving the priority of a Lien securing obligations owing to a
Governmental Authority.


“Obligations”
means all Loans, and other Indebtedness, advances, debts, liabilities,
obligations, covenants and duties owing by the Company to any U.S. Lender, any
Agent, the Issuer, or any other Person required to be indemnified, that arises
under any Loan Document or in connection with any interest rate cap, collar,
swap or other agreement or arrangement designed to protect such Person against
fluctuations in interest rates, in each case, whether or not for the payment of
money, whether arising by reason of an extension of credit, loan, guaranty,
reimbursement obligations with respect to Letters of Credit, indemnification or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired.


“Offshore
Lending Office” means with respect to each Lender, the office of such Lender
designated as such in the signature pages hereto or such other office of such
Lender as such Lender may from time to time specify to the Company, the
Canadian Company, the Administrative Agent and BOA Canada.


“Operating
Lease” means, as applied to any Person, any lease of Property which is not a
Capital Lease.


“Optional
Floating Rate” means, for any day, the Federal Funds Rate plus .50%.


“Optional
Floating Rate Loan” means a Loan that bears interest based on the Optional
Floating Rate.


“Ordinary
Course of Business” means, in respect of any transaction involving the Company,
the Canadian Company or any other Loan Party, the ordinary course of such
Person’s business, as conducted by any such Person not inconsistent with past
practice and undertaken by such Person in good faith.


“Organization
Documents” means (i) for any corporation, the certificate or articles of
incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of the board of
directors of such corporation, 



 22
 









(ii) for any partnership, the certificate of
partnership, the partnership agreement and all applicable resolutions of the
board of directors of such partnership’s general partner and (iii) for any
limited liability company, the limited liability company certificate or
certificate of formation, the operating or similar agreement and all applicable
resolutions of the board of directors of such limited liability company’s
managing member(s).


“Original
Credit Agreement” has the meaning specified in the Recitals hereto.


“Other
Taxes” has the meaning specified in subsection 3.1(b).


“Participant”
has the meaning specified in subsection 10.8(d).


“PBA”
means the Pension Benefits Act (Ontario) and all regulations thereunder, as
amended from time to time, and any successor litigation.


“PBGC”
means the Pension Benefit Guaranty Corporation.


“Pension
Plan” means a “pension plan,” as such term is defined in Section 3(2) of ERISA,
that is subject to the provisions of Title IV of ERISA (other than a
Multiemployer Plan) or a defined benefit pension plan registered under the PBA,
or other Canadian or provincial pension legislation, or maintained in any non
U.S. jurisdiction (other than Canada), and to which the Company, the Canadian
Company or any ERISA Affiliate may have any liability, including any liability
by reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.


“Permitted
Acquisition” means an Acquisition that satisfies each of the following
conditions:


(i)            the
assets so acquired are employed, or, if such Acquisition is structured as a
purchase of Securities, the Person so acquired presently conducts its business,
in the same industry or a related industry, and in the same or related lines of
business now conducted by the Company and its Subsidiaries;


(ii)           at
the time of such Acquisition, (a) no Default or Event of Default exists,
or would be caused by the consummation thereof and (b) after giving effect
to such Acquisition, the Company would be in compliance, on a pro forma basis,
with the covenants set forth in Sections 7.13, 7.14 and 7.15 of this Agreement,
recomputed for the most recently ended period of 4 fiscal quarters;


(iii)          the
assets so acquired are located in the United States or Canada or, if such
acquisition is structured as a purchase of Securities, the Person so acquired
is organized under the laws of a state in the United States or a Province of
Canada and the assets owned by such Person are located in the United States or
Canada; provided, that Acquisitions of assets located 



 23
 









outside of the United
States or Canada and Acquisitions of Securities of Persons organized outside of
the United States or Canada and with assets located outside of the United
States or Canada shall be permitted hereunder, so long as the aggregate Total Consideration
related to assets or business locations outside of the United States or Canada
for all such Acquisitions in any fiscal year does not exceed $2,000,000;


(iv)          such
Acquisition shall have been approved by the board of directors of the Person
whose Properties or Securities are to be acquired;


(v)           to
the extent required by Section 6.13, the Administrative Agent shall have
received such duly executed and delivered a Loan Party Guaranty of the
Obligations and the Canadian Obligations, executed by the Person so acquired or
so created; provided, that in the case of any Acquisition other than a
Material Acquisition, such items shall be delivered to the Administrative Agent
no later than the last day of the month after the month in which such
Acquisition was consummated;


(vi)          in
the case of a Material Acquisition, the Company shall have provided the
Administrative Agent and the Lenders with pro forma Acquisition closing date
financial statements for the Person who is to be acquired or whose Property is
to be acquired in such Acquisition, based on the most recent monthly financial
statements for such Person, which pro forma financial statements will detail
any adjustments related to such Acquisition and include a computation of EBITDA
for such Person for use in deriving pro forma EBITDA for the Company and its
Subsidiaries for the next applicable testing date, including all add-backs that
the Company proposes to use in order to so derive pro-forma EBITDA;


(vii)         if
the Company’s Total Funded Debt to EBITDA, determined as of the most recent
calendar quarter and showing the effect of such Acquisition on a pro forma
basis, including the prior 12 months’ EBITDA of the Person who is to be
acquired or whose Property is to be acquired in such Acquisition (based on the
most recent monthly financial statements for such Person) is greater than 2.50
to 1.00, the Majority Lenders shall have consented in writing to such
Acquisition;


(viii)        if
so requested by the Administrative Agent or the Majority Lenders, the
Administrative Agent and the Lenders shall have received, as soon as is
reasonably practicable, copies of the agreements, instruments and documents
evidencing such Acquisition;


(ix)           in
the case of each Material Acquisition, the Administrative Agent shall have
received a certificate from a Responsible Officer of the Company certifying to
(a) the satisfaction of the conditions contained in clauses (i) - (viii)
above and (b) certifying to the amount of the applicable 



 24
 









Total Consideration and,
in each case, showing all applicable computations; and


(x)            if
aggregate Total Consideration for the Acquisition, plus the value of Securities
of the Company paid or to be paid with respect to the Acquisition, exceeds
$250,000,000, all Lenders shall have consented in writing to such Acquisition.


“Permitted
Liens” has the meaning specified in Section 7.1.


“Person”
means an individual, partnership, corporation, business trust, limited
liability company, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.


“Pricing
Change Certificate” means a certificate duly completed and executed by a
Responsible Officer of the Company, substantially in the form of Exhibit E
hereto.


“Property”
means any interest in any kind of property or asset, whether real, personal or
mixed, and whether tangible or intangible.


“Rate
Contracts” means swap agreements (as such term is defined in Section 101 of the
Bankruptcy Code), commodity options, equity or equity index swaps or options,
bond options or swaptions, and any other agreements or arrangements designed to
provide protection against fluctuations in interest or currency exchange rates.


“Reference
Bank” means BOA; references to the Reference Bank shall be deemed to refer to
BOA’s Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BOA).


“Reportable
Event” has the meaning given to such term in ERISA.


“Requirement
of Law” means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.


“Responsible
Officer” means the chief executive officer, the president or the chief
financial officer of the Company or the Canadian Company, as applicable, or any
other officer having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the chief financial
officer or the treasurer of the Company or the Canadian Company, as applicable,
or any other officer having substantially the same authority and
responsibility.


“Reuters
Screen CDOR Page” means the display designated as page CDOR on the Reuters
Monitor Money Rates Service or other page as may, from time to time, 



 25
 









replace that page on that service for the purpose of
displaying bid quotations for bankers’ acceptances accepted by Canadian
Schedule I banks (as listed in the Bank Act, Canada).


“Revaluation
Date” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a Eurodollar
Rate Loan, (ii) each date of a continuation of a Eurodollar Rate Loan pursuant
to Section 2.4A, and (iii) such additional dates as BOA Canada shall determine
or the Majority Lenders shall require; and (b) with respect to any Canadian
Letter of Credit, each of the following: 
(i) each date of issuance of a Canadian Letter of Credit denominated in
Canadian Dollars, (ii) each date of an amendment of any such Canadian Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the Canadian Issuer
under any Canadian Letter of Credit denominated in Canadian Dollars, and (iv)
such additional dates as BOA Canada or the Canadian Issuer shall determine or
the Majority Lenders shall require.


“Revolving
Borrowing” means a borrowing hereunder consisting of Loans made to the Company
on the same day by the U.S. Lenders pursuant to Article II.


“Revolving
Loan” has the meaning specified in Section 2.1.


“Revolving
Loan Maximum Amount” means Two Hundred and Five Million Dollars ($205,000,000),
which is the Aggregate Commitment, as such amount may be increased pursuant to
Section 2.17 or reduced from time to time pursuant to Section 2.5.


“Revolving
Note” means a promissory note of the Company payable to the order of a U.S.
Lender, in substantially the form of Exhibit F-1, evidencing the
aggregate indebtedness of the Company to such U.S. Lender resulting from
Revolving Loans made by such U.S. Lender.


“Revolving
Termination Date” has the meaning specified in Section 2.8.


“SEC”
means the Securities and Exchange Commission, or any entity succeeding to any
of its principal functions.


“Securities”
means “Securities” as such term is used in Section 2(l) of the Securities Act
of 1933, as amended.


“Seller
Debt” means, collectively, that principal portion of any liabilities,
obligations or Indebtedness of the Company or any of its Subsidiaries that is
incurred in order to finance all or a portion of the purchase price of a
Permitted Acquisition and is owing to the seller or sellers in respect thereof.


“Senior
Funded Debt” means, at any time, for any Person, determined for such Person and
its Subsidiaries on a consolidated basis and in accordance with GAAP, all
Funded Debt other than Subordinated Debt.



 26
 









“Senior
Funded Debt to EBITDA Ratio” means, as of any date, the ratio of
(a) Senior Funded Debt as of such date to (b) EBITDA for the 12 month
period ended on such date, all determined for the Company and its Subsidiaries
on a consolidated basis and in accordance with GAAP.


“Solvent”
means, as to any Person at any time, that (a) the fair value of the
Property of such Person is greater than the amount of such Person’s liabilities
(including disputed, contingent and unliquidated liabilities) as such value is
established and liabilities evaluated for purposes of Section 101(32) of the
Bankruptcy Code and, in the alternative, for purposes of any applicable
Canadian law (including but not limited to the BIA and the CCAA) and state
fraudulent transfer law; (b) the present fair saleable value of the
Property of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured; (c) such Person is able to realize upon its Property and pay
its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business;
(d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts
and liabilities mature; and (e) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute unreasonably small capital.


“Spot
Rate” means, for any currency, the rate determined by the Administrative Agent,
BOA Canada or the Canadian Issuer, as applicable, to be the rate quoted by the
Person acting in such capacity as the spot rate for the purchase by such Person
of such currency with another currency through its principal foreign exchange
trading office at approximately 10:00 a.m. on the date two Business Days prior
to the date as of which the foreign exchange computation is made; provided
that the Administrative Agent, BOA Canada or the Canadian Issuer may obtain
such spot rate from another financial institution designated by the
Administrative Agent, BOA Canada or the Canadian Issuer if the Person acting in
such capacity does not have as of the date of determination a spot buying rate
for any such currency; and provided  further that the Canadian
Issuer may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Canadian Letter of Credit
denominated in Canadian Dollars.


“Subordinated
Debt” means, collectively, that portion of any liabilities, obligations or
Indebtedness of the Company or any of its Subsidiaries (including without
limitation any Seller Debt) that contains terms satisfactory to the
Administrative Agent and is subordinated in a manner satisfactory to the
Administrative Agent, as to right and time of payments of principal and
interest thereon, to all of the Obligations and the Canadian Obligations.


“Subsidiary”
of a Person means any corporation, association, partnership, limited liability
company, joint venture or other business entity of which more than 50% of the
voting stock or other equity interests (in the case of Persons other than 



 27
 









corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or
a combination thereof.


“Substantial
Loan Party” means, at any time, any Loan Party (i) the gross revenues of
which for the fiscal year most recently ended are 5% or more of the
consolidated gross revenues of the Company and its Subsidiaries for such fiscal
year or (ii) the aggregate book value of the assets of which at such time
are 5% or more of the aggregate book value of the consolidated assets of the
Company and its Subsidiaries at such time, all as determined in accordance with
GAAP.


“Surety
Instruments” means all letters of credit (including standby and commercial),
banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar
instruments.


“Swing
Line” means the uncommitted and discretionary revolving credit facility made
available to the Company by the Administrative Agent pursuant to Section 2.16.


“Swing
Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.16.


“Swing
Line Loan” has the meaning specified in subsection 2.16(a).


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and
(b) the Aggregate Commitment minus the Canadian Sublimit.  The Swing Line Sublimit is part of, and not
in addition to, the Aggregate Commitment.


“Syndication
Agent” means LaSalle, in its capacity as syndication agent for the Lenders
hereunder.


“Taxes”
has the meaning specified in subsection 3.1(a).


“Total
Cash Consideration” means total consideration paid or to be paid in cash or
property (other than Securities of the Company) with respect to any
Acquisition, including any deferred cash payments of any portion of the
purchase price thereof.


“Total
Consideration” means total consideration paid with respect to any Acquisition,
including without limitation: (i) Total Cash Consideration, (ii) all
amounts paid or to be paid pursuant to non-competition agreements and
consulting agreements, (iii) the amount of Indebtedness assumed (and in
the case of an Acquisition of Securities, the amount of Indebtedness of the
Person to be acquired), (iv) the amount of Seller Debt incurred in
connection with such Acquisition and (v) the amount of all transaction
fees payable by any Loan Party.


“Total
Funded Debt to EBITDA Ratio” means, as of any date, the ratio of
(a) Funded Debt as of such date to (b) EBITDA for the 12-month
period ended on such 



 28
 









date, all determined for the Company and its
Subsidiaries on a consolidated basis and in accordance with GAAP.


“Transferee”
has the meaning specified in subsection 10.8(e).


“UCC”
means the Uniform Commercial Code as in effect in the State of Illinois.


“United
States” and “U.S.” each means the United States of America.


“U.S.
Agents” means, collectively, the Administrative Agent, the Syndication Agent,
the Documentation Agent and the Co-Agent.


“U.S.
Base Rate Loan” means a Loan that bears interest based at the rate set forth in
clause (a) of the definition of Alternative Base Rate.


“U.S.
LC Amount” means at any time the aggregate undrawn face amount of all Letters
of Credit.


“U.S.
Lender” means each Lender that has a Commitment or that holds a Revolving Loan
or is a participant in a Letter of Credit.


“Wholly-Owned
Subsidiary” means any Person in which (other than directors’ qualifying shares
required by law) 100% of the capital stock or other ownership interests of each
class having ordinary voting power, and 100% of the capital stock or other
ownership interests of every other class, in each case, at the time as of which
any determination is being made, is owned, beneficially and of record, by the
Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.


1.2.          Other
Interpretive Provisions.


(a)           Defined Terms.


Unless
otherwise specified herein or therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto.  The
meaning of defined terms shall be equally applicable to the singular and plural
forms of the defined terms.  Terms
(including uncapitalized terms) not otherwise defined herein and that are
defined in the UCC shall have the meanings therein described.


(b)           The Agreement.


The
words “hereof”, “herein”, “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, section, schedule and
exhibit references are to this Agreement unless otherwise specified.



 29
 









(c)           Certain Common
Terms.


(i)            The term “documents” includes any
and all instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.


(ii)           The term “including” means “including
without limitation” and the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is
followed by an enumeration of specific matters, to matters similar to the
matters specifically mentioned.


(iii)          References to the “knowledge of”, “best
knowledge of”, or similar terms with respect to the Company or the Canadian
Company shall mean the actual knowledge of a Responsible Officer of the Company
or the Canadian Company, as applicable.


(d)           Performance; Time.


Whenever
any performance obligation hereunder shall be stated to be due or required to
be satisfied on a day other than a Business Day, such performance shall, unless
otherwise specified herein, be made or satisfied on the next succeeding
Business Day.  In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”; the words “to” and “until” each mean “to but
excluding”, and the word “through” means “to and including.”  If any provision of this Agreement refers to
any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be interpreted to encompass any
and all means, direct or indirect, of taking, or not taking, such action.


(e)           Contracts.


Unless
otherwise expressly provided herein, references to agreements and other
contractual instruments (including the Loan Documents) shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document.


(f)            Laws.


References
to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.


(g)           Captions.


The
captions and headings of this Agreement are for convenience of reference only
and shall not affect the interpretation of this Agreement.



 30















(h)           Independence of
Provisions.


The
parties acknowledge that this Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters, and that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly stated to the
contrary in this Agreement.


(i)            Interpretation.


This
Agreement is the result of negotiations among and has been reviewed by counsel
to the Administrative Agent, the Company, the Canadian Company and other
parties, and is the product of all parties hereto.  Accordingly, this Agreement and the other
Loan Documents shall not be construed against the Lenders or the Administrative
Agent merely because of the Administrative Agent’s or the Lenders’ involvement
in the preparation of such documents and agreements.


1.3.          Accounting
Principles.


(a)           Unless the context
otherwise clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under this
Agreement shall be made, in accordance with GAAP, consistently applied.  If any changes in accounting principles from
those used in the preparation of the financial statements referred to in
Section 5.10 hereafter occur as a result of the promulgation of rules,
regulations, pronouncements, or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and result in a change in the method
of calculation of financial covenants, standards, or terms found in this
Agreement, upon the request of the Company or the Majority Lenders, the
Company, the Canadian Company, the Administrative Agent and the Majority
Lenders agree to enter into negotiations to amend such financial covenants,
standards or terms so as to equitably reflect such changes with the desired
result that the evaluations of the Company’s financial condition shall be the
same after such changes as if such changes had not been made; provided, however,
that until the parties hereto have reached a definitive agreement on such
amendments, the Company’s financial condition shall continue to be evaluated on
the same principles as those used in the preparation of the financial statements
referred to in Section 5.10 prior to such change in accounting principles.


(b)           References herein to
“fiscal year” and “fiscal quarter” refer to such fiscal periods of the Company.


1.4.          Exchange Rates;
Currency Equivalents. 


(a)           The Administrative
Agent, BOA Canada or the Canadian Issuer, as applicable, shall determine the
Spot Rates as of each Revaluation Date to be used for calculating Dollar
Equivalent amounts of Loans and other Canadian Obligations denominated in
Canadian Dollars.  Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between Canadian Dollars and Dollars until 



 31
 









 


the next
Revaluation Date to occur.  Except for
purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent, BOA Canada or the Canadian Issuer, as applicable.


(b)           Wherever in this
Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Loan or the issuance, amendment or extension of a Letter of
Credit or Canadian Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Borrowing, Loan, Letter of
Credit or Canadian Letter of Credit is denominated in Canadian Dollars, such
amount shall be the Dollar Equivalent of such Dollar amount (rounded to the
nearest Canadian Dollar, with 0.5 of a Canadian Dollar being rounded upward),
as determined by the Administrative Agent, BOA Canada or the Canadian Issuer,
as the case may be.


1.5.          Lenders.


Any
reference in this Agreement to Lenders shall unless the context otherwise
requires mean only (i) the U.S. Lenders with respect to U.S. Loans denominated
in Dollars, or (ii) the Canadian Lenders with respect to Canadian Loans
denominated in Canadian Dollars or Dollars.


1.6.          Letter of Credit
Amounts.


Unless
otherwise specified herein, the amount of a Canadian Letter of Credit issued in
Canadian Dollars at any time shall be deemed to be the Dollar Equivalent of the
stated amount of such Canadian Letter of Credit in effect at such time; provided,
however, that with respect to any Canadian Letter of Credit that, by its
terms, provides for one or more automatic increases in the stated amount
thereof, the amount of such Canadian Letter of Credit shall be deemed to be the
Dollar Equivalent of the maximum stated amount of such Canadian Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.


1.7.          Canadian Loan
Currencies.  


All Eurodollar Rate Loans shall be made and
denominated in Canadian Dollars
and all Canadian Base Rate Loans shall be made and denominated in Canadian
Dollars or Dollars.  Eurodollar Rate Loans, interest thereon and
any applicable fees shall all be payable in Canadian Dollars, and Canadian Base Rate Loans,
interest thereon and any applicable fees shall be payable in the currency in
which such Canadian Base Rate Loan was borrowed.



 32
 









 


ARTICLE II

THE CREDITS


2.1.          Amounts and Terms
of Commitments.


Each
U.S. Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Loans in Dollars to the Company (each such Loan, a “Revolving
Loan”) and to participate (pursuant to Section 2.15) in the Letters of Credit
issued by the Issuer on the application of the Company, from time to time on
any Business Day during the period from the Closing Date to the Revolving
Termination Date, in an aggregate amount not to exceed at any time outstanding
the amount set forth opposite such U.S. Lender’s name in Schedule 2.1
under the heading “Commitment” (such amount, as the same (a) may be
reduced from time to time (in accordance with such U.S. Lender’s Commitment
Percentage) pursuant to Section 2.5 or (b) may be reduced from time to
time, as a result of one or more assignments pursuant to Section 10.8, is hereafter
referred to as such U.S. Lender’s “Commitment”); provided, however,
that, after giving effect to any Revolving Borrowing or issuance of any Letter
of Credit, (i) the sum of the aggregate principal amount of all
outstanding Revolving Loans, the aggregate outstanding amount of all Swing Line
Loans and the U.S. LC Amount, shall not exceed the Revolving Loan Maximum
Amount at such time minus the Canadian Sublimit, and (ii) the sum of the
aggregate principal amount of all outstanding Revolving Loans of any U.S.
Lender, plus such U.S. Lender’s Commitment Percentage of the U.S. LC Amount,
plus such U.S. Lender’s Commitment Percentage of all outstanding Swing Line
Loans, shall not exceed such U.S. Lender’s Commitment minus the Canadian
Commitment of such U.S. Lender’s related Canadian Lender.  Within the limits of each U.S. Lender’s
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this subsection 2.1, prepay pursuant to Section 2.6 and
reborrow pursuant to this subsection 2.1. 
No U.S. Lender shall be obligated to make available its Commitment
Percentage of any Revolving Loans during the existence of any Event of Default
or a Default.


Immediately
prior to the effectiveness of this Agreement, the principal balance of “Revolving
Loans” under and as defined in the Original Credit Agreement is $120,973,000
and as of the Closing Date such “Revolving Loans” shall continue to remain
outstanding and constitute Revolving Loans under this Agreement.  Upon the execution and delivery of this
Agreement, the indebtedness, obligations and other liabilities (including,
without limitation, interest and fees accrued to the date hereof) of the
Company governed by the Original Credit Agreement (collectively, the “Prior
Obligations”) shall continue to be in full force and effect, but shall be
governed by the terms and conditions set forth in this Agreement.  The execution and delivery of this Agreement
shall constitute an amendment, replacement and restatement, but not a novation
or repayment, of the Prior Obligations.


2.1A        Amounts and Terms
of Canadian Commitments.


Each
Canadian Lender severally agrees, on the terms and conditions hereinafter set
forth, to make Loans in Canadian Dollars and in Dollars to the Canadian 



 33
 









 


Company (each such Loan, a “Canadian Loan”) and to
participate (pursuant to Section 2.15) in the Canadian Letters of Credit issued
by the Canadian Issuer on the application of the Canadian Company, from time to
time on any Business Day during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount of such Canadian Lender’s Canadian Commitment, as the
same (a) may be reduced from time to time (in accordance with such
Canadian Lender’s Commitment Percentage) pursuant to Section 2.5 or
(b) may be reduced from time to time, as a result of one or more
assignments pursuant to Section 10.8; provided, however, that,
after giving effect to any Canadian Loan or issuance of any Canadian Letter of
Credit, (i) the sum of the aggregate principal amount of all outstanding
Canadian Loans and the Canadian LC Amount, shall not exceed the Canadian
Sublimit, and (ii) the sum of the aggregate principal amount of all
outstanding Canadian Loans of any Canadian Lender, plus such Canadian Lender’s
Commitment Percentage of the Canadian LC Amount, shall not exceed such Canadian
Lender’s Canadian Commitment.  Within the
limits of each Canadian Lender’s Canadian Commitment, and subject to the other
terms and conditions hereof, the Canadian Company may borrow under this
subsection 2.1A, prepay pursuant to Section 2.6 and reborrow pursuant to this
subsection 2.1A.  No Canadian Lender
shall be obligated to make available its Commitment Percentage of any Canadian
Loans during the existence of any Event of Default or a Default.


2.2.          Notes.


(a)           The Revolving Loans
made by each U.S. Lender shall be evidenced by a Revolving Note payable to the
order of that U.S. Lender in an amount equal to its Commitment.  The Canadian Loans made by each Canadian
Lender shall be evidenced by a Canadian Loan Note payable to the order of that
Canadian Lender in the amount equal to its Commitment Percentage of the Maximum
Canadian Sublimit.


(b)           The Loans made, the
participations in Letters of Credit purchased by each U.S. Lender, the
participations in Canadian Letters of Credit purchased by each Canadian Lender
and the participations in Swing Line Loans purchased by each U.S. Lender, shall
be evidenced by one or more loan accounts maintained by the Administrative
Agent or BOA Canada, as applicable, and such Lender in the ordinary course of
business.  The loan accounts or records
maintained by the Administrative Agent, BOA Canada and each Lender shall be
conclusive absent manifest error of the amount of the Loans made by the U.S.
Lenders to the Company or the Canadian Lenders to the Canadian Company, as
applicable, and the interest and payments thereon.  Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Company hereunder (and under any Revolving Note) or the obligation of the
Canadian Company hereunder (and under any Canadian Loan Note) to pay any amount
owing by it with respect to the Loans. 
In the event of a conflict between the amount in the loan account
maintained by a Lender and the amount in the loan account maintained by the
Administrative Agent or BOA Canada, as applicable, the amount in the loan
account maintained by the Administrative Agent or BOA Canada, as applicable,
shall govern.



 34
 









 


2.3.          Procedure for
Revolving Borrowing and Issuance of Letters of Credit.


(a)           Each Revolving
Borrowing and request for the issuance of a Letter of Credit shall be made upon
the Company’s irrevocable written notice (except in the case of requests for
U.S. Base Rate Loans, which may be by telephonic request promptly followed by
written notice) delivered to the Administrative Agent in accordance with
Section 10.2 in the form of a Notice of Borrowing (which notice must be
received by the Administrative Agent prior to 11:00 a.m. (Chicago time))
(i) two Business Days prior to the requested Revolving Borrowing date, in
the case of IBOR Loans; (ii) on the requested Revolving Borrowing date, in
the case of U.S. Base Rate Loans; and (iii) three Business Days prior to
the requested issuance date, in the case of Letters of Credit, specifying:


(A)          the amount of the Revolving Borrowing,
which (except for a Revolving Borrowing deemed requested under clause (ii) of
the proviso below) shall be in an aggregate minimum principal amount of One
Million Dollars ($1,000,000) or any multiple of Five Hundred Thousand Dollars
($500,000) in excess thereof, or the amount of the Letter of Credit (which
shall be in a minimum amount of One Hundred Thousand Dollars ($100,000)), as
applicable;


(B)           the requested Revolving Borrowing
date or issuance date, as applicable, which shall be a Business Day;


(C)           whether the Revolving Borrowing is to
be comprised of IBOR Loans or U.S. Base Rate Loans; and


(D)          with respect to IBOR Loans, the
duration of the Interest Period applicable to such Loans included in such
notice.  If the Notice of Borrowing shall
fail to specify the duration of the Interest Period for any Revolving Borrowing
comprised of IBOR Loans, such Interest Period shall be three months.


provided, however, that (i) with respect
to the Revolving Borrowing to be made on the Closing Date (if any), the Notice
of Borrowing shall be delivered to the Administrative Agent not later than
11:00 a.m. (Chicago time) on the Closing Date and such Revolving Borrowing
will consist of U.S. Base Rate Loans only; and (ii) in the event the U.S.
Lenders reimburse the Issuer pursuant to subsection 2.15(b)(i), the Company
shall be deemed to have timely requested a Revolving Borrowing comprised of
U.S. Base Rate Loans in the amount of such reimbursement.


(b)           Upon receipt of the
Notice of Borrowing, the Administrative Agent will promptly notify each U.S.
Lender thereof and of the amount of such U.S. Lender’s Commitment Percentage of
such Revolving Borrowing or participation in Letters of Credit.


(c)           Each U.S. Lender
will make the amount of its Commitment Percentage of the Revolving Borrowing
available to the Administrative Agent for the account of the Company 



 35
 









 


at the Administrative Agent’s Payment Office by
1:00 p.m. (Chicago time) on the Revolving Borrowing date requested by the
Company in funds immediately available to the Administrative Agent.  The proceeds of all such Loans will then be
made available to the Company by the Administrative Agent, at the option of the
Company, either (i) at the Administrative Agent’s office by crediting the
operating account of the Company on the books of BOA, or (ii) by wire
transfer in accordance with written instructions provided to the Administrative
Agent by the Company, in each case with the aggregate of the amounts made
available to the Administrative Agent by the U.S. Lenders and in like funds as
received by the Administrative Agent.


(d)           During the existence
of a Default or an Event of Default, the Company may not elect to have a Loan
be made as, or converted into or continued as, an IBOR Loan.


(e)           After giving effect
to any Revolving Borrowing, there shall not be more than eight different
Interest Periods in effect with respect to all Revolving Loans.


(f)            Each Letter of
Credit shall be in form and substance acceptable to the Administrative Agent
and the Issuer and shall by its terms be stated to expire on a date no later
than the earlier of (i) the Revolving Termination Date and (ii) one
year from the date of issuance.  Each Notice
of Borrowing requesting the issuance of a Letter of Credit shall be accompanied
by a letter of credit application, in form and substance reasonably acceptable
to the Administrative Agent and the Issuer, duly executed by a Responsible
Officer of the Company.  The aggregate
undrawn face amount of all Letters of Credit outstanding at any time shall not
exceed the lesser of (a) Twenty Million Dollars ($20,000,000) and
(b) the Aggregate Commitment minus the Canadian Sublimit (the “Letter of
Credit Sublimit”).


(g)           Prior to the Closing
Date, BOA issued the letters of credit listed on Schedule 2.3 (the “Existing
Letters of Credit”) pursuant to the Original Credit Agreement.  Each Agent, each Lender and the Company
hereby agree that each Existing Letter of Credit shall be deemed to be a Letter
of Credit issued by Issuer under this Agreement on the Closing Date for the
account of the Company.


2.3A                       Procedure
for Canadian Borrowing and Issuance of Canadian Letters of Credit.


(a)           Each Canadian
Borrowing and request for the issuance of a Canadian Letter of Credit shall be
made upon the Canadian Company’s irrevocable written notice (except in the case
of requests for Canadian Base Rate Loans, which may be by telephonic request
promptly followed by written notice) delivered to BOA Canada (with a copy to
the Administrative Agent) in accordance with Section 10.2 in the form of a
Notice of Canadian Borrowing (which notice must be received by BOA Canada prior
to 10:00 a.m. (Toronto time)) (i) three Business Days prior to the requested
Canadian Borrowing date, in the case of Eurodollar Rate Loans; (ii) on the
requested Canadian Borrowing date, in the case of Canadian Base Rate Loans; and
(iii) three Business Days prior to the requested issuance date, in the
case of Canadian Letters of Credit, specifying:



 36
 









 


(A)          the amount of the Canadian Borrowing,
which (except for a Canadian Borrowing deemed requested under clause (ii) of
the proviso below) shall be in an aggregate minimum principal amount of One
Million Canadian Dollars (C$1,000,000) or any multiple of Five Hundred Thousand
Canadian Dollars (C$500,000) in excess thereof, in the case of Canadian Loans
denominated in Canadian Dollars, or an aggregate minimum principal amount of
One Million Dollars ($1,000,000) or any multiple of Five Hundred Thousand
Dollars ($500,000) in excess thereof, in the case of Canadian Base Rate Loans
denominated in Dollars, or the amount of the Canadian Letter of Credit (which
shall be in a minimum amount of One Hundred Thousand Canadian Dollars (C$100,000)),
as applicable;


(B)           the requested Canadian Borrowing date
or issuance date, as applicable, which shall be a Business Day;


(C)           whether the Canadian Borrowing is to
be comprised of Eurodollar Rate Loans or Canadian Base Rate Loans; and


(D)          with respect to Eurodollar Rate Loans,
the duration of the Interest Period applicable to such Loans included in such
notice.  If the Notice of Canadian
Borrowing shall fail to specify the duration of the Interest Period for any Canadian
Borrowing comprised of Eurodollar Rate Loans, such Interest Period shall be
three months.


provided, however, that (i) with respect
to the Canadian Borrowing to be made on the Closing Date (if any), the Notice
of Canadian Borrowing shall be delivered to BOA Canada not later than
10:00 a.m. (Toronto time) on the Closing Date and such Canadian Borrowing
will consist of Canadian Base Rate Loans only; and (ii) in the event the
Canadian Lenders reimburse the Canadian Issuer pursuant to subsection
2.15(b)(ii), the Canadian Company shall be deemed to have timely requested a
Canadian Borrowing comprised of Canadian Base Rate Loans in the amount of such
reimbursement.


(b)           Upon receipt of the
Notice of Canadian Borrowing, BOA Canada will promptly notify each Canadian
Lender thereof and of the amount of such Canadian Lender’s Commitment
Percentage of such Canadian Borrowing or participation in Canadian Letters of
Credit.


(c)           Each Canadian Lender
will make the amount of its Commitment Percentage of the Canadian Borrowing
available to BOA Canada for the account of the Canadian Company at the BOA
Canada’s Payment Office by 12:00  noon (Toronto time) on the Canadian
Borrowing date requested by the Canadian Company in funds immediately available
to BOA Canada.  The proceeds of all such
Loans will then be made available to the Canadian Company by BOA Canada, at the
option of the Company, either (i) at BOA Canada’s Payment Office by
crediting the operating account of the Canadian Company on the books of BOA 



 37
 









 


Canada, or (ii) by wire transfer in accordance
with written instructions provided to BOA Canada by the Canadian Company, in
each case with the aggregate of the amounts made available to BOA Canada by the
Canadian Lenders and in like funds as received by BOA Canada.


(d)           During the existence
of a Default or an Event of Default, the Canadian Company may not elect to have
a Loan be made as, or converted into or continued as, a Eurodollar Rate Loan.


(e)           After giving effect
to any Canadian Borrowing, there shall not be more than four different Interest
Periods in effect with respect to all Canadian Loans.


(f)            Each Canadian
Letter of Credit shall be in form and substance acceptable to BOA Canada and
the Canadian Issuer and shall by its terms be stated to expire on a date no
later than the earlier of (i) the Revolving Termination Date and
(ii) one year from the date of issuance. 
Each Notice of Canadian Borrowing requesting the issuance of a Canadian
Letter of Credit shall be accompanied by a letter of credit application, in
form and substance reasonably acceptable to BOA Canada and the Canadian Issuer,
duly executed by a Responsible Officer of the Canadian Company.  The aggregate undrawn face amount of all
Canadian Letters of Credit outstanding at any time shall not exceed the lesser
of (a) Ten Million Canadian Dollars (C$10,000,000) and (b) the
Canadian Sublimit (the “Canadian Letter of Credit Sublimit”).


2.4.          U.S. Conversion
and Continuation Elections.


(a)           The Company may upon
irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b):


(i)            elect to convert on any Business
Day, any U.S. Base Rate Loans other than a Swing Line Loan (or any part thereof
in an amount not less than One Million Dollars ($1,000,000), or that is in an
integral multiple of Five Hundred Thousand Dollars ($500,000) in excess
thereof) into IBOR Loans; or


(ii)           elect to convert on any Business Day,
any U.S. Base Rate Loan that is a Swing Line Loan (or any part thereof in an
amount not less than One Million Dollars ($1,000,000), into Optional Floating
Rate Loans, or


(iii)          elect to convert on any Business Day,
any Optional Floating Rate Loans (or any part thereof in an amount not less
than One Million Dollars ($1,000,000), into U.S. Base Rate Loans or, upon
conversion of any Optional Floating Rate Loans into Revolving Loans, into IBOR
Loans; or


(iv)          elect to convert on the last day of
the applicable Interest Period any IBOR Loans having Interest Periods maturing
on such day (or any part thereof in an amount not less than One Million Dollars
($1,000,000), or 



 38
 









 


that is in an integral multiple of Five
Hundred Thousand Dollars ($500,000) in excess thereof) into U.S. Base Rate
Loans; or


(v)           elect to continue on the last day of
the applicable Interest Period any IBOR Loans having Interest Periods maturing
on such day (or any part thereof in an amount not less than One Million Dollars
($1,000,000), or that is in an integral multiple of Five Hundred Thousand
Dollars ($500,000) in excess thereof);


provided, that (A) if the aggregate amount of
IBOR Loans in respect of any Revolving Borrowing shall have been reduced, by
payment, prepayment, or conversion of part thereof to be less than One Million
Dollars ($1,000,000), such IBOR Loans shall automatically convert (on the last
day of the applicable Interest Period) into U.S. Base Rate Loans, and on and
after such date the right of the Company to continue such Loans as, and convert
such Loans into, IBOR Loans, as the case may be, shall terminate or
(B) upon financing of a Swing Line Loan that is an Optional Floating Rate
Loan with a Revolving Loan Borrowing as provided in subsection 2.16(c),
such Optional Floating Rate Loan shall automatically convert into a U.S. Base
Rate Loan unless the Company has provided a timely Notice of
Conversion/Continuation converting such Optional Floating Rate Loan into an
IBOR Loan.


(b)           The Company shall
deliver a Notice of Conversion/Continuation in accordance with Section 10.2 to
be received by the Administrative Agent not later than 11:00 a.m. (Chicago
time) at least (i) two Business Days in advance of the Conversion Date or
continuation date, if the Loans are to be converted into or continued as IBOR
Loans; and (ii) on the Conversion Date, if the Loans are to be converted
into U.S. Base Rate Loans or Optional Floating Rate Loans; specifying:


(A)          the proposed Conversion Date or
continuation date;


(B)           the aggregate amount of Loans to be
converted or continued;


(C)           the nature of the proposed conversion
or continuation; and


(D)          in the case of Loans to be continued
as or converted into IBOR Loans, the duration of the requested Interest Period.


(c)           If upon the
expiration of any Interest Period applicable to IBOR Loans, the Company has
failed to timely select a new Interest Period to be applicable to such IBOR
Loans, as the case may be, or if any Default or Event of Default shall then
exist, the Company shall be deemed to have elected to convert such IBOR Loans
into U.S. Base Rate Loans effective as of the expiration date of such current
Interest Period.



 39
 









 


(d)           Upon receipt of a
Notice of Conversion/Continuation, the Administrative Agent will promptly
notify each U.S. Lender thereof, or, if no timely notice is provided by the
Company, the Administrative Agent will promptly notify each U.S. Lender of the
details of any automatic conversion.  All
conversions and continuations shall be made pro rata according to the
respective outstanding principal amounts of the Loans, with respect to which
the notice was given, held by each U.S. Lender.


(e)           During the existence
of a Default or Event of Default, the Company may not elect to have a Loan
converted into or continued as an IBOR Loan.


(f)            Notwithstanding any
other provision contained in this Agreement, after giving effect to any
conversion or continuation of any Loans, there shall not be more than eight
different Interest Periods in effect with respect to all Revolving Loans.


2.4A        Canadian Conversion
and Continuation Elections.


(a)           The Canadian Company
may upon irrevocable written notice to BOA Canada (with a copy to the
Administrative Agent) in accordance with subsection 2.4A(b):


(i)            elect to convert on any Business
Day, any Canadian Base Rate Loans denominated in Canadian Dollars (or any part
thereof in an amount not less than One Million Canadian Dollars (C$1,000,000),
or that is in an integral multiple of Five Hundred Thousand Canadian Dollars
(C$500,000) in excess thereof) into Eurodollar Rate Loans; or


(ii)           elect to convert on any Business Day,
any Canadian Base Rate Loans denominated in Dollars (or any part thereof in an
amount not less than One Million Dollars ($1,000,000), or that is in an
integral multiple of Five Hundred Thousand Dollars ($500,000) in excess
thereof) into Eurodollar Rate Loans; or


(iii)          elect to convert on the last day of
the applicable Interest Period any Eurodollar Rate Loans having Interest
Periods maturing on such day (or any part thereof in an amount not less than
One Million Canadian Dollars (C$1,000,000), or that is in an integral multiple
of Five Hundred Thousand Canadian Dollars (C$500,000) in excess thereof) into
Canadian Base Rate Loans; or


(iv)          elect to continue on the last day of
the applicable Interest Period any Eurodollar Rate Loans having Interest
Periods maturing on such day (or any part thereof in an amount not less than
One Million Canadian Dollars (C$1,000,000), or that is in an integral multiple
of Five Hundred Thousand Canadian Dollars (C$500,000) in excess thereof);


provided, that if the aggregate amount of Eurodollar
Rate Loans in respect of any Canadian Borrowing shall have been reduced, by
payment, prepayment, or conversion of part thereof to be less than One Million
Canadian Dollars (C$1,000,000), such Eurodollar 



 40
 









 


Rate
Loans shall automatically convert (on the last day of the applicable Interest
Period) into Canadian Base Rate Loans, and on and after such date the right of
the Canadian Company to continue such Canadian Loans as, and convert such
Canadian Loans into, Eurodollar Rate Loans, as the case may be, shall
terminate.


(b)           The Canadian Company
shall deliver a Notice of Canadian Conversion/Continuation in accordance with
Section 10.2 to be received by BOA Canada not later than 10:00 a.m.
(Toronto time) at least (i) two Business Days in advance of the Conversion
Date or continuation date, if the Loans are to be converted into or continued
as Eurodollar Rate Loans; and (ii) on the Conversion Date, if the Canadian
Loans are to be converted into Canadian Base Rate Loans; specifying:


(A)          the proposed Conversion Date or
continuation date;


(B)           the aggregate amount of Canadian
Loans to be converted or continued;


(C)           the nature of the proposed conversion
or continuation; and


(D)          in the case of Canadian Loans to be
continued as or converted into Eurodollar Rate Loans, the duration of the
requested Interest Period.


(c)           If upon the
expiration of any Interest Period applicable to Eurodollar Rate Loans, the
Canadian Company has failed to timely select a new Interest Period to be
applicable to such Eurodollar Rate Loans, as the case may be, or if any Default
or Event of Default shall then exist, the Canadian Company shall be deemed to
have elected to convert such Eurodollar Rate Loans into Canadian Base Rate
Loans effective as of the expiration date of such current Interest Period.


(d)           Upon receipt of a
Notice of Canadian Conversion/Continuation with respect to a Canadian Loan, BOA
Canada will promptly notify each Canadian Lender thereof, or, if no timely
notice is provided by the Canadian Company, BOA Canada will promptly notify
each Canadian Lender of the details of any automatic conversion.  All conversions and continuations shall be
made pro rata according to the respective outstanding principal amounts of the
Canadian Loans, with respect to which the notice was given, held by each
Canadian Lender.


(e)           During the existence
of a Default or Event of Default, the Canadian Company may not elect to have a
Canadian Loan converted into or continued as a Eurodollar Rate Loan.


(f)            Notwithstanding any
other provision contained in this Agreement, after giving effect to any
conversion or continuation of any Canadian Loans, there shall not be more than
four different Interest Periods in effect with respect to all Canadian Loans.



 41















2.5.          Voluntary
Termination or Reduction of Commitments and Canadian Commitments.


The
Company may, upon not less than five Business Days’ prior notice to the
Administrative Agent, terminate the Aggregate Commitment or permanently reduce
the Aggregate Commitment (pro rata based on the U.S. Lenders’ Commitment
Percentages) by an aggregate minimum amount of One Million Five Hundred
Thousand Dollars ($1,500,000) or any multiple of Five Hundred Thousand Dollars
($500,000) in excess thereof; provided, that: (i) any such
reduction of the Aggregate Commitment shall result in an equivalent percentage
reduction in the Maximum Canadian Sublimit (pro rata based on the Canadian
Lenders’ Commitment Percentages), (ii) no such reduction or termination
shall be permitted if, after giving effect thereto and to any prepayments of
the Loans made on the effective date thereof, the sum of the then outstanding
principal amount of the Revolving Loans, the outstanding principal amount of
the Swing Line Loans, the outstanding principal amount of the Canadian Loans
and the LC Amount would exceed the Aggregate Commitment then in effect;
(iii) no such reduction or termination shall be permitted if, after giving
effect thereto and to any prepayments of the Loans made on the effective date thereof,
the sum of the then outstanding principal amount of the Revolving Loans, the
outstanding principal amount of the Swing Line Loans and the U.S. LC Amount
would exceed the Aggregate Commitment then in effect minus the Canadian
Sublimit then in effect; (iv) no such reduction or termination shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the sum of the then outstanding principal
amount of the Canadian Loans and the Canadian LC Amount would exceed the
Canadian Sublimit then in effect; (v) that once reduced in accordance with
this Section 2.5, neither the Aggregate Commitment nor the Maximum Canadian
Sublimit may be increased; (vi) if, after giving effect to any reduction
of the Aggregate Commitment, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitment minus the Canadian
Sublimit, such Letter of Credit Sublimit and/or Swing Line Sublimit, as
applicable, shall be automatically reduced by the amount of such excess; and
(vii) if, after giving effect to any reduction of the Maximum Canadian
Sublimit, the Canadian Letter of Credit Sublimit exceeds the Maximum Canadian
Sublimit, such Canadian Letter of Credit Sublimit shall be automatically
reduced by the amount of such excess. 
Any reduction of the Aggregate Commitment shall be applied to each U.S.
Lender’s Commitment in accordance with such Lender’s Commitment Percentage, and
any reduction of the Maximum Canadian Sublimit shall be applied to each
Canadian Lender’s Canadian Commitment in accordance with such Canadian Lender’s
Commitment Percentage.  All accrued
non-use fees to, but not including the effective date of any reduction or
termination of the Aggregate Commitment and the Maximum Canadian Sublimit,
shall be paid on the effective date of such reduction or termination.


2.6.          Optional
Prepayments.


(a)           Subject to Section
3.4, the Company may, at any time or from time to time, upon at least two
Business Days’ notice in the case of IBOR Loans, or upon same day notice in the
case of U.S. Base Rate Loans and Optional Floating Rate Loans, to the 



 42
 









 


Administrative Agent, ratably, in accordance with each
U.S. Lender’s Commitment Percentage, prepay Revolving Loans in whole or in
part, (i) in the case of Revolving Loans which are IBOR Loans, in minimum
amounts of Five Hundred Thousand Dollars ($500,000) or any multiple of One
Hundred Thousand Dollars ($100,000) in excess thereof, and (ii) in the
case of Revolving Loans or Swing Line Loans which are U.S. Base Rate Loans, in
any amount, (iii) in the case of Swing Line Loans which are Optional
Floating Rate Loans, in any amount.  Each
notice of prepayment shall specify the date and amount of such prepayment, and
whether such prepayment is of U.S. Base Rate Loans, IBOR Loans or Optional
Floating Rate Loans, or any combination thereof and if such prepayment includes
a prepayment of IBOR Loans, the Interest Periods of the Loans to be
prepaid.  Such notice shall not thereafter
be revocable by the Company and the Administrative Agent will promptly notify
each U.S. Lender thereof and of such U.S. Lender’s Commitment Percentage of
such prepayment.  If such notice is given
by the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount prepaid
and any amounts required pursuant to Section 3.4.  Any prepayments by the Company pursuant to
this Section 2.6 shall be applied to the Loans as specified in the Company’s
notice of prepayment.  If the Company
shall have failed to specify in its notice of prepayment the Loans to which
such prepayment is to be applied, any prepayments by the Company pursuant to
this Section 2.6 shall be applied first to any Optional Floating Rate Loans
then outstanding, then to any U.S. Base Rate Loans then outstanding and last to
IBOR Loans with the shortest Interest Periods remaining.  Amounts applied to the Revolving Loans
pursuant to this Section 2.6 shall not permanently reduce or terminate the
Commitments or the Aggregate Commitment, unless otherwise specified by the
Company in its notice of prepayment and, in the case of a reduction only if
such reduction is permitted under Section 2.5.


(b)           The Company may, at
any time or from time to time, upon same day notice to the Administrative
Agent, prepay Swing Line Loans in whole or in part, in minimum amounts of One
Hundred Thousand Dollars ($100,000) or any multiple of One Hundred Thousand Dollars
($100,000) in excess thereof.  Each
notice of prepayment shall specify the date and amount of such prepayment.  If such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to each such date on the amount prepaid.


(c)           Subject to Section
3.4A, the Canadian Company may, at any time or from time to time, upon at least
two Business Days’ notice in the case of Eurodollar Rate Loans, or upon same
day notice in the case of Canadian Base Rate Loans, to BOA Canada (with a copy
to the Administrative Agent), ratably, in accordance with each Canadian Lender’s
Commitment Percentage, prepay Canadian Loans in whole or in part, (i) in
the case of Canadian Loans which are Eurodollar Rate Loans, in minimum amounts
of Five Hundred Thousand Canadian Dollars (C$500,000) or any multiple of One
Hundred Thousand Canadian Dollars (C$100,000) in excess thereof, and (ii) in
the case of Canadian Loans which are Canadian Base Rate Loans, in any
amount.  Each notice of prepayment shall
specify the date and amount of such prepayment, and whether such prepayment is
of Canadian Base Rate Loans or Eurodollar Rate Loans, or any combination
thereof and if such prepayment includes a prepayment of Eurodollar Rate Loans, 



 43
 









 


the Interest Periods of the Loans to be prepaid.  Such notice shall not thereafter be revocable
by the Canadian Company and BOA Canada will promptly notify each Canadian Lender
thereof and of such Canadian Lender’s Commitment Percentage of such
prepayment.  If such notice is given by
the Canadian Company, the Canadian Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 3.4A.  Any prepayments by the Canadian Company
pursuant to this Section 2.6A shall be applied to the Loans as specified in the
Canadian Company’s notice of prepayment. 
If the Canadian Company shall have failed to specify in its notice of
prepayment the Loans to which such prepayment is to be applied, any prepayments
by the Canadian Company pursuant to this Section 2.6A shall be applied first to
any Canadian Base Rate Loans then outstanding and then to Eurodollar Rate Loans
with the shortest Interest Periods remaining. 
Amounts applied to the Canadian Loans pursuant to this Section 2.6A
shall not permanently reduce or terminate the Canadian Sublimit or the
Aggregate Commitment, unless otherwise specified by the Canadian Company in its
notice of prepayment and, in the case of a reduction only if such reduction is
permitted under Section 2.5.


2.7.          Mandatory
Prepayments of Loans for Asset Dispositions and Events of Loss.


If
the Company or any of its Subsidiaries shall at any time or from time to time
make or agree to make a Disposition or shall suffer an Event of Loss in an
amount in excess of $1,000,000, then the Company shall promptly notify the
Administrative Agent of such proposed Disposition or Event of Loss (including
the amount of the estimated gross proceeds thereof and the amount of the Net
Proceeds thereof to be received by the Company or its Subsidiary in respect
thereof).  So long as no Default or Event
of Default has occurred and is continuing, proceeds of Dispositions and Events
of Loss shall be used by the Company or the applicable Subsidiary, as
applicable, to replace the subject Property with an economical unit of
substantially similar character and value as the subject Property within 180
days after its Disposition or the applicable Event of Loss; provided, that if
such proceeds are not so used, the applicable amount shall be applied
(a) in the case of a Disposition made by or an Event of Loss suffered by
the Company or any of its Domestic Subsidiaries, to reduce the outstanding
principal balance of the Revolving Loans (but shall not permanently reduce the
Aggregate Commitment) and (b) in the case of a Disposition made by or an
Event of Loss suffered by the Canadian Company or any of its Subsidiaries, to
reduce the outstanding principal balance of the Canadian Loans (but shall not
permanently reduce the Aggregate Commitment or the Canadian Sublimit).  Notwithstanding the foregoing, during the
existence of a Event of Default (including any Event of Default caused by the
consummation of a Disposition that does not comply with Section 7.2), all such
amounts received by the Company or any of its Subsidiaries shall be applied to
the Obligations in such order and manner as all of the Lenders shall elect.



 44
 









 


2.8.          Repayment.


The
Commitments and the Canadian Commitments hereunder shall terminate on the
earlier to occur of (i) the date on which the Commitments and the Canadian
Commitments are terminated pursuant to subsection 8.2(a), (ii) such date
as is determined by the Company pursuant to Section 2.5, and (iii) April
25, 2012.  The date of termination of the
Commitments and the Canadian Commitments as provided in the immediately
preceding sentence is referred to herein as the “Revolving Termination Date.”  On the Revolving Termination Date,
(a) the Company shall repay to the Administrative Agent in full the
aggregate principal amount of the Swing Line Loans, to the Administrative Agent
and the U.S. Lenders in full the aggregate principal amount of the Revolving
Loans and to the Administrative Agent reimbursement obligations with respect to
Letters of Credit then outstanding and (b) the Canadian Company shall repay
to BOA Canada and the Canadian Lenders in full the aggregate principal amount
of the Canadian Loans and to BOA Canada reimbursement obligations with respect
to Canadian Letters of Credit then outstanding. 
In the event any Letters of Credit are outstanding on the Revolving
Termination Date, the Company shall provide to the Administrative Agent cash
collateral in the amount of such Letters of Credit to secure the Company’s
reimbursement obligations with respect to such Letters of Credit, together with
reasonably anticipated related fees, costs and expenses, which cash collateral
shall be maintained in a Collateral Account — US.  In the event any Canadian  Letters of Credit are outstanding on the
Revolving Termination Date, the Canadian Company shall provide to BOA Canada
cash collateral in the amount of such Canadian Letters of Credit to secure the
Canadian Company’s reimbursement obligations with respect to such Canadian
Letters of Credit, together with reasonably anticipated related fees, costs and
expenses, which cash collateral shall be maintained in a Collateral Account —
Canada.  In addition, without limiting
the generality of the foregoing, immediately following any change in the
Canadian Sublimit, (a) the Company shall pay to the Administrative Agent,
for the account of the U.S. Lenders, the amount by which the aggregate
principal amount of all outstanding Revolving Loans, the aggregate outstanding
amount of all Swing Line Loans and the U.S. LC Amount exceeds the Aggregate
Commitment minus the Canadian Sublimit then in effect and (b) the Canadian
Company shall pay to BOA Canada, for the account of the Canadian Lenders, the
amount by which the aggregate principal amount of all outstanding Canadian
Loans and the Canadian LC Amount exceeds the Canadian Sublimit then in effect.


2.9.          Interest.


(a)           Subject to
subsection 2.9(d), each Loan shall bear interest on the outstanding principal
amount thereof from the date when made to the date such Loan is repaid
(i) for each day during which such Loan is an IBOR Loan, at IBOR for the
applicable Interest Period for such Loan for such day, (ii) for each day
during which such Loan is a Base Rate Loan, at the applicable Alternate Base
Rate for such day; (iii) for each day during which such Loan is a
Eurodollar Rate Loan, at the Eurodollar Rate for such day and (iv) for
each day during which such Loan is an Optional Floating Rate Loan, at the
Optional Floating Rate for such day; plus, in each case, the Applicable
Margin then in effect.  Swing Line Loans
shall be either 



 45
 









 


Optional Floating Rate Loans or U.S. Base Rate Loans;
all other Loans shall be either IBOR Loans, Eurodollar Rate Loans or Base Rate
Loans.


(b)           Interest on each
Loan shall be paid in arrears on each Interest Payment Date with respect to
such Loan.  Interest on each Loan shall
also be paid on the date of payment (including prepayment) in full thereof and
interest on IBOR Loans and Eurodollar Rate Loans only shall also be paid on the
date of any prepayment of such IBOR Loans or Eurodollar Rate Loans pursuant to
Sections 2.6 and 2.7 for the portion of the IBOR Loans or Eurodollar Rate Loans
so prepaid.  During the existence of any
Event of Default, interest shall be paid on demand of the Administrative Agent
at the request or with the consent of the Majority Lenders.


(c)           While any Event of
Default exists or after acceleration, the Company or the Canadian Company, as
applicable, shall pay interest on the principal amount of (i) all
outstanding Loans, at a rate per annum which is determined by adding 200 basis
points to the interest rate otherwise applicable to such Loans and
(ii) all reimbursement obligations of the Company or the Canadian Company,
as applicable, under subsection 2.15(b)(i) or 2.15(b)(ii), as applicable, due
and unpaid, at the rate per annum which is determined by adding 200 basis
points to the interest rate otherwise applicable to Revolving Loans or Canadian
Loans, as applicable, comprised of Base Rate Loans.


(d)           Anything herein to
the contrary notwithstanding, the obligations of the Company and the Canadian
Company hereunder shall be subject to the limitation that payments of interest
shall not be required, for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or receiving such
payment by the respective Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest which may be
lawfully contracted for, charged or received by such Lender, and in such event
the Company or the Canadian Company, as applicable, shall pay such Lender
interest at the highest rate permitted by applicable law.


2.10.        Fees.


(a)           Fee Letter.


The
Company shall pay to the Administrative Agent for its own account certain fees
in the amounts and at the times set forth in a certain letter agreement between
the Company and the Administrative Agent dated April 9, 2007 (the “Fee Letter”).


(b)           Non-Use Fee.


The
Company shall pay to the Administrative Agent for the account of each U.S.
Lender, a non-use fee on the average daily unused portion of such U.S. Lender’s
Commitment minus the Canadian Commitment of such U.S. Lender’s related Canadian
Lender, computed on a monthly basis, in arrears, on the last Business Day of
each calendar month, based upon the daily utilization for that month as
calculated by the Administrative Agent, equal to the Applicable Margin for
Non-Use Fees.  The Canadian Company shall
pay to BOA Canada for the account of each Canadian Lender, a non-use 



 46
 









 


fee on the average daily unused portion of such
Canadian Lender’s Canadian Commitment, computed on a monthly basis, in arrears,
on the last Business Day of each calendar month, based upon the daily
utilization for that month as calculated by BOA Canada, equal to the Applicable
Margin for Non-Use Fees.  Such non-use
fees shall accrue from Closing Date to the Revolving Termination Date and shall
be due and payable monthly in arrears on the last Business Day of each month
commencing on June 30, 2007 through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date.  The Company acknowledges that Swing Line
Loans outstanding from time to time shall not be considered Revolving Loans for
purposes of calculating the non-use fee.


(c)           Letter of Credit
Fees.


The
Company shall pay to the Administrative Agent for the account of the U.S.
Lenders a Letter of Credit fee on the average daily outstanding Letters of
Credit issued for the account of the Company, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based on the daily
utilization for that quarter as calculated by the Administrative Agent, at a
per annum rate equal to the Applicable Margin at such time for IBOR Loans.  The Canadian Company shall pay to BOA Canada
for the account of the Canadian Lenders a Canadian Letter of Credit fee on the
average daily outstanding Canadian Letters of Credit issued for the account of
the Canadian Company, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based on the daily utilization for that
quarter as calculated by BOA Canada, at a per annum rate equal to the
Applicable Margin at such time for Eurodollar Rate Loans.  Such Letter of Credit and Canadian Letter of
Credit fees shall accrue from the date a Letter of Credit or Canadian Letter of
Credit, as applicable, is issued to the date such Letter of Credit or Canadian
Letter of Credit is terminated and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December
commencing on June 30, 2007.  The Company
further agrees to pay the Issuer for the sole account of the Issuer
(i) with respect to standby Letters of Credit, all costs and expenses
incurred by the Issuer in connection with such Letter of Credit, and
(ii) with respect to documentary Letters of Credit, all customary charges,
fees, costs and expenses of the Issuer at such times as the Issuer customarily
charges such charges, fees, costs and expenses. 
The Canadian Company further agrees to pay the Canadian Issuer for the
sole account of the Canadian Issuer (i) with respect to standby Canadian
Letters of Credit, all costs and expenses incurred by the Canadian Issuer in
connection with such Canadian Letter of Credit, and (ii) with respect to
documentary Canadian Letters of Credit, all customary charges, fees, costs and
expenses of the Canadian Issuer at such times as the Canadian Issuer
customarily charges such charges, fees, costs and expenses.


2.11.        Computation of
Fees and Interest.


(a)           All computations of
interest in respect of Base Rate Loans and Optional Floating Rate Loans and all
computations of fees under this Agreement shall be made on the basis of a 365
or 366-day year, as appropriate, and actual days elapsed; all computations of
interest in respect of IBOR Loans and Eurodollar Rate Loans under this
Agreement shall be



 47
 









 


made on the basis of a 360-day year and actual days
elapsed, which results in more interest being paid than if computed on the
basis of a 365 or 366-day year.  Interest
and fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.


(b)           The Administrative
Agent will, with reasonable promptness, notify the Company and the U.S. Lenders
of each determination of IBOR, and BOA Canada will, with reasonable promptness,
notify the Canadian Company and the Canadian Lenders of each determination of
the Eurodollar Rate; provided, that any failure to do so shall not
relieve the Company or the Canadian Company, as applicable, of any liability
hereunder or provide the basis for any claim against the Administrative Agent
or BOA Canada.  Any change in the
interest rate on a Loan resulting from a change in the Applicable Margin or
Eurodollar Reserve Percentage shall become effective as of the opening of
business on the day on which such change in the Applicable Margin or Eurodollar
Reserve Percentage becomes effective. 
The Administrative Agent will with reasonable promptness notify the
Company and the U.S. Lenders of the effective date and the amount of each such
change applicable to any Loan owing by the Company, and BOA Canada will with
reasonable promptness notify the Canadian Company and the Canadian Lenders of
the effective date and the amount of each such change applicable to any Loan owing
by the Canadian Company; provided, that any failure of the
Administrative Agent or BOA Canada, as applicable, to do so shall not relieve
the Company or the Canadian Company, as applicable, of any of its liabilities
hereunder or provide the basis for any claim against the Administrative Agent
or BOA Canada.


(c)           Each determination
of an interest rate by the Administrative Agent or BOA Canada shall be
conclusive and binding on the Company, the Canadian Company, and the Lenders in
the absence of manifest error.  The
Administrative Agent or BOA Canada, as applicable, will, at the request of the
Company, the Canadian Company or any Lender, deliver to the Company, the
Canadian Company or the Lender, as the case may be, a statement showing the
quotations used by the Administrative Agent or BOA Canada in determining any
interest rate.


(d)           If the Reference
Bank’s Commitment shall terminate (otherwise than on termination of all the
Commitments), or for any reason whatsoever the Reference Bank shall cease to be
a U.S. Lender hereunder, the Reference Bank shall thereupon cease to be the
Reference Bank, and the IBOR shall be determined on the basis of the rates as
notified by the remaining U.S. Lenders.


(e)           The Reference Bank
shall use its best efforts to furnish quotations of rates to the Administrative
Agent as contemplated hereby.  If the
Reference Bank shall be unable or otherwise fails to supply such rates to the
Administrative Agent upon its request, the rate of interest shall be determined
on the basis of the quotations of the remaining U.S. Lenders.


(f)            For purposes of the
Interest Act (Canada), whenever any interest or fee payable by the Canadian
Company under this Agreement is calculated using a rate based on a year of 360
days, such rate used pursuant to such calculation, when expressed as an annual
rate, is equivalent to (x) the applicable rate based on a year of 360 days, (y)
multiplied by the actual 



 48
 









 


number of days in the calendar year in which the
period for which such interest or fee is payable (or compounded) ends, and (z)
divided by 360.  The principle of deemed
reinvestment of interest does not apply to any interest calculation under this
Agreement with respect to the Canadian Company, and the rates of interest stipulated
in this Agreement payable by the Canadian Company are intended to be nominal
rates and not effective rates or yields.


2.12.        Payments by the
Company and the Canadian Company.


(a)           (i)  All payments (including prepayments) to be
made by the Company on account of principal, interest, fees and other amounts
required hereunder shall be made without set-off, recoupment or
counterclaim; shall, except as otherwise expressly provided herein, be made to
the Administrative Agent for the account of the U.S. Lenders (pro rata based on
each U.S. Lender’s Commitment Percentage) at the Administrative Agent’s Payment
Office, and shall be made in Dollars and in immediately available funds, no
later than 11:00 a.m. (Chicago time) on the date specified herein.  The Administrative Agent will promptly
distribute to each U.S. Lender its Commitment Percentage (or other applicable
share as expressly provided in the Loan Documents) of such principal, interest,
fees or other amounts, in like funds as received.  Any payment which is received by the
Administrative Agent later than 11:00 a.m. (Chicago time) shall be deemed to
have been received on the immediately succeeding Business Day and any
applicable interest or fee shall continue to accrue.


(ii)   All payments (including prepayments) to be
made by the Canadian Company on account of principal, interest, fees and other
amounts required hereunder shall be made without set-off, recoupment or
counterclaim; shall, except as otherwise expressly provided herein, be made to
BOA Canada for the account of the Canadian Lenders (pro rata based on each
Canadian Lender’s Commitment Percentage) at BOA Canada’s Payment Office, and
shall be made in Dollars or Canadian Dollars, as applicable, and in immediately
available funds, no later than 10:00 a.m. (Toronto time) on the date specified
herein.  BOA Canada will promptly
distribute to each Canadian Lender its Commitment Percentage (or other
applicable share as expressly provided in the Loan Documents) of such
principal, interest, fees or other amounts, in like funds as received.  Any payment which is received by BOA Canada
later than 10:00 a.m. (Toronto time) shall be deemed to have been received on
the immediately succeeding Business Day and any applicable interest or fee
shall continue to accrue.


(b)           Whenever any payment
hereunder shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of interest or fees,
as the case may be; subject to the provisions set forth in the definition of “Interest
Period” herein.


(c)           (i)  Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any payment is due
hereunder that the Company will not make such payment in full as and when
required hereunder, the Administrative Agent may assume that the Company has
made such payment in full to the Administrative Agent on such date in
immediately available funds and the Administrative Agent may (but shall not be
so required), in reliance upon such assumption, cause to be distributed to each
U.S. Lender on such 



 49
 









 


due date an amount equal to the amount then due such
U.S. Lender.  If and to the extent the
Company shall not have made such payment in full to the Administrative Agent,
each U.S. Lender shall repay to the Administrative Agent on demand its
Commitment Percentage of such amount distributed to the U.S. Lenders in excess
of the amount actually received by the Administrative Agent, together with
interest thereon for each day from the date such amount is distributed to such
U.S. Lender until the date such U.S. Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate as in effect for each such day.


(ii)  Unless BOA Canada shall have received notice
from the Canadian Company prior to the date on which any payment is due
hereunder that the Canadian Company will not make such payment in full as and
when required hereunder, BOA Canada may assume that the Canadian Company has
made such payment in full to BOA Canada on such date in immediately available
funds and BOA Canada may (but shall not be so required), in reliance upon such
assumption, cause to be distributed to each Canadian Lender on such due date an
amount equal to the amount then due such Canadian Lender.  If and to the extent the Canadian Company
shall not have made such payment in full to BOA Canada, each Canadian Lender
shall repay to BOA Canada on demand its Commitment Percentage of such amount
distributed to the Canadian Lenders in excess of the amount actually received
by BOA Canada, together with interest thereon for each day from the date such
amount is distributed to such Canadian Lender until the date such Canadian
Lender repays such amount to BOA Canada, at the CDOR Rate as in effect for each
such day.


2.13.        Payments by the
U.S. Lenders to the Administrative Agent.


(a)           Unless the
Administrative Agent shall have received notice from a U.S. Lender on the
Closing Date or, with respect to each Borrowing after the Closing Date, at
least one Business Day prior to the date of any proposed Borrowing, that such
U.S. Lender will not make available to the Administrative Agent as and when
required hereunder for the account of the Company the amount of that U.S.
Lender’s Commitment Percentage of the Borrowing, the Administrative Agent may
assume that each U.S. Lender has made such amount available to the
Administrative Agent in immediately available funds on the Borrowing date no
later than 11:00 a.m. (Chicago time) and the Administrative Agent may (but shall
not be so required), in reliance upon such assumption, make available to the
Company on such date a corresponding amount. 
If and to the extent any U.S. Lender shall not have made its full amount
available to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Company
such amount, then such U.S. Lender shall on or before 11:00 a.m. (Chicago time)
the next Business Day following the date of such Borrowing make such amount available
to the Administrative Agent, together with interest at the Federal Funds Rate
for and determined as of each day during such period.  A notice of the Administrative Agent
submitted to any U.S. Lender with respect to amounts owing under this subsection
2.13(a) shall be conclusive, absent manifest error.  If such amount is so made available, such
payment to the Administrative Agent shall constitute such U.S. Lender’s Loan on
the date of Borrowing for all purposes of this Agreement.  If such amount is not made available to the
Administrative Agent on or before 11:00 a.m. (Chicago time) the next Business
Day following the date of such Borrowing, the Administrative Agent shall notify
the Company 



 50
 









 


of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent’s account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the Loans comprising such
Borrowing.


(b)           The failure of any
U.S. Lender to make any Loan on any Borrowing date, or fund any participation
in Letters of Credit or Swing Line Loans, shall not relieve any other U.S.
Lender of any obligation hereunder to make a Loan on such Borrowing date or
fund such participations, but no U.S. Lender shall be responsible for the
failure of any other U.S. Lender to make the Loan to be made by such other U.S.
Lender on the date of any Borrowing or to fund any such participation.


2.13A      Payments by the
Canadian Lenders to BOA Canada.


(a)           Unless BOA Canada
shall have received notice from a Canadian Lender on the Closing Date or, with
respect to each Borrowing after the Closing Date, at least one Business Day
prior to the date of any proposed Borrowing, that such Canadian Lender will not
make available to BOA Canada as and when required hereunder for the account of
the Canadian Company the amount of that Canadian Lender’s Commitment Percentage
of the Borrowing, BOA Canada may assume that each Canadian Lender has made such
amount available to BOA Canada in immediately available funds on the Borrowing
date no later than 10:00 a.m. (Toronto time) and BOA Canada may (but shall not
be so required), in reliance upon such assumption, make available to the
Canadian Company on such date a corresponding amount.  If and to the extent any Canadian Lender
shall not have made its full amount available to BOA Canada in immediately
available funds and BOA Canada in such circumstances has made available to the
Canadian Company such amount, then such Canadian Lender shall on or before
10:00 a.m. (Toronto time) the next Business Day following the date of such
Borrowing make such amount available to BOA Canada, together with interest at the
CDOR Rate for and determined as of each day during such period.  A notice of BOA Canada submitted to any
Canadian Lender with respect to amounts owing under this subsection 2.13A(a)
shall be conclusive, absent manifest error. 
If such amount is so made available, such payment to BOA Canada shall
constitute such Canadian Lender’s Loan on the date of Borrowing for all
purposes of this Agreement.  If such
amount is not made available to BOA Canada on or before 10:00 a.m. (Toronto
time) the next Business Day following the date of such Borrowing, BOA Canada
shall notify the Canadian Company of such failure to fund and, upon demand by
BOA Canada, the Canadian Company shall pay such amount to BOA Canada for BOA
Canada’s account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.


(b)           The failure of any
Canadian Lender to make any Loan on any Borrowing date, or fund any participation
in Canadian Letters of Credit, shall not relieve any other Canadian Lender of
any obligation hereunder to make a Loan on such Borrowing date or fund such
participations, but no Canadian Lender shall be responsible for the failure of
any other Canadian Lender to make the Loan to be made by such other Canadian
Lender on the date of any Borrowing or to fund any such participation.



 51















2.14.        Sharing of
Payments, Etc. for U.S. Lenders


If,
other than as expressly provided elsewhere herein, any U.S. Lender shall
receive on account of the Loans made by it, or the participations in Letters of
Credit or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise)
in excess of its Commitment Percentage of payments on account of the Loans or
participations received by all the U.S. Lenders, such U.S. Lender shall
forthwith (a) notify the Administrative Agent of such fact, and
(b) purchase from the other U.S. Lenders such participations in the Loans
made by them and/or subparticipations in Letters of Credit or Swing Line Loans
held by them, as the case may be, as shall be necessary to cause such
purchasing U.S. Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing U.S. Lender, such purchase shall to that extent
be rescinded and each other U.S. Lender shall repay to the purchasing U.S.
Lender the purchase price paid therefor, together with an amount equal to such
paying U.S. Lender’s Commitment Percentage (according to the proportion of
(i) the amount of such paying U.S. Lender’s required repayment, to
(ii) the total amount so recovered from the purchasing U.S. Lender) of any
interest or other amount paid or payable by the purchasing U.S. Lender in
respect of the total amount so recovered. 
The Company agrees that any U.S. Lender so purchasing a participation
from another U.S. Lender pursuant to this Section 2.14 may, to the fullest
extent permitted by law, exercise all of its rights of payment (including the
right of set-off, but subject to Section 10.9) with respect to such
participation as fully as if such U.S. Lender were the direct creditor of the
Company in the amount of such participation. 
The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased
pursuant to this Section 2.14 and will in each case notify the U.S. Lenders
following any such purchases or repayments.


2.14A      Sharing of Payments,
Etc. for Canadian Lenders


If,
other than as expressly provided elsewhere herein, any Canadian Lender shall
receive on account of the Loans made by it, or the participations in Canadian
Letters of Credit held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of
its Commitment Percentage of payments on account of the Loans or participations
received by all the Canadian Lenders, such Canadian Lender shall forthwith
(a) notify BOA Canada of such fact, and (b) purchase from the other
Canadian Lenders such participations in the Loans made by them and/or
subparticipations in Canadian Letters of Credit held by them, as the case may
be, as shall be necessary to cause such purchasing Canadian Lender to share the
excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Canadian Lender, such purchase shall to that extent be rescinded and
each other Canadian Lender shall repay to the purchasing Canadian Lender the
purchase price paid therefor, together with an amount equal to such paying
Canadian Lender’s Commitment Percentage (according to the proportion of
(i) the amount of such paying Canadian Lender’s required repayment, to
(ii) the total amount so recovered from the purchasing Canadian Lender) of
any interest or other amount paid or 



 52
 









 


payable by the purchasing Canadian Lender in respect
of the total amount so recovered.  The
Canadian Company agrees that any Canadian Lender so purchasing a participation
from another Canadian Lender pursuant to this Section 2.14A may, to the fullest
extent permitted by law, exercise all of its rights of payment (including the
right of set-off, but subject to Section 10.9) with respect to such
participation as fully as if such Canadian Lender were the direct creditor of
the Canadian Company in the amount of such participation.  BOA Canada will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased pursuant to this Section 2.14A and will in each case notify the
Canadian Lenders following any such purchases or repayments.


2.15.        Certain Letter of
Credit and Canadian Letter of Credit Provisions.


(a)           Immediately upon the
issuance of each Letter of Credit, each U.S. Lender shall be deemed to, and
hereby severally agrees to, have irrevocably purchased from the Issuer a
participation in such Letter of Credit and drawings thereunder in an amount
equal to such U.S. Lender’s Commitment Percentage of the maximum amount which
is or at any time may become available to be drawn thereunder.  The Issuer shall not have any obligation to
issue any Letter of Credit if the U.S. Lenders have no obligation to
participate in such Letter of Credit. 
Immediately upon the issuance of each Canadian Letter of Credit, each
Canadian Lender shall be deemed to, and hereby severally agrees to, have
irrevocably purchased from the Canadian Issuer a participation in such Canadian
Letter of Credit and drawings thereunder in an amount equal to such Canadian
Lender’s Commitment Percentage of the maximum amount which is or at any time
may become available to be drawn thereunder. 
The Canadian Issuer shall not have any obligation to issue any Canadian
Letter of Credit if the Canadian Lenders have no obligation to participate in
such Canadian Letter of Credit.


(b)           (i)  In the event the Issuer has determined to
honor a request for drawing under a Letter of Credit issued by it, the Issuer
shall immediately notify the Company and the Administrative Agent, and the
Company shall reimburse the Issuer on or before the Business Day immediately
following the date on which such drawing is honored (such immediately following
date, the “Disbursement Date”) in same day funds equal to the amount of such
drawing; provided, that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless the Company shall have notified the
Administrative Agent and the Issuer prior to 11:00 a.m. (Chicago time) on
the Disbursement Date that the Company intends to reimburse the Issuer for the
amount of such drawing with funds other than the proceeds of Revolving Loans
and the Company does so reimburse the Issuer prior to 11:00 a.m. (Chicago
time) on the Disbursement Date, the Company shall be deemed to have given a
timely Notice of Borrowing to the Administrative Agent requesting the U.S.
Lenders to make Revolving Loans that are U.S. Base Rate Loans on the
Disbursement Date in an amount equal to the amount of such drawing and
(ii) subject to satisfaction or waiver of the conditions specified in
Section 4.2, the U.S. Lenders shall, on the Disbursement Date, make Revolving
Loans that are U.S. Base Rate Loans in the amount of such drawing, the proceeds
of which shall be applied directly by the Administrative Agent to reimburse the
Issuer for the amount of such drawing; and provided, further that
if for any reason proceeds of Revolving Loans are not received by the Issuer on
the Disbursement Date in an amount equal to the amount of such drawing, the
Company shall 



 53
 









 


reimburse the Issuer, on demand, in an amount in same
day funds equal to the excess of the amount of such drawing over the aggregate
amount of such Revolving Loans, if any, which are so received, together with
interest thereon at a rate per annum equal to the rate per annum then in effect
for U.S. Base Rate Loans pursuant to Section 2.9 from the date of demand to the
date of reimbursement.  Nothing in this
subsection 2.15(b)(i) shall be deemed to relieve any U.S. Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and the Company shall retain any and all rights it may have against
any U.S. Lender resulting from the failure of such U.S. Lender to make such
Revolving Loans under this subsection 2.15(b)(i).


(ii)           In the event the Canadian Issuer has
determined to honor a request for drawing under a Canadian Letter of Credit
issued by it, the Canadian Issuer shall immediately notify the Canadian Company
and BOA Canada, and the Canadian Company shall reimburse the Canadian Issuer on
or before the Business Day immediately following the date on which such drawing
is honored (such immediately following date, the “Canadian Disbursement Date”)
in same day funds equal to the amount of such drawing; provided, that,
anything contained in this Agreement to the contrary notwithstanding,
(i) unless the Canadian Company shall have notified BOA Canada and the
Canadian Issuer prior to 10:00 a.m. (Toronto time) on the Canadian
Disbursement Date that the Canadian Company intends to reimburse the Canadian
Issuer for the amount of such drawing with funds other than the proceeds of
Canadian Loans and the Canadian Company does so reimburse the Canadian Issuer
prior to 10:00 a.m. (Toronto time) on the Canadian Disbursement Date, the
Canadian Company shall be deemed to have given a timely Notice of Canadian
Borrowing to BOA Canada requesting the Canadian Lenders to make Canadian Loans
that are Canadian Base Rate Loans on the Canadian Disbursement Date in an
amount equal to the amount of such drawing and (ii) subject to satisfaction
or waiver of the conditions specified in Section 4.2, the Canadian Lenders
shall, on the Canadian Disbursement Date, make Canadian Loans that are Canadian
Base Rate Loans in the amount of such drawing, the proceeds of which shall be
applied directly by BOA Canada to reimburse the Canadian Issuer for the amount
of such drawing; and provided, further that if for any reason
proceeds of Canadian Loans are not received by the Canadian Issuer on the
Canadian Disbursement Date in an amount equal to the amount of such drawing,
the Canadian Company shall reimburse the Canadian Issuer, on demand, in an
amount in same day funds equal to the excess of the amount of such drawing over
the aggregate amount of such Canadian Loans, if any, which are so received,
together with interest thereon at a rate per annum equal to the rate per annum
then in effect for Canadian Base Rate Loans pursuant to Section 2.9 from the
date of demand to the date of reimbursement. 
Nothing in this subsection 2.15(b)(ii) shall be deemed to relieve any
Canadian Lender from its obligation to make Canadian Loans on the terms and
conditions set forth in this Agreement, and the Canadian Company shall retain
any and all rights it may have against any Canadian Lender resulting from the
failure of such Canadian Lender to make such Canadian Loans under this
subsection 2.15(b)(ii).



 54
 









 


(c)           (i) In the
event that the Company shall fail for any reason to reimburse the Issuer as
provided in subsection 2.15(b)(i) on the Disbursement Date in an amount equal
to the amount of any drawing honored by the Issuer under a Letter of Credit
issued by it, the Issuer shall promptly notify the Administrative Agent and the
Administrative Agent shall promptly notify each U.S. Lender of the unreimbursed
amount of such drawing and of such U.S. Lender’s respective participation
therein based on such U.S. Lender’s Commitment Percentage.  In such event, each U.S. Lender shall make
available to the Issuer an amount equal to its respective participation in same
day funds, at the office of the Issuer specified in such notice, not later than
11:00 a.m. (Chicago time) on the first Business Day after the date notified by
the Issuer.  In the event that any U.S.
Lender fails to make available to the Issuer on such Business Day the amount of
such U.S. Lender’s participation in such Letter of Credit as provided in this
subsection 2.15(c)(i), the Issuer shall be entitled to recover such amount on
demand from such U.S. Lender together with interest thereon at the rate per
annum equal to the Federal Funds Rate for and determined as of each day during
such period.  Nothing in this subsection
2.15(c)(i) shall be deemed to relieve the Company from its obligation to
reimburse the Issuer as provided in subsection 2.15(b)(i).  In the event the Issuer shall have been
reimbursed by U.S. Lenders pursuant to this subsection 2.15(c)(i) for all or
any portion of any drawing honored by the Issuer under a Letter of Credit
issued by it, the Issuer shall distribute to each U.S. Lender which has paid
all amounts payable by it under this subsection 2.15(c)(i) with respect to such
drawing such U.S. Lender’s Commitment Percentage of all payments subsequently
received by the Issuer from the Company in reimbursement of such drawing when
such payments are received.  Promptly
upon receipt by the Issuer of any payment of interest in respect of the Company’s
reimbursement obligation pursuant to subsection 2.15(b)(i) with respect to a
drawing, in the event the Issuer shall have been reimbursed by any U.S. Lender
pursuant to this subsection 2.15(c)(i) for all or any portion of such drawing,
the Issuer shall distribute to such U.S. Lender which has paid all amounts
payable by it under this subsection 2.15(c)(i) with respect to such drawing
such U.S. Lender’s Commitment Percentage of any interest received by the Issuer
in respect of that portion of such drawing so reimbursed by such U.S. Lender.


(ii)           In the event that the Canadian
Company shall fail for any reason to reimburse the Canadian Issuer as provided
in subsection 2.15(b)(ii) on the Canadian Disbursement Date in an amount equal
to the amount of any drawing honored by the Canadian Issuer under a Canadian
Letter of Credit issued by it, the Canadian Issuer shall promptly notify BOA
Canada and BOA Canada shall promptly notify each Canadian Lender of the
unreimbursed amount of such drawing and of such Canadian Lender’s respective
participation therein based on such Canadian Lender’s Commitment
Percentage.  In such event, each Canadian
Lender shall make available to the Canadian Issuer an amount equal to its
respective participation in same day funds, at the office of the Canadian
Issuer specified in such notice, not later than 10:00 a.m. (Toronto time) on
the first Business Day after the date notified by the Canadian Issuer.  In the event that any Canadian Lender fails
to make available to the Canadian Issuer on such Business Day the amount of
such Canadian Lender’s participation in such Canadian Letter of Credit as
provided in this subsection 2.15(c)(ii), the Canadian Issuer shall be entitled
to recover such amount on demand from such Canadian Lender together with
interest thereon at the rate per annum equal 



 55
 









 


to the CDOR Rate for and determined as of
each day during such period.  Nothing in
this subsection 2.15(c)(ii) shall be deemed to relieve the Canadian Company
from its obligation to reimburse the Canadian Issuer as provided in subsection
2.15(b)(ii).  In the event the Canadian
Issuer shall have been reimbursed by Canadian Lenders pursuant to this
subsection 2.15(c)(ii) for all or any portion of any drawing honored by the
Canadian Issuer under a Canadian Letter of Credit issued by it, the Canadian
Issuer shall distribute to each Canadian Lender which has paid all amounts
payable by it under this subsection 2.15(c)(ii) with respect to such drawing
such Canadian Lender’s Commitment Percentage of all payments subsequently
received by the Canadian Issuer from the Canadian Company in reimbursement of
such drawing when such payments are received. 
Promptly upon receipt by the Canadian Issuer of any payment of interest
in respect of the Canadian Company’s reimbursement obligation pursuant to
subsection 2.15(b)(ii) with respect to a drawing, in the event the Canadian
Issuer shall have been reimbursed by any Canadian Lender pursuant to this
subsection 2.15(c)(ii) for all or any portion of such drawing, the Canadian
Issuer shall distribute to such Canadian Lender which has paid all amounts
payable by it under this subsection 2.15(c)(ii) with respect to such drawing
such Canadian Lender’s Commitment Percentage of any interest received by the
Canadian Issuer in respect of that portion of such drawing so reimbursed by
such Canadian Lender.


(d)           The obligation of
(X) the Company to reimburse the Issuer for drawings made under the
Letters of Credit issued by it and to repay any Revolving Loans made by the
U.S. Lenders pursuant to subsection 2.15(b)(i) and the obligations of the U.S.
Lenders under subsection 2.15(c)(i), and (Y) the Canadian Company to
reimburse the Canadian Issuer for drawings made under the Canadian Letters of
Credit issued by it and to repay any Canadian Loans made by the Canadian
Lenders pursuant to subsection 2.15(b)(ii) and the obligations of the Canadian
Lenders under subsection 2.15(c)(ii), shall all be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:


(i)            any lack of validity or
enforceability of any Letter of Credit or Canadian Letter of Credit;


(ii)           the existence of any claim, set-off,
defense or other right which the Company, the Canadian Company or any Lender
may have at any time against a beneficiary or any transferee of any Letter of
Credit or Canadian Letter of Credit (or any Persons for whom any such
transferee may be acting), the Issuer, the Canadian Issuer or other Lender or
any other Person or, in the case of a Lender, against the Company or the
Canadian Company, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between the Company, the Canadian Company or one of its respective
Subsidiaries and the beneficiary for which any Letter of Credit or Canadian
Letter of Credit was procured);



 56
 









 


(iii)          any draft, demand, certificate or
other document presented under any Letter of Credit or Canadian Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;


(iv)          payment by the Issuer under any Letter
of Credit or by the Canadian Issuer under any Canadian Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit or Canadian Letter of Credit
(absent the Issuer’s or the Canadian Issuer’s gross negligence or willful
misconduct);


(v)           any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of the Company or any of its Subsidiaries;


(vi)          any breach of this Agreement or any
other Loan Document by any party thereto;


(vii)         any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing; or


(viii)        the fact that an Event of Default or a
Default shall have occurred and be continuing;


provided, however, that after paying in full
its obligation hereunder, nothing herein shall adversely affect the right of
the Company, the Canadian Company or such Lender, as the case may be, to
commence any proceeding against the Issuer or the Canadian Issuer for any
wrongful disbursement made by the Issuer under a Letter of Credit or the
Canadian Issuer under a Canadian Letter of Credit as a result of acts or
omissions constituting gross negligence or willful misconduct on the part of
the Issuer or the Canadian Issuer, as applicable.


(e)           In addition to
amounts payable as provided in (i) subsection 2.15(b)(i), the Company
hereby agrees to protect, indemnify, pay and save harmless the Issuer and its
officers, employees or agents from and against any and all claims, demands,
liabilities, damages, losses, and reasonable costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel) which  the Issuer may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit by the Issuer, other than as a result of the gross negligence or willful
misconduct of the Issuer or its officers, employees or agents as determined by
a final judgment of a court of competent jurisdiction or (B) the failure
of the Issuer to honor a drawing under any such Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future
Governmental Authority, and (ii) subsection 2.15(b)(ii), the Canadian
Company hereby agrees to protect, indemnify, pay and save harmless the Canadian
Issuer and its officers, employees or agents from and against any and all
claims, demands, liabilities, damages, losses, and reasonable costs, charges
and expenses (including reasonable fees, expenses and disbursements of counsel)
which  the 



 57
 









 


Canadian Issuer may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Canadian
Letter of Credit by the Canadian Issuer, other than as a result of the gross
negligence or willful misconduct of the Canadian Issuer or its officers,
employees or agents as determined by a final judgment of a court of competent
jurisdiction or (B) the failure of the Canadian Issuer to honor a drawing
under any such Canadian Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future Governmental Authority.


(f)            As between the
Company and the Canadian Company, on the one hand, and the Issuer and the
Canadian Issuer, on the other hand, the Company and the Canadian Company assume
all risks of the acts and omissions of, or misuse of the Letters of Credit and
Canadian Letters of Credit issued by the Issuer or the Canadian Issuer, by the
respective beneficiaries of such Letters of Credit and Canadian Letters of
Credit.  In furtherance and not in
limitation of the foregoing, neither the Issuer nor the Canadian Issuer shall
be responsible for:  (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted
by any party in connection with the application for and issuance of any such
Letter of Credit or Canadian Letter of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or
Canadian Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of any such Letter of Credit
or Canadian Letter of Credit to comply fully with any conditions required in
order to draw upon such Letter of Credit or Canadian Letter of Credit;
(iv) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any such Letter of
Credit or Canadian Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit or Canadian
Letter of Credit of the proceeds of any drawing under such Letter of Credit or
Canadian Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Issuer or the Canadian Issuer; and none of the above
shall affect or impair, or prevent the vesting of, any of the Issuer’s or the
Canadian Issuer’s rights or powers hereunder.


In
furtherance and extension and not in limitation of the specific provisions set
forth in the first paragraph of this subsection 2.15(f), any action taken or omitted
by the Issuer under or in connection with the Letters of Credit issued by it,
or the Canadian Issuer under or in connection with the Canadian Letters of
Credit issued by it, or any documents and certificates delivered thereunder, if
taken or omitted in good faith, shall not put the Issuer or the Canadian
Issuer, as applicable, under any resulting liability to the Company or the
Canadian Company.


Notwithstanding
anything to the contrary contained in this subsection 2.15(f), the Company and
the Canadian Company shall retain any and all rights they may have against the
Issuer, the Canadian Issuer and their respective officers, employees or 



 58
 









 


agents for any liability arising out of the gross
negligence or willful misconduct of the Issuer, the Canadian Issuer, or its
respective officers, employees or agents.


2.16.        Swing Line Loans.


(a)           Subject to the terms
and conditions hereinafter set forth, the Administrative Agent agrees to make
loans (each such loan, a “Swing Line Loan”) to the Company from time to time on
any Business Day during the period from the Closing Date to the Revolving
Termination Date, in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Commitment Percentage of outstanding
Revolving Loans and Letters of Credit of the Administrative Agent in its
capacity as a U.S. Lender, may exceed the amount of the Administrative Agent’s
Commitment in its capacity as a U.S. Lender; provided, however,
that after giving effect to any Swing Line Loan, (i) the sum of the
aggregate principal amount of all outstanding Revolving Loans, the aggregate
principal amount of all outstanding Swing Line Loans and the U.S. LC Amount
shall not exceed the Revolving Loan Maximum Amount minus the Canadian Sublimit,
and (ii)  the sum of the aggregate principal amount of all outstanding
Revolving Loans of any U.S. Lender, plus such U.S. Lender’s Commitment
Percentage of the U.S. LC Amount, plus such U.S. Lender’s Commitment Percentage
of all outstanding Swing Line Loans, shall not exceed such U.S. Lender’s
Commitment minus the Canadian Commitment of such U.S. Lender’s related Canadian
Lender.  Each Swing Line Loan may be
either a U.S. Base Rate Loan or Optional Floating Rate Loan as provided herein;
provided that if neither option is selected, any applicable Swing Line Loan
shall be an Optional Floating Rate Loan. 
Immediately upon the making of a Swing Line Loan, each U.S. Lender shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Administrative Agent a risk participation in such Swing Line Loan in
an amount equal to the product of such U.S. Lender’s Commitment Percentage
multiplied by the amount of such Swing Line Loan.


(b)           Each Swing Line
Borrowing shall be made upon the Company’s irrevocable notice to the
Administrative Agent, which may be by telephonic request, promptly followed by
written notice.  Each such notice must be
received by the Administrative Agent prior to 11:00 a.m., Chicago time, on the
requested Swing Line Borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, (ii) the requested
Swing Line Borrowing date, which shall be a Business Day and (iii) whether
the Swing Line Borrowing is to be comprised of U.S. Base Rate Loans or Optional
Floating Rate Loans.  Each such
telephonic notice must be confirmed promptly by delivery to the Administrative
Agent of an appropriate Notice of Borrowing, appropriately completed and signed
by a Responsible Officer of the Company. 
Unless one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Administrative Agent will, not later than 2:00 p.m., Chicago time, on the Swing
Line Borrowing date specified in such Notice of Borrowing, make the amount of
the Swing Line Loan available to the Company. 
The U.S. Lenders agree that the Administrative Agent may agree to modify
the borrowing procedures used in connection with the Swing Line in its
discretion and without affecting any of the obligations of the U.S. Lenders
hereunder.



 59
 









 


(c)           (i) The
Administrative Agent at any time in its sole and absolute discretion (including
if the Administrative Agent has terminated or suspended the Swing Line as
provided above) may request, on behalf of the Company (which hereby irrevocably
authorizes the Administrative Agent to so request on its behalf), that each
U.S. Lender make a Revolving Loan in an amount equal to such U.S. Lender’s
Commitment Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which
written request shall be deemed to be a Notice of Borrowing for purposes
hereof) and in accordance with the requirements of Section 2.3, without regard
to the minimum and multiples specified therein for the principal amount of U.S.
Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitment minus the Canadian Sublimit and the conditions set forth in Section
4.2.  The Administrative Agent shall
furnish the Company with a copy of the applicable Notice of Borrowing.  Each U.S. Lender shall make an amount equal
to its Commitment Percentage of the amount specified in such Notice of
Borrowing available to the Administrative Agent in immediately available funds
at the Administrative Agent’s Payment Office not later than 1:00 p.m., Chicago
time, on the day specified in such Notice of Borrowing, whereupon, subject to
subsection 2.16(c)(ii), each U.S. Lender that so makes funds available shall be
deemed to have made a U.S. Base Rate Loan to the Company in such amount, unless
the Company has elected to convert such Loan into an IBOR Loan, as provided in
subsection 2.4(a)(iii), in which case such U.S. Lender shall be deemed to
have made on IBOR Loan to the Company in such amount.


(ii)           If for any reason any Swing Line Loan
cannot be financed by such a Revolving Loan Borrowing in accordance with
subsection 2.16(c)(i), the request for Revolving Loans submitted by the Administrative
Agent as set forth herein, shall be deemed to be a request by the
Administrative Agent that each of the U.S. Lenders fund its risk participation
in the relevant Swing Line Loan and each U.S. Lender’s payment to the
Administrative Agent pursuant to subsection 2.16(c)(i) shall be deemed to be
payment in respect of such participation.


(iii)          If any U.S. Lender fails to make
available to the Administrative Agent any amount required to be paid by such
U.S. Lender pursuant to the foregoing provisions of this subsection 2.16(c) by
the time specified in subsection 2.16(c)(i), the Administrative Agent shall be
entitled to recover from such U.S. Lender, on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the Administrative Agent at a
rate per annum equal to the Federal Funds Rate from time to time in
effect.  A certificate of the
Administrative Agent submitted to any U.S. Lender with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.


(iv)          Each U.S. Lender’s obligation to make
Revolving Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this subsection 2.16(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such U.S. Lender may
have against the Administrative Agent, the Company or any other Person for any
reason whatsoever, (B) the occurrence or 



 60
 









 


continuance of
a Default or Event of Default or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Company to repay Swing Line
Loans, together with interest as provided herein.


(d)           (i) At any time
after any U.S. Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Administrative Agent receives any payment on account of such
Swing Line Loan, the Administrative Agent will distribute to such U.S. Lender
its Commitment Percentage of such payment (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such U.S.
Lender’s risk participation was funded) in the same funds as those received by
the Administrative Agent.


(ii)           If any payment received by the
Administrative Agent in respect of principal or interest on any Swing Line Loan
is required to be returned by the Administrative Agent under any of the
circumstances described in Section 10.6 (including pursuant to any settlement
entered into by the Administrative Agent in its discretion), each U.S. Lender
shall pay to the Administrative Agent its Commitment Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate.


(e)           The
Administrative Agent shall be responsible for invoicing the Company for
interest on the Swing Line Loans.  Until
each U.S. Lender funds its Revolving Loan or risk participation pursuant to
this Section 2.16 to refinance such U.S. Lender’s Commitment Percentage of any
Swing Line Loan, interest in respect of such pro rata share of the Swing Line
Loans shall be solely for the account of the Administrative Agent.


2.17.        Aggregate
Commitment Increase Option.


From
and after the Closing Date, the Company shall have the right to notify the
Administrative Agent and the U.S. Lenders in writing that it wishes to increase
(an “Increase”) the Aggregate Commitment by an aggregate amount of up to One
Hundred Million Dollars ($100,000,000), in increments of not less than Five
Million Dollars ($5,000,000).  Each such
Increase shall become effective at the date specified in such written notice,
but in any event not less than 20 days after the date such notice is received
by the Administrative Agent, so long as (a) no Default or Event of Default
is in existence on such date and (b) either (i) the then-existing
U.S. Lenders agree to increase their Commitments by the aggregate amount of
such Increase, (ii) other third party financial institutions reasonably
acceptable to the Administrative Agent and the Company (“New Lenders”) agree to
provide new Commitments in the aggregate amount of such Increase or
(iii) a combination of then-existing U.S. Lenders and New Lenders agree to
provide the aggregate amount of such Increase by increasing their Commitments
or providing new Commitments, as applicable. 
The then-existing U.S. Lenders shall have the first right of refusal to
provide such Increase for a period of 10 days after receipt by the
Administrative Agent of the written notice described above.  In the event of over-subscription, the pro
rata shares of each such Person in the increase shall be determined by the
Administrative 



 61
 









 


Agent.  Any
Increase or portion of an Increase provided by then-existing U.S. Lenders shall
be effected by an amendment to this Agreement; the addition of new Commitments
by New Lenders shall be effected by an amendment to this Agreement and an
assignment from BOA in the manner provided in Section 10.8.  In each case, the Company will issue to each
affected U.S. Lender new Revolving Notes as provided in subsection
10.8(c).  Any Increase in the Aggregate
Commitment shall also constitute an increase in the Revolving Loan Maximum
Amount by a like amount.


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY


3.1.          Taxes.


(a)           Subject to
subsection 3.1(h) and subsection 3.1(i), any and all payments by the Company to
each U.S. Lender or any Agent and by the Canadian Company to each Canadian
Lender or BOA Canada under this Agreement shall be made free and clear of, and
without deduction or withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and each Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
each Lender’s and each Agent’s taxable net income by the jurisdiction under the
laws of which such Lender or such Agent, as the case may be, is organized or
maintains a Lending Office or any political subdivision thereof or any
jurisdiction of which it is a political subdivision (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as “Taxes”).


(b)           In addition, the
Company and the Canadian Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents (hereinafter referred to as “Other Taxes”).


(c)           Subject to
subsection 3.1(h) and subsection 3.1(i), the Company shall indemnify and hold
harmless each U.S. Lender and each U.S. Agent, and the Canadian Company shall
indemnify and hold harmless each Canadian Lender and BOA Canada, for the full
amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 3.1) paid by such Lender
or such Agent and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted.  Payment under this indemnification shall be
made within 30 days from the date such Lender or such Agent makes written demand
therefor.


(d)           If the Company shall
be required by law to deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable hereunder to any U.S. Lender or any U.S. Agent, or
if the Canadian Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Canadian Lender or BOA Canada, then, subject to subsection 3.1(h) and
subsection 3.1(i):


 



 62















(i)            the sum payable shall be increased
as necessary so that after making all required deductions of Taxes or Other
Taxes (including deductions of Taxes or other Taxes applicable to additional
sums payable under this Section 3.1) such Lender or such Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made;


(ii)           the Company or the Canadian Company,
as applicable, shall make such deductions, and


(iii)          the Company or the Canadian Company,
as applicable, shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.


(e)           Within 30 days after
the date of any payment by the Company of Taxes or Other Taxes, the Company
shall furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment satisfactory
to the Administrative Agent.  Within 30
days after the date of any payment by the Canadian Company of Taxes or Other
Taxes, the Canadian Company shall furnish to BOA Canada the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to BOA Canada.


(f)            Each U.S. Lender
which is a foreign person (i.e., a person other than a United States person for
United States Federal income tax purposes) agrees that:


(i)            it shall, no later than the Closing
Date (or, in the case of a U.S. Lender which becomes a party hereto pursuant to
Section 10.8 after the Closing Date, the date upon which the U.S. Lender
becomes a party hereto) deliver to the Company through the Administrative Agent
two accurate and complete signed originals of Internal Revenue Service Form
W-8BEN or any successor thereto (“Form W-8BEN”), or two accurate and complete
signed originals of Internal Revenue Service Form W-8ECI or any successor
thereto (“Form W-8ECI”), as appropriate, in each case indicating that the U.S.
Lender is on the date of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free from, or at a reduced
rate of, withholding of United States Federal income tax;


(ii)           if at any time the U.S. Lender makes
any changes necessitating a new Form W-8BEN or Form W-8ECI, it shall with
reasonable promptness deliver to the Company through the Administrative Agent
in replacement for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form W-8BEN; or two
accurate and complete signed originals of Form W-8ECI, as appropriate, in each
case indicating that the U.S. Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees under this



 63
 









Agreement free from, or at a reduced rate of,
withholding of United States Federal income tax;


(iii)          it shall, before or promptly after the
occurrence of any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in or renewal of the most recent
Form W-8BEN or Form W-8ECI previously delivered by such U.S. Lender and deliver
to the Company through the Administrative Agent two accurate and complete
original signed copies of Form W-8BEN or Form W-8ECI in replacement for the
forms previously delivered by the U.S. Lender; and


(iv)          it shall, promptly upon the Company’s
or the Administrative Agent’s reasonable request to that effect, deliver to the
Company or the Administrative Agent (as the case may be) such other forms or
similar documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such U.S. Lender’s tax
status for withholding purposes.


(g)           Each Canadian Lender
(including, without limitation, any assignee or transferee of all or any part
of any of the Canadian Obligations owing by the Canadian Company) that is not
resident in Canada or that is not deemed to be resident in Canada for purposes
of Part XIII of the Income Tax Act (Canada) shall deliver to BOA Canada (if it
is then permitted to do so under law) two original copies (one for the Canadian
Company) of such form or forms as may be required under a Canadian tax treaty
or any provision of Canadian federal or provincial law as a condition to or
exemption from, or reduction of, Canadian withholding tax.  Such Canadian Lender agrees to promptly
notify BOA Canada of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.


(h)           The Company will not
be required to pay any additional amounts in respect of United States Federal
income tax pursuant to subsection 3.1(d) to any U.S. Lender for the account of
any Lending Office of such U.S. Lender:


(i)            if the obligation to pay such
additional amounts would not have arisen but for a failure by such U.S. Lender
to comply with its obligations under subsection 3.1(f);


(ii)           if such U.S. Lender (specifically
excluding, for purposes of this subsection (ii), each U.S. Lender party hereto
as of the Closing Date) shall have delivered to the Company a Form W-8BEN in
respect of such Lending Office pursuant to subsection 3.1(f), and such U.S.
Lender (specifically excluding, for purposes of this subsection (ii), each U.S.
Lender party hereto as of the Closing Date) shall not at any time be entitled
to exemption from deduction or withholding of United States Federal income tax
in respect of payments by the Company hereunder for the account of such Lending
Office for any reason other than a change in United States law or regulations
or in the official interpretation of such law or regulations by any



 64
 









Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) after the date of delivery of such Form W-8BEN;or


(iii)          if the U.S. Lender shall have
delivered to the Company a Form W-8ECI in respect of such Lending Office pursuant
to subsection 3.1(f), and such U.S. Lender shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income tax in
respect of payments by the Company hereunder for the account of such Lending
Office for any reason other than a change in United States law or regulations
or any applicable tax treaty or regulations or in the official interpretation
of any such law, treaty or regulations by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) after the date of delivery of such Form W-8ECI.


(i)            The Canadian
Company will not be required to pay any additional amounts in respect of
Canadian Federal income tax pursuant to subsection 3.1(d) to any Canadian
Lender for the account of any Lending Office of such Canadian Lender:


(i)            if the obligation to pay such
additional amounts would not have arisen but for a failure by such Canadian
Lender to comply with its obligations under subsection 3.1(g); or


(ii)           if such Canadian Lender (specifically
excluding, for purposes of this subsection (ii), each Canadian Lender party
hereto as of the Closing Date) shall have delivered to the Canadian Company
such form or forms as may be required under a Canadian tax treaty or any
provision of Canadian federal or provincial law as a condition to or exemption
from, or reduction of, Canadian withholding tax pursuant to subsection 3.1(g),
and such Canadian Lender (specifically excluding, for purposes of this
subsection (ii), each Canadian Lender party hereto as of the Closing Date)
shall not at any time be entitled to exemption from deduction or withholding of
Canadian Federal income tax in respect of payments by the Canadian Company
hereunder for the account of such Lending Office for any reason other than a
change in Canadian law or regulations or in the official interpretation of such
law or regulations by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) after the date of delivery of such form or forms.


(j)            If, at any time,
the Company requests any U.S. Lender to deliver any forms or other
documentation pursuant to subsection 3.1(f)(iv), then the Company shall, on
demand of such U.S. Lender through the Administrative Agent, reimburse such
U.S. Lender for any costs and expenses (including Attorney Costs) reasonably
incurred by such U.S. Lender in the preparation or delivery of such forms or
other documentation.



 65
 









(k)           If the Company or
the Canadian Company is required to pay additional amounts to any Lender
pursuant to subsection 3.1(d), then such Lender shall use its reasonable best
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Company or the Canadian Company which may thereafter accrue if
such change in the judgment of such Lender is not otherwise disadvantageous to
such Lender.


3.2.          Illegality.


(a)           If any Lender shall
determine that the introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or administration thereof, has made
it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any U.S. Lender or its Lending Office to make
IBOR Loans or for any Canadian Lender or its Lending Office to make Eurodollar
Rate Loans, then, on notice thereof by the Lender to the Company or the
Canadian Company through the Administrative Agent or BOA Canada, as applicable,
the obligation of that Lender to make IBOR Loans or Eurodollar Rate Loans, as
applicable, shall be suspended until the Lender shall have notified the
Administrative Agent and the Company or BOA Canada and the Canadian Company, as
applicable, that the circumstances giving rise to such determination no longer
exists.


(b)           If a U.S. Lender
shall determine that it is unlawful to maintain any IBOR Loan, the Company
shall prepay in full all IBOR Loans of that U.S. Lender then outstanding,
together with interest accrued thereon, either on the last day of the Interest
Period thereof if the U.S. Lender may lawfully continue to maintain such IBOR
Loans to such day, or immediately, if the U.S. Lender may not lawfully continue
to maintain such IBOR Loans, together with any amounts required to be paid in
connection therewith pursuant to Section 3.4. 
If a Canadian Lender shall determine that it is unlawful to maintain any
Eurodollar Rate Loan, the Canadian Company shall prepay in full all Eurodollar
Rate Loans of that Canadian Lender then outstanding, together with interest
accrued thereon, either on the last day of the Interest Period thereof if that
Canadian Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if that Canadian Lender may not lawfully continue to
maintain such Eurodollar Rate Loans, together with any amounts required to be
paid in connection therewith pursuant to Section 3.4A.


(c)           Before giving any
notice to the Administrative Agent or BOA Canada, as applicable, pursuant to
this Section 3.2, the affected Lender shall designate a different Lending
Office with respect to its IBOR Loans or Eurodollar Rate Loans, as applicable,
if such designation will avoid the need for giving such notice or making such
demand and will not, in the judgment of the applicable Lender, be illegal or
otherwise disadvantageous to such Lender.


3.3.          Increased Costs
and Reduction of Return.


(a)           If any Lender shall
determine that, due to either (i) the introduction after the Closing Date
of, or any change in or in the interpretation of, any law or regulation or
(ii) the compliance with any guideline or request issued after the Closing
Date by any central bank or other Governmental Authority (whether or not having
the force of law), there shall be any



 66
 









increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
any IBOR Loans or Eurodollar Rate Loans, as applicable (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of the IBOR Rate or the Eurodollar Rate), then the Company or the
Canadian Company, as applicable, shall be liable for, and shall from time to
time, upon demand therefor by such Lender (with a copy of such demand to the
Administrative Agent or BOA Canada, as applicable), pay to the Administrative
Agent or BOA Canada, as applicable, for the account of such Lender, additional
amounts as are sufficient to compensate such Lender for such increased costs.


(b)           If any Lender shall
have determined that (i) the introduction after the Closing Date of any
Capital Adequacy Regulation, (ii) any change after the Closing Date in any
Capital Adequacy Regulation, (iii) any change after the Closing Date in
the interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by the Lender (or its Lending
Office) or any corporation controlling the Lender, with any Capital Adequacy
Regulation issued after the Closing Date; affects or would affect the amount of
capital required or expected to be maintained by the Lender or any corporation
controlling the Lender and (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy and such Lender’s
desired return on capital) determines that the amount of such required capital
is increased as a consequence of its Commitment or Canadian Commitment, as
applicable, loans, credits or obligations under this Agreement, then, upon
demand of such Lender (with a copy to the Administrative Agent or BOA Canada,
as applicable), the Company or the Canadian Company, as applicable, shall upon
demand pay to the Lender, from time to time as specified by the Lender,
additional amounts sufficient to compensate the Lender for such increase.


3.4.          U.S. Lender
Funding Losses.


The
Company agrees to reimburse each U.S. Lender and to hold each U.S. Lender
harmless from any loss or expense which the U.S. Lender may sustain or incur as
a consequence of:


(a)           the failure of the
Company to borrow an IBOR Loan, or to continue or convert a Loan as or into an
IBOR Loan, in any case after the Company has given (or is deemed to have given)
a Notice of Borrowing or a Notice of Conversion/Continuation;


(b)           the failure of the
Company to make any prepayment of an IBOR Loan after the Company has given a
notice in accordance with Section 2.6;


(c)           the prepayment
(including pursuant to Section 2.7) of an IBOR Loan on a day which is not the last
day of the Interest Period with respect thereto; or


(d)           the conversion
pursuant to Section 2.4 of any IBOR Loan to a Base Rate Loan on a day that is
not the last day of the respective Interest Period;



 67
 









including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its IBOR Loans hereunder or from fees payable to
terminate the deposits from which such funds were obtained.  Solely for purposes of calculating amounts
payable by the Company to the U.S. Lenders under this Section 3.4 and under
subsection 3.3(a), each IBOR Loan made by a U.S. Lender (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed
to have been funded at the IBOR used in determining the IBOR for such IBOR Loan
by a matching deposit or other borrowing in the interbank eurodollar market for
a comparable amount and for a comparable period, whether or not such IBOR Loan
is in fact so funded.


3.4A        Canadian Lender Funding Losses.


The
Canadian Company agrees to reimburse each Canadian Lender and to hold each
Canadian Lender harmless from any loss or expense which the Canadian Lender may
sustain or incur as a consequence of:


(a)           the failure of the
Canadian Company to borrow a Eurodollar Rate Loan, or to continue or convert a
Canadian Loan as or into a Eurodollar Rate Loan, in any case after the Canadian
Company has given (or is deemed to have given) a Notice of Canadian Borrowing
or a Notice of Canadian Conversion/Continuation;


(b)           the failure of the
Canadian Company to make any prepayment of a Eurodollar Rate Loan after the
Canadian Company has given a notice in accordance with Section 2.6;


(c)           the prepayment
(including pursuant to Section 2.7) of a Eurodollar Rate Loan on a day which is
not the last day of the Interest Period with respect thereto; or


(d)           the conversion
pursuant to Section 2.4 of any Eurodollar Rate Loan to a Canadian Base Rate
Loan on a day that is not the last day of the respective Interest Period;


including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its Eurodollar Rate Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained.  Solely for purposes of calculating amounts
payable by the Canadian Company to the Canadian Lenders under this Section 3.4A
and under subsection 3.3(a), each Eurodollar Rate Loan made by a Canadian
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the Eurodollar Rate used in
determining the Eurodollar Rate for such Eurodollar Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such Eurodollar Rate Loan is
in fact so funded.


3.5.          Inability to
Determine Rates.


If
the Administrative Agent or BOA Canada shall have determined that for any
reason adequate and reasonable means do not exist for ascertaining the IBOR or
the Eurodollar Rate for any requested Interest Period with respect to a
proposed IBOR Loan



 68
 









or Eurodollar Rate Loan or that the IBOR or Eurodollar
Rate applicable pursuant to Section 2.9 for any requested Interest Period with
respect to a proposed IBOR Loan or Eurodollar Rate Loan does not adequately and
fairly reflect the cost to the applicable Lenders of funding such Loan, the
Administrative Agent or BOA Canada, as applicable, will forthwith give notice
of such determination to the Company or the Canadian Company, as applicable,
and each applicable Lender.  Thereafter,
the obligation of the U.S. Lenders to make or maintain future IBOR Loans or the
Canadian Lenders to make or maintain future Eurodollar Rate Loans, as the case
may be, hereunder shall be suspended until the Administrative Agent or BOA
Canada, as applicable, revokes such notice in writing.  Upon receipt of such notice, the Company and
the Canadian Company may revoke any Notice of Borrowing, Notice of Canadian
Borrowing, Notice of Conversion/Continuation or Notice of Canadian Conversion/Continuation
then submitted by it, without giving rise to a reimbursement obligation under
Section 3.4 or Section 3.4A, as applicable. 
If the Company or the Canadian Company does not revoke such notice, the
U.S. Lenders and Canadian Lenders shall make, convert or continue the Loans, as
proposed by the Company or the Canadian Company, as applicable, in the amount
specified in the applicable notice submitted by the Company or the Canadian
Company, but such Loans shall be made, converted or continued as U.S. Base Rate
Loans or Canadian Base Rate Loans, as applicable, instead of IBOR Loans or
Eurodollar Rate Loans, as the case may be.


3.6.          Certificates of
the Lenders.


Any
U.S. Lender or U.S. Agent claiming reimbursement or compensation pursuant to this
Article III shall deliver to the Company, and any Canadian Lender or BOA Canada
claiming reimbursement or compensation pursuant to this Article III shall
deliver to the Canadian Company (in each case with a copy to the Administrative
Agent or BOA Canada, as applicable) a certificate setting forth in reasonable
detail the amount payable to the Lender or Agent hereunder and such certificate
shall be conclusive and binding on the Company or the Canadian Company, as
applicable, in the absence of manifest error.


3.7.          Replacement of
Certain Lenders.


If
a Lender shall have (a) made a claim against the Company or the Canadian
Company under Section 3.1 or 3.3 or (b) suspended its obligations to make
IBOR Loans or Eurodollar Rate Loans under subsection 3.2(a), the Company or the
Canadian Company, as applicable, may make written demand on the affected Lender
(with a copy to the Administrative Agent or BOA Canada, as applicable) to
assign, and such affected Lender shall assign, together with its Eligible
Canadian Affiliate (or, if such affected Lender is a Canadian Lender, together
with its related U.S. Lender) pursuant to one or more duly executed Assignment
and Acceptances within five Business Days after the date of such demand, to one
or more Assignees (and Eligible Canadian Affiliates) to whom the Administrative
Agent has consented (which consent shall not be unreasonably withheld), all of
such affected Lender’s and Eligible Canadian Affiliate’s (or, if such affected
Lender is a Canadian Lender, its related U.S. Lender’s) rights and obligations



 69
 









under this Agreement (including without limitation
such affected Lender’s and Eligible Canadian Affiliate’s (or, if such affected
Lender is a Canadian Lender, its related U.S. Lender’s) Commitment or Canadian
Commitment, as applicable, and all Loans owing to it), in accordance with the
terms of Section 10.8 hereof; provided, that neither the Administrative
Agent nor BOA Canada shall have any duty to locate an acceptable Assignee (or
Eligible Canadian Affiliate) for the purposes of accepting such
assignment.  The Administrative Agent is
hereby irrevocably authorized to execute one or more Assignment and Acceptances
as attorney-in-fact for any affected Lender and Eligible Canadian Affiliate
(or, if such affected Lender is a Canadian Lender, its related U.S. Lender)
which fails to or refuses to execute and deliver the same in a timely
manner.  Each affected Lender and
Eligible Canadian Affiliate (or, if such affected Lender is a Canadian Lender,
its related U.S. Lender) shall be entitled to receive, in cash and concurrently
with the execution and delivery of the applicable Assignment and Acceptances,
all amounts owed to such affected Lender and Eligible Canadian Affiliate (or,
if such affected Lender is a Canadian Lender, its related U.S. Lender)
hereunder and under any of the other Loan Documents, including accrued interest
and fees through the date of such assignment.


3.8.          Survival.


The
agreements and obligations of the Company and the Canadian Company in this
Article III shall survive the payment of all other Obligations and Canadian
Obligations.


ARTICLE IV

CONDITIONS PRECEDENT


4.1.          Conditions of
Initial Loans.


The
obligation of each Lender party to this Agreement on the Closing Date to make
its initial Loan hereunder is subject to the condition that the Administrative
Agent shall have received on or before the Closing Date all of the following,
in form and substance satisfactory to each Agent and each Lender and in
sufficient copies for each Lender:


(a)           Credit Agreement,
Revolving Notes and Canadian Loan Notes.


This
Agreement executed by the Company, the Canadian Company, each Agent and each of
the Lenders, the Revolving Notes executed by the Company, and the Canadian Loan
Notes executed by the Canadian Company;


(b)           Resolutions; Incumbency.


(i)            Copies of the resolutions of the
board of directors of the Company and the Canadian Company approving and
authorizing the execution, delivery and performance by such Loan Party of this
Agreement



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and the other Loan Documents to be delivered
hereunder, and authorizing the borrowing of the Loans, certified as of the
Closing Date by the Secretary or an Assistant Secretary of such Loan Party;


(ii)           Copies of the resolutions of the two
Alberta unlimited liability company partners of the Canadian Company approving
and authorizing the execution, delivery and performance by the Canadian Company
of this Agreement and the other Loan Documents to be delivered hereunder, and
authorizing the borrowing of the Loans, certified as of the Closing Date by a
Responsible Officer of each such partner; and


(iii)          A certificate of the Secretary or
Assistant Secretary of the Company and the Canadian Company, certifying the
names and true signatures of the officers of such Loan Party authorized to
execute, deliver and perform, as applicable, the Loan Documents to be delivered
by it hereunder;


(c)           Articles of
Incorporation; By-laws and Good Standing.


Each
of the following documents:


(i)            The articles or certificate of
incorporation or other similar organizational documents of the Company and the
Canadian Company as in effect on the Closing Date, certified by the Secretary
of State (or similar, applicable Governmental Authority) of the state of
incorporation, organization or formation of the Company or the Canadian
Company, as the case may be, as of a recent date and by the Secretary or
Assistant Secretary of the Company or the Canadian Company, as the case may be,
as of the Closing Date, and the bylaws or similar documents of the Company and
the Canadian Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of such Company or such Canadian Company, as
the case may be, as of the Closing Date;


(ii)           A good standing certificate for the
Company and the Canadian Company from the Secretary of State (or similar,
applicable Governmental Authority) of its state of incorporation as of a recent
date; and


(iii)          A certificate of status for the two
Alberta unlimited liability company partners of the Canadian Company from the
Province of Alberta (or similar, applicable Governmental Authority) of its
jurisdiction of formation as of a recent date;


(d)           Loan Party
Guaranties.


The
Loan Party Guaranties, executed by the Company, the Canadian Company, and each
Domestic Subsidiary of the Company (other than the Canadian Company), as
applicable;



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(e)           [Intentionally
Omitted].


(f)            [Intentionally
Omitted].


(g)           Legal Opinions.


Opinions
of Victor Casini, general counsel to the Company and each other Loan Party, and
Bell, Boyd & Lloyd LLP, special counsel to the Company and each other Loan
Party, each addressed to the Agents and the Lenders, substantially in the form
of Exhibit G;


(h)           Payment of Fees.


The
Company and the Canadian Company shall have paid all accrued and unpaid fees,
costs and expenses to the extent then due and payable on the Closing Date,
together with Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, together with such additional amounts of
Attorney Costs as shall constitute the reasonable estimate of Attorney Costs of
the Administrative Agent incurred or to be incurred through the closing
proceedings, including any such costs, fees and expenses arising under or
referenced in the Fee Letter or otherwise under Sections 2.10, 3.1 and 10.4; provided,
that such estimate shall not thereafter preclude final settling of accounts
between the Company, the Canadian Company and the Administrative Agent;


(i)            Closing
Certificate.


A
certificate signed by a Responsible Officer of the Company, dated as of the
Closing Date, stating that:


(i)            the representations and warranties
contained in Article V are true and correct in all material respects on and as
of such date, as though made on and as of such date;


(ii)           no Default or Event of Default exists
or would result from giving effect to the Loans made hereunder; and


(iii)          there has occurred since December 31,
2006, no event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;


(j)            Financial
Statements.


Copies
of the financial statements of the Company and its Subsidiaries referred to in
Section 5.10;



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(k)           Consents.


All
consents and approvals required to be obtained from any Governmental Authority
or other Person to consummate the transactions contemplated hereby;


(l)            Due Diligence.


Evidence
of completion to the satisfaction of the Administrative Agent of such
investigations, reviews and audits with respect to the Company and the Canadian
Company as the Administrative Agent or any Lender may deem appropriate;


(m)          Other Documents.


Such
other approvals, opinions, documents or materials as any Agent or any Lender
may reasonably request.


4.2.          Conditions to All
Borrowings and Issuance of Letters of Credit.


The
obligation of each U.S. Lender or Canadian Lender to make any Loan to be made
by it hereunder (including its initial Loan), to continue or convert any Loan
pursuant to Section 2.4 or Section 2.4A and to participate in any Letter of
Credit or Canadian Letter of Credit as provided in Section 2.15, is subject to
the satisfaction of the following conditions precedent on the relevant
borrowing, continuation or conversion or issuance date:


(a)           Notice of
Borrowing or Continuation/Conversion.


The
Administrative Agent shall have received (with, in the case of the initial Loan
only, a copy for each U.S. Lender) a Notice of Borrowing or a Notice of
Continuation/Conversion, as applicable or the Administrative Agent and BOA
Canada shall have received (with, in the case of the initial Loan only, a copy
for each Canadian Lender) a Notice of Canadian Borrowing or a Notice of
Canadian Continuation/Conversion, as applicable;


(b)           Continuation of
Representations and Warranties.


The
representations and warranties made by the Company and the Canadian Company
contained in Article V shall be true and correct in all material respects on
and as of such borrowing, continuation or conversion or issuance date with the
same effect as if made on and as of such borrowing, continuation or conversion
or issuance date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date); and


(c)           No Existing
Default.


No
Default or Event of Default shall exist or shall result from such Borrowing or
continuation or conversion or issuance.


 



 73















Each
Notice of Borrowing, Notice of Canadian Borrowing, Notice of
Continuation/Conversion and Notice of Canadian Continuation/Conversion
submitted by the Company or the Canadian Company hereunder, as applicable,
shall constitute a representation and warranty by the Company or the Canadian
Company hereunder, as applicable, as of the date of each such notice or
application and as of the date of each Borrowing, continuation or conversion or
issuance, as applicable, that the conditions in Section 4.2 are satisfied.


ARTICLE V

REPRESENTATIONS AND WARRANTIES


The
Company and the Canadian Company each represents and warrants to each Agent and
each Lender that:


5.1.          Corporate
Existence and Power.


The
Company, the Canadian Company and each other Loan Party:


(a)           is a corporation or
limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation;


(b)           has the power and
authority and all governmental licenses, authorizations, consents and approvals
(i) to own its assets and carry on its business and (ii) to execute,
deliver, and perform its obligations under the Loan Documents;


(c)           conducts business in
its own name and does not use any tradenames, tradestyles or doing business
forms, except as provided on Schedule 5.1 or as updated from time
to time by notice to the Administrative Agent;


(d)           is duly qualified as
a foreign corporation or limited partnership, and licensed and in good
standing, under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification or license, as set forth on Schedule 5.1; and


(e)           is in compliance
with all Requirements of Law, except as provided on Schedule 5.1;


except,
in each case referred to in clause (c), clause (d) or clause (e), to the extent
that the failure to do so could not reasonably be expected to have a Material
Adverse Effect.


5.2.          Corporate
Authorization; No Contravention.


The
execution, delivery and performance by each Loan Party of any Loan Document to
which such Person is party, have been duly authorized by all necessary
corporate or limited partnership action, as appropriate, and do not and will
not:


(a)           contravene the terms
of any of that Person’s Organization Documents;



 74
 









(b)           conflict with or
result in any breach or contravention of, or the creation of any Lien under,
any document evidencing any Contractual Obligation to which such Person is a
party; or


(c)           violate any
Requirement of Law.


5.3.          Governmental
Authorization.


No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority (except for those already obtained)
is necessary or required in connection with the execution, delivery,
performance or enforcement of this Agreement or any other Loan Document.


5.4.          Binding Effect.


Each
Loan Document to which a Loan Party is a party constitutes the legal, valid and
binding obligations of such Person, enforceable against such Person in
accordance with its respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors’ rights generally or by equitable principles relating to
enforceability.


5.5.          Litigation.


Except
as specifically disclosed in Schedule 5.5, there are no actions,
suits, proceedings, claims or disputes pending, or to the best knowledge of the
Company and the Canadian Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against any Loan Party
or any Properties of any Loan Party which:


(a)           purport to affect or
pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or


(b)           if determined
adversely to a Loan Party, could reasonably be expected to have a Material
Adverse Effect.


No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin
or restrain the execution, delivery or performance of this Agreement or any
other Loan Document, or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.


5.6.          No Default.


No
Default or Event of Default exists or would result from the incurring of any Obligations
by the Company or any Canadian Obligations by the Canadian Company.  No Loan Party is in default under or with
respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, could reasonably be



 75
 









expected to have a Material Adverse Effect or that
would, if such default had occurred after the Closing Date, create an Event of
Default under subsection 8.1(e).


5.7.          Use of Proceeds;
Margin Regulations.


The
proceeds of the Loans are intended to be and shall be used solely for the
purposes set forth in and permitted by Section 6.11, and are intended to be and
shall be used in compliance with Section 7.7. 
Neither the Company or the Canadian Company, nor any other Loan Party,
is generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.


5.8.          Title to
Properties.


Except
as specifically disclosed in Schedule 5.8, each Loan Party has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real Property necessary or used in the ordinary conduct of its businesses,
except for such defects in title as could not, individually or in the
aggregate, have a Material Adverse Effect. 
No Property of any Loan Party is subject to any Liens, other than
Permitted Liens.


5.9.          Taxes.


Each
Loan Party has filed all Federal (both United States and Canada) and other
material tax returns and reports required to be filed, and has paid all Federal
(both United States and Canada) and other material taxes, assessments, fees and
other governmental charges levied or imposed upon it or its Properties, income
or assets otherwise due and payable, except (i) where the failure to so
file or pay could not reasonably be expected to have a Material Adverse Effect
and (ii) those taxes, assessments, fees and other charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP and no Notice of Lien has been
filed or recorded. There is no proposed tax assessment against a Loan Party
which, if made, could reasonably be expected to have a Material Adverse Effect.


5.10.        Financial
Condition.


The
Company has furnished to the Administrative Agent the following:


(a)           The audited
consolidated financial statements of financial condition of the Company and its
Subsidiaries dated December 31, 2006, and the related consolidated
statements of income, shareholders’ equity and cash flows for the fiscal year
ended on that date; and


(b)           the unaudited
consolidated balance sheet as of March 31, 2007 and the related unaudited
consolidated statements of income, shareholders’ equity and cash flows for the
three-month period ended on March 31, 2007.



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The
foregoing financial statements (including, without limitation, the notes
thereto):


(i)            were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein;


(ii)           fairly present the financial
condition of the Company and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby (subject to purchase
accounting adjustments and, in the case of the March 31, 2007 financial
statements, to normal year-end adjustments); and


(iii)          except as specifically disclosed in Schedule 5.10,
reflect all material indebtedness and other liabilities, including, to the best
of the Company’s and the Canadian Company’s knowledge, all material contingent
liabilities of the Company and its consolidated Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Contingent
Obligations.


Since
December 31, 2006, there has been no Material Adverse Effect.


5.11.        Environmental
Matters.


(a)           Except as
specifically disclosed in Schedule 5.11, the operations of each
Loan Party comply in all respects with all Environmental Laws, except such non-compliance
which could not reasonably be expected to have a Material Adverse Effect.


(b)           Except as
specifically disclosed in Schedule 5.11, each Loan Party has
obtained all licenses, permits, authorizations and registrations required under
any Environmental Law (“Environmental Permits”) and necessary for its ordinary
course operations, all such Environmental Permits are in good standing, and
each Loan Party is in compliance with the terms and conditions of such
Environmental Permits, except to the extent that the failure to obtain,
maintain in good standing or comply with any such Environmental Permits could
not reasonably be expected to have a Material Adverse Effect.


(c)           Except as
specifically disclosed in Schedule 5.11, or as updated from time to
time by notice to the Administrative Agent, no Loan Party or any Property or
operations of any Loan Party, is subject to any outstanding written order from
or agreement with any Governmental Authority, or subject to any judicial or
docketed administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material.


(d)           Except as
specifically disclosed in Schedule 5.11, (i) there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any Property, or arising from operations prior to the Closing Date, of any
Loan Party that could give rise to Environmental Claims that could reasonably
be expected to have a Material Adverse Effect, and (ii) no Loan Party has
any underground storage tanks (x) that are not properly registered or



 77
 









permitted under applicable Environmental Laws, or
(y) that are leaking or disposing of Hazardous Materials off-site,
to the extent that the same could reasonably be expected to have a Material
Adverse Effect.


5.12.        Regulated Entities.


Neither
any Loan Party nor any Person controlling a Loan Party, is (a) an “Investment
Company” within the meaning of the Investment Company Act of 1940; or
(b) subject to regulation under the Federal Power Act, the Interstate
Commerce Act, any state public utilities code, or any other Federal or state
statute or regulation limiting its ability to incur Indebtedness.


5.13.        No Burdensome Restrictions.


No
Loan Party is a party to or bound by any Contractual Obligation, or subject to
any charter, corporate or partnership restriction, or any Requirement of Law,
which could reasonably be expected to have a Material Adverse Effect.


5.14.        Solvency.


The
Company, the Canadian Company and each Substantial Loan Party is Solvent.


5.15.        Labor Relations.


There
are no strikes, lockouts or other labor disputes against any Loan Party, or, to
the best of the Company’s or the Canadian Company’s knowledge, threatened
against or affecting any Loan Party, and no significant unfair labor practice
complaint is pending against any Loan Party or, to the best knowledge of the
Company or the Canadian Company, threatened against any Loan Party before any
Governmental Authority.  Except as
disclosed on Schedule 5.15, as of the Closing Date no Loan Party
(a) has any employment contracts with any of its employees; or (b) is
a party to any collective bargaining agreement.


5.16.        Copyrights,
Patents, Trademarks and Licenses, etc.


Each
Loan Party owns or is licensed or otherwise has the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of its businesses, without conflict with the rights of any other
Person, all of which are set forth on Schedule 5.16.  To the best knowledge of the Company and the
Canadian Company, except as specifically disclosed on Schedule 5.16,
no slogan or other advertising device, product, process, method, substance,
part or other material now employed, or now contemplated to be employed, by any
Loan Party infringes upon any rights held by any other Person; except as
specifically disclosed on Schedule 5.5, no claim or litigation
regarding any of the foregoing is pending or threatened, and no patent,
invention, device, application, principle or any statute, law, rule,
regulation, standard or code relating to



 78
 









intellectual property is pending or, to the knowledge
of the Company and the Canadian Company, proposed, which, in either case, could
reasonably be expected to have a Material Adverse Effect.


5.17.        Subsidiaries;
Capitalization..


As
of the Closing Date, no Loan Party has any Subsidiaries other than those
specifically disclosed in part (a) of Schedule 5.17 hereto and
no Loan Party has any equity investments or partnership or joint venture
interests in any other corporation, partnership or other entity other than
those specifically disclosed in part (b) of Schedule 5.17.  The authorized capital stock of each Loan
Party as of the Closing Date is as set forth on Schedule 5.17.  All issued and outstanding shares of capital
stock of each Loan Party are duly authorized and validly issued, fully paid,
nonassessable, free and clear of all Liens other than Permitted Liens, and such
shares were issued in compliance in all material respects with Requirements of
Law concerning the issuance of securities. 
The capital stock of each Loan Party is owned as of the Closing Date by
the stockholders in the amounts set forth on Schedule 5.17.  As of the Closing Date, no shares of the
capital stock of any Loan Party, other than those described above, are issued
and outstanding.  Except as set forth on Schedule 5.17,
as of the Closing Date, there are no preemptive or other outstanding rights,
options, warrants, conversion rights or similar agreements or understandings
for the purchase or acquisition from any Loan Party of any shares of capital
stock or other securities of any such Person.


5.18.        Broker’s;
Transaction Fees.


No
Loan Party has any obligation to any Person in respect of any finder’s, broker’s
or investment banker’s fee in connection with the transactions contemplated
hereby.


5.19.        Insurance.


Schedule 5.19 is a complete and accurate summary
as of the date hereof of the property and casualty insurance program carried by
the Company, the Canadian Company and each other Loan Party on the date
hereof.  Schedule 5.19
includes, as of the Closing Date, the insurer’s(s’) name(s), policy number(s),
expiration date(s), amount(s) of coverage, type(s) of coverage, the annual
premium(s), deductibles and self-insured retention and describes any
retrospective rating plan, fronting arrangement or any other self-insurance or
risk assumption agreed to by the Company, the Canadian Company or any other
Loan Party or imposed upon the Company, the Canadian Company and each other
Loan Party by any such insurer.


5.20.        Business Locations.


Schedule 5.20 sets forth (a) the chief
executive office and principal place of business of each Loan Party as of the
Closing Date or during the prior 12 months, (b) each location at which any
Property of a Loan Party is located as of the Closing Date or during



 79
 









the prior 12 months, and (c) each other place of
business of a Loan Party as of the Closing Date.


5.21.        Full Disclosure.


None
of the representations or warranties made by any Loan Party in the Loan
Documents as of the date such representations and warranties are made or deemed
made, and none of the statements contained in each exhibit, report, statement
or certificate furnished by or on behalf of any Loan Party in connection with
the Loan Documents (including the offering and disclosure materials delivered
by or on behalf of any Loan Party to the Administrative Agent or the Lenders
prior to the Closing Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.


5.22.        ERISA Matters.


Each
Pension Plan complies, and has been administered in compliance, in all material
respects, with all applicable statutes and governmental rules and regulations;
no Reportable Event has occurred and is continuing with respect to any Pension
Plan; neither the Company, the Canadian Company nor any ERISA Affiliate has
withdrawn from any Multiemployer Plan in a “complete withdrawal” or a “partial
withdrawal” as defined in Section 4203 or 4205 of ERISA, respectively, with
respect to which the Company, the Canadian Company or any ERISA Affiliate has
any unsatisfied liability; no steps have been instituted to terminate any
Pension Plan, none of which has any unfunded liability; no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA or any Canadian federal or provincial statutes in
relation to pension plans or any other applicable employee benefit plan law; no
condition exists or event or transaction has occurred in connection with any
Pension Plan or Multiemployer Plan that is reasonably likely to have a Material
Adverse Effect; and neither the Company, the Canadian Company nor any ERISA
Affiliate is a “contributing sponsor” as defined in Section 4001(a)(13) of
ERISA of a “single-employer plan” as defined in Section 4001(a)(15) of ERISA
that has two or more contributing sponsors at least two of whom are not under
common control.  Except as listed in Schedule 5.22,
neither the Company or the Canadian Company nor any ERISA Affiliate, to the
extent there is joint and several liability with the Company or the Canadian
Company to pay such benefits, has any liability to pay any welfare benefits
under any employee welfare benefit plan within the meaning of Section 3(l) of
ERISA to former employees thereof or to current employees with respect to
claims incurred after the termination of their employment other than as
required by Section 4980B of the Code or Part 6 of Subtitle B of Title 1 of
ERISA.



 80
 









ARTICLE VI

AFFIRMATIVE COVENANTS


The
Company and the Canadian Company each covenant and agree that, so long as any
U.S. Lender shall have any Commitment hereunder, any Canadian Lender shall have
any Canadian Commitment hereunder, or any Loan, other Obligation or other
Canadian Obligation shall remain unpaid or unsatisfied, unless the Majority
Lenders waive compliance in writing:


6.1.          Financial
Statements.


The
Company shall deliver to the Administrative Agent (and Administrative Agent
shall make available to each Lender) in form and detail satisfactory to the
Administrative Agent and the Majority Lenders:


(a)           as soon as
available, but not later than 90 days after the end of each fiscal year, a copy
of the audited consolidated balance sheet of the Company as at the end of such
year and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, and accompanied
by the opinion of Deloitte & Touche LLP or another nationally-recognized
independent public accounting firm which report shall state that such
consolidated financial statements present fairly the financial position for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years, except for (i) changes in GAAP resulting from the application
of financial accounting standard 142 related to goodwill and (ii) changes
in GAAP approved by the Administrative Agent. 
Such opinion shall not be qualified or limited, except for a
qualification in connection with the refinancing or the repayment of the
Obligations and the Canadian Obligations;


(b)           as soon as
available, but not later than 45 days after the end of each fiscal quarter of
each year (or 90 days, in the case of the last fiscal quarter of each fiscal
year), a copy of the unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income, shareholders’ equity and cash flows for the
period commencing on the first day and ending on the last day of such quarter,
and certified by an appropriate Responsible Officer of the Company as being
complete and correct and fairly presenting, in accordance with GAAP, the
financial position and the results of operations of the Company and its
Subsidiaries (subject to normal year-end adjustments and the omission of
footnotes);


(c)           as soon as
available, but not later than 60 days after the last day of each fiscal year,
an annual budget for the Company for the succeeding fiscal year, prepared on a
consolidated and consolidating basis and in conformity with the financial
statements furnished under the preceding clauses (a) and (b), signed by a Responsible
Officer of the Company and consisting of at least a balance sheet, an income
statement and a cash flow statement, each calculated on a month by month basis;



 81
 









(d)           within 10 days after
receipt thereof by the Company or the Canadian Company, copies of any
management letters or comparable letters delivered to the Company or the
Canadian Company by any accountant retained by the Company or the Canadian
Company; and


(e)           prior to the
expiration of the Company’s or the Canadian Company’s insurance coverage, the
Company and the Canadian Company shall provide new insurance certificates
satisfying the requirements of Section 6.6.


6.2.          Certificates;
Other Information.


The
Company shall furnish to the Administrative Agent, with sufficient copies for
each Lender:


(a)           concurrently with
the delivery of the financial statements referred to in subsection 6.1(a)
above, a certificate of the independent certified public accountants reporting
on such financial statements (i) stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate and (ii) which does not
limit the ability of the Agents and the Lenders to rely on such financial
statements;


(b)           concurrently with
the delivery of the financial statements referred to in subsection 6.1(b),
(i) a Compliance Certificate of a Responsible Officer of the Company
(A) stating that the Company and the Canadian Company, during such period,
have observed and performed all of their covenants and other agreements, and
satisfied every condition contained in this Agreement to be observed, performed
or satisfied by them, and that such officer has obtained no knowledge of any
Default or Event of Default except as specified (by applicable subsection reference)
in such certificate, and (B) showing in detail the calculations supporting
such statement in respect of Sections 7.5, 7.13, 7.14 and 7.15; and (ii) a
Pricing Change Certificate of a Responsible Officer of the Company;


(c)           promptly after the
same are sent, copies of all financial statements and reports which the Company
sends to its public shareholders; and promptly after the same are filed, copies
of all financial statements and regular, periodical or special reports which
the Company may make to, or file with, the SEC;


(d)           promptly, such
additional business, financial, corporate or partnership affairs and other
information as the Administrative Agent, at the request of any Lender, may from
time to time reasonably request;


(e)           within 45 days after
the end of each fiscal quarter (or 90 days in the case of the last quarter of
each fiscal year), a schedule of Capital Expenditures listing (i) total
Capital Expenditures for the fiscal year to date, (ii) in detail, all
items included in Capital Expenditures for such period and not constituting
Maintenance Capital Expenditures and (iii) the total amount of Capital
Expenditures for such period that are Maintenance Capital Expenditures; and



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(f)            on or after the
15th but on or prior to the 25th of each month, a Canadian Sublimit Certificate
of a Responsible Officer of the Company setting forth the Canadian Sublimit for
the immediately following fiscal month.


6.3.          Notices.


The
Company and the Canadian Company shall promptly notify the Administrative
Agent:


(a)           of the occurrence of
any Default or Event of Default;


(b)           of (i) any
breach or non-performance of, or any default under, any Contractual
Obligation of any Loan Party which could result in a Material Adverse Effect;
and (ii) any dispute, litigation, investigation, proceeding or suspension
which may exist at any time between any Loan Party and any Governmental
Authority which involves amounts in excess of $100,000;


(c)           of the commencement
of, or any material development in, any litigation or proceeding affecting any
Loan Party (i) in which the amount of damages claimed is Two Million Five
Hundred Thousand Dollars ($2,500,000) or more, (ii) in which injunctive or
similar relief is sought and which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect, or (iii) in which the
relief sought is an injunction or other stay of the performance of this
Agreement or any Loan Document;


(d)           upon, but in no
event later than 10 days after, any Responsible Officer becoming aware of
(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against any Loan Party
or any Properties of any Loan Party pursuant to any applicable Environmental
Laws which involves amounts in excess of $100,000, (ii) any environmental
or similar condition on any real property adjoining or in the vicinity of the
property of any Loan Party that could reasonably be anticipated to cause such
property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of such property under any
Environmental Laws, and (iii) all other Environmental Claims involving in
excess of Two Million Five Hundred Thousand Dollars ($2,500,000);


(e)           of any other
litigation or proceeding affecting any Loan Party which the Company is required
to report to the SEC pursuant to the Exchange Act, within four days after
reporting the same to the SEC;


(f)            any Material
Adverse Effect subsequent to the date of the most recent financial statements
of the Company delivered to the Lenders pursuant to subsections 6.1(a), 6.1(b)
or 4.1(h);


(g)           of any material
change in accounting policies or financial reporting practices by any Loan
Party;



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(h)           of any labor
controversy resulting in or threatening to result in any strike, work stoppage,
boycott, shutdown or other labor disruption against or involving any Loan
Party;


(i)            any change or
proposed change in any of the information set forth on Schedule 5.20,
including but not limited to (i) any change in the location where any
Property of a Loan Party is kept, (ii) any proposed change in the location
of the Company’s, the Canadian Company’s or any other Loan Party’s chief
executive office or chief place of business, and (iii) any proposed
opening, closing or other change in the list of offices and other places of
business of any Loan Party;


(j)            any change in the
name of any Loan Party; and


(k)           the occurrence of a
Reportable Event with respect to any Pension Plan; the filing of a notice of
intent to terminate a Pension Plan by the Company, the Canadian Company or any
ERISA Affiliate; the institution of proceedings to terminate a Pension Plan by
the PBGC, the Financial Services Commission of Ontario or any other Person; the
withdrawal in a “complete withdrawal” or a “partial withdrawal” as defined in
Sections 4203 and 4205, respectively, of ERISA by the Company, the Canadian
Company or any ERISA Affiliate from any Multiemployer Plan; the failure of the
Company, the Canadian Company or any ERISA Affiliate to make a required
contribution to any Pension Plan, including but not limited to any failure to
pay an amount sufficient to give rise to a Lien under Section 302(f) of ERISA
or Canadian federal or provincial statutes in relation to pension plans or any
other applicable employee benefit plan law; the taking of any action with
respect to a Pension Plan which could result in the requirement that the
Company, the Canadian Company or any ERISA Affiliate furnish a bond or other
security to the PBGC or the Financial Services Commission of Ontario; the
occurrence of any other event with respect to any Pension Plan which could
result in the incurrence by the Company, the Canadian Company or any ERISA
Affiliate of any material liability, fine or penalty; or the establishment of a
new plan subject to ERISA, the Income Tax Act (Canada) or the PBA or an
amendment to any existing plan which will result in a material increase in
contributions or benefits under such plan or the incurrence of any material
increase in the liability of the Company or the Canadian Company (or an ERISA
Affiliate) with respect to any “employee welfare benefit plan” as defined in
Section 3(l) of ERISA which covers former employees thereof or current
employees and their beneficiaries with respect to claims incurred after the
termination of their employment.


Each
notice pursuant to this Section shall be accompanied by a written statement by
a Responsible Officer of the Company setting forth details of the occurrence
referred to therein, and stating the action the Company and the Canadian
Company propose to take with respect thereto (including the period during which
such action will be taken).  Each notice
under subsection 6.3(a) shall describe with particularity any and all clauses
or provisions of this Agreement or other Loan Document that have been breached
or violated.



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6.4.          Preservation of
Corporate Existence, Etc.


The
Company and the Canadian Company each shall, and shall cause each of their
respective Subsidiaries to:


(a)           Except as otherwise
permitted under Section 7.3, preserve and maintain in full force and effect its
corporate or partnership existence and good standing under the laws of its
state or jurisdiction of incorporation or formation, as applicable; provided,
that the Company or the Canadian Company may permit or cause the liquidation or
sale of any Subsidiary that is not a Material Loan Party;


(b)           preserve and
maintain in full force and effect all rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business except in connection with transactions permitted by Section 7.3 and
sales of assets permitted by Section 7.2; provided, that the Company or the
Canadian Company may permit or cause the liquidation or sale of any Subsidiary
that is not a Material Loan Party;


(c)           use its reasonable
efforts, in the Ordinary Course of Business, to preserve its business
organization and preserve the goodwill and business of the customers, suppliers
and others having material business relations with it; and


(d)           preserve or renew
all of its registered trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material Adverse Effect.


6.5.          Maintenance of
Property.


The
Company and the Canadian Company shall maintain, and shall cause each of their
respective Subsidiaries to maintain, and preserve all its Property which is
used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect or as permitted by Section 7.2,
Section 6.4(a) or Section 6.4(b).


6.6.          Insurance.


The
Company and the Canadian Company shall maintain, and shall cause each of their
respective Subsidiaries to maintain, with financially sound and reputable
independent insurers, insurance with respect to its Properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons and
as are reasonably acceptable to the Administrative Agent, including workers’
compensation insurance, public liability and property insurance.  All property, business interruption and
liability insurance maintained by the Company and the Canadian Company shall
name the Administrative Agent as additional insured, as its interests may
appear.  All such insurance policies
shall provide that they may not be cancelled, amended or terminated unless the
Administrative Agent is



 85
 









given at least the same number of days’ notice that the
insurance company which issued such policies is required to give the Company,
the Canadian Company or any Subsidiary, but in no event less than 30 day’s
prior written notice.  Proceeds of
insurance for losses shall be used by the applicable Loan Party to repair,
replace, restore or substitute the damaged Property to an economical unit of
substantially the same character and value as such Property was prior to such
damage, unless (a) the damaged Property can not be repaired, replaced,
restored or substituted prior to the Revolving Maturity Date, or (b) the
failure to be able to use such damaged Property during the period during which
such damaged Property is to be repaired, replaced, restored or substituted
could reasonably be expected to have a Material Adverse Effect.  Notwithstanding anything contained herein to
the contrary, if an Event of Default exists at the time of such Event of Loss,
or the conditions in clauses (a) and (b) above are not met, the amount of proceeds
with respect to such Event of Loss shall, at the request of the Majority
Lenders, be promptly paid by the applicable Loan Party to the Administrative
Agent for application to the Obligations or the Canadian Obligations as
provided herein.  Upon request of the
Administrative Agent or any Lender, the Company and the Canadian Company shall
furnish to the Administrative Agent, with sufficient copies for each Lender, at
reasonable intervals (but not more than once per calendar year) a certificate
of a Responsible Officer of the Company and the Canadian Company (and, if
requested by the Administrative Agent, any insurance broker of the Company or
the Canadian Company) setting forth the nature and extent of all insurance
maintained by the Company, the Canadian Company and its respective Subsidiaries
in accordance with this Section 6.6 (and which, in the case of a certificate of
a broker, was placed through such broker).


6.7.          Payment of
Obligations.


The
Company and the Canadian Company each shall, and shall cause their respective
Subsidiaries to, pay and discharge as the same shall become due and payable,
all their respective Indebtedness, obligations and liabilities, including:


(a)           all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by the Company, the Canadian Company or such Subsidiary;


(b)           all lawful claims
which, if unpaid, would by law become a Lien (other than a Permitted Lien) upon
its Property; and


(c)           all Indebtedness, as
and when due and payable, unless the same is being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company, the Canadian Company or such Subsidiary, and subject
to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



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6.8.          Compliance with
Laws.


The
Company and the Canadian Company shall comply, and shall cause each of their
respective Subsidiaries to comply, with all Requirements of Law of any
Governmental Authority having jurisdiction over it or its business (including
the Federal Fair Labor Standards Act), except to the extent the failure to do
so could not reasonably be expected to have a Material Adverse Effect.


6.9.          Inspection of
Property and Books and Records.


The
Company and the Canadian Company shall maintain and shall cause each of their
respective Subsidiaries to maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company, the Canadian Company and such Subsidiaries.  The Company and the Canadian Company shall
permit, and shall cause each of their respective Subsidiaries to permit,
representatives and independent contractors of the Administrative Agent or any
Lender to visit and inspect any of their respective Properties, to examine their
respective corporate or partnership, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors, officers, and
independent public accountants (at the expense of the Company and the Canadian
Company with respect to all such inspections occurring during the existence of
an Event of Default and with respect to one inspection per calendar year if no
Event of Default is in existence) and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company or the Canadian Company, as applicable; provided,
however, when an Event of Default exists, the Administrative Agent or
any Lender may do any of the foregoing at the expense of the Company and the
Canadian Company at any time during normal business hours and without advance
notice.  The Administrative Agent and
each Lender hereby agrees that in the absence of an Event of Default, no Lender
will perform any such visit or inspection except in conjunction with a visit or
inspection by the Administrative Agent.


6.10.        Environmental Laws.


(a)           The Company and the
Canadian Company shall, and shall cause each of their respective Subsidiaries
to, conduct its operations and keep and maintain its Property in compliance
with all Environmental Laws, except such non-compliance as could not reasonably
be expected to have a Material Adverse Effect.


(b)           Upon the written
request of the Administrative Agent or any Lender, the Company and the Canadian
Company shall submit and cause each of their respective Subsidiaries to submit,
to the Administrative Agent with sufficient copies for each Lender, at the
Company’s sole cost and expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety compliance, hazard
or liability issue identified in any notice or report required pursuant to
subsection 6.3(d), that could, individually or in the



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aggregate, result in liability in excess of Two
Million Five Hundred Thousand Dollars ($2,500,000).


6.11.        Use of Proceeds.


The
Company shall use the proceeds of the Loans solely as follows: (a) to
finance all or a portion of the purchase price for any Permitted Acquisition
made by the Company or any of its Domestic Subsidiaries and (b) for
working capital and other general corporate or partnership purposes of the
Company and its Domestic Subsidiaries not in contravention of any Requirement
of Law.  Upon receipt of proceeds of the
Loans, the Canadian Company shall promptly make a capital contribution or loan
to LKQ Ontario LP, an Ontario limited partnership, in the amount of such
proceeds and will promptly cause LKQ Ontario LP to loan or contribute such
proceeds to the Canadian OpCo Parent. 
The Canadian OpCo Parent shall use such proceeds of the Loans solely as
follows: (a) to finance all or a portion of the purchase price for any
Permitted Acquisition made by the Canadian OpCo Parent or any of its
Subsidiaries and (b) for working capital and other general corporate or
partnership purposes of the Canadian OpCo Parent and its Subsidiaries not in
contravention of any Requirement of Law.


6.12.        Solvency.


The
Company and the Canadian Company shall at all times be, and shall cause each
Substantial Loan Party to be, Solvent.


6.13.        Subsidiaries.


The
Company shall promptly cause each of its Subsidiaries organized under the laws
of a State in the United States, including without limitation any such
Subsidiary created or acquired in connection with a Permitted Acquisition, to
execute and deliver to the Administrative Agent a Loan Party Guaranty of the
Obligations and the Canadian Obligations and such additional agreements,
instruments and documents (including without limitation evidence of corporate
or partnership authority) as the Administrative Agent shall reasonably request
in connection therewith.  The Company and
the Canadian Company shall promptly, upon Administrative Agent’s request
following the occurrence of any event specified in subsection 8.1(a) or any
failure to perform or observe the agreements contained in Sections 7.13, 7.14
or 7.15, cause each of its Subsidiaries organized under the laws of a Province
of Canada, including without limitation any such Subsidiary created or acquired
in connection with a Permitted Acquisition, to execute and deliver to the
Administrative Agent a Loan Party Guaranty of the Obligations and the Canadian
Obligations and such additional agreements, instruments and documents
(including without limitation evidence of corporate or partnership authority)
as the Administrative Agent shall reasonably request in connection therewith.



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6.14.        Further Assurances.


The
Company and the Canadian Company shall ensure that all written information,
exhibits and reports furnished to the Agents or the Lenders do not and will not
contain any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to the Agents and the Lenders and correct any defect or error
that may be discovered therein or in any Loan Document or in the execution,
acknowledgment or recordation thereof.


6.15.        Depository
Accounts.


The
Company and the Canadian Company shall each maintain all of its principal
depository, cash management, operating and administrative accounts with one or
more of the current Lenders or any subsequent Lenders, to the extent that a
Lender is able to provide such accounts and services in a manner that is
reasonably convenient from the standpoint of the Company or the Canadian
Company, as applicable.


6.16.        Post Closing
Covenant.


Within
45 days of the Closing Date, the Company and the Canadian Company shall cause,
and cause each of its respective Subsidiaries, to be delivered to
Administrative Agent:


(a)           copies
of the resolutions of the board of directors of each Loan Party listed on Schedule
6.16 (Part A1) hereto approving and authorizing the execution, delivery and
performance by it of the Loan Documents to be delivered by it hereunder,
certified as of the Closing Date by the Secretary or an Assistant Secretary of
such Loan Party, together with a certificate of the Secretary or Assistant
Secretary of the Company certifying the resolutions of the board of directors
of each Loan Party listed on Schedule 6.16 (Part A2) approving and
authorizing the execution, delivery and performance of the Loan Documents to be
delivered hereunder by such Loan Party and previously delivered to
Administrative Agent have not been amended, modified or rescinded since the
date of adoption thereof, are in full force and effect on the date hereof and
are the only resolutions that have been adopted by the directors of such Loan
Party with respect to the subject matter thereof;


(b)           the
articles or certificate of incorporation or other similar organizational
documents of each Loan Party listed on Schedule 6.16 (Part B1),
certified by the Secretary of State (or similar, applicable Governmental
Authority) of the state of incorporation, organization or formation of such
Loan Party, as the case may be, as of a recent date, together with a
certificate of the Secretary or Assistant Secretary of the Company certifying
the articles or certificate of incorporation of each Subsidiary of the Company
listed on Schedule 6.16 (Part B2) have not been amended, modified or
rescinded since the date of delivery thereof to the Administrative Agent, are
true, complete and correct as of the date hereof, and no action for any
amendment to such articles or certificate of incorporation or for dissolution
of such Loan Party has been taken since that date or is pending; and



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(c)           the
bylaws or similar documents of each Loan Party listed on Schedule 6.16
(Part C1) as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of such Loan Party, as the case may be, as of the Closing
Date, together with a certificate of the Secretary or Assistant Secretary of
the Company certifying the bylaws of each Subsidiary of the Company listed on Schedule
6.16 (Part C2) have not been amended, modified or rescinded since the date
of delivery thereof to the Administrative Agent and remain in full force and
effect as of the date hereof.


ARTICLE VII

NEGATIVE COVENANTS


The
Company and the Canadian Company each hereby covenant and agree that, so long
as any U.S. Lender shall have any Commitment hereunder, any Canadian Lender
shall have any Canadian Commitment hereunder, or any Loan, other Obligation or
other Canadian Obligation shall remain unpaid or unsatisfied, unless the
Majority Lenders waive compliance in writing:


7.1.          Limitation on
Liens.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
their Property, whether now owned or hereafter acquired, other than the
following (“Permitted Liens”):


(a)           any Lien existing on
the Property of the Company, the Canadian Company or their respective
Subsidiaries on the Closing Date and set forth in Schedule 7.1
securing Indebtedness outstanding on such date;


(b)           Liens for taxes,
fees, assessments or other governmental charges which are not delinquent or
remain payable without penalty, or to the extent that non-payment thereof
is permitted by Section 6.7; provided, that no Notice of Lien has been
filed or recorded under the Code or by the Canada Revenue Agency;


(c)           carriers’,
warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the Ordinary Course of Business or arising in
connection with the repair, replacement, restoration or substitution of such
Property permitted under Sections 2.7 and 6.6 hereof, in each case, which are
not delinquent or remain payable without penalty or which are being contested
in good faith and by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the Property subject thereto;


(d)           Liens (other than
any Lien imposed by ERISA, the PBA or Canadian federal or provincial statutes
in relation to pension plans or any other applicable employee benefit plan law)
consisting of pledges or deposits required in the Ordinary Course of Business
in connection with workers’ compensation, unemployment insurance and other
social security legislation;



 90
 









(e)           Liens on the
Property of the Company or any of its Subsidiaries securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) contingent obligations on
surety and appeal bonds, and (iii) other non-delinquent obligations of a
like nature; in each case, incurred in the Ordinary Course of Business,
provided all such Liens in the aggregate could not (even if enforced) be
reasonably expected to cause a Material Adverse Effect;


(f)            Liens consisting of
judgment or judicial attachment liens; provided, that the existence of
such Liens would not constitute an Event of Default under Section 8.1(h);


(g)           easements, rights-of-way,
restrictions and other similar encumbrances incurred in the Ordinary Course of
Business which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries;


(h)           purchase money
security interests on, or Liens securing Capital Lease Obligations with respect
to, any Property (other than Inventory, but including fixed assets and real
Property), acquired, leased or held by the Company or its Subsidiaries in the
Ordinary Course of Business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or leasing such
Property; provided, that (i) any such Lien attaches to such
Property concurrently with or within 90 days after the acquisition or lease
thereof, (ii) such Lien attaches solely to the Property so acquired or
leased in such transaction, (iii) the principal amount of the debt secured
thereby does not exceed 100% of the cost of such Property, and (iv) the
principal amount of the Indebtedness secured by such purchase money security
interest or Capital Lease Obligation constitutes Indebtedness permitted under
subsection 7.5(h);


(i)            Liens arising
solely by virtue of any statutory or common law provision relating to banker’s
liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution; provided,
that (i) such deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by the Company or the
Canadian Company, as applicable, in excess of those set forth by regulations promulgated
by the Federal Reserve Board, and (ii) such deposit account is not
intended by the Company or any of its Subsidiaries to provide collateral to the
depository institution; and


(j)            Liens securing
Seller Debt incurred in connection with a Permitted Acquisition, provided,
that (i) any such Lien attaches only to the Property acquired in
connection with the underlying Permitted Acquisition, (ii) such Lien
attaches concurrently with the acquisition of such Property, (iii) the
principal amount of the Indebtedness secured thereby does not exceed 100% of
the purchase price for the underlying Permitted Acquisition and (iv) the
principal amount of the Indebtedness secured by such Property constitutes
Indebtedness permitted under subsection 7.5(h).



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7.2.          Disposition of
Assets.


The
Company and the Canadian Company shall not, and each shall not suffer or permit
any of its Subsidiaries to, directly or indirectly, sell, assign, lease,
license, convey, transfer or otherwise dispose of (whether in one or a series
of transactions) any Property (including accounts and notes receivable, with or
without recourse) or enter into any agreement to do any of the foregoing,
except:


(a)           dispositions of
Inventory in the Ordinary Course of Business;


(b)           the sale, transfer
or other disposition of Property, so long as (i) the proceeds thereof are
used or applied as provided in Sections 2.7 and 6.6, (ii) no Default or
Event of Default is in existence at the time of such sale, transfer or other
disposition or would be caused thereby and (iii) in the case of any
individual sale, transfer or other disposition, or series of related sales,
transfers, or other dispositions, that involve Property with an aggregate book
value equal to or greater than 25% of Net Worth at the time of such transaction
or the last of such a series of transactions, the Company shall have delivered
to the Administrative Agent a certificate of a Responsible Officer of the
Company demonstrating that after consummation of such transaction(s), the
Company would be in compliance with the covenants contained in Sections 7.13,
7.14 and 7.15, calculated as of the last day of the most recent calendar
quarter, but showing the effect of such transaction(s) on a pro forma basis;


(c)           intercompany
dispositions of capital stock or other equity interests made (i) by the
Company or any Wholly-Owned Subsidiary of the Company that is a Domestic
Subsidiary to any other Wholly-Owned Subsidiary of the Company that is a
Domestic Subsidiary, or (ii) by any Wholly-Owned Subsidiary of the Company
that is organized under the laws of a Province of Canada to any other
Wholly-Owned Subsidiary of the Company that is organized under the laws of a
Province of Canada; and


(d)           other dispositions
permitted under this Agreement.


7.3.          Consolidations
and Mergers.


The
Company and the Canadian Company shall not, and each shall not suffer or permit
any of its Subsidiaries to, merge, consolidate with or into, or acquire
(whether in one transaction or in a series of transactions) substantially all
of the assets of any Person, except:


(a)           in connection with a
Permitted Acquisition; and


(b)           any Subsidiary of
the Company may merge with the Company (provided, that the Company shall
be the continuing or surviving corporation), or with any one or more
Subsidiaries of the Company, provided, that if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation or partnership, as
applicable.



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7.4.          Loans and
Investments.


The
Company and the Canadian Company shall not purchase or acquire, or suffer or
permit any of their respective Subsidiaries to purchase or acquire, or make any
commitment for, any capital stock, equity interest, or any obligations or other
Securities of, or any interest in, any Person, or make or commit to make any
acquisitions of the business of any Person, or make or commit to make any
advance, loan, extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of the Company, except for:


(a)           acquisitions and
purchases constituting a Permitted Acquisition;


(b)           investments in Cash
Equivalents;


(c)           extensions of credit
in the nature of accounts receivable or notes receivable arising from the sale
or lease of goods or services in the Ordinary Course of Business;


(d)           advances to
employees of the Company or any Subsidiary for travel or other ordinary
business expenses, provided that the aggregate amount outstanding at any one
time for the Company and its Subsidiaries shall not exceed Five Hundred
Thousand Dollars ($500,000);


(e)           advances to
employees of the Company or any Subsidiary for relocation expenses, provided
that the aggregate amount outstanding at any one time for the Company and its
Subsidiaries shall not exceed Two Million Dollars ($2,000,000);


(f)            investments
outstanding on the date hereof and listed on Schedule 7.4;


(g)           loans or capital
contributions by the Company to its Domestic Subsidiaries in the Ordinary
Course of Business;


(h)           loans or capital
contributions by the Canadian Company to LKQ Ontario LP, loans or capital
contributions by LKQ Ontario LP to Canadian OpCo Parent, and loans or capital
contributions by Canadian OpCo Parent to its Subsidiaries, each in the Ordinary
Course of Business;


(i)            warrants for Securities
received by the Company or any of its Subsidiaries and not purchased for cash;
and


(j)            investments in
Securities of other Persons not constituting an Acquisition, provided that the
aggregate purchase price of all such Securities does not exceed Twenty Five
Million Dollars ($25,000,000).



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7.5.          Limitation on
Indebtedness.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:


(a)           Indebtedness
incurred pursuant to this Agreement (including any increase pursuant to Section
2.17);


(b)           Indebtedness
consisting of Contingent Obligations permitted pursuant to Section 7.8;


(c)           Indebtedness existing
on the Closing Date and set forth in Schedule 7.5;


(d)           Indebtedness
incurred in connection with operating leases;


(e)           intercompany
Indebtedness permitted under subsection 7.4(f), subsection 7.4(g) and
subsection 7.4(h);


(f)            Indebtedness to
insurance companies incurred in order to permit the Company or one of its
Subsidiaries to repay obligations owing by such Loan Party to former employees
of such Loan Party under the Company’s 401K Plus deferred compensation plan, so
long as such Indebtedness is not greater than the aggregate cash surrender
value of insurance policies owned by the Company and covering the lives of
participants in the Company’s 401K Plus deferred compensation plan;


(g)           Subordinated Debt
(including any Seller Debt constituting Subordinated Debt); and


(h)           Capital Lease
Obligations and other Indebtedness secured by Liens permitted by subsection
7.1(h), Seller Debt secured by Liens permitted by subsection 7.1(j),
unsecured Seller Debt not constituting Subordinated Debt, and other
Indebtedness not described in clauses (a) — (g) above (including the
refinancing or replacement of Indebtedness described in clause (c) above), so
long as the aggregate amount of such Indebtedness, together with that aggregate
amount of all other Indebtedness then outstanding and permitted pursuant to
this clause (h), does not at the time incurred exceed 10% of Net Worth at such
time.


7.6.          Transactions with
Affiliates.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, enter into any transaction with any
Affiliate of the Company or of any such Subsidiary, except (a) those
transactions listed on Schedule 7.6, (b) as expressly
permitted by this Agreement, or (c) in the Ordinary Course of Business and
pursuant to the reasonable requirements of the business of the Company, the
Canadian Company or such Subsidiary, in each case described in clause (c), upon
fair and reasonable terms no less favorable to the Company, the Canadian
Company or such



 94
 









Subsidiary than would obtain in a comparable arm’s-length
transaction with a Person not an Affiliate of the Company, the Canadian Company
or such Subsidiary.


7.7.          Use of Proceeds.


The
Company and the Canadian Company shall not and shall not suffer or permit any
of their respective Subsidiaries to use any portion of the Loan proceeds,
directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance indebtedness of the Company or others
incurred to purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act.


7.8.          Contingent
Obligations.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, create, incur, assume or suffer to exist
any Contingent Obligations except: 
(a) endorsements for collection or deposit in the Ordinary Course
of Business; (b) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in Schedule 7.8;
(c) bonds in the nature of bid bonds, performance bonds, or bonds to cover
extended warranties, obtained in the ordinary cause of business;
(d) guaranties by the Company or any of its Subsidiaries of the operating
lease obligations of any of the Company’s Subsidiaries; and (e) guaranties
by the Company or any of its Subsidiaries of Indebtedness permitted pursuant to
Section 7.5.


7.9.          Joint Ventures.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to enter into any Joint Venture, other than in
the Ordinary Course of Business.


7.10.        Unconditional
Purchase Options.


Except
as set forth on Schedule 7.10, the Company and the Canadian Company
shall not enter into or be a party to, or permit any of their respective
Subsidiaries to enter into or be a party to, any contract for the purchase of
materials, supplies or other property or services, if such contract requires
that payment be made by it regardless of whether or not delivery is ever made
of such materials, supplies or other property or services.


7.11.        Restricted
Payments.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of its Securities, or
purchase, redeem or otherwise acquire for value any shares of its Securities or
any warrants, rights or options to acquire such



 95
 









Securities, now or hereafter outstanding, or repay,
prepay, purchase or redeem any Subordinated Debt; except that the Company and
any Wholly-Owned Subsidiary of the Company may:


(a)           declare and make
dividend payments or other distributions payable solely in its common stock;


(b)           in the case of
Wholly-Owned Subsidiaries only, declare and make dividend payments or other
distributions at any time to the Company or to any other Wholly-Owned
Subsidiary;


(c)           purchase, redeem or
otherwise acquire shares of its common stock or warrants or options to acquire
any such shares with the proceeds received from the substantially concurrent
issue of new shares of its common stock;


(d)           repay Subordinated
Debt pursuant to the terms of any subordination agreement or subordination
provisions relating thereto;


(e)           so long as no Event
of Default or Default is then existence or would be caused thereby,
(i) redeem Securities to the extent described on Schedule 7.8 and
(ii) redeem Securities issued to any employee of the Company or any of its
Subsidiaries, after termination of the employment of such Person, which
Securities were originally issued to such Person in connection with an Acquisition
consummated by the Company prior to the Closing Date or a Permitted Acquisition
consummated by the Company after the Closing Date; provided, that the aggregate
cost of such redemptions under this clause (e)(ii) in any fiscal year shall not
exceed One Million Dollars ($1,000,000); and


(f)            so long as no Event
of Default or Default is then in existence or would be caused thereby,
(i) declare and pay dividends in respect of its Securities or
(ii) purchase, redeem or otherwise acquire its Securities, in an aggregate
amount for both clauses (i) and (ii) hereof not to exceed $10,000,000 in any
calendar year.


7.12.        [Intentionally
Omitted].


7.13.        Fixed Charge
Coverage Ratio.


The
Fixed Charge Coverage Ratio, on the last day of any fiscal quarter commencing
on June 30, 2007, for the 12-month period ending on such date, shall not
be less than 1.25:1.00.


7.14.        Senior Funded Debt
to EBITDA Ratio.


The
Senior Funded Debt to EBITDA Ratio, on the last day of any fiscal quarter
commencing on June 30, 2007, shall not exceed 3.00:1.00.



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7.15.        Total Funded Debt
to EBITDA Ratio.


The
Total Funded Debt to EBITDA Ratio, on the last day of any fiscal quarter
commencing on June 30, 2007, shall not exceed 3.75:1.00.


7.16.        Change in Business.


The
Company and the Canadian Company shall not, and shall not permit any of their
respective Subsidiaries to, engage in any material line of business
substantially different from, and unrelated to, those lines of business carried
on by it on the date hereof.  All parties
hereto agree that, for all purposes under this Agreement, the sale of after
market automotive parts, and retail sales to consumers from self service
facilities, shall each be deemed to be part of, or related to, the Company’s
and the Canadian Company’s line of business carried on by it on the date
hereof.


7.17.        Change in
Structure.


Except
as expressly permitted under Section 6.4(a) and Section 7.3, the Company and
the Canadian Company shall not and shall not permit any of their respective
Subsidiaries to, make any changes in its equity capital structure (including in
the terms of its outstanding stock), or amend its Organization Documents in any
respect material to the Lenders.


7.18.        Accounting Changes.


The
Company and the Canadian Company shall not, and shall not suffer or permit any
of their respective Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any of its consolidated Subsidiaries.


7.19.        Other Contracts.


The
Company and the Canadian Company shall not, and shall not permit any of their
respective Subsidiaries to, enter into any employment contracts or other
employment or service-retention arrangements whose terms, including salaries,
benefits and other compensation, are not normal and customary in the industry.


7.20.        Management Fees.


The
Company and the Canadian Company shall not, and shall not permit any of their
respective Subsidiaries to, pay any management, consulting, advisory or similar
fees to any Affiliate, other than those transactions listed on Schedule 7.6
and fees paid to the Company and/or any of its Subsidiaries by the Company or
any of its Subsidiaries.



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7.21.        Subsidiaries.


Except
in connection with a Permitted Acquisition, the Company and the Canadian
Company shall not, and shall not permit any of their respective Subsidiaries
to, establish, create or acquire any new Subsidiary without providing
Administrative Agent at least 10 days written notice prior to the date
Subsidiary has any assets.


7.22.        Pension Plans.


The
Company and the Canadian Company shall not permit, and not permit any of their
respective Subsidiaries to permit, any condition to exist in connection with
any Pension Plan that would constitute grounds for the PBGC or the Financial
Services Commission of Ontario to institute proceedings to have such Pension
Plan terminated or a trustee appointed to administer such Pension Plan; not
fail, and not permit any of their respective Subsidiaries to fail, to make a
required contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under Section 302(f) of ERISA or Canadian federal or provincial
statutes in relation to pension plans or any other applicable employee benefit
plan law; and not engage in, or permit to exist or occur, or permit any of
their respective Subsidiaries to engage in, or permit to exist or occur, any
other condition, event or transaction with respect to any Pension Plan that is
reasonably likely to result in a Material Adverse Effect.


7.23.        Amendment of
Documents.


The
Company and the Canadian Company will not, and will not permit any of their
respective Subsidiaries to, amend, modify or alter, or permit to be amended,
modified or altered, any agreement, instrument or document evidencing any of
the Subordinated Debt, if the effect of such amendment is to (i) increase
the interest rate on such Subordinated Debt, (ii) accelerate the dates
upon which payments of principal or interest are due on such Subordinated Debt,
(iii) change the payment provisions of such Subordinated Debt,
(iv) change the subordination provisions thereof, if any or
(v) otherwise alter the terms of such Subordinated Debt in any material
respect.


ARTICLE VIII

EVENTS OF DEFAULT


8.1.          Event of Default.


Any
of the following shall constitute an “Event of Default”:


(a)           Non-Payment.


The
Company or the Canadian Company fails to pay, (i) when and as required to
be paid herein, any amount of principal of any Loan, or (ii) within 3 days
after the same shall become due, any interest, fee or any other amount payable
hereunder or pursuant to any other Loan Document; or



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(b)           Representation or
Warranty.


Any
representation or warranty by the Company, the Canadian Company or any other
Loan Party made or deemed made herein, in any Loan Document, or which is
contained in any certificate, document or financial or other statement by the
Company, the Canadian Company, any other Loan Party, or their respective
Responsible Officers, furnished at any time under this Agreement, or in or
under any Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or


(c)           Specific Defaults.


The
Company or the Canadian Company fails to perform or observe any term, covenant
or agreement contained in Sections 6.1, 6.2, 6.3, 6.6 and 6.9 or Article VII;
or


(d)           Other Defaults.


The
Company or the Canadian Company fails to perform or observe any other term or
covenant contained in this Agreement or any Loan Document, and such default
shall continue unremedied for a period of 30 days after the earlier of
(i) the date upon which a Responsible Officer of the Company or the
Canadian Company knew or should have known of such failure or (ii) the
date upon which written notice thereof is given to the Company by the Administrative
Agent; or


(e)           Cross-Default.


The
Company, the Canadian Company or any other Loan Party (i) fails to make
any payment in respect of any Indebtedness or Contingent Obligation having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than Two Million Five Hundred Thousand Dollars
($2,500,000) when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the document relating
thereto on the date of such failure; or (ii) fails to perform or observe
any other condition or covenant, or any other event shall occur or condition
exist, under any agreement or instrument relating to any such Indebtedness or
Contingent Obligation, and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on the date
of such failure if the effect of such failure, event or condition is to cause,
or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness
to be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect thereof
to be demanded; or



 99
 









(f)            Insolvency;
Voluntary Proceedings.


The
Company, the Canadian Company or any Substantial Loan Party (i) ceases or
fails to be Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or


(g)           Involuntary
Proceedings.


(i) Any
involuntary Insolvency Proceeding is commenced or filed against the Company,
the Canadian Company or any Substantial Loan Party, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of the Company’s, the Canadian Company’s or any Substantial
Loan Party’s Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company, the Canadian Company or
any Substantial Loan Party admits the material allegations of a petition
against it in any Insolvency Proceeding, or an order for relief (or similar
order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company, the Canadian Company or any Substantial Loan Party
acquiesces in the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other similar
Person for itself or a substantial portion of its Property or business; or


(h)           Monetary
Judgments.


One
or more judgments, non-interlocutory orders, decrees or arbitration awards
shall be entered against the Company, the Canadian Company or any other Loan
Party involving in the aggregate a liability (not fully covered by independent
third-party insurance) as to any single or related series of transactions,
incidents or conditions, of One Million Dollars ($1,000,000) or more, and the
same shall remain unsatisfied, unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof; or


(i)            Non-Monetary
Judgments.


Any
non-monetary judgment, order or decree shall be rendered against the Company,
the Canadian Company or any other Loan Party which does or could reasonably be
expected to have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or


(j)            Change of
Control.


Any
Change of Control shall occur with respect to the Company; or



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(k)           Adverse Change.


There
shall occur a Material Adverse Effect; or


(l)            Loan Party
Defaults.


A
Material Loan Party shall fail to perform or observe any term, covenant or
agreement in any Loan Document to which it is a party and such failure shall
continue unremedied for a period of 30 days after the earlier of (i) the
date upon which a Responsible Officer of the Company or the Canadian Company
knew or should have known of such failure or (ii) the date upon which
written notice thereof is given to the Company by the Administrative Agent; or
any Loan Party Guaranty shall for any reason (other than as provided or permitted
in this Agreement or any other Loan Document) be partially (including with
respect to future advances) or wholly revoked or invalidated, or, except in
connection with a transaction permitted under this Agreement or any other Loan
Document, otherwise cease to be in full force and effect, or any Loan Party
shall contest in any manner the validity or enforceability thereof or deny that
it has any further liability or obligation thereunder; or


(m)          ERISA Liabilities.


Any
of the following events shall have occurred, if such event is reasonably likely
to have a Material Adverse Effect: 
(i) the existence of a Reportable Event, (ii) the withdrawal
of the Company, the Canadian Company or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a “substantial employer” as defined in
Section 4001(a)(2) of ERISA, (iii) the occurrence of an obligation to
provide affected parties with a written notice of intent to terminate a Pension
Plan in a distress termination under Section 4041 of ERISA, (iv) the
institution by PBGC or the Financial Services Commission of Ontario of
proceedings to terminate any Pension Plan, (v) any event or condition that
would require the appointment of a trustee to administer a Pension Plan,
(vi) the withdrawal of the Company, the Canadian Company or any ERISA
Affiliate from a Multiemployer Plan, and (vii) any event that would give
rise to a Lien under Section 302(f) of ERISA or Canadian federal or provincial
statutes in relation to pension plans or any other applicable employee benefit
plan law.


8.2.          Remedies.


If
any Event of Default occurs, the Administrative Agent shall, at the request of,
or may, with the consent of, the Majority Lenders,


(a)           declare the
Commitment of each U.S. Lender to make Loans and to participate in Letters of
Credit to be terminated, whereupon such Commitments shall forthwith be
terminated;


(b)           declare the Canadian
Commitment of each Canadian Lender to make Canadian Loans and to participate in
Canadian Letters of Credit to be terminated, whereupon such Canadian
Commitments shall forthwith be terminated;



 101
 









(c)           declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable; without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Company and the Canadian Company; and


(d)           exercise on behalf
of itself and the Lenders all rights and remedies available to it and the
Lenders under the Loan Documents or applicable law;


provided, however, that upon the occurrence of
any event specified in subsections (f) or (g) of Section 8.1 above (in the case
of clause (i) of subsection (g) upon the expiration of the 60-day period
mentioned therein), the obligation of each Lender to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of any Agent or any Lender.


8.3.          Rights Not
Exclusive.


The
rights provided for in this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.


ARTICLE IX

THE AGENTS


9.1.          Appointment and
Authorization.


(a)           Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.  Each Canadian Lender hereby irrevocably
appoints, designates and authorizes BOA Canada to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, neither
the Administrative Agent or BOA Canada shall have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent or BOA Canada have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or BOA Canada.



 102















(b)           The Issuer shall act
on behalf of the U.S. Lenders with respect to the Letters of Credit and the
documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Majority Lenders to act for
the Issuer with respect thereto; provided, however, that each
Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any acts taken or
omissions suffered by the Issuer in connection with Letters of Credit issued by
it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to Letters of Credit as fully as if the term “Administrative
Agent”, as used in this Article IX, included the Issuer with respect to such
acts or omissions, and (ii) as additionally provided in this Agreement
with respect to the Issuer.


(c)           The Canadian Issuer
shall act on behalf of the Canadian Lenders with respect to the Canadian
Letters of Credit and the documents associated therewith until such time and
except for so long as BOA Canada may agree at the request of the Majority
Lenders to act for the Canadian Issuer with respect thereto; provided, however,
that each Canadian Issuer shall have all of the benefits and immunities
(i) provided to BOA Canada in this Article IX with respect to any acts
taken or omissions suffered by the Canadian Issuer in connection with Canadian
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to Canadian
Letters of Credit as fully as if the term “BOA Canada”, as used in this Article
IX, included the Canadian Issuer with respect to such acts or omissions, and
(ii) as additionally provided in this Agreement with respect to the
Canadian Issuer.


9.2.          Delegation of
Duties.


Each
of the Administrative Agent and BOA Canada may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  Neither the Administrative Agent nor BOA
Canada shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.


9.3.          Liability of the
Administrative Agent and BOA Canada.


None
of the Administrative Agent-Related Persons shall (i) be liable for
any action taken or omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to
any of the Lenders or any other Agent for any recital, statement,
representation or warranty made by the Company, the Canadian Company or any
other Loan Party or Affiliate of the Company or the Canadian Company, or any
officer thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent or BOA Canada under or in
connection with, this Agreement or any other Loan Document, or for the value of
any Property or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
the Company, the Canadian Company or any other 



 103
 









party to any Loan Document to perform its obligations
hereunder or thereunder.  No
Administrative Agent-Related Person shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the Properties, books or records of the Company, the
Canadian Company, any other Loan Party or the Company’s or Canadian Company’s
Affiliates.


9.4.          Reliance by the
Administrative Agent and BOA Canada.


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


(b)           For purposes of
determining compliance with the conditions specified in Section 4.1, the
Syndication Agent, the Documentation Agent, the Co-Agent and each Lender that
has executed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter either sent by
the Administrative Agent or BOA Canada to such Agent or such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Agent or such
Lender.


9.5.          Notice of Default.


Neither
the Administrative Agent nor BOA Canada shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent or BOA Canada for the account of the U.S.
Lenders or Canadian Lenders, as applicable, unless the Administrative Agent or
BOA Canada shall have received written notice from a Lender, the Company or the
Canadian Company referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent or
BOA Canada receives such a notice, the Administrative Agent or BOA Canada shall
give notice thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such



 104
 









Default or Event of Default as shall be requested by
the Majority Lenders in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent shall have received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Lenders.


9.6.          Credit Decision.


The
Syndication Agent, the Documentation Agent, the Co-Agent and each Lender
expressly acknowledges that none of the Administrative Agent-Related Persons
has made any representation or warranty to it and that no act by the
Administrative Agent or BOA Canada hereinafter taken, including any review of
the affairs of the Company, the Canadian Company or any other Loan Party shall
be deemed to constitute any representation or warranty by the Administrative
Agent or BOA Canada to such Agent or such Lender.  The Syndication Agent, the Documentation
Agent, the Co-Agent and each Lender represents to the Administrative Agent and
BOA Canada that it has, independently and without reliance upon the
Administrative Agent or BOA Canada and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Company, the Canadian Company and each other Loan
Party, and all applicable bank regulatory laws relating to the transactions
contemplated thereby, and made its own decision to enter into this Agreement
and extend credit to the Company and the Canadian Company hereunder.  The Syndication Agent, the Documentation
Agent, the Co-Agent and each Lender also represents that such party will,
independently and without reliance upon the Administrative Agent or BOA Canada
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Company and the Canadian Company.  Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent or BOA Canada, neither the Administrative Agent nor BOA
Canada shall have any duty or responsibility to provide the Syndication Agent,
the Documentation Agent, the Co-Agent or any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Company or the Canadian Company
which may come into the possession of any of the Administrative Agent-Related
Persons.


9.7.          Indemnification.


Whether
or not the transactions contemplated hereby shall be consummated, the Lenders
shall indemnify upon demand the Administrative Agent-Related Persons (to
the extent not reimbursed by or on behalf of the Company or the Canadian
Company and without limiting the obligation of the Company and the Canadian
Company to do so), ratably, in accordance with each such Lender’s Commitment
Percentage, from and against



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any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind whatsoever which may at any time (including at any time following the
repayment of the Loans and the termination or resignation of the Administrative
Agent and BOA Canada) be imposed on, incurred by or asserted against any such
Person any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such
Person under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment to the Administrative Agent-Related
Persons of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Persons’ gross negligence or willful
misconduct.  Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent and BOA Canada
upon demand for its ratable share (in accordance with each such Lender’s
Commitment Percentage) of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent or BOA Canada
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein to the extent that the
Administrative Agent or BOA Canada is not reimbursed for such expenses by or on
behalf of the Company or the Canadian Company. 
Without limiting the generality of the foregoing, if the Internal
Revenue Service, the Canada Revenue Agency or any other Governmental Authority
of the United States or other jurisdiction asserts a claim that the
Administrative Agent or BOA Canada did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent or BOA Canada of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Lender shall indemnify the Administrative Agent and
BOA Canada fully for all amounts paid, directly or indirectly, by the
Administrative Agent or BOA Canada as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent or BOA Canada under this Section, together
with all costs and  expenses (including
Attorney Costs).  The obligation of the
Lenders in this Section shall survive the payment of all Obligations and
Canadian Obligations hereunder.


9.8.          Agents in their
Individual Capacity.


Each
of BOA, LaSalle and JPMorgan and its respective Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory or other business with any Loan Party and its Affiliates as
though BOA were not the Administrative Agent or BOA Canada hereunder, LaSalle
were not the Syndication Agent hereunder, JPMorgan were not the Documentation
Agent hereunder and NCB were not the Co-Agent hereunder and, in each case,
without notice to or consent of the Lenders. 
The Lenders acknowledge that, pursuant to such activities, BOA, LaSalle,
JPMorgan or its 



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respective Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or its
Affiliates) and acknowledge that none of BOA, LaSalle, JPMorgan nor its
Affiliates shall be under any obligation to provide such information to
them.  With respect to its Loans, each of
BOA, LaSalle and JPMorgan shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same as though it were not an Agent,
and the terms “Lender” and “Lenders” shall include each of BOA, LaSalle and
JPMorgan in its individual capacity.


9.9.          Successor
Administrative Agent.


The
Administrative Agent and BOA Canada may resign as Administrative Agent and BOA
Canada upon 30 days’ notice to the Lenders; such resignation shall also
constitute the Administrative Agent’s resignation as the Issuer and as the
provider of the Swing Line Loans and BOA Canada’s resignation as the Canadian
Issuer.  If the Administrative Agent and
BOA Canada shall resign as Administrative Agent and BOA Canada under this
Agreement, the Majority Lenders, with the consent of the Company and the
Canadian Company so long as no Default or Event of Default exists at such time,
shall appoint from among the Lenders a successor administrative agent for the
Lenders and a successor Canadian agent for the Canadian Lenders.  If no successor administrative agent and
Canadian agent is appointed prior to the effective date of the resignation of
the Administrative Agent and BOA Canada, the Administrative Agent and BOA
Canada, with the consent of the Company and the Canadian Company so long as no
Default or Event of Default exists at such time, may appoint a successor
administrative agent and Canadian agent from among the Lenders.  Upon the acceptance of its appointment as
successor administrative agent and Canadian agent hereunder, such successor
administrative agent and Canadian agent shall respectively succeed to all the
rights, powers and duties of the retiring Administrative Agent and BOA Canada
(including without limitation those in its capacity as the Issuer and Canadian
Issuer and as the provider of Swing Line Loans) and the term “Administrative
Agent” shall mean such successor administrative agent, the term “BOA Canada”
shall mean such successor Canadian agent, and the retiring Administrative Agent’s
and BOA Canada’s appointment, powers and duties as Administrative Agent and BOA
Canada respectively shall be terminated. After any retiring Administrative
Agent’s resignation hereunder as Administrative Agent and any retiring BOA
Canada’s resignation hereunder as BOA Canada, the provisions of this Article IX
and Sections 10.4 and 10.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent and BOA Canada
under this Agreement.  If no successor
administrative agent and Canadian agent have accepted appointment as
Administrative Agent and BOA Canada by the date which is 30 days following a
retiring Administrative Agent’s and BOA Canada’s notice of resignation, the
retiring Administrative Agent’s and BOA Canada’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent and BOA Canada hereunder until such time, if any, as
the Majority Lenders appoint a successor administrative agent and Canadian
agent as provided for above.  BOA may be
removed as Administrative Agent and BOA Canada at the request of all Lenders; notwithstanding
the foregoing,



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however, BOA may not be removed as the Administrative
Agent and as BOA Canada unless BOA or any Affiliate thereof acting as an Issuer
and Canadian Issuer hereunder shall also simultaneously be replaced as the
Issuer, the Canadian Issuer and the provider of Swing Line Loans pursuant to
documentation in form and substance reasonably satisfactory to BOA (and if
applicable, such Affiliate).


9.10.        Syndication Agent,
Documentation Agent and Co-Agent.


Each
of the Syndication Agent, the Documentation Agent and the Co-Agent, in its
capacity as such, shall have no rights, powers, duties or responsibilities
hereunder or any other Loan Document and no implied rights, powers, duties or
responsibilities shall be read into this Agreement or any other Loan Document
or otherwise exist on behalf of or against the Syndication Agent, the
Documentation Agent or the Co-Agent, in its capacity as such.  If LaSalle resigns as the Syndication Agent,
no successor Syndication Agent shall be appointed.  If JPMorgan resigns as the Documentation
Agent, no successor Documentation Agent shall be appointed.  If NCB resigns as the Co-Agent, no successor
Co-Agent shall be appointed.


ARTICLE X

MISCELLANEOUS


10.1.        Amendments and
Waivers.


No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by any Loan Party
therefrom, shall be effective unless the same shall be in writing and signed by
such Loan Party and the Majority Lenders or, if the Lenders are not a party
thereto, the Administrative Agent (with the prior written consent of the
Majority Lenders), and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such waiver, amendment, or consent shall, unless in writing and signed
by all the Lenders, or if the Lenders are not a party thereto, the
Administrative Agent (with the prior written consent of all of the Lenders), do
any of the following:


(a)           increase or extend
the Commitment or Canadian Commitment of any Lender (or reinstate any
Commitment or Canadian Commitment terminated pursuant to subsection 8.2(a)) or
subject any Lender to any additional obligations;


(b)           postpone or delay
any date fixed for any payment of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any Loan Document;


(c)           reduce the principal
of, or the rate of interest specified herein on any Loan, or of any fees or
other amounts payable hereunder or under any Loan Document;



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(d)           change the
percentage of the Commitments or the Canadian Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the Lenders or
any of them to take any action hereunder;


(e)           amend this Section
10.1, Section 2.14 or Section 2.14A or any provision providing for consent or
other action by all Lenders; or


(f)            discharge any Loan
Party Guaranty;


and,
provided, further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Majority Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document (including without limitation its rights and duties as the provider of
Swing Line Loans), (ii) no amendment, waiver or consent shall, unless in
writing and signed by BOA Canada in addition to the Majority Lenders or all the
Lenders, as the case may be, affect the rights or duties of BOA Canada under
this Agreement or any other Loan Document, (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Issuer in addition to the
Majority Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Issuer under this Agreement or any other Loan Document,
(iv) no amendment, waiver or consent shall, unless in writing and signed
by the Canadian Issuer in addition to the Majority Lenders or all the Lenders,
as the case may be, affect the rights or duties of the Canadian Issuer under
this Agreement or any other Loan Document, and (v) the fees payable to the
Administrative Agent or BOA Canada, as applicable, pursuant to subsection
2.10(a), (c) and (d) may be changed pursuant to a writing executed by the Company,
the Canadian Company, BOA Canada and the Administrative Agent.


10.2.        Notices.


(a)           All notices,
requests and other communications provided for hereunder shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission; provided, that any matter transmitted by the Company or
the Canadian Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on the applicable
signature page hereof, and (ii) shall be followed promptly by a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on the applicable signature page hereof; or, as
directed to the Company, the Canadian Company, BOA Canada or the Administrative
Agent, to such other address as shall be designated by such party in a written
notice to the other parties, and as directed to each other party, at such other
address as shall be designated by such party in a written notice to the
Company, the Canadian Company, BOA Canada and the Administrative Agent.


(b)           All such notices,
requests and communications shall, when transmitted by overnight delivery be
effective upon delivery, or when faxed, be effective when transmitted by
facsimile machine, or if otherwise delivered, upon delivery; except that
notices pursuant to Article II or IX shall not be effective until actually
received by the Administrative Agent.



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(c)           The Company and the
Canadian Company each acknowledge and agree that any agreement of the Administrative
Agent, BOA Canada and the Lenders at Article II herein to receive certain
notices by telephone and facsimile is solely for the convenience and at the
request of the Company and the Canadian Company.  The Administrative Agent, BOA Canada and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company or the Canadian Company to give such
notice and the Administrative Agent, BOA Canada and the Lenders shall not have
any liability to the Company, the Canadian Company or other Person on account
of any action taken or not taken by the Administrative Agent, BOA Canada or the
Lenders in reliance upon such telephonic or facsimile notice.  The obligation of the Company to repay the
Loans made to it and the obligation of the Canadian Company to repay the Loans
made to it shall not be affected in any way or to any extent by any failure by
the Administrative Agent, BOA Canada and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent, BOA Canada and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent, BOA Canada and
the Lenders to be contained in the telephonic or facsimile notice.


10.3.        No Waiver;
Cumulative Remedies.


No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent, BOA Canada or any Lender, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.


10.4.        Costs and Expenses.


The
Company and the Canadian Company, jointly and severally, whether or not the
transactions contemplated hereby shall be consummated, shall:


(a)           pay or reimburse BOA
(including in its capacity as Administrative Agent), within thirty (30) days
after demand (subject to subsection 4.1(h)) for all reasonable costs and
expenses incurred by BOA (including in its capacity as Administrative Agent),
in connection with the development, preparation, negotiation, delivery,
closing, on-going administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable Attorney
Costs incurred by BOA (including in its capacity as Administrative Agent) with
respect thereto;


(b)           pay or reimburse
each Lender and each Agent within thirty (30) days after demand (subject to
subsection 4.1(h)) for all reasonable costs and expenses incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies during the existence of an Event of Default (including in
connection with any “workout” or restructuring regarding the Loans, and including
in any Insolvency Proceeding



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or appellate proceeding) under this Agreement, any other Loan Document,
and any such other documents, including Attorney Costs, incurred by such Agent
or such Lender; and


(c)           pay or reimburse BOA
(including in its capacity as Administrative Agent) within thirty (30) days
after demand (subject to subsection 4.1(h)) for all reasonable appraisal
(including the reasonable allocated cost of internal appraisal services),
audit, environmental inspection and review (including the reasonable allocated
cost of such internal services), search and filing costs, fees and expenses,
incurred or sustained by BOA (including in its capacity as Administrative
Agent) during the existence of an Event of Default in connection with the matters
referred to under subsections (a) and (b) of this Section 10.4.


10.5.        Indemnity.


Whether
or not the transactions contemplated hereby shall be consummated:


(a)           General Indemnity.


The
Company and the Canadian Company, jointly and severally, shall pay, indemnify,
and hold each Lender, each Agent and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each,
an “Indemnified Person”) harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including Attorney Costs) of any kind or
nature whatsoever with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to this
Agreement or the Loans or the use of the proceeds thereof, the execution,
delivery, enforcement, performance and administration of this Agreement and any
other Loan Documents, or the transactions contemplated hereby and thereby, and with
respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to this Agreement or the
Loans or the use of the proceeds thereof, whether or not any Indemnified Person
is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”); provided, that neither the Company nor the Canadian
Company shall have any obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person.


(b)           Environmental
Indemnity.


(i)            The Company and the Canadian
Company, jointly and severally, hereby agree to indemnify, defend and hold
harmless each Indemnified Person, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including Attorney Costs and the reasonable
allocated cost of internal environmental audit or review services), which may
be incurred by or asserted against such Indemnified Person in connection with
or arising out of any pending or threatened investigation, litigation or
proceeding, or any action taken by any Person, with respect to any
Environmental Claim arising



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out of or related to any Property, other than
any such actions that constitute gross negligence or willful misconduct by such
Indemnified Person.


(ii)           In
no event shall any site visit, observation, or testing by any Agent or any
Lender (or any contractee of any Agent or any Lender) be deemed a
representation or warranty that Hazardous Materials are or are not present in,
on, or under, the site, or that there has been or shall be compliance with any
Environmental Law.  Neither the Company,
the Canadian Company nor any other Person is entitled to rely on any site
visit, observation, or testing by any Agent or any Lender.  Neither any
Agent nor any Lender owes any duty of care to protect the Company, the Canadian
Company or any other Person against, or to inform the Company, the Canadian
Company or any other party of, any Hazardous Materials or any other adverse
condition affecting any site or Property. 
Neither any Agent nor any Lender shall be obligated to disclose to the
Company, the Canadian Company or any other Person any report or findings made
as a result of, or in connection with, any site visit, observation, or testing
by any Agent or any Lender.


(c)           Survival; Defense.


The
obligations in this Section 10.5 shall survive payment of all other Obligations
and Canadian Obligations.  At the
election of any Indemnified Person, the Company and the Canadian Company shall
defend such Indemnified Person using legal counsel reasonably satisfactory to
such Indemnified Person, at the sole cost and expense of the Company and the
Canadian Company, jointly and severally. 
All amounts owing under this Section 10.5 shall be paid within 30 days
after demand.


10.6.        Marshalling;
Payments Set Aside.


Neither
any Agent nor any
Lender shall be under any obligation to marshall any assets in favor of the Company,
the Canadian Company or any other Person or against or in payment of any or all
of the Obligations or the Canadian Obligations. 
To the extent that the Company or the Canadian Company makes a payment
or payments to any Agent or any
Lender, or any Agent or any Lender exercise its rights of set-off,
and such payment or payments or the proceeds of such enforcement or set-off or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent in its discretion) to be repaid to a
trustee, receiver or any other party in connection with any Insolvency
Proceeding, or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such enforcement or set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its ratable
share of the total amount so recovered from or repaid by the Administrative
Agent.



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10.7.        Successors and
Assigns.


The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
neither the Company nor the Canadian Company may assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of
the Administrative Agent, BOA Canada and each Lender.


10.8.        Assignments,
Participations, etc.


(a)         Any U.S. Lender may, with the written
consent of the Company and the Canadian Company at all times other than during
the existence of an Event of Default and the Administrative Agent, which
consents shall not be unreasonably withheld, at any time assign and delegate to
one or more Persons (provided, that no written consent of the Company,
the Canadian Company or the Administrative Agent shall be required in
connection with any assignment and delegation by a Lender to an Affiliate of
such Lender) (each an “Assignee”) all, or any ratable part of all, of the
Loans, the Commitments and the other rights and obligations of such U.S. Lender
hereunder, in a minimum amount of Five Million Dollars ($5,000,000); provided,
however, that the Company and the Administrative Agent may continue to
deal solely and directly with such U.S. Lender in connection with the interest
so assigned to an Assignee until (A) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to such Assignee, shall have been given to the Company and the Administrative
Agent by such U.S. Lender and such Assignee; (B) such U.S. Lender and its
Assignee shall have delivered to the Company and the Administrative Agent an
Assignment and Assumption in the form of Exhibit H (“Assignment and
Acceptance”) together with any Revolving Note or Revolving Notes (and, if
applicable, any Canadian Loan Note or Canadian Loan Notes) subject to such
assignment and (C) the assignor U.S. Lender or Assignee has paid to the
Administrative Agent a processing fee in the amount of Three Thousand Five
Hundred Dollars ($3,500).  Except as
expressly provided otherwise, no U.S. Lender may assign or delegate any or all
of its Loans, Commitment or other rights and obligations of such U.S. Lender
hereunder except in connection with an assignment or delegation of the Canadian
Loans and Canadian Commitment of such U.S. Lender’s related
Canadian Lender in accordance with the terms of this Section 10.8,
and no U.S. Lender shall assign all of its Commitments and Loans unless the
assignee U.S. Lender has an Eligible Canadian Affiliate which agrees to assume
all of the obligations of the related Canadian Lender.  Except as expressly provided otherwise, no
Canadian Lender may assign or delegate any or all of its Canadian Loans,
Canadian Commitment or other rights and obligations of such Canadian Lender
hereunder except in connection with an assignment or delegation of the Loans
and Commitment of such Canadian Lender’s related U.S. Lender in accordance
with the terms of this Section 10.8, and no Canadian Lender shall assign
all of its Canadian Commitments and Canadian Loans unless the assignee U.S.
Lender has an Eligible Canadian Affiliate which agrees to assume all of the
obligations of the Canadian Lender.


(b)         From and after the date that the
Administrative Agent notifies the assignor U.S. Lender that it has received
(and provided its consent with respect to) an executed Assignment and
Acceptance and payment of the above-referenced processing fee, (i) the



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Assignee thereunder (and its Eligible
Canadian Affiliate, if applicable) shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a U.S.
Lender (and such Eligible Canadian Affiliate, if applicable, shall have the
rights and obligations of a Canadian Lender) under the Loan Documents, and
(ii) the assignor U.S. Lender (and its related Canadian Lender, if
applicable) shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning
U.S. Lender’s (and its related Canadian Lender’s, if applicable) rights
and obligations under this Agreement, such U.S. Lender (and its related
Canadian Lender, if applicable) shall cease to be a party hereto).


(c)         Within five Business Days after its
receipt of notice by the Administrative Agent that it has received an executed
Assignment and Acceptance and payment of the processing fee (and provided,
that it consents to such assignment pursuant to subsection 10.8(a)), the
Company (and, if applicable, the Canadian Company) shall execute and deliver to
the Administrative Agent new Revolving Notes (and, if applicable, Canadian Loan
Notes) evidencing such Assignee’s assigned Loans and Commitment (and, if
applicable, Canadian Commitment) and, if the assignor U.S. Lender has retained
a portion of its Loans and its Commitment (and, if applicable, its related
Canadian Lender has retained a portion of its Loans and Canadian Commitment),
replacement Revolving Notes (and, if applicable, Canadian Loan Notes) in the
principal amount of the Loans retained by the assignor U.S. Lender and, if
applicable, its related Canadian Lender (such Revolving Notes or Canadian Loan
Notes to be in exchange for, but not in payment of, the Revolving Notes or
Canadian Loan Notes held by such U.S. Lender and, if applicable, its related
Canadian Lender).  Immediately upon each
Assignee’s making its processing fee payment under the Assignment and
Acceptance, this Agreement, shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Assignee (and, if
applicable, its Eligible Canadian Affiliate) and the resulting adjustment of
the Commitments (and, if applicable, the Canadian Commitments) arising
therefrom.  The Commitment (or Canadian
Commitment) allocated to each Assignee (or its Eligible Canadian Affiliate, if
applicable) shall reduce such Commitment (or Canadian Commitment) of the
assigning U.S. Lender (or its related Canadian Lender) pro  tanto.


(d)         Any Lender may, upon prior written
notice to the Company, the Canadian Company, BOA Canada and the Administrative
Agent, at any time sell to one or more commercial banks or other Persons not
Affiliates of the Company or the Canadian Company (a “Participant”) participating
interests in any Loans, the Commitment (or Canadian Commitment) of that Lender
and the other interests of that Lender (the “originating Lender”) hereunder and
under the other Loan Documents; provided, however, that
(i) the originating Lender’s obligations under this Agreement shall remain
unchanged, (ii) the originating Lender shall remain solely responsible for
the performance of such obligations, (iii) the Company, the Canadian
Company, BOA Canada and the Administrative Agent shall continue to deal solely
and directly with the originating Lender in connection with the originating
Lender’s rights and



 114
 









obligations under this Agreement and the
other Loan Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant shall have rights to approve
any amendment to, or any consent or waiver with respect to, this Agreement or
any other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Lenders as described in the first
proviso to Section 10.1.  In the
case of any such participation, the Participant shall be entitled to the
benefit of Sections 3.1, 3.3 and 10.5, with respect to its participation
interest, as though it were also a Lender hereunder and subject to the same
qualifications and limitations as if it were a Lender hereunder, and provided
there is no duplicate recovery, but shall not have any other rights under this
Agreement, or any of the other Loan Documents, and all amounts payable by the
Company or the Canadian Company hereunder shall be determined as if such Lender
had not sold such participation; except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement.


(e)         Each Lender agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information provided to it by the Company or any Subsidiary of the Company,
or by the Administrative Agent or BOA Canada on such Company’s or Subsidiary’s
behalf, in connection with this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information for any
purpose or in any manner other than pursuant to the terms contemplated by this
Agreement; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure by
such Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company or the Canadian Company, provided,
that such source is not bound by a confidentiality agreement with the Company
or the Canadian Company known to such Lender; provided, further, however,
that any Lender may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which such Lender
is subject or in connection with an examination of such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection
with any litigation or proceeding to which the Administrative Agent, BOA
Canada, any Lender or their respective Affiliates may be party, (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document, and (F) to such Lender’s
independent auditors and other professional advisors, provided that each such
Person has agreed to preserve the confidentiality of such material.  Notwithstanding the foregoing, the Company
and the Canadian Company authorizes each Lender to disclose to any Participant
or Assignee (each, a “Transferee”) and to any prospective Transferee, such
financial and other information in such Lender’s possession concerning the
Company or its Subsidiaries which has been delivered to any Agent or any Lender
pursuant to this Agreement or which has been delivered to any Agent or any
Lender by the Company or the Canadian Company in connection with the Lenders’
credit evaluation of the Company or the Canadian Company prior to entering into
this Agreement; provided, that, unless otherwise agreed by the Company
and the Canadian



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Company, such Transferee agrees in writing to
such Lender to keep such information confidential to the same extent required
of the Lenders hereunder.  In the event
that any Agent or Lender or any recipient of nonpublic information obtained
pursuant to clause (E) above is required or requested to disclose any
confidential information pursuant to clauses (A)-(D) above, such recipient
shall give the Company and the Canadian Company prompt prior written notice of
such requirement or request so that the Company or the Canadian Company may
seek an appropriate protective order, and, at the expense of the Company or the
Canadian Company, such recipient shall cooperate with the Company or the
Canadian Company in any proceedings to obtain such a protective order to the
extent such cooperation is necessary to obtain such protective order and to the
extent the recipient determines its cooperation will not be disadvantageous to
it.  In the absence of a protective
order, if the recipient is nonetheless compelled or required to disclose such
confidential information in the opinion of its legal counsel, it may disclose
such confidential information, provided that the recipient shall give the
Company and the Canadian Company written notice of the confidential information
to be disclosed as far in advance of the disclosure as is practicable and, upon
the request and at the expense of the Company or the Canadian Company, shall
use its reasonable effects to obtain assurances that confidential treatment
shall be accorded such information by the receiving party.


(f)          Notwithstanding any other provision
contained in this Agreement or any other Loan Document to the contrary, any
Lender may assign all or any portion of the Loans or Revolving Notes held by it
to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Federal Reserve Board and any
Operating Circular issued by such Federal Reserve Bank, provided, that
any payment in respect of such assigned Loans or Revolving Notes made by the
Company to or for the account of the assigning or pledging Lender in accordance
with the terms of this Agreement shall satisfy the Company’s obligations
hereunder in respect to such assigned Loans or Revolving Notes to the extent of
such payment.  No such assignment shall
release the assigning Lender from its obligations hereunder.


(g)           BOA may assign its
obligations as an Issuer to an Affiliate of BOA, and BOA Canada may assign its
obligation as a Canadian Issuer to an Affiliate of BOA Canada, each without the
prior written consent of any party hereto. 
In connection with such assignment, each of the parties hereto agrees to
execute such documents as are reasonably requested by such Affiliate of BOA or
BOA Canada to effectuate such assignment.


(h)           Notwithstanding
anything to the contrary contained herein, if at any time BOA or BOA Canada, as
applicable, assigns all of its Commitment and Loans pursuant to subsection
10.8(a) above, BOA or BOA Canada may, (i) upon 30 days’ notice to the
Company, the Canadian Company and the Lenders, resign in its capacity as the
Issuer or the Canadian Issuer, as applicable, hereunder and/or (ii) upon
30 days’ notice to the Company, resign in its capacity as the provider of Swing
Line Loans (the “Swing Line Lender”).  In
the event of any such resignation as the Issuer, the Canadian Issuer or the
Swing Line Lender, the Company shall be entitled to appoint from among the
Lenders a successor Issuer, Canadian Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Company to appoint any such successor
shall affect the resignation of BOA or BOA Canada, as applicable, as the



 116
 









Issuer, the
Canadian Issuer or the Swing Line Lender, as the case may be.  If BOA resigns as the Issuer, or if BOA
Canada resigns as the Canadian Issuer, it shall retain all the rights and
obligations of the Administrative Agent as the Issuer or Canadian Issuer
hereunder with respect to all Letters of Credit or Canadian Letters of Credit
outstanding as of the effective date of its resignation as the Issuer or
Canadian Issuer (including the right to require the U.S. Lenders to make
Revolving Loans or fund participations therein and the right to require the
Canadian Lenders to make Canadian Loans or fund participations herein pursuant
to subsection 2.15(a)).  If BOA resigns
as the Swing Line Lender, it shall retain all the rights of the Administrative
Agent as the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the U.S. Lenders to make Revolving
Loans or fund participations in outstanding Swing Line Loans pursuant to
subsection 2.16(c).  The Company, the
Canadian Company, the Lenders and BOA agree that they shall amend this Agreement
as necessary to reflect that BOA remains the Administrative Agent and BOA
Canada for purposes of administering this Agreement, but has resigned in its
capacity as the Issuer, the Canadian Issuer and/or the Swing Line Lender and
another Lender(s) shall provides such service, including the obligation of the
successor to BOA as the Issuer, or BOA Canada as the Canadian Issuer, to issue
letters of credit in substitution for the Letters of Credit and/or Canadian
Letters of Credit, if any, outstanding at the time of such succession or to
make other arrangements satisfactory to BOA and/or BOA Canada to effectively
assume the obligations of BOA and/or BOA Canada with respect to such Letters of
Credit and/or Canadian Letters of Credit.


10.9.        Set-off.


In
addition to any rights and remedies of the Lenders provided by law, if an Event
of Default exists, each Lender is authorized at any time and from time to time,
without prior notice to the Company or the Canadian Company, any such notice
being waived by the Company and the Canadian Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing to, such Lender to or for the credit or the
account of the Company or the Canadian Company against any and all Obligations
or Canadian Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent, BOA Canada or such
Lender shall have made demand under this Agreement or any Loan Document and
although such Obligations or Canadian Obligations may be contingent or
unmatured.  Each Lender agrees promptly
to notify the Company, the Canadian Company, BOA Canada and the Administrative
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the
validity of such set-off and application. 
The rights of each Lender under this Section 10.9 are in addition to the
other rights and remedies (including other rights of set-off) which the
Lender may have.


10.10.      Collateral Accounts.


(a)           In connection with
the events described in Section 2.8, the Company and the Canadian Company each
hereby authorize and direct the Administrative Agent to establish



 117
 









and maintain
with the Administrative Agent, or at the Administrative Agent’s election, with
an Affiliate of the Administrative Agent, as blocked accounts in the name of
the Administrative Agent, on behalf of the Agents and the Lenders, deposit
accounts designated as the “Collateral Account - US” and the “Collateral
Account — Canada”.


(b)           All amounts held in
the Collateral Account — US pertaining to the Company shall secure the
Obligations and may be applied to the Obligations as provided in the Loan
Documents.  All amounts held in the
Collateral Account — Canada pertaining to the Canadian Company shall secure the
Canadian Obligations and may be applied to the Canadian Obligations as provided
in the Loan Documents.


(c)           Any interest
received in respect of investments of any amounts deposited in the Collateral
Accounts shall be remitted by the Administrative Agent to the Company or the
Canadian Company, as applicable, on the last Business Day of each calendar
quarter; provided, that the Administrative Agent shall not remit any
such interest if any Event of Default has occurred and is continuing.


(d)           Cash held by an
Administrative Agent, or an Affiliate of the Administrative Agent, in the
Collateral Accounts shall be invested or reinvested as follows:


(i)            Any funds on deposit in the
Collateral Accounts shall be held by the Administrative Agent, or any Affiliate
of the Administrative Agent, in a non-interest-bearing account; provided,
that so long as no Event of Default shall have occurred and be continuing, the
Company may, pursuant to written instructions, direct the Administrative Agent
to invest funds on deposit in the Collateral Accounts in Cash Equivalents as
indicated in such instructions; and


(ii)           The Administrative Agent is hereby
authorized to sell, and shall sell, all or any designated part of the
securities held in the Collateral Accounts (A) so long as no Event of
Default shall have occurred and be continuing, upon receipt of appropriate
written instructions from the Company or the Canadian Company, as applicable,
or (B) in any event if such sale is necessary to permit the Administrative
Agent or BOA Canada to perform its duties hereunder.  The Administrative Agent shall not have any
responsibility for any loss resulting from a fluctuation in interest rates, the
sale or disposition of any Cash Equivalent prior to the maturity date or
otherwise.


The
Collateral Accounts shall be subject to such applicable laws, and such
application regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate Governmental Authority, as may now or hereafter be
in effect.


(e)           In the event that
any security held in a Collateral Account — Canada granted by the Canadian
Company and held for the Canadian Obligations of the Canadian Company is
unenforceable by reason that such security secures “joint and several
obligations” in contrast to “several obligations”, notwithstanding any provision
hereof or of any other Loan



 118
 









Document, such
Canadian Obligations of the Canadian Company shall be several Canadian
Obligations.


10.11.      Notification of
Addresses, Lending Offices, Etc.


Each
Lender shall notify the Administrative Agent or BOA Canada, as applicable, in
writing of any changes in the address to which notices to the Lender should be
directed, of addresses of its Lending Offices, of payment instructions in
respect of all payments to be made to it hereunder and of such other
administrative information as the Administrative Agent or BOA Canada shall
reasonably request.


10.12.      Counterparts.


This
Agreement may be executed by one or more of the parties to this Agreement in
any number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument. 
A set of the copies of this Agreement signed by all the parties shall be
lodged with the Company and the Administrative Agent.


10.13.      Severability.


The
illegality or unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.


10.14.      No Third Parties
Benefited.


This
Agreement is made and entered into for the sole protection and legal benefit of
the Company, the Canadian Company, the Lenders and the Agents, and their permitted successors
and assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents.  Neither any
Agent nor any Lender shall have any obligation to any Person not a party
to this Agreement or other Loan Documents.


10.15.      Time.


Time
is of the essence as to each term or provision of this Agreement and each of
the other Loan Documents.


10.16.      Governing Law and Jurisdiction.


(a)           THIS
AGREEMENT, THE REVOLVING NOTES AND THE CANADIAN LOAN NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED,



 119
 









THAT
THE COMPANY, THE AGENTS AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE CANADIAN COMPANY, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
EACH OF THE COMPANY, THE CANADIAN COMPANY, EACH AGENT AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.  THE COMPANY, THE CANADIAN COMPANY, EACH AGENT
AND EACH LENDER EACH WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.  NOTWITHSTANDING THE FOREGOING, THE AGENTS AND
THE LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE
COMPANY, THE CANADIAN COMPANY OR ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION.


10.17.     Waiver
of Jury Trial.


THE COMPANY, THE CANADIAN COMPANY, THE LENDERS AND
THE AGENTS EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT,
THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE.  THE
COMPANY, THE CANADIAN COMPANY, THE LENDERS AND THE AGENTS EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY.  WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF.  THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT



 120
 









AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.


10.18.      Automatic Debits of
Fees.


With
respect to any non-use fee, arrangement fee, agency fee, upfront facility fee,
letter of credit fee or other fee, any interest payment, or any other cost or
expense (including Attorney Costs) due and payable to the Administrative Agent,
BOA Canada, any Issuer or Canadian Issuer under the Loan Documents, the Company
and the Canadian Company hereby irrevocably authorizes BOA and BOA Canada, upon
24 hours prior notice to the Company and the Canadian Company, to debit any
deposit account of the Company with BOA or of the Canadian Company with BOA
Canada in an amount such that the aggregate amount debited from all such
deposit accounts does not exceed such fee or other cost or expense.  If there are insufficient funds in such
deposit accounts to cover the amount of the fee or other cost or expense then
due, such debits will be reversed (in whole or in part, in BOA’s and BOA Canada’s
sole discretion) and such amount not debited shall be deemed to be unpaid.  No such debit under this Section shall be
deemed a set-off.


10.19.      Entire Agreement;
Release.


This
Agreement, together with the other Loan Documents, embodies the entire
agreement and understanding among the Company, the Canadian Company, the
Lenders and the Agents,
and supersedes all prior or contemporaneous Agreements and understandings of
such Persons, verbal or written, relating to the subject matter hereof and
thereof, except for the Fee Letter and any prior arrangements made with respect
to the payment by the Company of (or any indemnification for) any fees, costs
or expenses payable to or incurred (or to be incurred) by or on behalf of any Agent or any Lender.  Execution of this Agreement by the Company
constitutes a full, complete and irrevocable release of any and all claims
which the Company may have at law or in equity in respect of the Original
Credit Agreement and the transactions contemplated thereby and all prior
discussions and understandings, oral or written, relating to the subject matter
of this Agreement and the other Loan Documents.


10.20.      Judgment Currency.


If
for the purpose of obtaining judgment in any court it is necessary to convert
an amount due hereunder in the currency in which it is due (the “Original
Currency”) into another currency (the “Second Currency”), the rate of exchange
applied shall be that at which, in accordance with normal banking procedures,
the Administrative Agent or the relevant Lender, as the case may be, could
purchase in the New York foreign exchange market, the Original Currency with
the Second Currency on the date two (2) Business Days preceding that on which
judgment is given.  Each Loan Party
agrees that its obligation in respect of any Original Currency due from it
hereunder shall, notwithstanding any judgment or payment in such other
currency, be discharged only to the extent that, on the Business Day following
the date the Administrative Agent or



 121
 









relevant Lender, as the case may be, receives payment
of any sum so adjudged to be due hereunder in the Second Currency, the
Administrative Agent or such Lender may, in accordance with normal banking
procedures, purchase, in the New York foreign exchange market, the Original
Currency with the amount of the Second Currency so paid; and if the amount of
the Original Currency so purchased or could have been so purchased is less than
the amount originally due in the Original Currency, each Loan Party agrees as a
separate obligation and notwithstanding any such payment or judgment to
indemnify the Administrative Agent or such Lender, as the case may be, against
such loss.  The term “rate of exchange”
in this Section 10.20 means the spot rate at which the Administrative Agent or
relevant Lender, in accordance with normal practices, is able on the relevant
date to purchase the Original Currency with the Second Currency, and includes
any premium and costs of exchange payable in connection with such purchase.


10.21.      Patriot Act.


Each
Lender and each Agent (for itself and not on behalf of any Lender) hereby
notifies the Company and the Canadian Company that pursuant to the requirements
of the USA Patriot Act (Title III of Pub.L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies the Company and each Subsidiary, which information
includes the name and address of such Person and other information that will
allow such Lender or Agent, as applicable, to identify such Person in
accordance with the Patriot Act.  The
Company and the Canadian Company shall, and shall cause each of its respective
Subsidiaries to, provide, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by any Agent or
any Lender in order to assist such Agent or such Lender in maintaining compliance
with the Patriot Act.


[Signature Pages Follow]



 122















IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered in Chicago, Illinois by their proper and duly authorized
officers as of the day and year first above written.


	
   

  	
  LKQ CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark T. Spears

  
	
   

  	
  Its

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  120 North LaSalle Street, Suite 3300

  
	
   

  	
  Chicago, Illinois 60602

  
	
   

  	
  Attn: 

  	
  Mark Spears

  
	
   

  	
  Facsimile:

  	
  (312) 621-1969

  
	
   

  	
  Telephone:

  	
  (312) 621-2709

  
	
   

  	
   

  	
   

  
	
   

  	
  LKQ DELAWARE LLP

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark T. Spears

  
	
   

  	
  Its

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  120 N. LaSalle Street, Suite 3300

  
	
   

  	
  Chicago, IL 60602

  
	
   

  	
  Attn: 

  	
  Mark Spears

  
	
   

  	
  Facsimile:

  	
  (312) 621-1969

  
	
   

  	
  Telephone:

  	
  (312) 621-2709

  
	
   

  	
   

  	
   

  
				



 



 123
 









 


	
  

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   as the
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Suzanne M. Paul

  
	
   

  	
  Its

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  231 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60697

  
	
   

  	
  Attn: 

  	
  Agency Management Services

  
	
   

  	
  Facsimile:

  	
  (312) 974-9102

  
	
   

  	
  Telephone: 

  	
  (312) 828-7933

  
	
   

  	
   

  	
   

  
	
   

  	
  Administrative Agent’s Payment Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  901 Main Street

  
	
   

  	
  Dallas, Texas 75202-3714

  
	
   

  	
  Attn: 

  	
  Angela Azu

  
	
   

  	
  Facsimile:

  	
  (214) 290-9559

  
	
   

  	
  Telephone: 

  	
  (214) 209-3099

  
	
   

  	
   

  	
   

  
				



 



 124
 









 


	
  

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   as Issuer and
  as a U.S. Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Craig W. McGuire

  
	
   

  	
  Its

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  231 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60697

  
	
   

  	
  Attn: 

  	
  Craig McGuire

  
	
   

  	
  Facsimile:

  	
  (312) 828-1974

  
	
   

  	
  Telephone: 

  	
  (312) 828-1320

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  
	
   

  	
  901 Main Street

  
	
   

  	
  Dallas, Texas 75202

  
	
   

  	
  Attn: Matthew Stafford

  
	
   

  	
   

  	
   

  
				



 



 125
 









 


	
  

  	
  BANK OF AMERICA, N.A. , by its Canada Branch,

  
	
   

  	
   as BOA Canada

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Medina Sales de Andrade

  
	
   

  	
  Its

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  200 Front Street West

  
	
   

  	
  Suite 2700

  
	
   

  	
  Toronto, Ontario M5V-3L2

  
	
   

  	
  Canada

  
	
   

  	
  Attn: 

  	
  Medina Sales de Andrade

  
	
   

  	
  Facsimile: 

  	
  (416) 349-4283

  
	
   

  	
  Telephone: 

  	
  (416) 349-5433

  
	
   

  	
   

  	
   

  
	
   

  	
  BOA Canada’s Payment Office for Canadian Dollars:

  
	
   

  	
   

  	
   

  
	
   

  	
  200 Front Street West

  
	
   

  	
  Suite 2700

  
	
   

  	
  Toronto, Ontario M5V-3L2

  
	
   

  	
  Canada

  
	
   

  	
  Attn: 

  	
  Medina Sales de Andrade

  
	
   

  	
  Facsimile: 

  	
  (416) 349-4283

  
	
   

  	
  Telephone: 

  	
  (416) 349-5433

  
	
   

  	
   

  	
   

  
	
   

  	
  BOA Canada’s Payment Office for Dollars:

  
	
   

  	
   

  	
   

  
	
   

  	
  335 Madison Avenue

  
	
   

  	
  New York, New York 10017

  
	
   

  	
  Attn: Loans

  
	
   

  	
   

  	
   

  
				



 



 126
 









 


	
  

  	
  BANK OF AMERICA, N.A., by its Canada Branch,

  
	
   

  	
   as Canadian
  Issuer and as a Canadian Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Medina Sales de Andrade

  
	
   

  	
  Its

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  200 Front Street West

  
	
   

  	
  Suite 2700

  
	
   

  	
  Toronto, Ontario M5V-3L2

  
	
   

  	
  Canada

  
	
   

  	
  Attn: 

  	
  Medina Sales de Andrade

  
	
   

  	
  Facsimile: 

  	
  (416) 349-4283

  
	
   

  	
  Telephone: 

  	
  (416) 349-5433

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  901 Main Street

  
	
   

  	
  Dallas, Texas 75202

  
	
   

  	
  Attn: Matthew Stafford

  
	
   

  	
   

  	
   

  
				



 



 127
 









 


	
  

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  
	
   

  	
   as the
  Syndication Agent and as a U.S. Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Leemor Pogofsky

  
	
   

  	
  Its

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  
	
   

  	
  135 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: 

  	
  Mr. Steven M. Marks

  
	
   

  	
  Facsimile: 

  	
  (312) 904-4660

  
	
   

  	
  Telephone: 

  	
  (312) 904-6443

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  135 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: Bonita Conley

  
	
   

  	
   

  
				



 



 128
 









 


	
  

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  
	
   

  	
   as a Canadian
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Leemor Pogofsky

  
	
   

  	
  Its

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  135 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: 

  	
  Mr. Steven M. Marks

  
	
   

  	
  Facsimile:

  	
  (312) 904-4660

  
	
   

  	
  Telephone: 

  	
  (312) 904-6443

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  
	
   

  	
  135 South LaSalle Street

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: Bonita Conley

  
	
   

  	
   

  
				



 



 129
 









 


	
  

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

  
	
   

  	
   as the
  Documentation Agent and as a U.S. Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David J. Rudolph

  
	
   

  	
  Its 

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  120 South LaSalle, 2nd Floor — Mail Code IL1 1205

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: 

  	
  David J. Rudolph

  
	
   

  	
  Facsimile: 

  	
  (312) 661-3566

  
	
   

  	
  Telephone: 

  	
  (312) 661-7075

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  120 South LaSalle, 2nd Floor — Mail Code IL1 1205

  
	
   

  	
  Chicago, Illinois 60603

  
	
   

  	
  Attn: David Rudolph

  
	
   

  	
   

  	
   

  
				



 



 130
 









 


	
  

  	
  JPMORGAN CHASE BANK, N.A., TORONTO BRANCH

  
	
   

  	
   as a Canadian
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael N. Tam

  
	
   

  	
  Its

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  Royal Bank Plaza, South Tower

  
	
   

  	
  200 Bay Street, Suite 2000

  
	
   

  	
  Toronto, Ontario, M5J 2J2

  
	
   

  	
  Attn: 

  	
  Ms. Indrani Lazarus

  
	
   

  	
  Facsimile: 

  	
  (416) 981-9174

  
	
   

  	
  Telephone: 

  	
  (416) 981-9218

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  Royal Bank Plaza, South Tower

  
	
   

  	
  200 Bay Street, Suite 2000

  
	
   

  	
  Toronto, Ontario, M5J 2J2

  
	
   

  	
  Attn: Michael Tam

  
	
   

  	
   

  
				



 



 131
 









 


	
  

  	
  NATIONAL CITY BANK,

  
	
   

  	
   as the
  Co-Agent and as a U.S. Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Todd Kostelnik

  
	
   

  	
  Its 

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
   

  	
   

  
	
   

  	
  One North Franklin Street, Suite 2000

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attn: 

  	
  Todd Kostelnik, Vice President

  
	
   

  	
  Facsimile: 

  	
  (312) 240-0301

  
	
   

  	
  Telephone: 

  	
  (312) 384-4621

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  One North Franklin Street, Suite 2000

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
  Attn: Todd Kostelnik, Vice President

  
	
   

  	
   

  	
   

  
				



 



 132
 









 


	
  

  	
  NATIONAL CITY BANK, CANADA BRANCH,

  
	
   

  	
   as a Canadian
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Bill Hines

  
	
   

  	
  Its

  	
  Senior Vice President & Principal Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
  130 King Street West, Suite 2140

  
	
   

  	
  Toronto, Ontario M5X 1E4

  
	
   

  	
  Attn: 

  	
  Mike Danby

  
	
   

  	
  Facsimile: 

  	
  (416) 384-4621

  
	
   

  	
  Telephone: 

  	
  (416) 361-1744

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic and Offshore Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
  130 King Street West, Suite 2140

  
	
   

  	
  Toronto, Ontario M5X 1E4

  
	
   

  	
  Attn: Mike Danby

  
				



 



 133














LIST OF EXHIBITS


	
  Exhibit A

  	
  —

  	
  Compliance Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
  —

  	
  Notice of Revolving Borrowing

  
	
   

  	
   

  	
   

  
	
  Exhibit B-2

  	
  —

  	
  Notice of Canadian Borrowing

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
  Notice of Swing Line Borrowing

  
	
   

  	
   

  	
   

  
	
  Exhibit D-1

  	
  —

  	
  Notice of Conversion/Continuation

  
	
   

  	
   

  	
   

  
	
  Exhibit D-2

  	
  —

  	
  Notice of Canadian Conversion/Continuation

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
  Pricing Change Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit F-1

  	
  —

  	
  Revolving Note

  
	
   

  	
   

  	
   

  
	
  Exhibit F-2

  	
  —

  	
  Canadian Loan Note

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  —

  	
  Legal Opinions of Counsel for the Company and the
  Canadian Company

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  —

  	
  Assignment and Acceptance Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  —

  	
  Canadian Sublimit Certificate

  



 











LIST OF SCHEDULES


	
  Schedule 1.1(a)

  	
  —

  	
  Add-Backs to EBITDA

  
	
   

  	
   

  	
   

  
	
  Schedule 2.1

  	
  —

  	
  Commitments

  
	
   

  	
   

  	
   

  
	
  Schedule 2.3(g)

  	
  —

  	
  Existing Letters of Credit

  
	
   

  	
   

  	
   

  
	
  Schedule 5.1

  	
  —

  	
  Tradenames; Jurisdictions of Qualification

  
	
   

  	
   

  	
   

  
	
  Schedule 5.5

  	
  —

  	
  Litigation

  
	
   

  	
   

  	
   

  
	
  Schedule 5.8

  	
  —

  	
  Title to Properties

  
	
   

  	
   

  	
   

  
	
  Schedule 5.10

  	
  —

  	
  Liabilities not Reflected on Financial Statements

  
	
   

  	
   

  	
   

  
	
  Schedule 5.11

  	
  —

  	
  Environmental Matters

  
	
   

  	
   

  	
   

  
	
  Schedule 5.15

  	
  —

  	
  Labor Matters

  
	
   

  	
   

  	
   

  
	
  Schedule 5.16

  	
  —

  	
  Intellectual Property

  
	
   

  	
   

  	
   

  
	
  Schedule 5.17

  	
  —

  	
  Subsidiaries; Investments; Capitalization

  
	
   

  	
   

  	
   

  
	
  Schedule 5.19

  	
  —

  	
  Insurance

  
	
   

  	
   

  	
   

  
	
  Schedule 5.20

  	
  —

  	
  Locations

  
	
   

  	
   

  	
   

  
	
  Schedule 5.22

  	
  —

  	
  ERISA Matters

  
	
   

  	
   

  	
   

  
	
  Schedule 6.16

  	
  —

  	
  Post Closing Deliveries

  
	
   

  	
   

  	
   

  
	
  Schedule 7.1

  	
  —

  	
  Permitted Liens

  
	
   

  	
   

  	
   

  
	
  Schedule 7.4

  	
  —

  	
  Permitted Investments

  
	
   

  	
   

  	
   

  
	
  Schedule 7.5

  	
  —

  	
  Indebtedness

  
	
   

  	
   

  	
   

  
	
  Schedule 7.6

  	
  —

  	
  Affiliate Transactions

  
	
   

  	
   

  	
   

  
	
  Schedule 7.8

  	
  —

  	
  Contingent Obligations

  
	
   

  	
   

  	
   

  
	
  Schedule 7.10

  	
  —

  	
  Unconditional Purchase Options