Exhibit
10.1


 


FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT


 


Dated as of January 31, 2005


 


Among


 


ACCURIDE CORPORATION


 


and


 


ACCURIDE CANADA INC.,

as Borrowers


 


and


 


THE INITIAL LENDERS, INITIAL ISSUING BANK,

EXISTING ISSUING BANK AND SWING LINE BANK NAMED HEREIN,

as Initial Lenders, Initial Issuing Bank, Existing
Issuing Bank and Swing Line Bank


 


and


 


CITICORP USA, INC.,

as Administrative Agent


 


and


 


CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arranger and Joint Book-Runner


 


and


 


LEHMAN BROTHERS INC.,

as Joint Lead Arranger and Joint Book-Runner


 


and


 


LEHMAN COMMERCIAL PAPER INC.,

as Syndication Agent


 


and


 


UBS SECURITIES LLC,

as Documentation Agent


 





















 


TABLE
OF CONTENTS


 


	
  Section

  	
   

  	
   

  
	
   

  
	
  ARTICLE
  I

  	 

	
   

  	 

	
  DEFINITIONS AND
  ACCOUNTING TERMS

  	 

	
   

  	
   

  
	
  SECTION 1.01. Certain Defined Terms

  	
   

  
	
  SECTION 1.02. Computation of Time Periods

  	
   

  
	
  SECTION
  1.03. Accounting Terms

  	
   

  
	
  SECTION 1.04. Currency Equivalent

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  II

  	
   

  
	
   

  	
   

  
	
  AMOUNTS
  AND TERMS OF THE ADVANCES

  AND THE LETTERS OF CREDIT

  	
   

  
	
   

  	
   

  
	
  SECTION
  2.01. The Advances

  	
   

  
	
  SECTION 2.02. Making the Advances

  	
   

  
	
  SECTION 2.03. Issuance of and Drawings
  and Reimbursement Under Letters of Credit

  	
   

  
	
  SECTION
  2.04. Repayment of Advances

  	
   

  
	
  SECTION 2.05. Termination or Reduction of
  the Commitments

  	
   

  
	
  SECTION 2.06. Prepayments

  	
   

  
	
  SECTION
  2.07. Interest

  	
   

  
	
  SECTION 2.08. Fees

  	
   

  
	
  SECTION 2.09. Conversion of Advances

  	
   

  
	
  SECTION 2.10. Increased Costs, Etc

  	
   

  
	
  SECTION
  2.11. Payments and Computations

  	
   

  
	
  SECTION
  2.12. Taxes

  	
   

  
	
  SECTION 2.13. Sharing of Payments, Etc.

  	
   

  
	
  SECTION 2.14. Use of Proceeds

  	
   

  
	
  SECTION 2.15. Defaulting Lenders

  	
   

  
	
  SECTION 2.16. Incremental Facilities

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  III

  	
   

  
	
   

  	
   

  
	
  CONDITIONS OF
  EFFECTIVENESS AND LENDING

  	
   

  
	
   

  	
   

  
	
  SECTION 3.01. Conditions Precedent to the
  Initial Extension of Credit

  	
   

  
	
  SECTION
  3.02. Conditions Precedent to Each Borrowing and Issuance

  	
   

  
	
  SECTION
  3.03. Determinations Under Section 3.01

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  IV

  	
   

  
	
   

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  
	
  SECTION
  4.01. Representations and Warranties of Each Borrower

  	
   

  
				



 


i





















 


	
  ARTICLE
  V

  	
   

  
	
   

  	
   

  
	
  COVENANTS OF THE BORROWERS

  	
   

  
	
   

  	
   

  
	
  SECTION
  5.01. Affirmative Covenants

  	
   

  
	
  SECTION
  5.02. Negative Covenants

  	
   

  
	
  SECTION
  5.03. Reporting Requirements

  	
   

  
	
  SECTION
  5.04. Financial Covenants

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  GUARANTY

  	
   

  
	
   

  	
   

  
	
  SECTION 6.01. Guaranty

  	
   

  
	
  SECTION 6.02. Guaranty Absolute

  	
   

  
	
  SECTION 6.03. Waivers and Acknowledgments

  	
   

  
	
  SECTION 6.04. Subrogation

  	
   

  
	
  SECTION 6.05. Continuing Guaranty;
  Assignments

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  
	
  SECTION 7.01. Events of Default

  	
   

  
	
  SECTION 7.02. Application of Funds

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  
	
  THE ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  
	
  SECTION 8.01. Authorization and Action

  	
   

  
	
  SECTION 8.02.
  Administrative Agent’s Reliance, Etc

  	
   

  
	
  SECTION 8.03. Citicorp and Affiliates

  	
   

  
	
  SECTION 8.04. Lender Party Credit Decision

  	
   

  
	
  SECTION 8.05. Indemnification

  	
   

  
	
  SECTION 8.06. Successor Administrative
  Agents

  	
   

  
	
  SECTION 8.07. Lead Arrangers, Syndication
  Agent and Documentation Agent

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  SECTION 9.01. Amendments, Etc.

  	
   

  
	
  SECTION 9.02. Notices, Etc.

  	
   

  
	
  SECTION 9.03. No Waiver; Remedies

  	
   

  
	
  SECTION 9.04. Costs, Expenses

  	
   

  
	
  SECTION 9.05. Right of Set-off

  	
   

  
	
  SECTION 9.06. Binding Effect

  	
   

  
	
  SECTION 9.07. Assignments and
  Participations

  	
   

  



 


ii





















 


	
  SECTION 9.08. Replacements of Lenders
  Under Certain Circumstances

  	
   

  
	
  SECTION 9.09. Execution in Counterparts

  	
   

  
	
  SECTION 9.10. No Liability of the Issuing
  Bank

  	
   

  
	
  SECTION 9.11. Confidentiality

  	
   

  
	
  SECTION 9.12. Release of Collateral

  	
   

  
	
  SECTION 9.13. Jurisdiction, Etc

  	
   

  
	
  SECTION 9.14. Judgment

  	
   

  
	
  SECTION 9.15. Reference to and Effect on
  the Loan Documents

  	
   

  
	
  SECTION 9.16. Governing Law

  	
   

  
	
  SECTION 9.17. Waiver of Jury Trial

  	
   

  



 


iii





















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  Commitments and Applicable Lending Offices

  	
   

  
	
  Schedule II

  	
  Subsidiary Guarantors

  	
   

  
	
  Schedule III

  	
  Existing Letters of Credit

  	
   

  
	
  Schedule 3.01(d)

  	
  Surviving Debt

  	
   

  
	
  Schedule 3.01(k)(ix)

  	
  Mortgaged Properties

  	
   

  
	
  Schedule 4.01(a)

  	
  Investor Group

  	
   

  
	
  Schedule 4.01(b)

  	
  Subsidiaries and Restricted Subsidiaries

  	
   

  
	
  Schedule 4.01(d)

  	
  Government and Third Party Approvals

  	
   

  
	
  Schedule 4.01(m)

  	
  Environmental Issues

  	
   

  
	
  Schedule 4.01(p)

  	
  Existing Debt

  	
   

  
	
  Schedule 4.01(r)

  	
  Owned Real Property

  	
   

  
	
  Schedule 4.01(s)

  	
  Leased Real Property

  	
   

  
	
  Schedule 4.01(t)

  	
  Leases of Real Property

  	
   

  
	
  Schedule 4.01(u)

  	
  Intellectual Property

  	
   

  
	
  Schedule 5.02(a)

  	
  Existing Liens

  	
   

  
	
  Schedule 5.02(e)

  	
  Existing Investments

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  -

  	
  Form of Term Note

  	
   

  	 

	
  Exhibit A-2

  	
  -

  	
  Form of U.S. Revolving Credit Note

  	
   

  	 

	
  Exhibit A-3

  	
  -

  	
  Form of Canadian Revolving Credit Note

  	
   

  	 

	
  Exhibit B

  	
  -

  	
  Form of Notice of Borrowing

  	
   

  	 

	
  Exhibit C

  	
  -

  	
  Form of Assignment and Acceptance

  	
   

  	 

	
  Exhibit D

  	
  -

  	
  Form of Opinion of Borrowers’ Counsel

  	
   

  	 

	
  Exhibit E

  	
  -

  	
  Form of Opinion of Borrowers’ General Counsel

  	
   

  	 

	
  Exhibit F

  	
  -

  	
  Form of Opinion of Canadian Borrower’s Canadian
  Counsel

  	
   

  	 

	
  Exhibit G

  	
  -

  	
  Form of Opinion of Borrowers’ Mexican counsel

  	
   

  	 

	
  Exhibit H

  	
  -

  	
  Form of Solvency Certificate

  	
   

  	 

	
  Exhibit I

  	
  -

  	
  Form of Guarantee and Collateral Agreement

  	
   

  	 

	
  Exhibit J

  	
  -

  	
  Form of Mortgage

  	
   

  	 

	
  Exhibit K

  	
  -

  	
  Form of Joinder Agreement

  	
   

  	 




 


iv





















 


FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT


 


FOURTH
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 31, 2005
(this “Agreement”), among ACCURIDE CORPORATION, a Delaware corporation
(the “U.S. Borrower”), ACCURIDE CANADA INC., a corporation organized and
existing under the law of the Province of Ontario (the “Canadian Borrower”,
and, together with the U.S. Borrower, the “Borrowers”), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (together with the Canadian Revolving
Credit Lenders (as defined below), the “Initial Lenders”), CITIBANK,
N.A., a national banking association (“Citibank”), as the initial
issuing bank (the “Initial Issuing Bank”), CITIBANK, N.A., as the
existing issuing bank (the “Existing Issuing Bank”), CITICORP USA, INC.,
a Delaware corporation (“Citicorp”), as the swing line bank (the “Swing
Line Bank”) and as administrative agent (together with any successor
appointed pursuant to Article VIII, the “Administrative Agent”) for the
Lender Parties (as hereinafter defined), CITIGROUP GLOBAL MARKETS INC., as
joint lead arranger and joint book-runner (“CGMI”), and LEHMAN BROTHERS
INC., as joint lead arranger and joint book-runner (“Lehman”, and,
together with CGMI, the “Lead Arrangers”), LEHMAN COMMERCIAL PAPER INC.,
as syndication agent (“Syndication Agent”) for the Lender Parties, and
UBS SECURITIES LLC, as documentation agent (“Documentation Agent”) for
the Lender Parties.


 


PRELIMINARY STATEMENTS:


 


(1)           The
U.S. Borrower and Amber Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the U.S. Borrower (“Merger Sub”), have
entered into an agreement and plan of merger, dated as of December 24, 2004
(the “Merger Agreement”), with Transportation Technologies Industries,
Inc., a Delaware corporation (“TTI”), the Signing Stockholders
identified therein and Andrew Weller, Jay Bloom and Mark Dalton, as the Company
Stockholder Representatives, which sets forth, among other things, the terms
and conditions for the merger of TTI and Merger Sub (the “Merger”), with
TTI being the surviving company of the Merger and becoming a wholly-owned
subsidiary of the U.S. Borrower.


 


(2)           The
Borrowers entered into the Third Amended and Restated Credit Agreement, dated
as of June 13, 2003 (the “Existing Credit Agreement”), with the banks,
financial institutions and other institutional lenders party thereto as Lenders
(as defined therein), Citibank as Initial Issuing Bank, Citicorp as Swing Line
Bank and as Administrative Agent, CGMI and Lehman as joint lead arrangers and
joint book-runners for the Facilities (as defined therein), Lehman Commercial
Paper Inc. as Syndication Agent, and Deutsche Bank Trust Company Americas as
Documentation Agent.


 


(3)           The
Borrowers have requested to refinance a portion of the debt outstanding under
the Existing Credit Agreement by repaying in full the aggregate principal
amounts outstanding under each of the existing “New Term B Facility”, “Term C
Facility” and the “U.S. Revolving Credit Facility” under the Existing Credit
Agreement with proceeds from (i) a new term facility in an aggregate
principal amount of $550,000,000 and (ii) a new revolving facility in an aggregate
principal amount of $95,000,000.  The
existing “Canadian Revolving Credit Facility” under the Existing Credit
Agreement providing for an aggregate principal amount of $30,000,000 of loans
and commitments thereunder will remain outstanding as the Canadian Revolving
Credit Facility (as defined below) hereunder. 
It is the intent of the parties that the execution of this Agreement
does not result in a novation, recession or 


 





















 


substitution of the Canadian Revolving Credit Facility
and any outstanding obligations issued thereunder, but rather that the Canadian
Revolving Credit Facility under this Agreement is a continuation (subject to
the terms contained herein) of the Canadian Revolving Credit Facility under the
Existing Credit Agreement and that all obligations issued under the Canadian
Revolving Credit Facility will continue under this Agreement.


 


(4)           In
addition to the refinancing described in Preliminary Statement (3), the
following indebtedness will be repaid, redeemed, repurchased or otherwise satisfied
and discharged in full:


 


(a)           Indebtedness
of TTI under its first and second lien credit agreements, each dated as of
March 16, 2004, with the banks, financial institutions and other institutional
lenders party thereto as Lenders, Credit Suisse First Boston as administrative
agent, and the other agents party thereto;


 


(b)           The
12.5% senior subordinated notes due 2010 issued by TTI pursuant to an
indenture, dated as of May 21, 2004, among TTI, the guarantors named therein
and U.S. Bank National Association, as trustee; and


 


(c)           the
U.S. Borrower’s 9.25% senior subordinated notes due 2008 issued pursuant to an
indenture, dated as of January 21, 1998, between the U.S. Borrower and U.S.
Trust Company of California, N.A., as trustee.


 


The refinancings described in this Preliminary
Statement, together with the refinancing described in Preliminary Statement
(3), are collectively referred to as the “Refinancing”; and the
Refinancing and the Merger are collectively referred to as the “Transactions”.


 


(5)           In
order to (a) finance the Transactions, (b) pay certain fees and expenses
related to the Transactions and (c) finance the working capital and other
business requirements of the U.S. Borrower and its subsidiaries following the
consummation of the Transactions, (i) the U.S. Borrower intends to issue
$275,000,000 aggregate principal amount of its senior subordinated notes in a
Rule 144A private placement or a registered public offering and (ii) the
Borrowers have requested that the Lender Parties make the Advances and issue
and participate in the Letters of Credit (as such terms are hereinafter
defined) provided for herein.


 


(6)           The
Borrowers have requested that the Lender Parties party hereto agree to amend
and restate the Existing Credit Agreement in connection with the Transactions.


 


(7)           The
Lender Parties have indicated their willingness to agree to so amend and
restate the Existing Credit Agreement on the terms and conditions of this
Agreement.


 


NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, the parties hereto hereby agree that the Existing
Credit Agreement is amended and restated in its entirety to read as follows:


 


2





















 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.01. 
Certain Defined Terms.  As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms
of the terms defined):


 


“Accuride Erie”
means Accuride Erie LP, a Delaware limited partnership (formerly known as AKW
L.P.).


 


“Administrative Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Administrative Agent’s
Account” means the account of the Administrative Agent maintained by the
Administrative Agent with Citibank at its office at 399 Park Avenue, New York,
New York 10043, Account No. 3685-2248, Reference:  Accuride.


 


“Advance” means a
Term Advance, a New Term Advance, a Canadian Revolving Credit Advance, a U.S.
Revolving Credit Advance, a Swing Line Advance or a Letter of Credit Advance.


 


“Affiliate” means,
as to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person (or, in the case of
any Lender which is an investment fund, (a) the investment advisor thereof, and
(b) any other investment fund having the same investment advisor), or is a
director or officer of such Person.  For
purposes of this definition, the term “control” (including the terms “controlling,”
“controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.


 


“Agents” means,
collectively, the Administrative Agent, the Syndication Agent and the
Documentation Agent.


 


“Agreement” has
the meaning specified in the recital of parties to this Agreement.


 


“Applicable Lending
Office” means, with respect to (a) each Canadian Revolving Credit
Lender, such Lender Party’s Canadian Lending Office in the case of a Base Rate
Advance and such Lender Party’s Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and (b) each other Lender Party, such Lender Party’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender
Party’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.


 


“Applicable Margin”
means, for Advances outstanding under each of the Term Facility, the Canadian
Revolving Credit Facility and the U.S. Revolving Credit Facility, a percentage
per annum determined as described below and, where applicable, by reference to
the Performance Level as set forth for each such Facility:


 


(a)           for
Advances outstanding under the Term Facility, (i) for the period from the
Closing Date until the Trigger Date, 1.25% per annum in the case of Base Rate


 


3





















 


Advances and 2.25% per annum in the case of Eurodollar
Rate Advances and (ii) thereafter, a percentage per annum determined by
reference to the applicable Performance Level as set forth below:


 


	
  Performance Level

  	
   

  	
  Base Rate Advances

  	
   

  	
  Eurodollar Rate Advances

  	
   

  
	
  A

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  B

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  C

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  D

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  



 


(b)           for
Advances outstanding under the Canadian Revolving Credit Facility and the U.S.
Revolving Credit Facility, (i) for the period from the Closing Date until the
Trigger Date, 1.50% per annum in the case of Base Rate Advances and 2.50% per
annum in the case of Eurodollar Rate Advances and (ii) thereafter, a percentage
per annum determined by reference to the applicable Performance Level as set
forth below:


 


	
  Performance Level

  	
   

  	
  Base Rate Advances

  	
   

  	
  Eurodollar Rate Advances

  	
   

  
	
  A

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  B

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  C

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  
	
  D

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  



 


For outstanding Advances
under any Facility determined by reference to Performance Levels as set forth
above, the Applicable Margin for each Base Rate Advance shall be determined by
reference to the Performance Level in effect from time to time and the
Applicable Margin for each Eurodollar Rate Advance shall be determined by
reference to the Performance Level in effect on the first day of each Interest
Period for such Advance.  Changes in the
Applicable Margin resulting from changes in the Performance Level shall become
effective (for purposes of this definition only, the date of such effectiveness
being the “Effective Date”) as of the first day following the last day
of the most recent Fiscal Quarter or Fiscal Year for which (A) financial
statements are delivered to the Administrative Agent pursuant to Section
5.03(b) or (c) and (B) a certificate of the chief financial officer of the U.S.
Borrower is delivered by the U.S. Borrower to the Administrative Agent setting
forth, with respect to such financial statements, the then-applicable
Performance Level and the basis of the calculations therefor, and shall remain
in effect until the next change to be effected pursuant to this definition; provided
that (i) if either Borrower shall have made any payments in respect of interest
during the period (for purposes of this definition only, the “Interim Period”)
from and including the Effective Date to the day on which any change in
Performance Level is determined as provided above, then the amount of the next
such payment of interest due by such Borrower on or after such day shall be
increased or decreased by an amount equal to any underpayment or overpayment so
made by such Borrower during such Interim Period and (ii) each determination of
the Performance Level pursuant to this definition shall be made with respect to
the Measurement Period ending at the end of the fiscal period covered by the
relevant financial statements.


 


“Applicable Percentage”
means (a) for the period from the Closing Date until the Trigger Date, a rate
per annum equal to 0.50% and (b) thereafter, a rate per annum determined by
reference to the applicable Performance Level as set forth below.


 


	
  Performance Level

  	
   

  	
  Commitment Fee

  	
   

  
	
  A

  	
   

  	
  0.375

  	
  %

  
	
  B

  	
   

  	
  0.375

  	
  %

  
	
  C

  	
   

  	
  0.500

  	
  %

  
	
  D

  	
   

  	
  0.500

  	
  %

  



 


4





















 


The Applicable Percentage
determined pursuant to clause (b) above shall be determined by reference to the
Performance Level in effect from time to time. 
Changes in the Applicable Percentage resulting from changes in the
Performance Level shall become effective (for purposes of this definition only,
the date of such effectiveness being the “Effective Date”) as of the
first day following the last day of the most recent Fiscal Quarter or Fiscal
Year for which (A) financial statements are delivered to the Administrative
Agent pursuant to Section 5.03(b) or (c) and (B) a certificate of the chief
financial officer of the U.S. Borrower is delivered by the U.S. Borrower to the
Administrative Agent setting forth, with respect to such financial statements,
the then-applicable Performance Level and the basis of the calculations
therefor, and shall remain in effect until the next change to be effected
pursuant to this definition; provided that (i) if the U.S. Borrower
shall have made any payments in respect of commitment fees during the period
(for purposes of this definition only, the “Interim Period”) from the
Effective Date to the day on which any change in Performance Level is
determined as provided above, then the amount of the next such payment in
respect of commitment fees due by such Borrower on or after such day shall be
increased or decreased by an amount equal to any underpayment or overpayment so
made by such Borrower during such Interim Period and (ii) each determination of
the Performance Level pursuant to this definition shall be made with respect to
the Measurement Period ending at the end of the fiscal period covered by the
relevant financial statements.


 


“Applicable Rate”
has the meaning specified in Section 2.11(d).


 


“Appropriate Borrower”
means (a) with respect to the Canadian Revolving Credit Facility, the Canadian
Borrower and (b) with respect to the Term Facility, any New Term Facility, the
U.S. Revolving Credit Facility, the Swing Line Facility or the Letter of Credit
Facility, the U.S. Borrower.


 


“Appropriate Lender”
means, at any time, with respect to (a) any of the Term Facility, any New Term
Facility, the Canadian Revolving Credit Facility or the U.S. Revolving Credit
Facility, a Lender that has a Commitment with respect to such Facility at such
time, (b) the Letter of Credit Facility, (i) the Issuing Bank and (ii) the
other U.S. Revolving Credit Lenders and (c) the Swing Line Facility, (i) the
Swing Line Bank and (ii) if the other U.S. Revolving Credit Lenders have made
Swing Line Advances pursuant to Section 2.02(b) that are outstanding at such
time, each such other U.S. Revolving Credit Lender.


 


“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
Party and an Eligible Assignee, and accepted by the Administrative Agent and
the Appropriate Borrower, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.


 


“Assumption Agreement”
means an assumption agreement, substantially in the form of Annex 1 to the
Guarantee and Collateral Agreement.


 


“Available Amount”
means, as of any date of determination, an amount equal to (a) the sum of
(i) the amount of any capital contribution made in cash to the U.S.
Borrower during the period from the Closing Date to such date, (ii) an
amount equal to (x) the cumulative amount of Excess Cash Flow for all
Fiscal Years completed minus (y) the portion of such Excess Cash Flow


 


5





















 


that has been on
or prior to such date (or will be) applied to the prepayment of Advances in
accordance with Section 2.06(b)(i), (iii) the aggregate amount of all cash
dividends and other cash distributions received by the U.S. Borrower or any
Subsidiary Guarantor on or prior to such date from any Persons which are not
Restricted Subsidiaries (other than the portion of any such dividends or other
distributions that is used by the U.S. Borrower or any Subsidiary Guarantor to
pay taxes), (iv) the aggregate amount of all cash repayments of principal
received by the U.S. Borrower or any Subsidiary Guarantor on or prior to such
date from any Persons which are not Restricted Subsidiaries in respect of loans
made by the U.S. Borrower or such Subsidiary Guarantor to such Persons and
(v) the aggregate amount of all net cash proceeds received by the U.S.
Borrower or any Subsidiary Guarantor on or prior to such date in connection
with the sale, transfer or other disposition of its ownership interest in any
Person which is not a Restricted Subsidiary less (b) any amounts in
subclauses (i) through (v) of clause (a) above used for
(i) Investments pursuant to Section 5.02(e)(xi), (ii) Investments pursuant
to Section 5.02(e)(xiii) in excess of $125,000,000 or (iii) prepayments of
Debt pursuant to Section 5.02(g)(v).


 


“Available LC Amount”
of any Letter of Credit means, at any time, the maximum amount available to be
drawn under such Letter of Credit at such time (assuming compliance at such
time with all conditions to drawing).


 


“Bank Hedge Agreement”
means any interest rate Hedge Agreement permitted under Article V that is
entered into by and between the U.S. Borrower and any Hedge Bank.


 


“Base Rate” means
a fluctuating interest rate per annum in effect from time to time, which rate
per annum shall at all times be equal to the highest of:


 


(a)           (i)
with respect to the Term Advances and U.S. Revolving Credit Advances, the rate
of interest announced publicly by Citibank in New York, New York, from time to
time, as Citibank’s base rate and (ii) with respect to Canadian Revolving
Credit Advances, the variable rate of interest per annum specified from time to
time by Citibank as the reference rate of interest established or quoted from
time to time by Citibank Canada and then in effect for determining interest
rates on United States dollar denominated commercial loans made by Citibank
Canada in Canada;


 


(b)           the
sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
to the next higher 1/16 of 1%) of (i) 1⁄2 of 1% per annum, plus (ii) the rate
obtained by dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for three-month certificates
of deposit of major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of deposit dealers
to and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a percentage equal
to 100% minus the average of the daily percentages specified during such three-week
period by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or including (among
other liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual


 


6





















 


assessment rates estimated by Citibank for determining
the then current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar deposits of
Citibank in the United States; and


 


(c)           1⁄2
of one percent per annum above the Federal Funds Rate.


 


“Base Rate Advance”
means an Advance that bears interest as provided in Section 2.07(a)(i).


 


“Borrower’s Account”
means (a) with respect to the Canadian Borrower, the account of the Canadian
Borrower maintained by the Canadian Borrower with Citibank Canada at its office
at 123 Front Street West, 10th Floor, Toronto, Ontario, Canada, M5J2M3, Account
No. 2/012752/019, Re: Accuride Canada Inc. and (b) with respect to the U.S.
Borrower, the account of the U.S. Borrower maintained by the U.S. Borrower with
Citibank at its office at 399 Park Avenue, New York, New York 10043, Account
No. 4075-2127, Re: Accuride Corporation.


 


“Borrowers” has
the meaning specified in the recital of parties to this Agreement.


 


“Borrowing” means
a Term Borrowing, a New Term Borrowing of any Series, a Canadian Revolving
Credit Borrowing, a U.S. Revolving Credit Borrowing or a Swing Line Borrowing.


 


“Business Day”
means a day of the year on which banks are not required or authorized by law to
close in New York City and with respect to notices and determinations in
connection with, and payments of principal and interest on, the Canadian
Revolving Credit Advances, on which banks are not required or authorized to
close in Toronto, Ontario, Canada, and if the applicable Business Day relates
to any Eurodollar Rate Advances, on which dealings are carried on in the London
interbank market.


 


“Canadian Borrower”
has the meaning specified in the recital of parties to this Agreement.


 


“Canadian Confirmation
and Amendment” has the meaning specified in Section 3.01(k)(viii).


 


“Canadian Lending
Office” means, with respect to any Canadian Revolving Credit Lender, the
office of a Subsidiary or Affiliate of such Lender Party specified as its “Canadian
Lending Office” opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may be, or
such other office of such Lender Party as such Lender Party may from time to
time specify to the Canadian Borrower and the Administrative Agent.


 


“Canadian Reduction
Amount” has the meaning specified in Section 2.06(b)(v).


 


“Canadian Revolving
Credit Advance” has the meaning specified in Section 2.01(e).


 


“Canadian Revolving
Credit Borrowing” means a borrowing consisting of simultaneous Canadian
Revolving Credit Advances of the same Type made by the Canadian Revolving
Credit Lenders.


 


7





















 


“Canadian Revolving
Credit Commitment” means, with respect to any Canadian Revolving Credit
Lender at any time, the amount set forth opposite such Lender’s name on
Schedule I hereto under the caption “Canadian Revolving Credit Commitment” or,
if such Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as such Lender’s “Canadian Revolving Credit
Commitment”, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.


 


“Canadian Revolving
Credit Facility” means, at any time, the aggregate amount of the Canadian
Revolving Credit Lenders’ Canadian Revolving Credit Commitments at such time
which amount shall not exceed $30,000,000.


 


“Canadian Revolving
Credit Lender” means any Lender that has a Canadian Revolving Credit
Commitment.


 


“Canadian Revolving
Credit Note” means a promissory note of the Canadian Borrower payable to
the order of any Canadian Revolving Credit Lender, in substantially the form of
Exhibit A-3 hereto, evidencing the aggregate indebtedness of the Canadian
Borrower to such Lender resulting from the Canadian Revolving Credit Advances
made by such Lender.


 


“Canadian Security
Agreement” means the Security Agreement, dated as of July 27, 2001,
between the Canadian Borrower and the Administrative Agent for the benefit of
the Secured Parties, as amended as of June 13, 2003 and by the Canadian
Confirmation and Amendment dated as of the date hereof and as further amended,
supplemented or otherwise modified from time to time.


 


“Capital Expenditures”
means, for any Person for any period, the sum, without duplication, of all
expenditures made, directly or indirectly (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capitalized Leases, but excluding any amount representing capitalized
interest), by such Person or any of its Restricted Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have been or
should be, in accordance with GAAP, reflected as additions to property, plant
or equipment on a Consolidated balance sheet of such Person; provided
that Capital Expenditures shall not include (without duplication) (a) any
expenditures made in connection with the replacement, substitution, repair or
restoration of any assets to the extent financed (i) with insurance proceeds
received by the U.S. Borrower or any of its Restricted Subsidiaries on account
of the loss of, or any damage to, the assets being replaced, substituted for,
repaired or restored or (ii) with the proceeds of any compensation awarded to
the U.S. Borrower or any of its Restricted Subsidiaries as a result of the
taking, by eminent domain or condemnation, of the assets being replaced or
substituted for, (b) any expenditures for the purchase price of any equipment
that is purchased simultaneously with the trade-in of any existing equipment by
the U.S. Borrower or any of its Restricted Subsidiaries to the extent that the gross
amount of such purchase price is reduced by any credit granted by the seller of
such equipment for the equipment being traded in, (c) any expenditures for the
purchase price of any property, plant or equipment purchased within one year of
the consummation of any sale, lease, transfer or other disposition of any asset
of the U.S. Borrower or any of its Restricted Subsidiaries in accordance with
the provisions of Section 5.02(d) to the extent purchased with Net Cash
Proceeds of such sale, lease, transfer or other disposition, (d) Investments
made pursuant to Section 5.02(e)(ix) or (e) any acquisition by the U.S.
Borrower or any of its Restricted Subsidiaries (by purchase or otherwise) of
all or substantially all of the business, property or fixed


 


8





















 


assets of, or the
stock or other evidence of beneficial ownership of, any Person or any division,
business unit or line of business of any Person in accordance with Section
5.02(e).


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Collateral
Account” has the meaning specified in the Guarantee and Collateral
Agreement.


 


“Cash Equivalents”
means (a) marketable securities (i) issued or directly and unconditionally
guaranteed as to interest and principal by the United States government or (ii)
issued by any agency of the United States of America the obligations of which
are backed by the full faith and credit of the United States, in each case
maturing within 24 months after the date of acquisition thereof; (b) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within 24 months after the date of acquisition thereof
and having, at the time of the acquisition thereof, an investment grade rating
generally obtainable from either Standard & Poor’s Ratings Services (“S&P”)
or Moody’s Investors Service, Inc. (“Moody’s”); (c) commercial paper
maturing no more than 12 months from the date of creation thereof and having,
at the time of the acquisition thereof, a rating of a least A-2 from S&P or
at least P-2 from Moody’s; (d) domestic and eurodollar certificates of
deposit or bankers’ acceptances maturing within 24 months after the date of
acquisition thereof and issued or accepted by any Lender or by any other
commercial bank that has combined capital and surplus of not less than
$250,000,000; (e) repurchase agreements with a term of not more than 30 days
for underlying securities of the types described in clauses (a), (b) and (d)
above entered into with any commercial bank meeting the requirements specified
in clause (d) above or with any securities dealer of recognized national
standing, (f) shares of investment companies that are registered under the
Investment Company Act of 1940 and that invest solely in one or more of the
types of investments referred to in clauses (a) through (e) above, and (g) in
the case of any Restricted Subsidiary which is not a U.S. Person, high quality,
short-term liquid Investments made by such Restricted Subsidiary in the
ordinary course of managing its surplus cash position in a manner consistent
with past practices.


 


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


 


“CGMI” has the
meaning specified in the recital of parties to this Agreement.


 


“Change of Control”
means, and shall be deemed to have occurred, if:  (a) (i) the Investor Group shall at
any time not own, in the aggregate, directly or indirectly, beneficially and of
record, at least 35% of the outstanding Voting Stock of the U.S. Borrower
(other than as the result of one or more widely distributed offerings of common
stock of the U.S. Borrower, in each case whether by the U.S. Borrower or by the
Investor Group, including, without limitation, the IPO) and/or (ii) any person,
entity or “group” (within the meaning of Section 13(d) or 14 (d) of the Exchange
Act) shall at any time have acquired direct or indirect beneficial ownership of
a percentage of the outstanding Voting Stock of the U.S. Borrower that exceeds
the percentage of such Voting Stock then beneficially owned, in the aggregate,
by the Investor Group, unless, in the case of either clause (i) or (ii)
above, the Investor Group shall, at the relevant time, have the collective
right or ability, either by contract or pursuant to a written proxy or other
written evidence of voting power, to elect or designate for election a majority
of the Board of Directors of the U.S. Borrower; and/or (b) at any time
Continuing Directors shall not constitute a majority of the Board of Directors
of the U.S. Borrower; and/or (c) Trimaran shall at any time have acquired


 


9





















 


direct or indirect
beneficial ownership of a percentage of the outstanding Voting Stock of the
U.S. Borrower that equals or exceeds the percentage of such Voting Stock then
beneficially owned, in the aggregate, by KKR and Hubcap; and/or (d) a Specified
Change of Control shall occur.  For
purposes of this definition, “Continuing Director” means, as of any date of
determination, an individual (i) who is a member of the Board of Directors of
the U.S. Borrower on the Closing Date, (ii) who, as of such date of
determination, has been a member of such Board of Directors for at least the 12
preceding months (or, if such date of determination occurs during the period
comprising the first 12 months after the Closing Date, since the Closing Date),
or (iii) who has been nominated to be a member of such Board of Directors,
directly or indirectly, by KKR or its Affiliates, or Persons nominated by KKR
or its Affiliates, or who has been nominated to be a member of such Board of
Directors by a majority of the other Continuing Directors then in office.


 


“Citibank” has the
meaning specified in the recital of parties to this Agreement.


 


“Citicorp” has the
meaning specified in the recital of parties to this Agreement.


 


“Closing Date” has
the meaning specified in Section 3.01.


 


“Collateral” means
all “Collateral” referred to in the Collateral Documents and all other property
that is or is intended to be subject to any Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.


 


“Collateral Documents”
means the Guarantee and Collateral Agreement, the Canadian Security Agreement,
the Mexican Pledge Agreement, the TTI Mexican Pledge Agreement, the Mortgages,
and any other agreement that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties.


 


“Commitment” means
a Term Commitment, a New Term Commitment, a Canadian Revolving Credit
Commitment, a U.S. Revolving Credit Commitment or a Letter of Credit Commitment.


 


“Communications”
has the meaning specified in Section 9.02(b).


 


“Confidential
Information” has the meaning specified in Section 9.11(a).


 


“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.


 


“Conversion”, “Convert”
and “Converted” each refer to a conversion of Advances of one Type into
Advances of the other Type pursuant to Section 2.09 or 2.10.


 


“Cumulative Available
Consolidated Net Income” means, as of any date of determination,
Consolidated Net Income of the U.S. Borrower and its Restricted Subsidiaries
less cash dividends paid with respect to Preferred Stock for the period (taken
as one accounting period) commencing on the Closing Date and ending on the last
day of the most recent Fiscal Quarter for which financial statements have been
delivered to the Lender Parties pursuant to Section 5.03(b) or (c).


 


“Current Assets”
of any Person means all assets of such Person that would, in accordance with
GAAP, be classified as current assets of a company conducting a business the
same as or similar to that of such Person, after deducting adequate reserves in
each case in which a reserve is proper in accordance with GAAP, but excluding
the current portion of any deferred income taxes.


 


10





















 


“Current Liabilities”
of any Person means (a) all Debt of such Person that by its terms is payable on
demand or matures within one year after the date of determination (excluding
any Debt renewable or extendible, at the option of such Person, to a date more
than one year from such date or arising under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during a period
of more than one year from such date) and (b) all other items (including taxes
accrued as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person, but excluding the current portion of any
deferred income taxes.


 


“Date-down
Endorsements” has the meaning specified in Section 5.01(o)(i)(A).


 


“Debt” of any Person
means, without duplication, (a) all indebtedness of such Person for borrowed
money, (b) all Obligations of such Person for the deferred purchase price of
property or services (other than trade payables and accrued expenses incurred
in the ordinary course of such Person’s business) that in accordance with GAAP
would be shown on the liability side of the balance sheet of such Person, (c)
all Obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), it being understood that if such Person
has not assumed or otherwise become liable for such Obligations, the amount of
the Debt of such Person in connection therewith shall be limited to the lesser
of the face amount of the related Obligations or the fair market value of all
property of such Person securing such Obligations, (e) all Obligations of such
Person as lessee under Capitalized Leases, (f) all Obligations, contingent or
otherwise, of such Person under acceptance, letter of credit or similar
facilities issued for the account of such Person, (g) all Obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to in
clauses (a) through (g) above or clause (i) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Debt or to assure the holder of such Debt against loss, (iii) to supply
funds to or in any other manner invest in the debtor (including any agreement
to pay for property or services irrespective of whether such property is
received or such services are rendered) or (iv) otherwise to assure a creditor
against loss; provided that any such guaranteed Obligations shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business, and (i) all Debt referred to in clauses (a) through (h)
above of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Debt; provided that the amount of Debt of such Person
under clauses (h) and (i) above shall (subject to any obligation set forth
therein) be deemed to be the principal amount of the Debt guaranteed or secured
thereby and, with respect to any Lien on property of such Person as described
in clause (i) above, if such Person has not assumed or otherwise become liable
for any such Debt, the amount of the Debt of such Person in connection
therewith shall be limited to the lesser of the face amount of such Debt or the
fair market value of all property of such Person securing such Debt.


 


“Default” means
any Event of Default or any event that would constitute an Event of Default but
for the requirement that notice be given or time elapse or both.


 


11





















 


“Defaulted Advance”
means, with respect to any Lender Party at any time, the portion of any Advance
required to be made by such Lender Party to either Borrower pursuant to Section
2.01 or 2.02 at or prior to such time which has not been made by such Lender
Party or by the Administrative Agent for the account of such Lender Party
pursuant to Section 2.02(e) as of such time. 
In the event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.15(a), the remaining portion of such Defaulted Advance
shall be considered a Defaulted Advance originally required to be made pursuant
to Section 2.01 on the same date as the Defaulted Advance so deemed made in
part.


 


“Defaulted Amount”
means, with respect to any Lender Party at any time, any amount required to be
paid by such Lender Party to the Administrative Agent or any other Lender Party
hereunder or under any other Loan Document at or prior to such time which has
not been so paid as of such time, including, without limitation, any amount
required to be paid by such Lender Party to (a) the Swing Line Bank pursuant to
Section 2.02(b) to purchase a portion of a Swing Line Advance made by the Swing
Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion
of a Letter of Credit Advance made by the Issuing Bank, (c) the Administrative
Agent pursuant to Section 2.02(e) to reimburse the Administrative Agent for the
amount of any Advance made by the Administrative Agent for the account of such
Lender Party, (d) any other Lender Party pursuant to Section 2.13 to purchase
any participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 8.05 to reimburse
the Administrative Agent or the Issuing Bank for such Lender Party’s ratable
share of any amount required to be paid by the Lender Parties to the
Administrative Agent or the Issuing Bank as provided therein.  In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.15(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the same date
as the Defaulted Amount so deemed paid in part.


 


“Defaulting Lender”
means, at any time, any Lender Party that, at such time, (a) owes a
Defaulted Advance or a Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described in Section 7.01(f).


 


“Documentation Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Domestic Lending
Office” means, with respect to any Lender Party, the office of such Lender
Party specified as its “Domestic Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant to which it became a
Lender Party, as the case may be, or such other office of such Lender Party as
such Lender Party may from time to time specify to the U.S. Borrower and the
Administrative Agent.


 


“Domestic Subsidiary”
means any Subsidiary of the U.S. Borrower which is not a Foreign Subsidiary.


 


“EBITDA” means,
for any period, the sum, determined on a Consolidated basis, of the amounts for
such period of (a) Net Income plus (b) to the extent included in
computing Net Income, the sum (without duplication) of (i) Interest Expense,
(ii) taxes computed on the basis of income, (iii) depreciation expense, (iv)
amortization expense (including amortization of deferred financing fees), (v)
any expenses or charges incurred in connection with any issuance of debt or
equity securities (including upfront fees payable in respect of bank
facilities), (vi) any fees and expenses related to Investments permitted
pursuant to Section 5.02(e) of this Agreement, (vii)


 


12





















 


losses on asset
sales, (viii) restructuring charges or reserves, (ix) any deduction for
minority interest expense, (x) any other non-cash charges, (xi) any other
non-recurring charges, (xii) currency losses (except any losses on currency
hedging agreements that are entered into to hedge against fluctuations in
foreign currencies with respect to items included in calculating “Operating
Income”), (xiii) fees or expenses incurred or paid by the U.S. Borrower or any
of its Restricted Subsidiaries in connection with the Transactions and the
financing therefor, (xiv) fees or expenses incurred or paid by the U.S.
Borrower or any of its Restricted Subsidiaries in connection with the IPO and
(xv) additional expenses in connection with labor disruptions or the potential
therefor, minus (c) to the extent included in computing Net Income the
sum, without duplication, the amounts for such period of (i) any non-recurring
gains, (ii) all non-cash gains, (iii) gains on asset sales and
(iv) currency gains (except any gains on currency hedging agreements that
are entered into to hedge against fluctuations in foreign currencies with
respect to items included in calculating “Operating Income”), in each case of
the U.S. Borrower and its Restricted Subsidiaries, determined in accordance
with GAAP for such period; provided that (A) for purposes of such
calculation, in the case of any Restricted Subsidiary acquired by the U.S.
Borrower or any of its Restricted Subsidiaries following the commencement of
any such period, amounts attributable to such Restricted Subsidiary shall be
calculated as though such Restricted Subsidiary had been acquired on the first
day of such period, (B) for purposes of Sections 5.02(e)(viii) and 5.04 only,
in the case of each Person who becomes a Restricted Subsidiary of the U.S.
Borrower or any of its Restricted Subsidiaries following the commencement of
such period, EBITDA shall be increased or decreased, as the case may be, by the
Pro Forma EBITDA Adjustment and (C) for purposes of the proviso in Section 5.04
only, EBITDA shall be increased by an amount of cash equity contributions made
by the Investor Group to the U.S. Borrower as set forth therein.


 


“Eligible Assignee”
means (a) with respect to the Term Facility, any New Term Facility or the U.S.
Revolving Credit Facility, (i) a Lender, (ii) an Affiliate of a Lender or a
Related Fund of a Lender, (iii) a commercial bank organized under the laws of
the United States, or any State thereof, and having total assets of at least
$3,000,000,000, (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets of at least $3,000,000,000, (v) a commercial bank organized under the
laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such country,
and having total assets in excess of $3,000,000,000, so long as such bank is
acting through a branch or agency located in the United States, (vi) the
central bank of any country that is a member of the OECD, (vii) a finance
company, insurance company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having total assets in excess of $250,000,000, and (viii) any other Person
approved by the Administrative Agent and the U.S. Borrower, in each case such
approval not to be unreasonably withheld or delayed, (b) with respect to the
Canadian Revolving Credit Facility, (i) a bank listed on Schedule I or II to
the Bank Act (Canada), and having a combined capital and surplus of at least
$250,000,000, and, so long as no Event of Default has occurred and is
continuing, approved by the Canadian Borrower, such approval not to be
unreasonably withheld or delayed, (ii) a finance company, insurance company or
other financial institution or fund (whether a corporation, partnership, trust
or other entity) that is a resident of Canada for purposes of the Income Tax Act (Canada) or that is an
authorized foreign bank deemed to be a resident of Canada for the purposed of
Part XIII of the Income Tax (Canada)
in respect of any amount paid to such bank under the Canadian Revolving Credit
Facility, as the case may be, and (iii) any other Person approved by the
Administrative Agent and, so long as no Event of Default has occurred


 


13





















 


and is continuing,
the Canadian Borrower, in each case such approval not to be unreasonably
withheld or delayed, provided that the Canadian Borrower shall not be
obliged to approve any person that has not provided the Canadian Borrower with
evidence satisfactory to it as to such Person’s residency and in no event shall
the Canadian Borrower be obliged to approve any Person that does not meet the
residency requirements set forth in subclause (ii) above, and (c) with
respect to the Letter of Credit Facility, a Person that is an Eligible Assignee
under subclause (ii), (iii) or (v) of clause (a) of this definition and is
approved by the Administrative Agent and the U.S. Borrower, in each case such
approval not to be unreasonably withheld or delayed; provided, however,
that neither any Loan Party nor any Affiliate of a Loan Party shall qualify as
an Eligible Assignee under this definition.


 


“Environmental Action”
means any action, suit, demand, demand letter, claim, notice of non-compliance
or violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or Hazardous Material or arising
from alleged injury or threat to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
and (b) by any governmental or regulatory authority or third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.


 


“Environmental Law”
means any federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, writ, judgment, injunction, decree or judicial or
agency interpretation, policy or guidance relating to pollution or protection
of the environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.


 


“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


“Equity Interests”
means, with respect to any Person, shares of capital stock of (or other
ownership or profit interests in) such Person, warrants, options or other
rights for the purchase or other acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person,
securities convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.  Section references to ERISA are to
ERISA as in effect at the date of this Agreement and any subsequent provisions
of ERISA amendatory thereof, supplemental thereto or substituted therefor.


 


“ERISA Affiliate”
means each person (as defined in Section 3(9) of ERISA) that together with any
Loan Party would be deemed to be a “single employer” within the meaning of
Section 414(b) or (c) of the Internal Revenue Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Internal Revenue Code, is treated
as a single employer under Section 414 of the Internal Revenue Code.


 


14





















 


“Eurocurrency
Liabilities” has the meaning specified in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.


 


“Eurodollar Lending
Office” means, with respect to any Lender Party, the office of such Lender
Party specified as its “Eurodollar Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender Party (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender Party as such Lender Party may
from time to time specify to the Appropriate Borrower and the Administrative
Agent.


 


“Eurodollar Rate”
means, for any Interest Period for all Eurodollar Rate Advances comprising part
of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple of
1/16 of 1%) of the rate per annum at which deposits in U.S. dollars are offered
by the principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank’s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period (or, if
any Reference Bank shall not have such a Eurodollar Rate Advance, $1,000,000)
and for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.  The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.07.


 


“Eurodollar Rate
Advance” means an Advance that bears interest as provided in Section
2.07(a)(ii).


 


“Eurodollar Rate
Reserve Percentage” for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing means the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.


 


“Events of Default”
has the meaning specified in Section 7.01.


 


“Excess Cash Flow”
means, for any period, an amount equal to the sum, without duplication, of:


 


(a)           Consolidated Net Income of the U.S. Borrower and its
Restricted Subsidiaries for such period (other than any portion of Consolidated
Net Income attributable to earnings in respect of joint venture interests in
excess of dividends or distributions actually received by the U.S. Borrower and
its Restricted Subsidiaries), plus


 


15





















 


(b)           the aggregate amount of all non-cash charges deducted in
arriving at such Consolidated Net Income, plus


 


(c)           the amount of any net decrease in the excess of
Consolidated Current Assets (excluding cash and Cash Equivalents) over
Consolidated Current Liabilities of the U.S. Borrower and its Restricted
Subsidiaries during such period, minus


 


(d)           the aggregate amount of all non-cash credits included in
arriving at such Consolidated Net Income, plus


 


(e)           the aggregate net non-cash loss realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the sale, lease,
transfer or other disposition of assets (other than sales of inventory in the
ordinary course of business) by the U.S. Borrower and its Restricted
Subsidiaries during such period, minus


 


(f)            the aggregate amount of Capital Expenditures made by the
U.S. Borrower and its Restricted Subsidiaries in cash (excluding the principal
amount of any Debt incurred to finance such Capital Expenditures, whether
incurred in such period or a subsequent period) pursuant to Section 5.02(j), minus


 


(g)           the amount of any net increase in the excess of
Consolidated Current Assets (less cash and Cash Equivalents) over Consolidated
Current Liabilities of the U.S. Borrower and its Restricted Subsidiaries during
such period, minus


 


(h)           the aggregate amount of any premium, make-whole or penalty
payments actually paid in cash during such period that are required in
connection with any prepayment of Debt and that are accounted for by the U.S.
Borrower as extraordinary items, minus


 


(i)            the aggregate amount of all mandatory prepayments of
Canadian Revolving Credit Advances, U.S. Revolving Credit Advances, Letter of
Credit Advances and Swing Line Advances made during such period (to the extent
the Canadian Revolving Credit Facility or the U.S. Revolving Credit Facility,
as the case may be, is permanently reduced by the amount of such prepayments), minus


 


(j)            the aggregate amount of all scheduled principal payments
of Debt of the U.S. Borrower or its Restricted Subsidiaries (including, without
limitation, Term Advances and New Term Advances and the principal component of
payments with respect to Obligations under Capitalized Leases, but excluding
Canadian Revolving Credit Advances, U.S. Revolving Credit Advances, Letter of
Credit Advances and Swing Line Advances), minus


 


(k)           the amount of Investments made during such period pursuant
to Section 5.02(e) to the extent that such Investments were financed with
internally generated cash flow of the U.S. Borrower and its Restricted
Subsidiaries, minus


 


(l)            the aggregate amount of expenditures actually made by the
U.S. Borrower and its Restricted Subsidiaries in cash during such period
(including, without limitation, the payment of financing fees) to the extent
that such expenditures are not expensed during such period, minus


 


16





















 


(m)          cash payments by the Borrowers and their Restricted
Subsidiaries during such period in respect of long-term liabilities of the
Borrowers and their Restricted Subsidiaries other than Debt, minus


 


(n)           the amount paid during such period by the U.S. Borrower to
repurchase shares of its capital stock (and/or options or warrants in respect
thereof) held by its officers, directors and employees so long as such
repurchase is pursuant to, and in accordance with the terms of management
and/or employee stock plans, stock subscription agreements or shareholder
agreements, minus


 


(o)           the aggregate net non-cash gain realized by the U.S.
Borrower and its Restricted Subsidiaries in connection with the sale, lease,
transfer or other disposition of assets (other than sales of inventory in the
ordinary course of business) by the U.S. Borrower and its Restricted
Subsidiaries during such period.


 


“Existing Credit
Agreement” has the meaning specified in Preliminary Statement (2).


 


“Existing Debt”
means Debt of the U.S. Borrower and its Restricted Subsidiaries outstanding
immediately before the Closing Date.


 


“Existing Issuing Bank”
has the meaning specified in the recital of parties to this Agreement.


 


“Existing Letters of
Credit” means the letters of credit described in Schedule III.


 


“Existing Mortgaged
Properties” has the meaning specified in Section 3.01(k)(ix).


 


“Facility” means
the Term Facility, any New Term Facility, the Canadian Revolving Credit
Facility, the U.S. Revolving Credit Facility, the Swing Line Facility or the
Letter of Credit Facility.


 


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


 


“Fiscal Quarter”
means any fiscal quarter of the U.S. Borrower and its Consolidated Subsidiaries
that occurs within any Fiscal Year.


 


“Fiscal Year”
means a fiscal year of the U.S. Borrower and its Consolidated Subsidiaries
ending on December 31 in any calendar year.


 


“Fixed Charge Coverage
Ratio” means, as of any date of determination, the ratio of Consolidated
EBITDA of the U.S. Borrower and its Restricted Subsidiaries to the sum of (a)
Consolidated Interest Expense, plus (b) Capital Expenditures made
pursuant to Section 5.02(j)(i) (but specifically excluding Capital Expenditures
under Section 5.02(j)(ii)) from cash on hand or Borrowings under the Canadian
Revolving Credit Facility or the U.S. Revolving Credit Facility,


 


17





















 


plus (c) principal amounts of all Funded Debt
payable (unless paid in a prior period), in each case, by the U.S. Borrower and
its Restricted Subsidiaries for the most recently completed Measurement Period
prior to such date (other than (i) mandatory prepayments pursuant to Section
2.06(b)(i), (ii) or (iii), (ii) the aggregate amount of mandatory principal
prepayments under the Canadian Revolving Credit Facility or the U.S. Revolving
Credit Facility to the extent such payments permanently reduce such Facility,
(iii) the final principal installment under the Term Facility paid on the
Termination Date and (iv) the final principal installment under any New Term
Facility paid on the New Term Advance Maturity Date in respect of such
Facility).


 


“Foreign Government
Scheme or Arrangement” has the meaning specified in Section 4.01(l)(ii).


 


“Foreign Plan” has
the meaning specified in Section 4.01(l)(ii).


 


“Foreign Subsidiary”
means any Subsidiary of the U.S. Borrower which is a corporation organized
under the laws of any jurisdiction other than the United States or any state
thereof.


 


“Funded Debt” of
any Person means Debt in respect of the Advances, in the case of the Borrowers,
and all other Debt (other than issued but undrawn Letters of Credit) of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year after
such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than
one year after such date, including, without limitation, all amounts of Funded
Debt of such Person required to be paid or prepaid within one year after the
date of determination.


 


“GAAP” has the
meaning specified in Section 1.03.


 


“Guarantee and
Collateral Agreement” means the Amended and Restated Guarantee and Collateral
Agreement to be executed and delivered by the U.S. Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit I.


 


“Guaranteed
Obligations” has the meaning specified in Section 6.01.


 


“Guaranty” has the
meaning specified in Section 6.01.


 


“Hazardous Materials”
means (a) petroleum or petroleum products, by-products or breakdown products,
radioactive materials, asbestos-containing materials, polychlorinated biphenyls
and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant
under any Environmental Law.


 


“Hedge Agreements”
means interest rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or option
contracts, commodities future or option contracts for materials used in the
ordinary course of business and other similar agreements.


 


“Hedge Bank” means
any Lender Party or any of its Affiliates in its capacity as a party to a Bank
Hedge Agreement.


 


“Hubcap” means
Hubcap Acquisition, L.L.C., an affiliate of KKR.


 


18





















 


“Increased Amount Date”
has the meaning specified in Section 2.16.


 


“Indemnified Party”
has the meaning specified in Section 9.04(b).


 


“Information
Memorandum” means the information memorandum, dated January 6, 2005, used
by the Lead Arrangers in connection with the syndication of the Commitments.


 


“Initial Extension of
Credit” means the initial Borrowings under this Agreement.


 


“Initial Issuing Bank”
has the meaning specified in the recital of parties to this Agreement.


 


“Initial Lenders”
has the meaning specified in the recital of parties to this Agreement.


 


“Interest Coverage
Ratio” means, as of any date of determination, the ratio of Consolidated
EBITDA of the U.S. Borrower and its Restricted Subsidiaries to Consolidated
Interest Expense of the U.S. Borrower and its Restricted Subsidiaries for the
most recently completed Measurement Period prior to such date.


 


“Interest Expense”
means, for any Person for any period, cash interest expense (including that
attributable to Capital Leases in accordance with GAAP), net of cash interest
income, of such Person with respect to all outstanding Debt of such Person,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance
financing and net costs under Hedge Agreements (other than currency swap
agreements, currency future or option contracts and other similar agreements),
but excluding, however, amortization of deferred financing costs and any other
amounts of non-cash interest, all as calculated in accordance with GAAP; provided
that (a) for purposes of the four Fiscal Quarters immediately following the
Closing Date, Interest Expense for each Measurement Period shall be calculated
after giving pro forma effect to Debt incurred and Debt paid in connection with
the Transactions (including the Old Notes, to the extent that cash sufficient
for the repayment, redemption or repurchase thereof is then on deposit with the
applicable trustee), as though such Debt had been incurred or paid on the first
day of such Measurement Period, (b) except as provided in clause (c) below,
there shall be excluded from any determination of Consolidated Interest Expense
of the U.S. Borrower and its Restricted Subsidiaries for any period the cash
interest expense (or income) of all Unrestricted Subsidiaries for such period
to the extent otherwise included in such Consolidated Interest Expense and (c)
there shall be included in any determination of Consolidated Interest Expense
for the U.S. Borrower and its Restricted Subsidiaries for any period the cash
interest expense (or income) of any Person which becomes a Restricted Subsidiary
(through an acquisition in accordance with Section 5.02(c) or designation or
otherwise) for such entire period, assuming that any Debt incurred or prepaid
in connection with any such acquisition or designation had been incurred or
prepaid on the first day of such period.


 


“Interest Period”
means, for each Eurodollar Rate Advance comprising part of the same Borrowing
to either Borrower, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
such Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by such Borrower pursuant to
the provisions below.  The duration of
each such Interest Period shall be one, two, three or six months, or, with the
consent of all of the Appropriate Lenders, nine or


 


19





















 


twelve months, as
such Borrower may, upon notice received by the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however,
that:


 


(a)           such
Borrower may not select any Interest Period with respect to any Eurodollar Rate
Advance under a Facility that ends after any principal repayment installment
date for such Facility unless, after giving effect to such selection, the
aggregate principal amount of Base Rate Advances and of Eurodollar Rate
Advances having Interest Periods that end on or prior to such principal
repayment installment date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such Facility due and payable on
or prior to such date;


 


(b)           Interest
Periods commencing on the same date for Eurodollar Rate Advances comprising
part of the same Borrowing shall be of the same duration;


 


(c)           whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur
on the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and


 


(d)           whenever
the first day of any Interest Period occurs on a day of an initial calendar
month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.


 


“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.


 


“Investment” in
any Person means any loan or advance to such Person, any purchase or other
acquisition of any capital stock or other ownership or profit interest,
warrants, rights, options, obligations or other securities of such Person, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the investor
incurs Debt of the types referred to in clause (h) or (i) of the definition of “Debt”
in respect of such Person.


 


“Investor Group”
means KKR, Hubcap and Trimaran.


 


“IPO” means any
sale by the U.S. Borrower through an initial public offering of its common
stock pursuant to an effective registration statement (other than a
registration statement on Form S-4, S-8 or any successor or similar form) filed
under the Securities Act of 1933, as amended, led by at least one underwriter
of nationally recognized standing and the terms of which are satisfactory to
the Administrative Agent.


 


“Issuing Bank”
means the Existing Issuing Bank, the Initial Issuing Bank, UBS and each
Eligible Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07.


 


“Joinder Agreement”
means an agreement substantially in the form of Exhibit K.


 


20





















 


“KKR” means
Kohlberg Kravis Roberts & Co., L.P.


 


“L/C Related Documents”
has the meaning specified in Section 2.04(d)(ii)(A).


 


“Lead Arrangers”
has the meaning specified in the recital of parties to this Agreement.


 


“Leases” has the
meaning specified in Section 4.01(t).


 


“Lehman” has the
meaning specified in the recital of parties to this Agreement.


 


“Lender Party”
means any Lender, the Issuing Bank or the Swing Line Bank.


 


“Lenders” means
the Initial Lenders and each Person that shall become a Lender hereunder
pursuant to Section 9.07.


 


“Letter of Credit
Advance” means an advance made by the Issuing Bank or any U.S. Revolving
Credit Lender pursuant to Section 2.03(c).


 


“Letter of Credit
Agreement” has the meaning specified in Section 2.03(a).


 


“Letter of Credit
Commitment” means, with respect to the Issuing Bank at any time, the amount
set forth opposite the Issuing Bank’s name on Schedule I hereto under the
caption “Letter of Credit Commitment” or, if the Issuing Bank has entered into
one or more Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d) as
the Issuing Bank’s “Letter of Credit Commitment”, as such amount may be reduced
at or prior to such time pursuant to Section 2.05.


 


“Letter of Credit
Facility” means, at any time, an amount equal to the lesser of (a) the
amount of the Issuing Bank’s Letter of Credit Commitment at such time and
(b) $40,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.


 


“Letters of Credit”
has the meaning specified in Section 2.01(d).


 


“Leverage Ratio”
means, as of any date of determination, the ratio of (a) total Funded Debt of
the U.S. Borrower and its Restricted Subsidiaries, less the amount of
cash reflected on the U.S. Borrower’s balance sheet for the most recently ended
Fiscal Quarter in excess of $5,000,000, to (b) Consolidated EBITDA of the U.S.
Borrower and its Restricted Subsidiaries for the most recently completed
Measurement Period prior to such date; provided that if any acquisition
was made in accordance with the provisions of this Agreement during any
Measurement Period for which Consolidated EBITDA is being calculated, then
Consolidated EBITDA shall be calculated as though such acquisition had occurred
at the beginning of such Measurement Period.


 


“Lien” means any
lien, security interest or other charge or encumbrance of any kind, or any
other type of preferential arrangement, including, without limitation, any
agreement to give any of the foregoing, any lien or retained security title of
a conditional vendor and any easement, right of way or other encumbrance on
title to real property.


 


“Light Wheels Facility”
means the manufacturing facility of the U.S. Borrower located in Columbia,
Tennessee.


 


21





















 


“Loan Documents”
means (a) for purposes of this Agreement and the Notes and any amendment or
modification hereof or thereof and for all other purposes other than for
purposes of the Guaranty and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Guaranty, (iv) the Collateral Documents and (v)
each Letter of Credit Agreement and (b) for purposes of the Guaranty and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) Collateral Documents, (v) each Letter of Credit Agreement and
(vi) each Bank Hedge Agreement, in each case as amended, supplemented or
otherwise modified from time to time.


 


“Loan Parties”
means the Borrowers and the Subsidiary Guarantors.


 


“Majority Facility
Lenders” means, at any time, the Required Term Lenders and the Required
Revolving Lenders.


 


“Majority Lenders”
means, at any time, Lenders owed or holding at least a majority in interest of
the sum of (a) the aggregate principal amount of the Advances outstanding at
such time, (b) the aggregate Available LC Amount of all Letters of Credit
outstanding at such time, (c) the aggregate unused Commitments under the Term
Facility at such time, (d) the aggregate unused Commitments under any New Term
Facility at such time and (e) the aggregate Unused Canadian Revolving Credit
Commitments and Unused U.S. Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Majority Lenders at such time
(i) the aggregate principal amount of the Advances owing to such Lender
(in its capacity as Lender) and outstanding at such time, (ii) such Lender’s
Pro Rata Share of the aggregate Available LC Amount of all Letters of Credit
issued and outstanding at such time, (iii) the unused Term Commitment or
unused New Term Commitment, as the case may be, of such Lender at such time,
and (iv) the Unused Canadian Revolving Credit Commitment or the Unused
U.S. Revolving Credit Commitment, as the case may be, of such Lender at such
time.  For purposes of this definition,
the aggregate principal amount of Swing Line Advances owing to the Swing Line
Bank and of Letter of Credit Advances owing to the Issuing Bank and the
Available LC Amount of each Letter of Credit shall be considered to be owed to
the U.S. Revolving Credit Lenders ratably in accordance with their respective
U.S. Revolving Credit Commitments.


 


“Margin Stock” has
the meaning specified in Regulation U.


 


“Material Adverse
Change” means any material adverse change in the business, financial
condition, operations, assets or liabilities of any Loan Party or any of its
Subsidiaries.


 


“Material Adverse
Effect” means a material adverse effect on (a) the business, financial
condition, operations, assets or liabilities of any Loan Party or any of its
Subsidiaries, (b) the rights and remedies of the Administrative Agent or any
Lender Party under any Loan Document or Related Document or (c) the ability of
any Loan Party to perform its Obligations under any Loan Document or Related
Document to which it is or is to be a party.


 


“Measurement Period”
means, as of any date of determination, the most recently completed four
consecutive Fiscal Quarters ending on or immediately prior to such date.


 


“Merger” has the
meaning specified in Preliminary Statement (1).


 


“Merger Agreement”
has the meaning specified in Preliminary Statement (1).


 


“Merger Sub” has
the meaning specified in Preliminary Statement (1).


 


22





















 


“Mexican Confirmation
and Amendment” has the meaning specified in Section 3.01(k)(vii).


 


“Mexican Pledge
Agreement” means the Pledge of Shares Agreement, dated as of June 13, 2003,
between the U.S. Borrower and the Administrative Agent, for the benefit of the
Secured Parties, as amended by the Mexican Confirmation and Amendment dated as
of the date hereof and as further amended, supplemented or otherwise modified
from time to time.


 


“Mexican Subsidiary”
means Accuride de Mexico, S.A. de C.V., a company organized and existing under
the laws of Mexico.


 


“Moody’s” has the
meaning specified in the definition of “Cash Equivalents” in this Section 1.01.


 


“Mortgage” means
each of the mortgages and deeds of trust made by any Loan Party in favor of, or
for the benefit of, the Administrative Agent for the benefit of the Secured
Parties, substantially in the form of Exhibit J (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such mortgage or
deed of trust is to be recorded).


 


“Mortgage Amendments”
has the meaning specified in Section 3.01(k)(ix).


 


“Mortgaged Properties”
has the meaning specified in Section 5.01(o)(ii).


 


“Mortgage Policies”
has the meaning specified in Section 5.01(o)(ii)(A).


 


“Net Cash Proceeds”
means, with respect to any sale, lease, transfer or other disposition of any
asset, or the incurrence or issuance of any Debt (excluding any Debt incurred
or issued in accordance with Section 5.02(b) other than any Subordinated Debt
incurred or issued after the Closing Date in accordance with Section
5.02(b)(i)(A)) or the sale or issuance of any Equity Interests (including,
without limitation, any capital contribution) by any Person, or any Recovery
Event, the aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration, but
only as and when received) by or on behalf of such Person in connection with
such transaction or event after deducting therefrom only (without duplication):


 


(a)           reasonable
and customary fees, commissions, expenses, issuance costs, discounts and other
costs paid by the U.S. Borrower or any of its Restricted Subsidiaries in
connection with such transaction or event;


 


(b)           the
amount of taxes paid or estimated to be payable in connection with or as a
result of such transaction or event;


 


(c)           the
amount of the outstanding principal amount of, premium or penalty, if any, and
interest on any Debt (other than pursuant to the Facilities) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of any such transaction or event;


 


(d)           the
amount of any reasonable reserves established in accordance with GAAP against
any liabilities (other than taxes described in clause (b) above) that are (i)
associated with the assets that are the subject of such transaction or event
and (ii) retained by the U.S. Borrower or any of its Restricted Subsidiaries;


 


23





















 


(e)           the
amount of any proceeds received from the sale, lease, transfer or other
disposition of any asset pursuant to Section 5.02(d), any Recovery Event, or
the sale or issuance of any Equity Interests to the extent that such proceeds
are invested in the business or used to prepay or retire Debt as permitted
under this Agreement within one year following such sale, Recovery Event or
issuance; and


 


(f)            the
amount of any proceeds received from the incurrence or issuance of any
Subordinated Debt after the Closing Date to the extent that such proceeds are
used to (i) extend the maturity of, or refinance, in whole or in part the
Senior Subordinated Notes or any other Subordinated Debt within 90 days
following such incurrence or issuance, provided that such deduction
shall not exceed the principal amount of such Subordinated Debt that is so
extended or refinanced, or (ii) make an Investment permitted by Section
5.02(e)(viii) or (xiii) within six months following such incurrence or
issuance;


 


provided, however, that in the event the amount of any
estimated tax payable described in clause (b) above exceeds the amount actually
paid, or upon any subsequent reduction in the amount of any reserve described
in clause (d) above, the U.S. Borrower or its applicable Restricted Subsidiary
shall be deemed to have received Net Cash Proceeds in an amount equal to such
excess or reduction, at the time of payment of such taxes or on the date of
such reduction, as the case may be; provided  further that any
portion of any proceeds received from the incurrence or issuance of
Subordinated Debt that has not been used to refinance Subordinated Debt within
such 90-day period or to make an Investment permitted by Section 5.02(e)(viii)
or (xiii) within such six-month period shall (i) be deemed to be Net Cash Proceeds
of such incurrence or issuance occurring on the last day of such six-month
period and (ii) be applied to the prepayment of Advances in accordance with
Section 2.06(b)(ii); provided  further that, for purposes of the
preceding proviso, such six-month period shall be extended by up to six months
from the last day of such initial six-month period so long as the U.S. Borrower
or any of its Restricted Subsidiaries has entered into a binding commitment
prior to the last day of the initial six-month period to make an Investment
permitted by Section 5.02(e)(viii) or (xiii) within such additional six-month
period; provided  further that any portion of any proceeds
received from the sale, lease, transfer or other disposition of any asset
pursuant to Section 5.02(d), any Recovery Event, or the sale or issuance of any
Equity Interests that has not been invested in the business or used to prepay
or retire Debt as permitted under this Agreement within such one year period
shall (i) be deemed to be Net Cash Proceeds of such a sale or issuance or
Recovery Event occurring on the last day of such one year period and (ii) be
applied to the prepayment of Advances in accordance with Section 2.06(b)(ii) or
(iii), as applicable; provided  further that, for purposes of the
preceding proviso, such one year period shall be extended by up to six months
from the last day of such one year period so long as (A) such proceeds are to
be invested in the business or used to prepay or retire Debt as permitted under
this Agreement within such additional six-month period under the U.S. Borrower’s
or any of its Restricted Subsidiaries’ business plan as most recently adopted
in good faith by its board of directors and (B) such Person believes in good
faith that such proceeds will be so reinvested within such additional six month
period.


 


“Net Income”
means, with respect to any Person for any period, the net income (or loss) of
such Person; provided that, for purposes of determining Net Income for
any Person and its Restricted Subsidiaries on a Consolidated basis, there shall
be excluded from such determination (a) any after-tax gains or losses, and any
related fees and expenses, in each case to the extent attributable to the sale
of assets, and (b) any net extraordinary gains (or losses).


 


“New Mortgaged
Properties” has the meaning specified in Section 5.01(o)(ii).


 


24





















 


“New Term Advance
Maturity Date” means the date the New Term Advances of a Series shall
become due and payable in full hereunder, as specified in the applicable
Joinder Agreement, including by acceleration or otherwise.


 


“New Term Advances”
has the meaning specified in Section 2.16.


 


“New Term Borrowing”
means a borrowing consisting of simultaneous New Term Advances of the same Type
and Series made by the New Term Lenders.


 


“New Term Commitments”
has the meaning specified in Section 2.16.


 


“New Term Facility”
means, at any time, the aggregate amount of the New Term Lenders’ New Term
Commitments and New Term Advances at such time.


 


“New Term Lender”
has the meaning specified in Section 2.16.


 


“Note” means a
Term Note, a Canadian Revolving Credit Note or a U.S. Revolving Credit Note.


 


“Notice” has the
meaning specified in Section 9.02(c).


 


“Notice of Borrowing”
has the meaning specified in Section 2.02(a).


 


“Notice of Issuance”
has the meaning specified in Section 2.03(a).


 


“Notice of Renewal”
has the meaning specified in Section 2.01(d).


 


“Notice of Swing Line
Borrowing” has the meaning specified in Section 2.02(b).


 


“Notice of Termination”
has the meaning specified in Section 2.01(d).


 


“NPL” means the
National Priorities List under CERCLA.


 


“Obligation”
means, with respect to any Person, any payment, performance or other obligation
of such Person of any kind, including, without limitation, any liability of
such Person on any claim, whether or not the right of any creditor to payment
in respect of such claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 7.01(f).  Without limiting the generality of the
foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorneys’ fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any of the
foregoing that any Lender Party, in its sole discretion, may elect to pay or
advance on behalf of such Loan Party.


 


“OECD” means the
Organization for Economic Cooperation and Development.


 


“Old Notes” has
the meaning specified in Section 3.01(e)(ii).


 


“Ontario Ministry”
has the meaning specified in Section 3.01(k)(iii).


 


25





















 


“Opinions” has the
meaning specified in Section 5.01(o)(ii)(E).


 


“Other Taxes” has
the meaning specified in Section 2.12(b).


 


“PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).


 


“Performance Level”
means, in respect of Advances outstanding under the U.S. Revolving Credit
Facility and the Canadian Revolving Credit Facility, Performance Level A,
Performance Level B, Performance Level C or Performance Level D, as the context
may require.


 


“Performance Level A”
means, at any date of determination, that the U.S. Borrower and its Restricted
Subsidiaries shall have maintained a Leverage Ratio of less than 3.50:1.00 for
the most recently completed Measurement Period prior to such date.


 


“Performance Level B”
means, at any date of determination, that (a) the Leverage Ratio of the U.S.
Borrower and its Restricted Subsidiaries does not meet the requirements for
Performance Level A, and (b) the U.S. Borrower and its Restricted Subsidiaries
shall have maintained a Leverage Ratio of less than 4.25:1.00 for the most
recently completed Measurement Period prior to such date.


 


“Performance Level C”
means, at any date of determination, that (a) the Leverage Ratio of the U.S.
Borrower and its Restricted Subsidiaries does not meet the requirements for
Performance Level A or Performance Level B, and (b) the U.S. Borrower and its
Restricted Subsidiaries shall have maintained a Leverage Ratio of less than
5.75:1.00 for the most recently completed Measurement Period prior to such
date.


 


“Performance Level D”
means, at any date of determination, that the Leverage Ratio of the U.S.
Borrower and its Restricted Subsidiaries does not meet the requirements for
Performance Level A, Performance Level B or Performance Level C.


 


“Permitted Liens”
means such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been commenced:  (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens
arising in the ordinary course of business outstanding at any time and securing
indebtedness that is not overdue for a period of more than 30 days; (c) Liens
arising from judgments or decrees in circumstances not constituting an Event of
Default under Section 7.01(g); (d) Liens incurred or deposits made in
connection with workers’ compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in
the ordinary course of business; (e) ground leases in respect of real property
on which facilities owned or leased by the U.S. Borrower or any of its
Subsidiaries are located; (f) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the business of the
U.S. Borrower and its Subsidiaries taken as a whole; (g) any interest or title
of a lessor or secured by a lessor’s interest under any lease permitted by this
Agreement and any Liens arising from any financing statement filed in
connection with such lease; (h) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (i) Liens on goods the purchase price
of which is financed by a documentary letter of credit issued for the account of
the U.S. Borrower or any of its Subsidiaries;


 


26





















 


provided that such Lien secures only the
obligations of the U.S. Borrower or such Subsidiaries in respect of such letter
of credit to the extent permitted under Section 5.02(b); and (j) leases or
subleases granted to others not interfering in any material respect with the
business of the U.S. Borrower and its Subsidiaries, taken as a whole.


 


“Person” means an
individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision or
agency thereof.


 


“Plan” means any
multiemployer or single-employer plan, as defined in Section 4001 of ERISA and
subject to Title IV of ERISA, that is or was within any of the preceding five
plan years maintained or contributed to by (or to which there is or was an
obligation to contribute or to make payments of) any Loan Party or an ERISA
Affiliate.


 


“Platform” has the
meaning specified in Section 9.02(b).


 


“Preferred Stock”
means, with respect to any corporation, capital stock issued by such
corporation that is entitled to a preference or priority over any other capital
stock issued by such corporation upon any distribution of such corporation’s
assets, whether by dividend or upon liquidation.


 


“Pro Forma EBITDA
Adjustment” means, for any period that includes any of the four consecutive
Fiscal Quarters first ending following an acquisition, an amount equal to the
pro forma increase or decrease in Consolidated EBITDA that the U.S. Borrower in
good faith predicts will occur as a result of reasonably identifiable and
supportable net cost savings or additional net costs that will be realizable
during such period by combining the operations associated with an acquisition
with the operations of the U.S. Borrower and its Subsidiaries; provided
that (a) so long as such net cost savings or additional net costs will be
realizable at any time during such four-Fiscal Quarter period, it shall be
assumed for purposes of determining such pro forma increase or decrease in such
Consolidated EBITDA, that such net cost savings or additional net costs will be
realizable during the entirety of such period and (b) any such pro forma
increase or decreases in such Consolidated EBITDA shall be without duplication
of any net cost savings or additional net costs actually realized during such
period and already included in such Consolidated EBITDA.


 


“Pro Rata Share”
of any amount means, with respect to any Canadian Revolving Credit Lender or
U.S. Revolving Credit Lender at any time, the product of such amount times
a fraction the numerator of which is the amount of such Lender’s Canadian
Revolving Credit Commitment or U.S. Revolving Credit Commitment, as the case
may be, at such time and the denominator of which is the Canadian Revolving
Credit Facility or the U.S. Revolving Credit Facility, respectively, at such
time.


 


“Recovery Event”
means any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the
U.S. Borrower or any of its Restricted Subsidiaries.


 


“Reference Banks”
means Citibank and UBS.


 


“Refinancing” has
the meaning specified in Preliminary Statement (4).


 


“Register” has the
meaning specified in Section 9.07(d).


 


27





















 


“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Related Documents”
means the Subordinated Debt Documents and the Merger Agreement.


 


“Related Fund”
means any Person that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) a Person or an Affiliate of a
Person that administers or manages a Lender.


 


“Reportable Event”
means an event described in Section 4043 of ERISA and the regulations
thereunder.


 


“Required Revolving
Lenders” means, at any time, Lenders owed or holding at least a majority in
interest of the sum of (a) the aggregate principal amount of the Canadian
Revolving Credit Advances, the U.S. Revolving Credit Advances, the Letter of
Credit Advances and the Swing Line Advances outstanding at such time, (b) the
aggregate Available LC Amount of all Letters of Credit outstanding at such time
and (c) the aggregate Unused Canadian Revolving Credit Commitments and Unused
U.S. Revolving Credit Commitments at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Required Revolving Lenders at such time
(i) the aggregate principal amount of the Advances referred to in clause (a)
above owing to such Lender (in its capacity as Lender) and outstanding at such
time, (ii) such Lender’s Pro Rata Share of the aggregate Available LC
Amount of all Letters of Credit issued and outstanding at such time and
(iii) the Unused Canadian Revolving Credit Commitment or the Unused U.S.
Revolving Credit Commitment, as the case may be, of such Lender at such
time.  For purposes of this definition,
the aggregate principal amount of Swing Line Advances owing to the Swing Line
Bank and of Letter of Credit Advances owing to the Issuing Bank and the
Available LC Amount of each Letter of Credit shall be considered to be owed to
the U.S. Revolving Credit Lenders ratably in accordance with their respective
U.S. Revolving Credit Commitments.


 


“Required Term Lenders”
means, at any time, Lenders owed or holding at least a majority in interest of
the sum of (a) the aggregate principal amount of the Term Advances and New Term
Advances outstanding at such time and (b) the aggregate unused Commitments
under the Term Facility and any New Term Facility at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Term Lenders at such
time (i) the aggregate principal amount of the Advances referred to in
clause (a) above owing to such Lender (in its capacity as Lender) and
outstanding at such time, and (ii) the aggregate unused Term Commitments
and New Term Commitments of such Lender at such time.


 


“Requirements of Law”
means, with respect to any Person, all laws, constitutions, statutes, treaties,
ordinances, rules and regulations, all orders, writs, decrees, injunctions,
judgments, determinations or awards of an arbitrator, a court or any other
governmental authority, and all governmental authorizations, binding upon or
applicable to such Person or to any of its properties, assets or businesses.


 


“Responsible Officer”
means any officer of any Loan Party or any of its Subsidiaries.


 


“Restricted Subsidiary”
means, as of any date of determination, any Subsidiary of the U.S. Borrower
which is not an Unrestricted Subsidiary.


 


28





















 


“Revenues” means,
for any Person for any period, an amount equal to the revenues of such Person; provided
that, for purposes of such determination, (a) the revenues of any business
acquired by the U.S. Borrower or any of its Subsidiaries during such period
pursuant to Section 5.02(e)(viii) or (xiii) shall be determined on a pro forma
basis as if such acquisition had been consummated on the first day of such
period and (b) the revenues of any business sold or otherwise disposed of
by the U.S. Borrower or any of its Subsidiaries in accordance with Section
5.02(d) during such period shall be excluded in their entirety.


 


“S&P” has the
meaning specified in the definition of “Cash Equivalents” in this Section 1.01.


 


“Secured Parties”
means the Administrative Agent, the Lender Parties and the Hedge Banks.


 


“Senior Leverage Ratio”
means, as of the Closing Date, the ratio of (a) total Funded Debt of the U.S.
Borrower and its Restricted Subsidiaries, less the amount of
Subordinated Debt on the Closing Date (after giving effect to the
Transactions), to (b) Consolidated EBITDA of the U.S. Borrower and its
Restricted Subsidiaries for the twelve-month period ended on November 30, 2004.


 


“Senior Subordinated
Note Indenture” means the indenture entered into by the U.S. Borrower and
certain of its Restricted Subsidiaries in connection with the issuance of the
Senior Subordinated Notes, together with all instruments and other agreements
entered into by the U.S. Borrower or such Subsidiaries in connection therewith,
as the same may be amended, supplemented or otherwise modified from time to
time in accordance with Section 5.02(h).


 


“Senior Subordinated
Notes” means the senior subordinated notes due 2015 in an aggregate
principal amount of $275,000,000 of the U.S. Borrower issued on the Closing
Date pursuant to the Senior Subordinated Note Indenture.


 


“Series” has the
meaning specified in Section 2.16.


 


“Solvent” and “Solvency”
mean, with respect to any Person on a particular date, that on such date (a)
the fair value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets 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 does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature
and (d) 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 an unreasonably small capital. 
The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability.


 


“Specified Change of
Control” means a “Change of Control” (or any other defined term having a
similar purpose), as defined in any Subordinated Debt Document.


 


“Standby Letter of
Credit” means any Letter of Credit issued under the Letter of Credit
Facility, other than a Trade Letter of Credit.


 


29





















 


“Subordinated Debt”
means (a) the Debt evidenced by the Senior Subordinated Notes, (b) any other
Debt of the Borrowers that is subordinated to the Obligations of the Borrowers
under the Loan Documents in a manner no less favorable to the Lender Parties
than those applicable to the Senior Subordinated Notes and (c) guaranty
Obligations of any Subsidiary Guarantor in respect of any such Debt referred to
in the foregoing clauses (a) and (b), so long as such guaranty Obligations are
subordinated to the Obligations of such Subsidiary Guarantor under the Loan
Documents in a manner no less favorable to the Lender Parties than those
applicable to the guaranty Obligations of such Subsidiary Guarantor in respect
of the Senior Subordinated Notes.


 


“Subordinated Debt
Documents” means the Senior Subordinated Note Indenture and all other
agreements, indentures and instruments pursuant to which Subordinated Debt is
issued.


 


“Subsidiary” of
any Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries.


 


“Subsidiary Guarantors”
means the Restricted Subsidiaries of the U.S. Borrower that are Domestic Subsidiaries
and are listed on Schedule II hereto, and each other Restricted Subsidiary of
the U.S. Borrower that shall be required to deliver an Assumption Agreement
pursuant to this Agreement.


 


“Surveys” has the
meaning specified in Section 5.01(o)(ii)(B).


 


“Surviving Debt”
has the meaning specified in Section 3.01(d).


 


“Swing Line Advance”
means an advance made by (a) the Swing Line Bank pursuant to Section 2.01(c),
or (b) any U.S. Revolving Credit Lender pursuant to Section 2.02(b).


 


“Swing Line Bank”
has the meaning specified in the recital of parties to this Agreement.


 


“Swing Line Borrowing”
means a borrowing consisting of a Swing Line Advance made by the Swing Line
Bank.


 


“Swing Line Facility”
has the meaning specified in Section 2.01(c).


 


“Syndication Agent”
has the meaning specified in the recital of parties to this Agreement.


 


“Taxes” has the
meaning specified in Section 2.12(a).


 


“Term Advance” has
the meaning specified in Section 2.01(a).


 


“Term Borrowing”
means a borrowing consisting of simultaneous Term Advances of the same Type
made by the Term Lenders.


 


30





















 


“Term Commitment”
means, with respect to any Term Lender at any time, the amount set forth
opposite such Lender’s name on Schedule I hereto under the caption “Term
Commitment” or, if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Term
Commitment”, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.


 


“Term Facility”
means, at any time, the aggregate amount of the Term Lenders’ Term Commitments
and Term Advances at such time which amount shall not exceed $550,000,000.


 


“Term Lender”
means any Lender that has a Term Commitment or that is owed or holds a Term
Advance.


 


“Term Note” means
a promissory note of the U.S. Borrower payable to the order of any Term Lender,
in substantially the form of Exhibit A-1 hereto, evidencing the indebtedness of
the U.S. Borrower to such Lender resulting from the Term Advance or New Term
Advance, as the case may be, made by such Lender.


 


“Termination Date”
means (a) with respect to the U.S. Revolving Credit Facility, the Letter of
Credit Facility and the Swing Line Facility, the earlier of January 31, 2010
and the date of termination in whole of the U.S. Revolving Credit Commitments,
the Letter of Credit Commitments and the Swing Line Commitments pursuant to
Section 2.05 or 7.01, (b) with respect to the Canadian Revolving Credit
Facility, the earlier of January 31, 2010 and the date of termination in whole
of the Canadian Revolving Credit Commitments pursuant to Section 2.05 or 7.01
and (c) with respect to the Term Facility, the earlier of January 31, 2012 and
the date of termination in whole of the Term Commitments pursuant to Section
2.05 or 7.01.


 


“Title Company”
has the meaning specified in Section 5.01(o)(ii)(A).


 


“Trade Letter of
Credit” means any Letter of Credit that is issued under the Letter of
Credit Facility for the benefit of a supplier of inventory or other goods to
the U.S. Borrower or any of its Subsidiaries to effect payment for such
inventory or other goods, the conditions to drawing under which include the
presentation to the Issuing Bank of negotiable bills of lading, invoices and
related documents sufficient, in the judgment of the Issuing Bank, to create a
valid and perfected lien on or security interest in such inventory, bills of
lading, invoices and related documents in favor of the Issuing Bank.


 


“Transactions” has
the meaning specified in Preliminary Statement (4).


 


“Trigger Date”
means the date that is the date of delivery of financial statements required to
be delivered pursuant to Section 5.03 for the first Fiscal Quarter which ends
at least six months after the Closing Date.


 


“Trimaran” means
Trimaran Capital Partners, Trimaran Fund II, LLC, Trimaran Capital, LLC,
Trimaran Parallel Fund II, L.P., CIBC Employee Private Equity Fund (Trimaran)
Partners, CIBC Capital Corporation, Caravelle Investment Fund, L.L.C., Albion
Alliance Mezzanine Fund, L.P. and Albion Alliance Mezzanine Fund II, L.P.


 


“TTI” has the
meaning specified in Preliminary Statement (1).


 


“TTI Mexican Pledge
Agreement” has the meaning specified in Section 5.01(o)(iii).


 


31





















 


“Type” refers to
the distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.


 


“UBS” means UBS
AG, Stamford Branch.


 


“Unfunded Current Liability”
of any Plan means the amount, if any, by which the present value of the
accumulated benefits under the Plan as of the close of its most recent plan
year, determined in accordance with Statement of Financial Accounting Standards
No. 87 as in effect on the date hereof, but based upon the actuarial
assumptions that would be used by the Plan’s actuary in a termination of the
Plan, exceeds the fair market value of the assets allocable thereto.


 


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


 


“Unrestricted
Subsidiary” means (a) any Subsidiary of the U.S. Borrower that is formed or
acquired after the Closing Date; provided that at the time of such
formation or acquisition (or promptly thereafter) the U.S. Borrower designates
such Subsidiary as an Unrestricted Subsidiary in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary on the Closing Date (other
than the Canadian Borrower) subsequently re-designated as an Unrestricted
Subsidiary by the U.S. Borrower in a written notice to the Administrative Agent
pursuant to Section 5.03(g); provided that such re-designation shall be
deemed to be an Investment on the date of such re-designation in an
Unrestricted Subsidiary in an amount equal to the sum of (i) the net worth
of such re-designated Restricted Subsidiary immediately prior to such re-designation
(such net worth to be calculated without regard to any guaranty provided by
such re-designated Restricted Subsidiary pursuant to the Guarantee and
Collateral Agreement) plus (ii) the aggregate principal amount of
any Debt owed by such redesignated Restricted Subsidiary to either Borrower or
any other Restricted Subsidiary immediately prior to such re-designation, all
calculated, except as set forth in the parenthetical to clause (i), on a
consolidated basis in accordance with GAAP, and (c) any Subsidiary of any
Unrestricted Subsidiary; provided, however, that (i) at the time
of any written re-designation by the U.S. Borrower to the Administrative Agent
of any  Unrestricted Subsidiary as a
Restricted Subsidiary pursuant to Section 5.03(g), the Unrestricted Subsidiary
so re-designated shall no longer constitute an Unrestricted Subsidiary, (ii) no
Unrestricted Subsidiary may be re-designated as a Restricted Subsidiary if a
Default or Event of Default has occurred and is continuing or would result from
such re-designation and (iii) no Restricted Subsidiary may be re-designated as
an Unrestricted Subsidiary if a Default or Event of Default has occurred and is
continuing or would result from such re-designation; and provided  further,
however, that on or promptly after the date of its formation,
acquisition or re-designation, as applicable, each Unrestricted Subsidiary
(other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have
entered into a tax sharing agreement containing terms that, in the reasonable
judgment of the Administrative Agent, provide for an appropriate allocation of
tax liabilities and benefits.


 


“Unused Canadian
Revolving Credit Commitment” means, with respect to any Canadian Revolving
Credit Lender at any time, such Lender’s Canadian Revolving Credit Commitment
at such time minus the aggregate principal amount of all Canadian Revolving
Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time.


 


“Unused U.S. Revolving
Credit Commitment” means, with respect to any U.S. Revolving Credit Lender
at any time, (a) such Lender’s U.S. Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all U.S. Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances made by such Lender
(in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender’s Pro Rata Share of (A) the aggregate


 


32





















 


Available LC
Amount of all Letters of Credit outstanding at such time, (B) the aggregate
principal amount of all Letter of Credit Advances made by the Issuing Bank
pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate
principal amount of all Swing Line Advances made by the Swing Line Bank
pursuant to Section 2.01(c) and outstanding at such time.


 


“U.S. Borrower”
has the meaning specified in the recital of parties to this Agreement.


 


“U.S. Person” means
any Person which is organized under the laws of a jurisdiction of the United
States.


 


“U.S. Reduction Amount”
has the meaning specified in Section 2.06(b)(v).


 


“U.S. Revolving Credit
Advance” has the meaning specified in Section 2.01(b).


 


“U.S. Revolving Credit
Borrowing” means a borrowing consisting of simultaneous U.S. Revolving
Credit Advances of the same Type made by the U.S. Revolving Credit Lenders.


 


“U.S. Revolving Credit
Commitment” means, with respect to any U.S. Revolving Credit Lender at any
time, the amount set forth opposite such Lender’s name on Schedule I hereto
under the caption “U.S. Revolving Credit Commitment” or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender’s “U.S. Revolving Credit Commitment”, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.


 


“U.S. Revolving Credit
Facility” means, at any time, the aggregate amount of the U.S. Revolving
Credit Lenders’ U.S. Revolving Credit Commitments at such time which amount
shall not exceed $95,000,000.


 


“U.S. Revolving Credit
Lender” means any Lender that has a U.S. Revolving Credit Commitment.


 


“U.S. Revolving Credit
Note” means a promissory note of the U.S. Borrower payable to the order of
any U.S. Revolving Credit Lender, in substantially the form of Exhibit A-2
hereto, evidencing the aggregate indebtedness of the U.S. Borrower to such
Lender resulting from the U.S. Revolving Credit Advances made by such Lender.


 


“Voting Stock”
means capital stock issued by a corporation, or equivalent interests in any
other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.


 


“$” means the
lawful currency of the United States of America.


 


SECTION 1.02.  Computation of Time Periods.  In this Agreement, in the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each mean “to but
excluding”.


 


SECTION 1.03.  Accounting Terms.  All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(f) (“GAAP”).


 


33





















 


SECTION 1.04.  Currency Equivalent .  For purposes of construction of the terms
hereof, the equivalent in another currency of an amount in U.S. dollars shall
be determined by using the quoted spot rate at which Citibank’s principal
office in New York City offers to purchase such other currency with the
equivalent in dollars in New York City at 9:00 A.M. (New York City time) on the
date on which such equivalent is to be determined.


 


ARTICLE II



AMOUNTS AND TERMS OF THE
ADVANCES

AND THE LETTERS OF CREDIT


 


SECTION 2.01.  The Advances.  (a)  The
Term Advances.  Each Term Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a “Term Advance”) to the U.S. Borrower on the Closing
Date in an amount of such Lender’s Term Commitment at such time.  The Term Borrowing shall consist of Term
Advances made simultaneously by the Term Lenders ratably according to their
Term Commitments.  Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.


 


(b)           The U.S. Revolving Credit Advances.  Each U.S. Revolving Credit Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a “U.S. Revolving Credit Advance”) to the U.S. Borrower from time
to time on any Business Day during the period from the date of this Agreement
until the Termination Date in an amount for each such Advance not to exceed
such Lender’s Unused U.S. Revolving Credit Commitment at such time; provided,
however, that no U.S. Revolving Credit Advances shall be made on the
Closing Date.  Each U.S. Revolving Credit
Borrowing shall be in an aggregate amount of $2,000,000 or an integral multiple
of $500,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances
or outstanding Letter of Credit Advances) and shall consist of U.S. Revolving
Credit Advances made simultaneously by the U.S. Revolving Credit Lenders
ratably according to their U.S. Revolving Credit Commitments.  Within the limits of each U.S. Revolving
Credit Lender ‘s Unused U.S. Revolving Credit Commitment in effect from time to
time, the U.S. Borrower may borrow under this Section 2.01(b), prepay pursuant
to Section 2.06(a) and reborrow under this Section 2.01(b).


 


(c)           The Swing Line Advances.  The U.S. Borrower may request the Swing Line
Bank to make, and the Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Advances to the U.S. Borrower from time to
time on any Business Day during the period from the date of this Agreement
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the lesser of (i) $10,000,000 (the “Swing Line Facility”)
and (ii) an amount not to exceed the aggregate of the Unused U.S. Revolving
Credit Commitments of the U.S. Revolving Credit Lenders at such time.  No Swing Line Advance shall be used for the
purpose of funding the payment of principal of any other Swing Line Advance.  Each Swing Line Borrowing shall be in an
amount of $500,000 or an integral multiple of $250,000 in excess thereof and
shall be made as a Base Rate Advance. 
Within the limits of the Swing Line Facility and within the limits
referred to in clause (ii) above, the U.S. Borrower may borrow under this
Section 2.01(c), repay pursuant to Section 2.04(c) or prepay pursuant to
Section 2.06(a) and reborrow under this Section 2.01(c).


 


(d)           Letters of Credit.  Prior to the Closing Date, the Existing
Issuing Bank has issued the Existing Letters of Credit which, from and after
the Closing Date, shall constitute Letters of Credit hereunder.  The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (the letters of
credit issued on and after the Closing Date pursuant to this Section 2.01(d),
together


 


34





















 


with the Existing Letters of Credit, collectively, the “Letters
of Credit”) for the account of the U.S. Borrower from time to time on any
Business Day during the period from the date of this Agreement until five
Business Days before the Termination Date (i) in an aggregate Available LC
Amount for all Letters of Credit not to exceed at any time the Issuing Bank’s
Letter of Credit Commitment at such time and (ii) in an Available LC Amount for
each such Letter of Credit not to exceed an amount equal to the Unused U.S.
Revolving Credit Commitments of the U.S. Revolving Credit Lenders at such
time.  No Letter of Credit shall have an
expiration date (including all rights of the U.S. Borrower or the beneficiary
to require renewal) later than the earlier of five Business Days before the
Termination Date and (A) in the case of a Standby Letter of Credit, one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a “Notice of Renewal”) given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit (but in any event at least three Business Days prior to
the date of the proposed renewal of such Standby Letter of Credit) and upon
fulfillment of the applicable conditions set forth in Article III, unless such
Issuing Bank has notified the U.S. Borrower (with a copy to the Administrative
Agent) on or prior to the date for notice of termination set forth in such
Letter of Credit (but in any event at least 30 Business Days prior to the date
of automatic renewal) of its election not to renew such Standby Letter of
Credit (a “Notice of Termination”) and (B) in the case of a Trade Letter
of Credit, 180 days after the date of issuance thereof; provided that
the terms of each Standby Letter of Credit that is automatically renewable
annually shall (x) require the Issuing Bank that issued such Standby Letter of
Credit to give the beneficiary named in such Standby Letter of Credit notice of
any Notice of Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Standby Letter of Credit prior to the date such Standby
Letter of Credit otherwise would have been automatically renewed and (z) not
permit the expiration date (after giving effect to any renewal) of such Standby
Letter of Credit in any event to be extended to a date later than 60 days
before the Termination Date.  If either a
Notice of Renewal is not given by the U.S. Borrower or a Notice of Termination
is given by the Issuing Bank pursuant to the immediately preceding sentence,
such Standby Letter of Credit shall expire on the date on which it otherwise
would have been automatically renewed; provided, however, that
even in the absence of receipt of a Notice of Renewal the Issuing Bank may in
its discretion, unless instructed to the contrary by the Administrative Agent
or the U.S. Borrower, deem that a Notice of Renewal had been timely delivered
and in such case, a Notice of Renewal shall be deemed to have been so delivered
for all purposes under this Agreement. 
Within the limits of the Letter of Credit Facility, and subject to the
limits referred to above, the U.S. Borrower may request the issuance of Letters
of Credit under this Section 2.01(d), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Section 2.03(c) and request the
issuance of additional Letters of Credit under this Section 2.01(d).


 


(e)           The Canadian Revolving Credit
Advances.  Each Canadian Revolving
Credit Lender severally agrees, on the terms and conditions hereinafter set
forth, to make advances (each a “Canadian Revolving Credit Advance”) to
the Canadian Borrower from time to time on any Business Day during the period
from the date of this Agreement until the Termination Date in an amount for
each such Advance not to exceed such Lender’s Unused Canadian Revolving Credit
Commitment at such time; provided, however, that not more than
$25,000,000 of Canadian Revolving Credit Advances shall be made on the Closing
Date.  Each Canadian Revolving Credit
Borrowing shall be in an aggregate amount of $2,000,000 or an integral multiple
of $500,000 in excess thereof and shall consist of Canadian Revolving Credit
Advances made simultaneously by the Canadian Revolving Credit Lenders ratably
according to their Canadian Revolving Credit Commitments.  Within the limits of each Canadian Revolving
Credit Lender’s Unused Canadian Revolving Credit Commitment in effect from time
to time, the Canadian Borrower may borrow under this Section 2.01(e), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(e).


 


35





















 


SECTION 2.02.  Making the Advances.  (a) 
Except as otherwise provided in Section 2.02(b) or 2.03, each Borrowing
shall be made on notice, given not later than 12:00 P.M. (New York City time)
on the third Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Eurodollar Rate Advances, or the first
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Appropriate Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier.  Each
such notice of a Borrowing (a “Notice of Borrowing”) shall be by
telephone, confirmed immediately in writing, or telex or telecopier, in
substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Facility under which such Borrowing is to be
made, (iii) Type of Advances comprising such Borrowing, (iv) aggregate
amount of such Borrowing and (v) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance.  Each Appropriate Lender shall, before 12:00
P.M. (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s Account, in same day funds, such Lender’s ratable
portion of such Borrowing in accordance with the respective Commitments under
the applicable Facility of such Lender and the other Appropriate Lenders.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Appropriate Borrower by crediting the applicable Borrower’s Account; provided,
however, that, in the case of any U.S. Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank or the Issuing Bank, as the case may be,
and by any other U.S. Revolving Credit Lender and outstanding on the date of
such U.S. Revolving Credit Borrowing , plus interest accrued and unpaid thereon
to and as of such date, available to the Swing Line Bank or the Issuing Bank,
as the case may be, and such other U.S. Revolving Credit Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.


 


(b)           Each Swing Line Borrowing shall be
made on notice, given not later than 1:00 P.M. (New York City time) on the date
of the proposed Swing Line Borrowing, by the U.S. Borrower to the Swing Line
Bank and the Administrative Agent.  Each
such notice of a Swing Line Borrowing (a “Notice of Swing Line Borrowing”)
shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing).  The Swing Line Bank will
make the amount thereof available to the Administrative Agent at the
Administrative Agent’s Account, in same day funds.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
U.S. Borrower by crediting its Borrower’s Account.  Upon written demand by the Swing Line Bank,
with a copy of such demand to the Administrative Agent, each other U.S.
Revolving Credit Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other U.S. Revolving Credit Lender
, such other Lender’s Pro Rata Share of such outstanding Swing Line Advance as
of the date of such demand, by making available for the account of its
Applicable Lending Office to the Administrative Agent for the account of the
Swing Line Bank, by deposit to the Administrative Agent’s Account, in same day
funds, an amount equal to the portion of the outstanding principal amount of
such Swing Line Advance to be purchased by such Lender.  The U.S. Borrower hereby agrees to each such
sale and assignment.  Each U.S. Revolving
Credit Lender agrees to purchase its Pro Rata Share of an outstanding Swing
Line Advance on (i) the Business Day on which demand therefor is made by the
Swing Line Bank; provided that notice of such demand is given not later
than 1:00 P.M. (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given
after such time.  Upon any such
assignment by the Swing Line Bank to any other U.S. Revolving Credit Lender of
a portion of a Swing Line Advance, the Swing Line Bank represents and warrants
to


 


36





















 


such other Lender that the Swing Line Bank is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party.  If and to the extent that any U.S. Revolving
Credit Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such U.S. Revolving Credit Lender agrees
to pay to the Administrative Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Swing Line
Bank until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate.  If such Lender shall
pay to the Administrative Agent such amount for the account of the Swing Line
Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Advance made by such Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Advance made by the Swing Line Bank shall be reduced by such amount on
such Business Day.


 


(c)           Anything in subsection (a) above to
the contrary notwithstanding, (i) neither Borrower may select Eurodollar
Rate Advances for the initial Borrowing hereunder or for any Borrowing if the
aggregate amount of such Borrowing is less than $2,000,000 or if the obligation
of the Appropriate Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.09 or Section 2.10 and (ii) the Term Advances
may not be outstanding as part of more than three separate Borrowings and the
U.S. Revolving Credit Advances or the Canadian Revolving Credit Advances, as
the case may be, made on any date may not be outstanding on any date as part of
more than ten separate Borrowings.


 


(d)           Each Notice of Borrowing and Notice
of Swing Line Borrowing shall be irrevocable and binding on the Appropriate
Borrower.  In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Appropriate Borrower shall indemnify each Appropriate Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.


 


(e)           Unless the Administrative Agent shall
have received notice from an Appropriate Lender prior to the date of any
Borrowing under a Facility under which such Lender has a Commitment that such
Lender will not make available to the Administrative Agent such Lender’s
ratable portion of such Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
date of such Borrowing in accordance with subsection (a) or (b) of this Section
2.02 and the Administrative Agent may, in reliance upon such assumption, make
available to the Appropriate Borrower on such date a corresponding amount.  If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and such Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
the Appropriate Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.  If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender’s Advance as part of such Borrowing for all purposes.


 


(f)            The failure of any Lender to make
the Advance to be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Advance on


 


37





















 


the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be made
by such other Lender on the date of any Borrowing.


 


SECTION 2.03.  Issuance of and Drawings and Reimbursement
Under Letters of Credit.  (a)  Request for Issuance.  Each Letter of Credit shall be issued upon
notice, given not later than 12:00 P.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, or such shorter period as may be agreed upon by the Issuing Bank, by
the U.S. Borrower to the Issuing Bank, which shall give to the Administrative
Agent and each U.S. Revolving Credit Lender prompt notice thereof by telex or
telecopier.  Each such notice of issuance
of a Letter of Credit (a “Notice of Issuance”) shall be by telephone,
confirmed immediately in writing, or telex or telecopier, specifying therein
the requested (i) date of such issuance (which shall be a Business Day),
(ii) Available LC Amount of such Letter of Credit, (iii) expiration
date of such Letter of Credit, (iv) name and address of the beneficiary of
such Letter of Credit and (v) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of credit as the
Issuing Bank may specify to the U.S. Borrower for use in connection with such
requested Letter of Credit (a “Letter of Credit Agreement”).  If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from the Administrative
Agent, the Issuing Bank will, upon fulfillment of the applicable conditions set
forth in Article III, make such Letter of Credit available to the U.S. Borrower
at its office referred to in Section 9.02 or as otherwise agreed with the U.S.
Borrower in connection with such issuance. 
In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.


 


(b)           Letter of Credit Reports.  The Issuing Bank shall furnish (i) to
the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the previous week and drawings during such week under all Letters of
Credit, (ii) to each U.S. Revolving Credit Lender on the first Business
Day of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued during the preceding month and drawings during such
month under all Letters of Credit and (iii) to the Administrative Agent
and each U.S. Revolving Credit Lender on the first Business Day of each
calendar quarter a written report setting forth the average daily aggregate
Available LC Amount during the preceding calendar quarter of all Letters of
Credit.


 


(c)           Drawing and Reimbursement.  The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.  Upon written demand by the Issuing Bank, with
a copy of such demand to the Administrative Agent, each U.S. Revolving Credit
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell
and assign to each such U.S. Revolving Credit Lender , such Lender’s Pro Rata
Share of such outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable Lending Office
to the Administrative Agent for the account of the Issuing Bank, by deposit to
the Administrative Agent’s Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender.  Promptly
after receipt thereof, the Administrative Agent shall transfer such funds to
the Issuing Bank.  The U.S. Borrower
hereby agrees to each such sale and assignment. 
Each U.S. Revolving Credit Lender agrees to purchase its Pro Rata Share
of an outstanding Letter of Credit Advance on (i) the Business Day on which
demand therefor is made by the Issuing Bank; provided notice of such
demand is given not later than 12:00 P.M. (New York City time) on such Business
Day or (ii) the first Business Day next succeeding such demand if notice of
such demand is given after such time. 
Upon any such assignment by the Issuing Bank to any other U.S. Revolving
Credit Lender of a portion of a Letter of Credit Advance, the Issuing Bank
represents and warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner


 


38





















 


of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party.  If and to the extent that any U.S. Revolving
Credit Lender shall not have so made the amount of such Letter of Credit
Advance available to the Administrative Agent, such U.S. Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable.  If such Lender
shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.


 


(d)           Failure to Make Letter of Credit
Advances.  The failure of any Lender
to make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.


 


SECTION 2.04.  Repayment of Advances.  (a)  Term
Advances.  The U.S. Borrower shall
repay to the Administrative Agent for the ratable account of the Term Lenders
the aggregate outstanding principal amount of the Term Advances on the
following dates in the amounts indicated (which amount shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):


 


	
  Date

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2005

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2005

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2005

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2005

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2006

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2006

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2006

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2006

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2007

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2007

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2007

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2007

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2008

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2008

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2008

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2008

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2009

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2009

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2009

  	
   

  	
  0.25

  	
  %

  
	
  March 31, 2010

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2010

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2010

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2010

  	
   

  	
  0.25

  	
  %

  



 


39





















 


	
  March 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
  June 30, 2011

  	
   

  	
  0.25

  	
  %

  
	
  September 30, 2011

  	
   

  	
  0.25

  	
  %

  
	
  December 31, 2011

  	
   

  	
  0.25

  	
  %

  
	
  January 31, 2012

  	
   

  	
  93.00

  	
  %;

  



 


provided, however, that (i)
the final principal installment of the Term Advances shall be repaid on the
Termination Date in respect of the Term Facility and in any event shall be in
an amount equal to the aggregate principal amount of the Term Advances
outstanding on such date and (ii) the final principal installment of any New
Term Advances of any Series shall be repaid on the New Term Advance Maturity
Date in respect of such Series and in any event shall be in an amount equal to
the aggregate principal amount of the New Term Advances of such Series
outstanding on such date.


 


(b)           U.S. Revolving Credit Advances.  The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the U.S. Revolving Credit
Lenders on the Termination Date in respect of the U.S. Revolving Credit
Facility the aggregate outstanding principal amount of the U.S. Revolving
Credit Advances then outstanding.


 


(c)           Swing Line Advances.  The U.S. Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other U.S.
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date in respect of the U.S. Revolving
Credit Facility.


 


(d)           Letter of Credit Advances.  (i)  The U.S. Borrower shall repay
to the Administrative Agent for the account of the Issuing Bank and each other
U.S. Revolving Credit Lender that has made a Letter of Credit Advance on the
earlier of demand and the Termination Date in respect of the U.S. Revolving
Credit Facility the outstanding principal amount of each Letter of Credit
Advance made by each of them.


 


(ii)           The Obligations of the U.S. Borrower
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:


 


(A)          any lack of validity or enforceability
of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating thereto (all of the foregoing being,
collectively, the “L/C Related Documents”);


 


(B)           any change in the time, manner or
place of payment of, or in any other term of, all or any of the Obligations of
the U.S. Borrower in respect of any L/C Related Document or any other amendment
or waiver of or any consent to departure from all or any of the L/C Related
Documents;


 


(C)           the existence of any claim, set-off,
defense or other right that the U.S. Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;


 


40





















 


(D)          any statement or any other document
presented under a 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;


 


(E)           payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or certificate or other
document that does not strictly comply with the terms of such Letter of Credit;


 


(F)           any exchange, release or non-perfection
of any Collateral or other collateral, or any release or amendment or waiver of
or consent to departure from the Guaranty, the Guarantee and Collateral
Agreement or any other guarantee, for all or any of the Obligations of the U.S.
Borrower in respect of the L/C Related Documents; or


 


(G)           any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the U.S. Borrower or a guarantor.


 


(e)           Canadian Revolving Credit Advances.  The Canadian Borrower shall repay to the
Administrative Agent for the ratable account of the Canadian Revolving Credit
Lenders on the Termination Date in respect of the Canadian Revolving Credit
Facility the aggregate outstanding principal amount of the Canadian Revolving
Credit Advances then outstanding.


 


SECTION 2.05.  Termination or Reduction of the
Commitments.  (a)  Optional.  Either Borrower may, upon at least two
Business Days’ notice to the Administrative Agent, terminate in whole or reduce
in part the unused portions of the Term Commitments, the Letter of Credit
Facility, the Unused Canadian Revolving Credit Commitments and the Unused U.S.
Revolving Credit Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance
with their Commitments with respect to such Facility.


 


(b)           Mandatory.  (i)  The U.S. Revolving Credit
Facility or the Canadian Revolving Credit Facility, as the case may be, shall
be automatically and permanently reduced on a pro rata basis on each date on
which prepayment thereof is required to be made pursuant to Section
2.06(b)(ii), in an amount equal to the U.S. Reduction Amount or the Canadian
Reduction Amount, as applicable; provided that each such reduction of
the U.S. Revolving Credit Facility or the Canadian Revolving Credit Facility,
as the case may be, shall be made ratably among the U.S. Revolving Credit
Lenders or the Canadian Revolving Credit Lenders, respectively, in accordance
with their respective U.S. Revolving Credit Commitments or Canadian Revolving
Credit Commitments.


 


(ii)           The Letter of Credit Facility shall
be permanently reduced from time to time on the date of each reduction in the
U.S. Revolving Credit Facility by the amount, if any, by which the amount of
the Letter of Credit Facility exceeds the U.S. Revolving Credit Facility after
giving effect to such reduction of the U.S. Revolving Credit Facility.


 


SECTION 2.06.  Prepayments.  (a)  Optional.  The Appropriate Borrower may, on same
Business Day’s notice in the case of Base Rate Advances and one Business Day’s
notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, and if such notice is given the Appropriate Borrower shall,
prepay the outstanding aggregate principal amount of the Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on


 


41





















 


the aggregate principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance such Borrower shall also pay any
amounts owing pursuant to Section 9.04(c). 
Each such prepayment of any Term Advances shall be applied ratably to
the outstanding aggregate principal amount of the Advances under the Term
Facility in a manner specified by the U.S. Borrower.


 


(b)           Mandatory.  (i)  The Borrowers shall, on the
130th day following the end of each Fiscal Year, if the Leverage Ratio for the
Measurement Period ending on the last day of such Fiscal Year exceeds
4.00:1.00, prepay an aggregate principal amount of the Term Advances comprising
part of the same Borrowings in an amount equal to the remainder of (A) 50% of
the amount of Excess Cash Flow for such Fiscal Year minus (B) the
aggregate amount of any optional prepayments of Term Advances or, to the extent
such prepayments permanently reduced the Canadian Revolving Credit Facility or
the U.S. Revolving Credit Facility, as the case may be, the amount of any
optional prepayments of Canadian Revolving Credit Advances or U.S. Revolving
Credit Advances, Swing Line Advances or Letter of Credit Advances, as
applicable, made during such Fiscal Year; provided that, in the event
that the U.S. Borrower consummates an IPO prior to December 31, 2005, no such
Excess Cash Flow repayment shall be required in respect of the Fiscal Year
ending on such date.  Each such
prepayment shall be applied ratably to the outstanding aggregate principal
amount of the Term Advances and to the installments under such Facility in inverse
order of maturity.


 


(ii)           The Borrowers shall, on the date of
receipt of the Net Cash Proceeds by any Loan Party or any of its Restricted
Subsidiaries from the sale, lease, transfer or other disposition (other than
inventory sold in the ordinary course of business) of any assets of, or from
the incurrence or issuance of any Debt (excluding any Debt incurred or issued
in accordance with Section 5.02(b) other than any Subordinated Debt incurred or
issued after the Closing Date in accordance with Section 5.02(b)(i)(A)) by, any
Loan Party or any of its Restricted Subsidiaries, or from any Recovery Event,
prepay an aggregate principal amount of the Advances comprising part of the
same Borrowings equal to 100% of the amount of such Net Cash Proceeds.  Each such prepayment shall be applied, first,
ratably to the outstanding aggregate principal amount of the Term Advances and
to the next two installments thereof, second, ratably to the Term
Advances and pro rata to the remaining installments thereof and, third,
in the case of any such sale or other disposition of assets or Recovery Event,
ratably to the Canadian Revolving Credit Facility and the U.S. Revolving Credit
Facility as set forth in clause (v) below.


 


(iii)          The Borrowers shall, on the date of
receipt of the Net Cash Proceeds by any Loan Party or any of its Restricted
Subsidiaries from the sale or issuance of any Equity Interests of the U.S.
Borrower (including, without limitation, any capital contribution) prepay an
aggregate principal amount of the Term Advances comprising part of the same
Borrowings equal to such Net Cash Proceeds times (A) 0% if the Leverage
Ratio as of the most recently ended Measurement Period for which the relevant
financial statements have been delivered to the Administrative Agent is less
than 3.75:1.00, (B) 50% if the Leverage Ratio as of the most recently
ended Measurement Period for which the relevant financial statements have been
delivered to the Administrative Agent is less than 4.50:1.00 and greater than
or equal to 3.75:1.00 or (C) 100% otherwise; provided that with
respect to the IPO, 50% of the Net Cash Proceeds (calculated without giving
effect to clause (e) thereof) received by any Loan Party or any of its
Restricted Subsidiaries shall be applied to prepay an aggregate principal
amount of the Term Advances comprising part of the same Borrowings and the
remaining Net Cash Proceeds of the IPO shall be applied as required in this
clause (iii) without giving effect to this proviso.  Each such prepayment shall be applied, first,
ratably to the outstanding aggregate principal amount of


 


42





















 


the Term Advances and to the
next two installments thereof and, second, ratably to the Term Advances
and pro rata to the remaining installments thereof.


 


(iv)          The U.S. Borrower shall, on each
Business Day, prepay an aggregate principal amount of the U.S. Revolving Credit
Advances comprising part of the same Borrowings, the Letter of Credit Advances
and the Swing Line Advances equal to the amount by which (A) the sum of the
aggregate principal amount of (x) the U.S. Revolving Credit Advances, (y) the
Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus
the aggregate Available LC Amount of all Letters of Credit then outstanding
exceeds (B) the U.S. Revolving Credit Facility on such Business Day (after
giving effect to any permanent reduction thereof pursuant to Section 2.05 on
such Business Day).  The Canadian
Borrower shall, on each Business Day, prepay an aggregate principal amount of
the Canadian  Revolving Credit Advances
comprising part of the same Borrowings equal to the amount by which the
aggregate principal amount of the Canadian Revolving Credit Advances then
outstanding exceeds the Canadian 
Revolving Credit Facility on such Business Day (after giving effect to
any permanent reduction thereof pursuant to Section 2.05 on such Business Day).


 


(v)           Prepayments of the U.S. Revolving
Credit Facility made pursuant to clause (ii) or (iv) of this Section 2.06(b)
below shall be applied, first, to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second, to prepay
Swing Line Advances then outstanding until such Advances are paid in full and, third,
to prepay U.S. Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full; and, in the case of
prepayments of the U.S. Revolving Credit Facility required pursuant to clause
(ii) above, the amount remaining (if any) after the prepayment in full of the
Advances then outstanding (the sum of such prepayment amounts and remaining
amount being referred to herein as the “U.S. Reduction Amount”) may be
retained by the U.S. Borrower and the U.S. Revolving Credit Facility shall be
permanently reduced as set forth in Section 2.05(b)(i).  Prepayments of the Canadian Revolving Credit
Facility made pursuant to clause (ii) or (iv) of this Section 2.06(b) below
shall be applied to prepay Canadian Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full;
and, in the case of prepayments of the Canadian Revolving Credit Facility
required pursuant to clause (ii) above, the amount remaining (if any) after the
prepayment in full of the Advances then outstanding (the sum of such prepayment
amounts and remaining amount being referred to herein as the “Canadian
Reduction Amount”) may be retained by the Canadian Borrower and the
Canadian Revolving Credit Facility shall be permanently reduced as set forth in
Section 2.05(b)(i).


 


(vi)          All prepayments under this subsection
(b) shall be made together with accrued interest to the date of such prepayment
on the principal amount prepaid.


 


(vii)         Notwithstanding any other provision of
this Section 2.06, the Canadian Borrower shall not be liable for or required to
repay any Obligation of the Loan Parties under the Loan Documents other than
those Obligations incurred under the Canadian Revolving Credit Facility.


 


(viii)        Notwithstanding any of the other
provisions of this Section 2.06(b), so long as no Default under Section 7.01(a)
or 7.01(f) or Event of Default shall have occurred and be continuing, if any
prepayment of Eurodollar Rate Advances is required to be made under this
Section 2.06(b) other than on the last day of the Interest Period therefor, the
Borrower to which such Eurodollar Rate Advances were made may, in its sole
discretion, deposit the amount of any such prepayment otherwise required to be
made hereunder into the Cash Collateral Account of such Borrower until the last
day of such Interest Period, at which time the Administrative Agent


 


43





















 


shall be authorized (without
any further action by or notice to or from such Borrower) to apply such amount
to the prepayment of such Advances in accordance with this Section 2.06(b).


 


SECTION 2.07.  Interest.  (a)  Scheduled
Interest.  Each Borrower shall pay
interest on the unpaid principal amount of each Advance owing by it to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:


 


(i)            Base Rate Advances.  During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the last Business Day
of each March, June, September and December during such periods, subject,
however, to the provisions of subsection (b) of this Section 2.07.


 


(ii)           Eurodollar Rate Advances.  During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable Margin in effect on
the first day of such Interest Period, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full, subject, however,
to the provisions of subsection (b) of this Section 2.07.


 


(b)           Default Interest.  If all or a portion of (i) the principal
amount of any Advance or (ii) any interest payable thereon or fees or other
amounts payable under this Agreement shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the aggregate principal amount
of all Advances outstanding at such time shall bear interest, payable on
demand, at a rate per annum that is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto plus 2% per annum or (y) in
the case of any overdue interest, fees or other amounts payable, to the extent
permitted by applicable law, the rate described in Section 2.07(a)(i) plus 2%
per annum, in each case, from the date of such non-payment to the date on which
such overdue amount is paid in full (after as well as before judgment).


 


(c)           Notice of Interest Rate.  Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Appropriate Borrower and each Appropriate Lender of the
applicable interest rate determined by the Administrative Agent for purposes of
clause (a)(i) or (ii), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable interest rate
under clause (a)(ii).


 


(d)           Interest Rate Determination.  (i)  Each Reference Bank agrees to
furnish to the Administrative Agent timely information for the purpose of
determining each Eurodollar Rate.  If any
one or more of the Reference Banks shall not furnish such timely information to
the Administrative Agent for the purpose of determining any such interest rate,
the Administrative Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.


 


(ii)           If fewer than two Reference Banks are
able to furnish timely information to the Administrative Agent for determining
the Eurodollar Rate for any Eurodollar Rate Advances,


 


(iii)          the Administrative Agent shall
forthwith notify the Appropriate Borrower and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Advances,


 


44





















 


(iv)          each such Advance will automatically,
on the last day of the then existing Interest Period therefor, convert into a
Base Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and


 


(v)           the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Appropriate Borrower and the
Lenders that the circumstances causing such suspension no longer exist.


 


SECTION 2.08.  Fees. 
(a)  Commitment Fee.  (i) The U.S. Borrower shall pay to the
Administrative Agent for the account of each Lender having a U.S. Revolving
Credit Commitment and (ii) the Canadian Borrower shall pay to the
Administrative Agent for the account of each Lender having a Canadian Revolving
Credit Commitment, in each case a commitment fee, from the date hereof in the
case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date, payable in arrears on the date of
the initial Borrowing hereunder, thereafter quarterly on the last Business Day
of each March, June, September and December, commencing March 31, 2005, and on
the Termination Date, at the rate per annum equal to the Applicable Percentage
of the sum of the average daily Unused U.S. Revolving Credit Commitment or
Unused Canadian Revolving Credit Commitment, as the case may be, of such Lender
plus, in respect of such Lender that is a U.S. Revolving Credit Lender
only, its Pro Rata Share of the average daily outstanding Swing Line Advances
during such quarter; provided, however, that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.


 


(b)           Letter of Credit Fees, Etc.  (i)  The U.S. Borrower shall pay to
the Administrative Agent for the account of each U.S. Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each
March, June, September and December, commencing March 31, 2005, and on the
earliest to occur of the full drawing expiration, termination or cancellation
of any such Letter of Credit and on the Termination Date, on such Lender’s Pro
Rata Share of the average daily aggregate Available LC Amount of all Letters of
Credit outstanding from time to time at a rate per annum equal to the
Applicable Margin for Eurodollar Rate Advances under the U.S. Revolving Credit
Facility then in effect.


 


(ii)           The U.S. Borrower shall pay to the
Issuing Bank, for its own account, (A) a fronting fee, payable in arrears
quarterly on the last Business Day of each March, June, September and December,
commencing March 31, 2005, and on the Termination Date, on the average daily
aggregate Available LC Amount of all Letters of Credit outstanding from time to
time at the rate of 0.25% per annum and (B) such other reasonable and customary
commissions, transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as the U.S. Borrower and
the Issuing Bank shall agree.


 


(c)           Administrative Agent’s Fees.  The U.S. Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the U.S. Borrower and the Administrative Agent.


 


SECTION 2.09.  Conversion
of Advances.  (a)  Optional.  Either Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 12:00 P.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.10, Convert all
or any portion of the Advances of one Type owed by it comprising the same
Borrowing into Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurodollar Rate


 


45





















 


Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c), no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility.  Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the date of
such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances.  Each
notice of Conversion shall be irrevocable and binding on such Borrower.


 


(b)           Mandatory.  (i)  On the date on which the
aggregate unpaid principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$2,000,000, such Advances shall automatically Convert into Base Rate Advances.


 


(ii)           If the Appropriate Borrower shall
fail to select the duration of any Interest Period for any Eurodollar Rate
Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Administrative Agent will forthwith so notify such
Borrower and the Appropriate Lenders, whereupon each such Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance.


 


(iii)          Upon the occurrence and during the
continuance of any Default under Section 7.01(a), (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (y) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.


 


SECTION 2.10.  Increased Costs, Etc.  (a)  In
the event that, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements included in
the Eurodollar Rate Reserve Percentage) in or in the interpretation or administration
of any applicable law or regulation after the Closing Date, (ii) the compliance
with any applicable guideline or request from any central bank or other
governmental authority (whether or not having the force of law) or (iii) any
other circumstance affecting the interbank Eurodollar market or the position of
any Lender Party in such market which leads such Lender Party to reasonably
determine that the Eurodollar Rate for any Interest Period for any Eurodollar
Rate Advance made by such Lender Party will not adequately reflect the cost to
such Lender of making, funding or maintaining such Eurodollar Rate Advance for
such Interest Period, there shall be any increase in the cost to or reduction
in the amount received or receivable by any Lender Party as a result of
agreeing to make or of making, funding or maintaining Eurodollar Rate Advances
or of agreeing to issue or of issuing or maintaining Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding for purposes of this Section 2.10 any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (B)
changes in the basis of taxation of overall net income or overall gross income
by the United States or Canada or by the foreign jurisdiction or state under
the laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the U.S. Borrower shall from
time to time, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender Party, in
its reasonable discretion, shall determine) sufficient to compensate such
Lender Party for such increased cost; provided, however, that a
Lender Party claiming additional amounts under this Section 2.10(a) agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office for
any Advances affected by such event if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue; provided that such designation is made on


 


46





















 


terms that such Lender Party and its Applicable Lending Office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of this subsection
(a).  A certificate as to the amount of
such increased cost and showing in reasonable detail the basis for the calculation
thereof, submitted to such Borrower by such Lender Party at the time of demand,
shall be conclusive and binding for all purposes, absent manifest error.


 


(b)           If, due to either (i) the
introduction of or any change in or in the interpretation or administration of
any applicable law or regulation after the Closing Date or (ii) the compliance
with any applicable guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the amount of capital required or expected to be maintained by
any Lender Party or any corporation controlling such Lender Party which has or
would have the effect of reducing the rate of return on such Lender Party’s
capital or assets as a result of or based upon the existence of such Lender
Party’s commitments and obligations under this Agreement to a level below that
which such Lender Party could have achieved but for such change or compliance
(taking into consideration such Lender Party’s or any corporation controlling
such Lender Party’s policies with respect to capital adequacy), then, upon
demand by such Lender Party (with a copy of such demand to the Administrative
Agent), the U.S. Borrower shall pay to the Administrative Agent for the account
of such Lender Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party in the light of
such circumstances, it being understood and agreed that a Lender Party shall
not be entitled to such compensation as a result of such Lender Party’s
compliance with, or pursuant to any request or directive to comply with, any
such law, regulation, guideline or request in effect on the Closing Date.  Any amount payable pursuant to this Section
2.10(b) shall be payable only to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party’s commitment to lend or to issue Letters of Credit hereunder or to
the issuance or maintenance of any Letters of Credit.  A certificate as to such amounts and showing
in reasonable detail the basis for the calculation thereof submitted to such
Borrower by such Lender Party at the time of demand shall be conclusive and
binding for all purposes, absent manifest error.


 


(c)           Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, with respect to any Eurodollar Rate Advance affected
by circumstances described in this subsection (c), such Borrower will, and with
respect to any Eurodollar Rate Advance affected by circumstances described in
subsections (a) or (b) above, such Borrower may, either (i) on the last day of
the then existing Interest Period therefor, convert each Eurodollar Rate
Advance affected by such circumstances into a Base Rate Advance or (ii) if the
affected Eurodollar Rate Advance is then being made pursuant to a Borrowing,
cancel such Borrowing by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that such Borrower was
notified by a Lender Party pursuant to subsection (a) or (b) above or this
subsection (c) (as applicable); provided that if more than one Lender
Party is affected at any time, then all affected Lender Parties must be treated
in the same manner pursuant to this Section 2.10(c).  In the event of an illegality as described in
this subsection (c) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Appropriate Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender Party agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office for
any Advances affected by such event if the making of such a designation would
allow such Lender Party or its Applicable Lending Office to continue to perform
its obligations to make Eurodollar Rate Advances or to continue to fund or
maintain


 


47





















 


Eurodollar Rate Advances; provided that such
designation is made on terms that such Lender Party and its Applicable Lending
Office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of this
subsection.


 


(d)           Anything in this Agreement to the
contrary notwithstanding, to the extent any notice under Section 2.10, 2.12 or
9.04(c) is given by any Lender Party more than 180 days after such Lender Party
has knowledge (or should have had knowledge) of the occurrence of the event
giving rise to the additional cost, reduction in amounts, loss, tax or other
additional amounts described in such Section 2.10, 2.12 or 9.04(c), as the case
may be, such Lender Party shall not be entitled to compensation under such
Section for any such amounts incurred or accruing prior to the giving of such
notice to the Appropriate Borrower.


 


SECTION 2.11.  Payments and Computations.  (a) 
Each Borrower shall make each payment owed by it hereunder and under the
Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in Section 2.15), not later than 12:00 P.M. (New York City
time) on the day when due (or, in the case of payments made by the U.S.
Borrower pursuant to Section 6.01, on the date of demand therefor) in U.S.
dollars to the Administrative Agent at the Administrative Agent’s Account in
same day funds.  The Administrative Agent
will promptly thereafter cause like funds to be distributed (i) if such payment
by a Borrower is in respect of principal, interest, commitment fees or any
other Obligation then payable hereunder and under the Notes to more than one
Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if such
payment by a Borrower is in respect of any Obligation then payable hereunder to
one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.  Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.


 


(b)           If the Administrative Agent receives
funds for application to the Obligations under the Loan Documents under
circumstances for which the Loan Documents do not specify the Advances or the
Facility to which, or the manner in which, such funds are to be applied, the
Administrative Agent may, but shall not be obligated to, elect to distribute
such funds to each Lender Party ratably in accordance with such Lender Party’s
proportionate share of the principal amount of all outstanding Advances and the
Available LC Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to
such Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.


 


(c)           The Borrowers hereby authorize each
Lender Party, if and to the extent payment owed to such Lender Party is not
made when due hereunder or, in the case of a Lender, under the Note held by
such Lender, to charge from time to time against any or all of the Appropriate
Borrower’s accounts with such Lender Party any amount so due.


 


(d)           All computations of interest, fees
and commissions shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable; provided that (i) interest in
respect of which the rate of interest is calculated on the basis of clause (a)
of the definition of “Base Rate” contained in Section 1.01, (ii) commitment
fees payable pursuant to Section 2.08(a) and (iii) Letter of Credit fees
payable pursuant to Section 2.08(b)


 


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shall be calculated on the basis of a year of 365 (or 366,
as the case may be) days for the actual number of days elapsed; and provided
further that for purposes of the Interest
Act (Canada), whenever interest hereunder is to be calculated at a
rate based upon a 360 day period (the “Applicable Rate”), the rate or
percentage of interest on a yearly basis is equivalent to such Applicable Rate
multiplied by the actual number of days in the year divided by 360.  Each determination by the Administrative
Agent of an interest rate, fee or commission hereunder shall be conclusive and
binding for all purposes, absent manifest error.


 


(e)           Whenever any payment hereunder or
under the Notes 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 payment
of interest or commitment fee, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.


 


(f)            Unless the Administrative Agent
shall have received notice from the Appropriate Borrower prior to the date on
which any payment is due to any Lender Party hereunder that such Borrower will
not make such payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender Party on such due date an amount equal to the
amount then due such Lender Party.  If
and to the extent such Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.


 


SECTION 2.12.  Taxes. 
(a)  Any and all payments by
either Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.11, free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) in the case of each
Lender Party and the Administrative Agent, (A) taxes that are imposed on
its overall net income by the United States and taxes that are imposed on its
overall net income or, in the case of any Canadian Revolving Credit Lender,
capital (and franchise taxes imposed in lieu thereof) by the state, province or
other jurisdiction under the laws of which such Lender Party or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and (B) any taxes imposed on the Administrative Agent
or any Lender Party as a result of a current or former connection between the
Administrative Agent or such Lender Party, as the case may be, and the
jurisdiction imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising from the
Administrative Agent or such Lender Party having executed, delivered or
performed its obligations or received any payment under, or sought enforcement
of, this Agreement) and (ii) (A) in the case of each Lender Party,
taxes that are imposed on its overall net income (and franchise taxes imposed
in lieu thereof) by the state, province or other jurisdiction of such Lender
Party’s Applicable Lending Office or any political subdivision thereof and
(B) in the case of each Canadian Revolving Credit Lender, taxes that are
imposed on its overall capital under the federal or provincial laws of Canada
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as “Taxes”) unless such Borrower is required by
law or the interpretation or administration thereof to withhold or deduct
Taxes.  If either Borrower shall be
required by law or the interpretation or administration thereof by the relevant
taxing authority to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender Party or the Administrative Agent,
(x) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.12) such Lender Party or


 


49





















 


the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (y) such
Borrower shall make such deductions and (z) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law; provided, however, that the U.S.
Borrower shall not be required to increase any such amounts otherwise payable
to a Lender Party that is not organized under the laws of the United States or
a state thereof so long as such Lender Party fails to comply with the
requirements of subsection (e) below.


 


(b)           In addition, each Borrower shall pay
any present or future stamp, documentary, excise, property or similar taxes,
charges or levies that arise from any payment made by it hereunder or under the
Notes or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as “Other Taxes”).


 


(c)           Each Borrower shall indemnify each
Lender Party and the Administrative Agent for and hold it harmless against the
full amount of Taxes and Other Taxes, and for the full amount of taxes of any
kind imposed by any jurisdiction on amounts payable under this Section 2.12,
imposed on or paid by such Lender Party or the Administrative Agent (as the
case may be), and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto that would not
have arisen but for the Appropriate Borrower’s failure to pay any Taxes or
Other Taxes when due to the appropriate taxing authority or remit to the
Administrative Agent the receipts or other documentary evidence required under
subsection (d) below.  This indemnification
shall be made within 30 days from the date such Lender Party or the
Administrative Agent (as the case may be) makes written demand therefor.


 


(d)           Promptly after the date of any
payment of Taxes, the Appropriate Borrower shall furnish to the Administrative
Agent, at its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment. 
In the case of any payment hereunder or under the Notes by or on behalf
of such Borrower through an account or branch outside the United States or by or
on behalf of such Borrower by a payor that is not a United States person, if
such Borrower determines that no Taxes are payable in respect thereof, such
Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes.  For purposes of this subsection
(d) and subsection (e), the terms “United States” and “United States person”
shall have the meanings specified in Section 7701 of the Internal Revenue Code.


 


(e)           Each Lender Party organized under the
laws of a jurisdiction outside the United States shall, on or prior to the date
of its execution and delivery of this Agreement in the case of each Initial
Lender or Initial Issuing Bank, as the case may be, and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as requested
in writing by the U.S. Borrower (but only so long thereafter as such Lender
Party remains lawfully able to do so), provide each of the Administrative Agent
and the U.S. Borrower with two original properly completed and duly executed
Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender
Party that has certified in writing to the Administrative Agent that it is not
(i) a “bank” as defined in Section 881(c)(3)(A) of the Internal Revenue Code),
(ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code) of such Borrower or (iii) a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4)
of the Internal Revenue Code), Internal Revenue Service Form W-8BEN, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes or, in the case of a Lender Party that has certified
that it is not a “bank” as described above, certifying that such Lender Party
is a foreign corporation,


 


50





















 


partnership, estate or trust.  Each such Lender Party hereby agrees, from
time to time after the initial delivery by such Lender Party of such forms or
certificates, whenever a lapse in time or change in circumstances renders such
forms or certificates obsolete or inaccurate in any material respect, that such
Lender Party shall promptly (i) deliver to the U.S. Borrower and the
Administrative Agent two new original copies of Internal Revenue Service Forms
W-8BEN or W-8ECI, or (in the case of a Lender Party that has certified in
writing to the Administrative Agent that it is not (A) a “bank” as defined
in Section 881(c)(3)(A) of the Internal Revenue Code), (B) a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of such Borrower or (C) a controlled foreign corporation related to
such Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code), as appropriate, properly completed and duly executed by such Lender
Party or (ii) notify the Administrative Agent and the U.S. Borrower of its
inability to deliver any such forms or certificates.  If the forms provided by a Lender Party at
the time such Lender Party first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender Party provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however,
that, if at the date of the Assignment and Acceptance pursuant to which a
Lender Party becomes a party to this Agreement, the Lender Party assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date.  If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date of the Existing Credit Agreement (in the case
of Canadian Revolving Credit Lenders) or on the date hereof (in the case of
Lender Parties other than Canadian Revolving Credit Lenders) by Internal
Revenue Service form W-8BEN or W-8ECI or the related certificate described
above, that the Lender Party reasonably considers to be confidential, the
Lender Party shall give notice thereof to such Borrower and shall not be
obligated to include in such form or document such confidential information.


 


(f)            In respect of any Canadian Revolving
Credit Advance made to the Canadian Borrower by any Lender Party, such Lender
Party (i) represents and warrants to the Canadian Borrower that it is a
resident of Canada for purposes of the Income
Tax (Canada) or is an authorized foreign bank deemed to be a
resident of Canada for purposes of Part XIII of the Income Tax (Canada) in respect of any amount paid to such
Lender Party under the Canadian Revolving Credit Facility (ii) agrees that if
such Lender Party is not a resident of Canada at the time such payments are
made that the Canadian Borrower may withhold and remit Taxes pursuant to
subsection (a) (and (c), if applicable) and that such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
or Other Taxes imposed by Canada or any political subdivision or taxing
authority thereof or therein that arise by virtue of such Lender Party being a
non-resident of Canada for purposes of the Income
Tax Act (Canada); and (iii) covenants and agrees to promptly advise
the U.S. Borrower if such Lender Party changes its residency for purposes of
the Income Tax Act (Canada) in
accordance with the provisions of clause (i) above and to cooperate with the
Canadian Borrower to provide, at either Borrower’s reasonable request,
information necessary to determine the amount of withholding or deduction that
may be required.


 


(g)           For any period with respect to which
either (i) a Lender Party has failed to provide the U.S. Borrower with the
appropriate form, certificate or other document described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form, certificate or other document originally was required to
be provided or if such form otherwise is not required under subsection (e)
above) or (ii) any representation or certification made by a Lender Party
pursuant to subsection (e) or (f) above is incorrect in any material respect at
the time a payment hereunder


 


51





















 


is made (other than by reason of any change in treaty, law
or regulation having effect after the date of such representation or
certification when made), such Lender Party shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States or Canada by reason of such failure or incorrectness, as the
case may be; provided, however, that should a Lender Party become
subject to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, such Borrower shall take such steps as such Lender
Party shall reasonably request to assist such Lender Party to recover such
Taxes.


 


(h)           Any Lender Party claiming any
additional amounts payable pursuant to this Section 2.12 agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office or designate a different Applicable Lending Office if the making of such
a change or designation would avoid the need for, or reduce the amount of, any
such additional amounts that may thereafter accrue; provided that such
change or designation is made on terms that such Lender Party and its
Applicable Lending Office suffer no economic, legal or regulatory disadvantage,
with the object of avoiding the consequence of the event giving rise to the
operation of subsection (a) or (c) above; provided  further that
nothing in this subsection (h) shall affect or postpone any of the obligations
of the Borrowers or the rights of any Lender Party pursuant to this Section
2.12.


 


(i)            If the U.S. Borrower determines in
good faith that a reasonable basis exists for contesting any taxes for which
indemnification has been demanded hereunder, the relevant Lender Party or the
Administrative Agent, as applicable, shall cooperate with the U.S. Borrower in
challenging such taxes at the U.S. Borrower’s expense if so requested by the
U.S. Borrower.  If any Lender Party or
the Administrative Agent, as applicable, receives a refund of a tax for which a
payment has been made by the U.S. Borrower pursuant to this Section, which
refund in the good faith judgment of such Lender Party or Administrative Agent,
as the case may be, is attributable to such payment made by the U.S. Borrower,
then the Lender Party or the Administrative Agent, as the case may be, shall
reimburse the U.S. Borrower for such amount as the Lender Party or the
Administrative Agent, as the case may be, determines to be the proportion of
the refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required.  If a Lender Party or the Administrative Agent
is required to return all or a portion of any refund for which reimbursement
was made under the preceding sentence to the authority that granted such
refund, the U.S. Borrower shall pay over to such Lender Party or the
Administrative Agent, as the case may be, the portion of such reimbursement as
will leave such Lender Party or the Administrative Agent, as the case may be,
in no better or worse position than if no such reimbursement had been
made.  A Lender Party or the
Administrative Agent shall claim any refund that it determines in good faith is
available to it, unless it concludes in its reasonable discretion that it would
be adversely affected by making such a claim; provided, however,
that each Lender Party and the Administrative Agent shall be fully justified in
refusing to claim any such refund, unless, if it so requests, it shall first be
indemnified to its satisfaction against any expense that may be incurred by it
in connection therewith.  Nothing herein
contained shall interfere with the right of a Lender or the Administrative
Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige
any Lender or the Administrative Agent to disclose any information relating to
its tax affairs or any computations in respect thereof or require any Lender or
the Administrative Agent to do anything that would prejudice its ability to
benefit from any other reliefs, remissions or repayments to which it may be
entitled.


 


(j)            Each Lender Party represents and
agrees that, on the date hereof and at all times during the term of this
Agreement, it is not and will not be a conduit entity participating in a
conduit financing arrangement (as defined United States Treasury regulations
Section 1.881-3) with respect to the Borrowings hereunder (other than a conduit
financing arrangement in which the Appropriate Borrower, or an Affiliate
thereof, is a financing entity) unless the Appropriate Borrower has consented
to such arrangement prior thereto.


 


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SECTION 2.13.  Sharing of Payments, Etc.  Subject to the priority of payments
specifically set forth herein or in any other Loan Document and subject to the
provisions of Section 9.07(g)(vi) hereof, if any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Loan Documents at such time) of payments on
account of the Obligations due and payable to all Lender Parties hereunder and
under the Loan Documents at such time obtained by all the Lender Parties at
such time or (b) on account of Obligations owing (but not due and payable) to
such Lender Party hereunder and under the Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Loan Documents at such time) of payments on account of
the Obligations owing (but not due and payable) to all Lender Parties hereunder
and under the Loan Documents at such time obtained by all of the Lender Parties
at such time, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in the Obligations due and payable or owing to
them, as the case may be, as shall be necessary to cause such purchasing Lender
Party 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
such purchasing Lender Party, such purchase from each other Lender Party shall
be rescinded and such other Lender Party shall repay to the purchasing Lender
Party the purchase price to the extent of such Lender Party’s ratable share
(according to the proportion of (i) the purchase price paid to such Lender
Party to (ii) the aggregate purchase price paid to all Lender Parties) of such
recovery together with an amount equal to such Lender Party’s ratable share
(according to the proportion of (i) the amount of such other Lender Party’s
required repayment to (ii) the total amount so recovered from the purchasing
Lender Party) of any interest or other amount paid or payable by the purchasing
Lender Party in respect of the total amount so recovered.  Each Borrower agrees that any Lender Party so
purchasing a participation from another Lender Party pursuant to this Section
2.13 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender Party were the direct creditor of such Borrower in the
amount of such participation.


 


SECTION 2.14.  Use of Proceeds.  The proceeds (a) of the Term Advances
and the Canadian Revolving Credit Advances made or continued on the Closing
Date shall be available (and each Borrower agrees that it shall use such
proceeds) solely to finance the Transactions and to pay related fees and
expenses, and (b) of the Canadian Revolving Credit Advances made after the
Closing Date and the U.S. Revolving Credit Advances and issuances of Letters of
Credit shall be available (and each Appropriate Borrower agrees that it shall
use such proceeds and Letters of Credit) to provide working capital for the
Canadian Borrower, the U.S. Borrower and its Subsidiaries and for other general
corporate purposes.


 


SECTION 2.15.  Defaulting
Lenders.  (a)  In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to either Borrower and (iii) such
Borrower shall be required to make any payment hereunder or under any other
Loan Document to or for the account of such Defaulting Lender, then such
Borrower may, so long as no Default shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of such Borrower to make such payment to or for the
account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. 
In the event that, on any date, such Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such


 


53





















 


Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by such Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender
made on the date under the Facility pursuant to which such Defaulted Advance
was originally required to have been made pursuant to Section 2.01.  Such Advance shall be a Base Rate Advance and
shall be considered, for all purposes of this Agreement, to comprise part of
the Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such Advance
is deemed to be made pursuant to this subsection (a).  Each Borrower shall notify the Administrative
Agent at any time such Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect
of such Defaulted Advance pursuant to this subsection (a).  Any portion of such payment otherwise required
to be made by either Borrower to or for the account of such Defaulting Lender
which is paid by such Borrower, after giving effect to the amount set off and
otherwise applied by such Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.


 


(b)           In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Amount to the Administrative Agent or any of the other
Lender Parties and (iii) the Appropriate Borrower shall make any payment
hereunder or under any other Loan Document to the Administrative Agent for the
account of such Defaulting Lender, then the Administrative Agent may, on its
behalf or on behalf of such other Lender Parties and to the fullest extent
permitted by applicable law, apply at such time the amount so paid by such
Borrower to or for the account of such Defaulting Lender to the payment of each
such Defaulted Amount to the extent required to pay such Defaulted Amount.  In the event that the Administrative Agent
shall so apply any such amount to the payment of any such Defaulted Amount on
any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to
such extent, of such Defaulted Amount on such date.  Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or distributed
by the Administrative Agent to such other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time to
the Administrative Agent and such other Lender Parties and, if the amount of
such payment made by such Borrower shall at such time be insufficient to pay
all such Defaulted Amounts owing by each such Defaulting Lender at such time to
the Administrative Agent and the other Lender Parties, in the following order
of priority:


 


(A)          first, to the Administrative
Agent for any such Defaulted Amount then owing by each such Defaulting Lender
to the Administrative Agent; and


 


(B)           second, to any other Lender
Parties for any such Defaulted Amounts then owing by each such Defaulting
Lender to such other Lender Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such other Lender Parties.


 


Any portion of such amount paid by such Borrower for
the account of such Defaulting Lender remaining, after giving effect to the
amount applied by the Administrative Agent pursuant to this subsection (b),
shall be applied by the Administrative Agent as specified in subsection (c) of
this Section 2.15.


 


(c)           In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall not owe a Defaulted Advance or a Defaulted Amount and (iii) either
Borrower, the Administrative Agent or any other Lender Party shall be required
to pay or distribute any amount hereunder or under any other Loan Document to
or for the account of such Defaulting


 


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Lender, then such Borrower or such other Lender Party shall
pay such amount to the Administrative Agent to be held by the Administrative
Agent, to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it.  Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection
(c).  The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Citibank’s standard terms
applicable to escrow accounts maintained with it.  Any interest credited to such account from
time to time shall be held by the Administrative Agent in escrow under, and applied
by the Administrative Agent from time to time in accordance with the provisions
of, this subsection (c).  The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:


 


(A)          first, to the Administrative
Agent for any amount then due and payable by such Defaulting Lender to the
Administrative Agent hereunder;


 


(B)           second, to any other Lender
Parties for any amount then due and payable by such Defaulting Lender to such
other Lender Parties hereunder, ratably in accordance with such respective
amounts then due and payable to such other Lender Parties; and


 


(C)           third, to such Borrower for
any Advance then required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.


 


In the event that any Lender Party that is a
Defaulting Lender shall, at any time, cease to be a Defaulting Lender, any
funds held by the Administrative Agent in escrow at such time with respect to
such Lender Party shall be distributed by the Administrative Agent to such
Lender Party and applied by such Lender Party to the Obligations owing to such
Lender Party at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.


 


(d)           The rights and remedies against a
Defaulting Lender under this Section 2.15 are in addition to other rights and
remedies that either Borrower may have against such Defaulting Lender with
respect to any Defaulted Advance and that the Administrative Agent or any
Lender Party may have against such Defaulting Lender with respect to any
Defaulted Amount.


 


SECTION 2.16.  Incremental Facilities.  The U.S. Borrower may by written notice to
the Administrative Agent, not more than three times during the term of this
Agreement, elect to request the establishment of one or more new term loan
commitments (the “New Term Commitments”) by an amount not in excess of
$125,000,000 in the aggregate and not less than $25,000,000 individually (or such
lesser amount which shall be approved by Administrative Agent or such lesser
amount that shall constitute the difference between $125,000,000 and all such
New Term Commitments obtained prior to such date), and integral multiples of
$5,000,000 in excess of that amount. 
Each such notice shall specify the date (each, an “Increased Amount
Date”) on which the U.S. Borrower proposes that the New Term Commitments
shall be effective, which shall be a date not less than 10 Business Days after
the date on which such notice is delivered to the Administrative Agent; provided
that the U.S. Borrower shall first offer the Lenders the opportunity to provide
all of the New Term Commitments prior to approaching any other Person that is
an


 


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Eligible Assignee pursuant to Section 9.07(a); provided, further,
that any Lender offered or approached to provide all or a portion of the New
Term Commitments may elect or decline, in its sole discretion, to provide a New
Term Commitment, and no Lender shall, as a result of such rejection, be deemed
to be in default in any respect hereunder. 
Such New Term Commitments shall become effective as of such Increased
Amount Date; provided that (a) no Default or Event of Default shall
exist on such Increased Amount Date before or after giving effect to such New
Term Commitments, (b) both before and after giving effect to the making of
any Series of New Term Advances, each of the conditions set forth in Section
3.02 shall be satisfied, (c) the U.S. Borrower and its Subsidiaries shall
be in pro forma compliance with each of the covenants set forth in Section 5.04
as of the last day of the most recently ended Fiscal Quarter after giving
effect to such New Term Commitments and any Investment or other transaction to
be consummated in connection therewith, (d) the New Term Commitments shall
be effected pursuant to one or more Joinder Agreements executed and delivered
by the U.S. Borrower, the Administrative Agent and, with respect to New Term
Loans of any Series, each New Term Lender providing New Term Commitments in
respect of such Series, and each of which shall be recorded in the Register and
shall be subject to the requirements set forth in Section 2.12(e), (e) the
U.S. Borrower shall make any payments required pursuant to Section 9.04(c) in
connection with the New Term Commitments, (f) the Administrative Agent shall
have received evidence satisfactory to it from the U.S. Borrower that the
incurrence of such New Term Advances will not violated the terms of any
Subordinated Debt Document and (g) the U.S. Borrower shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by
Administrative Agent in connection with any such transaction. Any New Term
Advances made on an Increased Amount Date shall be designated, a separate
series (a “Series”) of New Term Advances for all purposes of this Agreement.


 


On any
Increased Amount Date on which any New Term Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions,
(a) each Lender with a New Term Commitment (each, a “New Term Lender”)
of any Series shall make an advance to the U.S. Borrower (a “New Term Advance”) in an amount
equal to its New Term Commitment of such Series, and (b) each New Term Lender
of any Series shall become a Lender hereunder with respect to the New Term
Commitment of such Series and the New Term Advances of such Series made pursuant
thereto.


 


The
terms and provisions of the New Term Advances and New Term Commitments of any Series
shall be, except as otherwise set forth herein or in the Joinder Agreement,
identical to the Term Advances; provided, however, that
(a) the weighted average life to maturity of all New Term Advances shall
be no shorter than the weighted average life to maturity of the Term Advances,
(b) the applicable New Term Advance Maturity Date of each Series shall be no
shorter than the final maturity of the Term Advances and (c) the rate of
interest applicable to the New Term Advances of each Series shall be determined
by the U.S. Borrower and the applicable new Lenders and shall be set forth in
each applicable Joinder Agreement.


 


Each
Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Loan Documents as may be necessary
or appropriate, in the opinion of the Administrative Agent, to effect the
provision of this Section 2.16.


 


ARTICLE III



CONDITIONS OF EFFECTIVENESS AND
LENDING


 


SECTION 3.01.  Conditions Precedent to the Initial
Extension of Credit.  The obligation
of each Lender to make an Advance on the occasion of the Initial Extension of
Credit hereunder is subject to the satisfaction or waiver of the following
conditions precedent before or concurrently with the Initial


 


56





















 


Extension of Credit and this Agreement shall become effective on and as
of the date hereof (the “Closing Date”) when all such conditions shall
have been satisfied:


 


(a)           The Administrative Agent shall have received
this Agreement, executed and delivered by each Borrower, each Initial Lender,
the Initial Issuing Bank, the Existing Issuing Bank, the Swing Line Bank, the
Agents and the Lead Arrangers.


 


(b)           The following transactions shall have
been consummated, in each case on terms and conditions reasonably satisfactory
to the Lender Parties:


 


(i)            the Merger shall have been
consummated in accordance with the terms of the Merger Agreement and in
compliance in all material respects with all applicable Requirements of Law,
and no provision of the Merger Agreement shall have been waived, amended,
supplemented or otherwise modified (unless such waiver, amendment, supplement
or other modification, in the reasonable judgment of the Administrative Agent,
is not adverse in any material respect to the interests of the Lender Parties);


 


(ii)           the U.S. Borrower shall have received
at least $275,000,000 in gross cash proceeds from the issuance of the Senior
Subordinated Notes; and


 


(iii)          the Refinancing shall have been
consummated and satisfactory arrangements shall have been made for the
termination of all Liens granted in connection with TTI’s first and second lien
credit agreements.


 


(c)           The Administrative Agent shall be
reasonably satisfied with the corporate and legal structure and capitalization
of each Loan Party, including the terms and conditions of the charter, bylaws
and each class of capital stock of each Loan Party and of each agreement or
instrument relating to such structure or capitalization.


 


(d)           The Administrative Agent shall be
reasonably satisfied that all Debt of the U.S. Borrower and its Restricted
Subsidiaries outstanding immediately before giving effect to the Refinancing,
other than the Debt (the “Surviving Debt”) identified on Schedule
3.01(d), has been prepaid, redeemed or defeased in full or otherwise satisfied
and extinguished and that all such Debt on Schedule 3.01(d) shall be on terms
and conditions reasonably satisfactory to the Administrative Agent.


 


(e)           (i) 
The Senior Leverage Ratio, determined on a pro forma basis after giving
effect to the Transactions and with such other adjustments as are reasonably
satisfactory to the Administrative Agent and the Lead Arrangers, shall not
exceed 4.10:1.00 for the twelve-month period ended on November 30, 2004, and
the Administrative Agent shall have received from the U.S. Borrower support for
such calculations of a nature that is reasonably satisfactory to the
Administrative Agent and the Lead Arrangers.


 


(ii)           The ratio of (A) (1) total
Funded Debt of the U.S. Borrower and its Restricted Subsidiaries, minus
(2) the amount of cash in excess of $5,000,000 reflected on the U.S.
Borrower’s balance sheet on the Closing Date after giving effect to the
Transactions, minus (3) the aggregate amount of TTI’s 12.5% senior subordinated
notes due 2010 and the U.S. Borrower’s 9.25% senior subordinated notes due 2008
(collectively, the “Old Notes”), in each case for which cash sufficient
for the repayment, redemption or repurchase thereof is then on deposit with the
applicable trustee, to (B) Consolidated EBITDA of the U.S. Borrower and
its Restricted Subsidiaries for the


 


57





















 


twelve-month period
ending on November 30, 2004 shall not exceed 5.35:1.00; provided that
Consolidated EBITDA shall be calculated giving effect to the Transactions as
though the Transactions had occurred at the beginning of such twelve-month
period, and the Administrative Agent shall have received from the U.S. Borrower
support for such calculations of a nature that is reasonably satisfactory to
the Administrative Agent and the Lead Arrangers.


 


(f)            Before and after giving effect to the
Transactions and the other transactions contemplated by this Agreement, there
shall have occurred no material adverse change in the business, financial
condition, operations, assets, liabilities or prospects of any Loan Party or
any of its Subsidiaries since December 31, 2003.


 


(g)           There shall exist no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental agency or
arbitrator that (i) would reasonably be likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of
the Merger, this Agreement, any Note, any other Loan Documents, any Related
Document or the consummation of the transactions contemplated hereby.


 


(h)           Nothing shall have come to the attention of
the Lender Parties to lead them to believe (i) that the Information Memorandum
was or has become misleading, incorrect or incomplete in any material respect
or (ii) that, following the consummation of the Transactions, either Borrower
or its Subsidiaries would not have good and marketable title to all material
assets of such Borrower and such Subsidiaries reflected in the Information
Memorandum; without limiting the generality of the foregoing, the Lender
Parties shall have been given such access to the management, records, books of
account, contracts and properties of the Borrowers and their respective
Restricted Subsidiaries as they shall have reasonably requested.


 


(i)            All governmental and third party consents and
approvals necessary in connection with the Transactions, the Loan Documents and
the Related Documents and the transactions contemplated thereby shall have been
obtained (without the imposition of any conditions that are not reasonably
acceptable to the Administrative Agent) and shall remain in effect; all
applicable waiting periods shall have expired without any action being taken by
any competent authority; and no law or regulation shall be applicable in the
reasonable judgment of the Administrative Agent that restrains, prevents or
imposes materially adverse conditions upon the Transactions, the Loan Documents
and the Related Documents and the transactions contemplated thereby.


 


(j)            The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and expenses of
legal counsel), on or before the Closing Date.


 


(k)           The Administrative Agent shall have received
on or before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance reasonably
satisfactory to the Administrative Agent (unless otherwise specified) and
(except for the Notes) in sufficient copies for each Lender Party:


 


(i)            The
Notes payable to the order of the Lenders.


 


(ii)           Certified
copies of the resolutions of the Board of Directors of each Borrower and each
other Loan Party approving each Loan Document to which it is or is to be a
party and the transactions contemplated thereby, and of all documents
evidencing


 


58





















 


other necessary corporate
action and governmental and other third party approvals and consents, if any,
with respect to the Transactions, this Agreement, the Notes, each other Loan
Document and each Subordinated Debt Document.


 


(iii)          A
copy of a certificate of the Secretary of State of the jurisdiction of its
incorporation or formation, or in the case of the Canadian Borrower, the
Ministry of Consumer and Commercial Relations of the Province of Ontario (the “Ontario
Ministry”), dated reasonably near the date of the Initial Extension of
Credit, listing the charter (or other formation document) of each Borrower and
each other Loan Party and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to such Borrower’s
or such other Loan Party’s charter (or other formation document) on file in his
office, (B) each such Borrower and each such other Loan Party have paid all
franchise taxes to the date of such certificate and (C) each Borrower and each
other Loan Party are duly incorporated or formed and in good standing under the
laws of the State or Province of the jurisdiction of its incorporation or
formation.


 


(iv)          A
certificate of each Borrower and each other Loan Party, signed on behalf of
such Borrower and such other Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary (or in the case of Accuride Erie by a duly
authorized officer of the sole member of its general partner), dated the date
of the Initial Extension of Credit (the statements made in which certificate
shall be true on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the charter (or other
formation document) of such Borrower or such other Loan Party since the date of
the certificate referred to in Section 3.01(k)(iii), (B) a true and
correct copy of the bylaws (or other organizational document) of such Borrower
and such other Loan Party as in effect on the date of the Initial Extension of
Credit, (C) the absence of any proceeding for the dissolution or
liquidation of such Borrower or such other Loan Party, (D) the truth and
accuracy of the representations and warranties contained in the Loan Documents
in all material respects as though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event occurring and continuing,
or resulting from the Initial Extension of Credit, that constitutes a Default.


 


(v)           A
certificate of the Secretary or an Assistant Secretary of each Borrower and
each other Loan Party certifying the names and true signatures of the officers
of such Borrower and such other Loan Party authorized to sign this Agreement,
the Notes and each other Loan Document to which they are or are to be parties
and the other documents to be delivered hereunder and thereunder.


 


(vi)          The
Guarantee and Collateral Agreement, duly executed by the U.S. Borrower and each
of the U.S. Borrower’s Domestic Subsidiaries, together with:


 


(A)          certificates
representing 100% of the issued and outstanding stock (or other ownership or
profit interest) owned by the Loan Parties, accompanied by undated stock powers
executed in blank; provided that no more than 66% of the issued and
outstanding stock of any first-tier Foreign Subsidiaries of the U.S. Borrower
and its Domestic Subsidiaries shall be required to be pledged,


 


(B)           copies
of proper financing statements or amendments thereto, to be duly filed on or
before the day of the Initial Extension of Credit under the Uniform


 


59





















 


Commercial Code of all
jurisdictions that the Administrative Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and security interests
created under the Guarantee and Collateral Agreement, covering the Collateral
described therein,


 


(C)           completed
requests for information, dated on or before the date of the Initial Extension
of Credit, listing all other effective financing statements filed in the
jurisdictions where the Loan Parties are incorporated and where their assets
are located that name the U.S. Borrower or any other Loan Party as debtor,
together with copies of such other financing statements,


 


(D)          evidence
of the completion of recordings and filings, if any, of or with respect to the
Guarantee and Collateral Agreement that the Administrative Agent may reasonably
deem necessary or desirable in order to perfect and protect the Liens created
thereby,


 


(E)           evidence
that all other action that the Administrative Agent may reasonably deem
necessary or desirable in order to perfect and protect the first priority liens
and security interests created under any of the Collateral Documents (including,
without limitation, any action so deemed necessary or desirable as a result of
changes in the names or corporate structure of any of the U.S. Borrower’s
subsidiaries) has been taken and remains in full force and effect, and


 


(F)           evidence
of the insurance, if any, required by the terms of any of the Collateral
Documents.


 


(vii)         A
duly executed confirmation and amendment with respect to the Mexican Pledge
Agreement (the “Mexican Confirmation and Amendment”) and evidence of the
completion of all recordings, filings and other actions necessary under Mexican
law to perfect and protect the first priority pledge created by the Mexican
Pledge Agreement of 65% of the stock of the Mexican Subsidiary, in the
understanding that the Administrative Agent hereby reserves all its rights
under the Mexican Pledge Agreement to assure continuance of its full force and
effect for the benefit of each of the Secured Parties and, therefore, that such
Mexican Pledge Agreement shall continue in full force and effect to secure the Obligations.


 


(viii)        A
duly executed confirmation and amendment made by the Canadian Borrower to the
Administrative Agent for the benefit of the Secured Parties under the Canadian
Security Agreement (the “Canadian Confirmation and Amendment”) and
evidence of the completion of all recordings, filings and other actions
necessary under Canadian law to perfect and protect the first priority security
interest created by the Canadian Borrower under the Canadian Security
Agreement.


 


(ix)           Fully
executed amendments, supplements, restatements or other modifications (the “Mortgage
Amendments”) of the Mortgages covering the properties listed on Schedule
3.01(k)(ix) and marked with an asterisk (the “Existing Mortgaged Properties”)
to the extent necessary to continue to secure the Obligations of the Loan
Parties under this Agreement or any other Loan Document.


 


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(x)            Certified
copies of each of the Subordinated Debt Documents and the Merger Agreement,
duly executed by the parties thereto, together with all agreements, instruments
and documents delivered in connection therewith.


 


(xi)           Such
financial, business and other information regarding each Loan Party as the
Lender Parties shall have reasonably requested, including, without limitation,
(A) audited Consolidated financial statements of each of the U.S. Borrower and
its Consolidated Subsidiaries and of TTI and its Consolidated Subsidiaries for
Fiscal Year 2003, (B) unaudited Consolidated financial statements of each of
the U.S. Borrower and its Consolidated Subsidiaries and of TTI and its
Consolidated Subsidiaries for each Fiscal Quarter in Fiscal Year 2004 that
ended more than 45 days prior to the Closing Date and for the twelve-month
period ended November 30, 2004, (C) the pro forma financial statements
described in Section 4.01(g) and (D) Consolidated forecasted financial
statements of the U.S. Borrower and its Consolidated Subsidiaries for the
five-year period after the Closing Date, prepared on a quarterly basis for the
first year after the Closing Date and on an annual basis for each year
thereafter; all of the foregoing (including, without limitation, the statements
to be delivered pursuant to clauses (A) through (D) above) to be in form and
substance reasonably satisfactory to the Administrative Agent (and, in the case
of clause (B), to the Lead Arrangers).


 


(xii)          Certificates,
in substantially the form of Exhibit H hereto, attesting to the Solvency of
each of the Borrowers after giving effect to the Transactions and the other
transactions contemplated hereby, from its chief financial officer or, in the
case of the Canadian Borrower, its assistant treasurer.


 


(xiii)         Evidence
that ratings of the Facilities from each of Moody’s and S&P are in effect
on the Closing Date.


 


(xiv)        A
favorable opinion of Latham and Watkins LLP, U.S. counsel for the Borrowers, in
substantially the form of Exhibit D hereto and as to such other matters as any
Lender Party through the Administrative Agent may reasonably request.


 


(xv)         A
favorable opinion of David K. Armstrong, General Counsel of the U.S. Borrower,
in substantially the form of Exhibit E hereto and as to such other matters as
any Lender Party through the Administrative Agent may reasonably request.


 


(xvi)        A
favorable opinion of Osler, Hoskin & Harcourt LLP, Canadian counsel for the
Canadian Borrower, in substantially the form of Exhibit F to this Agreement and
as to such other matters (including, without limitation, any withholding tax
matters) as any Lender Party through the Administrative Agent may reasonably
request.


 


(xvii)       A
favorable opinion of Santamarina y Steta, S.C., Mexican counsel for the U.S.
Borrower, in substantially the form of Exhibit G hereto and as to such other
matters as any Lender Party through the Administrative Agent may reasonably
request.


 


(xviii)      A
favorable opinion of Simpson Thacher & Bartlett LLP, counsel for the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent.


 


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SECTION 3.02.  Conditions Precedent to Each Borrowing and
Issuance.  The obligation of each
Appropriate Lender to make an Advance (other than a Letter of Credit Advance
made by the Issuing Bank or a U.S. Revolving Credit Lender pursuant to Section
2.03(c) and a Swing Line Advance made by a U.S. Revolving Credit Lender
pursuant to Section 2.02(b)) on the occasion of each Borrowing (including the
Initial Extension of Credit), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance) or renew a Letter of Credit
and the right of the U.S. Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that on the date of such Borrowing
or issuance or renewal (a) the following statements shall be true in all
material respects (and each of the giving of the applicable Notice of
Borrowing, Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Appropriate Borrower of the proceeds of such
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit
shall constitute a representation and warranty by such Borrower that both on
the date of such notice and on the date of such Borrowing or issuance or
renewal such statements are true):


 


(a)           the representations and warranties contained
in each Loan Document are correct in all material respects on and as of such
date, before and after giving effect to such Borrowing or issuance or renewal
and to the application of the proceeds therefrom, as though made on and as of
such date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing or
issuance or renewal, in which case, as of such specific date; and


 


(b)           no event has occurred and is continuing, or
would result from such Borrowing or issuance or renewal or from the application
of the proceeds therefrom, that constitutes a Default.


 


SECTION 3.03.  Determinations Under Section 3.01.  For purposes of determining compliance with
the conditions specified in Section 3.01, each Lender Party shall be deemed to
have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lender Parties unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender Party prior to the
Initial Extension of Credit specifying its objection thereto and, if the
Initial Extension of Credit consists of a Borrowing and such Lender Party shall
not have made available to the Administrative Agent such Lender Party’s ratable
portion of such Borrowing.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES


 


SECTION 4.01.  Representations and Warranties of Each
Borrower.  Each Borrower represents
and warrants as follows:


 


(a)           Loan Parties - Due Organization and
Formation; Good Standing; Corporate, Company and Partnership Power and
Authority; Capital Stock.  Each Loan Party (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign entity
in each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed, except where
the failure to be so qualified or in good standing has not had or would not
reasonably be likely to have a Material Adverse Effect and (iii) has all
requisite power and authority (including, without limitation, all material
governmental licenses, permits and other approvals) to own or lease and operate
its properties and to carry on its business as now


 


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conducted and as proposed to
be conducted.  All of the outstanding
capital stock of the U.S. Borrower has been validly issued and is fully paid
and non-assessable and, as of the Closing Date, is owned in the amounts
specified on Schedule 4.01(a).  All of
the outstanding capital stock of the U.S. Borrower that is owned by the
Investor Group is owned free and clear of all Liens.


 


(b)           Loan Parties’ Subsidiaries - Due Organization
and Formation; Good Standing; Corporate, Limited Liability Company or
Partnership Authorization and Authority; Capital Stock, Membership Interests,
Partnership Interests.  Set forth on Schedule 4.01(b) hereto is a
complete and accurate list of all Subsidiaries of each Loan Party as of the
date of such schedule, showing as of the date hereof (as to each such
Subsidiary) the jurisdiction of its incorporation or formation, the number of
limited liability company membership interests or partnership interests or
shares of each class of capital stock authorized, and the number outstanding,
on the date hereof and the percentage of the outstanding limited liability
company membership interests, partnership interests and shares of each such
class owned (directly or indirectly) by such Loan Party and the number of
limited liability company membership interests, partnership interests or shares
covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights at the date hereof. 
All of the outstanding capital stock, limited liability company
membership interests and partnership interests of all of such Subsidiaries have
been validly issued, are fully paid and non-assessable and are owned by such
Loan Party or one or more of its Subsidiaries free and clear of all Liens,
except those created under the Loan Documents. 
Each such Subsidiary (i) is a corporation, limited liability company or
partnership (as applicable) duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
(ii) is duly qualified and in good standing as a foreign corporation or other
entity in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed,
except where the failure to be so qualified or in good standing has not had or
would not reasonably be likely to have a Material Adverse Effect and (iii) has
all requisite corporate, limited liability company or partnership (as
applicable)  power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.


 


(c)           Due Authorization of Loan Documents;
Non-Contravention, Etc.  The execution, delivery and performance of each
Loan Document and each Related Document have been duly authorized by all
necessary corporate, limited liability company or partnership (as applicable)
action on the part of each Loan Party that is a party thereto, and do not (i)
contravene such Loan Party’s charter or bylaws, partnership agreement or
limited liability company agreement, as the case may be, or any of its other
constitutive documents, (ii) violate any applicable provision of any material
law (including, without limitation, the Securities Exchange Act of 1934 and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award applicable to such
Borrower or to its Subsidiaries, (iii) result in the breach of, or constitute a
default under, any loan agreement, indenture, mortgage, deed of trust or other
financial instrument, or any material contract or agreement, binding on or
affecting any Loan Party, any of its Subsidiaries or any of their properties or
(iv) except for the Liens created under the Loan Documents, result in or
require the creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries.


 


(d)           Governmental and Third Party Approvals. 
Other than those that have already been obtained and as set forth in
Schedule 4.01(d) and are in full force and effect, or as would not reasonably
be expected to have a Material Adverse Effect, no authorization or approval


 


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(including, in the case of
the Canadian Borrower, exchange control approval) or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party of any Loan Document or any Related
Document to which it is or is to be a party and (ii) the consummation of the
transactions contemplated by the Loan Documents and the Related Documents.


 


(e)           Due Execution and Delivery; Binding
Obligation.  Each of the Loan Documents has been duly
executed and delivered by each Loan Party thereto and is the legal, valid and
binding obligation of each Loan Party thereto, enforceable against such Loan
Party in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditor’s
rights generally or by general principles of equity.


 


(f)            Historical Financial Statements. 
(i)  (A)  The Consolidated balance sheet of the U.S.
Borrower and its Subsidiaries as at December 31, 2003, and the related
Consolidated statements of income and cash flow of the U.S. Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion of
Deloitte & Touche LLP, independent public accountants, (B) the Consolidated
balance sheet of the U.S. Borrower and its Subsidiaries as at September 30,
2004, and the related Consolidated statements of income and cash flow of the
U.S. Borrower and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of the U.S. Borrower, and (C) the
Consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at
November 30, 2004, and the related Consolidated statements of income and cash
flow of the U.S. Borrower and its Subsidiaries for the twelve months then ended
(or, in the case of such cash flow statement, the eleven months then ended),
duly certified by the chief financial officer of the U.S. Borrower, copies of
which have been furnished to each Lender Party, fairly present in all material
respects, subject, in the case of (x) said balance sheet as at September 30,
2004, and said statements of income and cash flow for the nine months then
ended and (y) said balance sheet as at November 30, 2004, and said statements
of income and cash flow for the twelve (or, as applicable, eleven) months then
ended, to year-end audit adjustments, the Consolidated financial condition of
the U.S. Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the U.S. Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis (unless otherwise expressly
noted therein), and since December 31, 2003, there has been no Material Adverse
Change (other than the Transactions).


 


(ii)           (A) 
The Consolidated balance sheet of TTI and its Subsidiaries as at
December 31, 2003, and the related Consolidated statements of income and cash
flow of TTI and its Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Deloitte & Touche LLP, independent public accountants, (B)
the Consolidated balance sheet of TTI and its Subsidiaries as at September 30,
2004, and the related Consolidated statements of income and cash flow of TTI
and its Subsidiaries for the nine months then ended, duly certified by the
chief financial officer of TTI, and (C) the Consolidated balance sheet of TTI
and its Subsidiaries as at November 30, 2004, and the related Consolidated
statements of income and cash flow of TTI and its Subsidiaries for the twelve months
then ended (or, in the case of such cash flow statement, the eleven months then
ended), duly certified by the chief financial officer of TTI, copies of which
have been furnished to each Lender Party, fairly present in all material
respects, subject, in the case of (x) said balance sheet as at September 30,
2004, and said statements of income and cash flow for the nine months then
ended and (y) said balance sheet as at November 30, 2004, and said statements
of income and cash flow for the twelve (or, as applicable, eleven) months then
ended, to year-end audit adjustments, the Consolidated financial


 


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condition of TTI and its
Subsidiaries as at such dates and the Consolidated results of the operations of
TTI and its Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent basis
(unless otherwise expressly noted therein), and since December 31, 2003, there
has been no Material Adverse Change (other than the Transactions).


 


(g)           Pro Forma Financial Statements.  The
Consolidated pro forma balance sheet of the U.S. Borrower and its Subsidiaries
as at November 30, 2004, and the related Consolidated pro forma statement of
income of the U.S. Borrower and its Subsidiaries for the twelve months then
ended, certified by the chief financial officer of the U.S. Borrower, copies of
which have been furnished to each Lender Party, fairly present in all material
respect the Consolidated pro forma financial condition of the U.S. Borrower and
its Subsidiaries as at such date and the Consolidated pro forma results of
operations of the U.S. Borrower and its Subsidiaries for the period ended on
such date, in each case giving effect to the Transactions and other
transactions contemplated hereby.


 


(h)           Forecasts.  The Consolidated forecasted
balance sheets, income statements and cash flows statements of the U.S.
Borrower and its Subsidiaries delivered to the Lender Parties pursuant to
Section 3.01 or 5.03 were prepared in good faith on the basis of the estimates
and assumptions stated therein, which estimates and assumptions were believed
to be reasonable and fair in the light of conditions existing at the time made,
it being understood by the Lender Parties that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.


 


(i)            Other Information. 
Neither the Information Memorandum nor any other information, exhibit or
report furnished by any Loan Party to the Administrative Agent or any Lender
Party in writing in connection with the negotiation of the Loan Documents or
pursuant to the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made herein and therein, taken as a whole, not misleading at such
time in light of the circumstances in which the same were made, it being
understood that for purposes of this Section 4.01(i), such factual information
does not include projections and pro forma financial information.


 


(j)            Litigation, Etc. 
There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the knowledge of either Borrower,
threatened before any court, governmental agency or arbitrator that (i) could
reasonably be expected to have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of this Agreement, any Note,
any other Loan Document or any Related Document or the consummation of the
transactions contemplated hereby.


 


(k)           Compliance with Margin Regulations. 
(i)  Such Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.


 


(ii)           Following application of the proceeds of each
Advance or drawing under each Letter of Credit, not more than 25 percent of the
value of the assets (either of either Borrower only or of either Borrower and
its Subsidiaries on a Consolidated basis) subject to the provisions of Section
5.02(a) or 5.02(d) or subject to any restriction contained in


 


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any agreement or instrument
between either Borrower and any Lender Party or any Affiliate of any Lender
Party relating to Debt and within the scope of Section 7.01(e) will be Margin
Stock.


 


(l)            Employee Benefit Plans and ERISA Related
Matters.  (i)  Each Plan is in compliance
with ERISA, the Internal Revenue Code and any applicable Requirement of Law; no
Reportable Event has occurred (or is reasonably likely to occur) with respect
to any Plan; no Plan is insolvent or in reorganization (or is reasonably likely
to be insolvent or in reorganization), and no written notice of any such
insolvency or reorganization has been given to any Borrower, any Subsidiary or
any ERISA Affiliate; no Plan (other than a multiemployer plan ) has an
accumulated or waived funding deficiency (or is reasonably likely to have such
a deficiency); neither any Loan Party nor any ERISA Affiliate has incurred (or
is reasonably expected to incur) any liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Internal Revenue Code or has been
notified in writing that it will incur any liability under any of the foregoing
Sections with respect to any Plan; no proceedings have been instituted (or are
reasonably likely to be instituted) to terminate or to reorganize any Plan or
to appoint a trustee to administer any Plan, and no written notice of any such
proceedings has been given to any Loan Party or any ERISA Affiliate; and no
lien imposed under the Internal Revenue Code or ERISA on the assets of any Loan
Party or any ERISA Affiliate exists on account of any Plan (or is reasonably
likely to exist) nor has any Loan Party or any ERISA Affiliate been notified in
writing that such a lien will be imposed on the assets of any Loan Party or any
ERISA Affiliate on account of any Plan, except to the extent that a breach of
any of the foregoing representations and warranties in this Section 4.01(l)(i)
would not result, individually or in the aggregate, in an amount of liability
that would be reasonably likely to have a Material Adverse Effect.  No Plan (other than a multiemployer plan) has
an Unfunded Current Liability that would, individually or when taken together
with any other liabilities referenced in this Section 4.01(l)(i), be reasonably
likely to have a Material Adverse Effect. 
With respect to Plans that are multiemployer plans (as defined in
Section 3(37) of ERISA), the representations and warranties in this Section
4.01(l)(i), other than any made with respect to (a) liability under Section
4201 or 4204 of ERISA or (b) liability for termination or reorganization of
such Plans under ERISA, are made to the best knowledge of the Borrowers.


 


(ii)           With respect to each scheme or arrangement
mandated by a government other than the United States (a “Foreign Government
Scheme or Arrangement”) and with respect to each employee benefit plan
maintained or contributed to by any Subsidiary of any Loan Party that is not
subject to United States law (a “Foreign Plan”), except as in the
aggregate could not reasonably be expected to have Material Adverse Effect:


 


(A)          Any
employer and employee contributions required by law or by the terms of any
Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or
if applicable, accrued, in accordance with normal accounting practices.


 


(B)           The
fair market value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions, is
sufficient to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations most
recently used to determine employer contributions to such Foreign Plan.


 


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(C)           Each
Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.


 


(m)          Environmental Matters. 
(i)  Other than instances of non-compliance that could not
reasonably be expected to have a Material Adverse Effect:  (A) the U.S. Borrower and its
Subsidiaries are in compliance with all Environmental Laws and all
Environmental Permits in all jurisdictions in which U.S. Borrower and each of
its Subsidiaries are currently doing business (including, without limitation
having obtained all material Environmental Permits required under Environmental
Laws); and (B) the U.S. Borrower will comply and cause each of their
Subsidiaries to comply with all such Environmental Laws (including, without
limitation, all Environmental Permits required under Environmental Laws).


 


(ii)           Neither U.S. Borrower nor any of its
Subsidiaries has treated, stored, transported or disposed of Hazardous
Materials at or from any currently or formerly owned real estate or facility
relating to its business in a manner that could reasonably be expected to have
a Material Adverse Effect.


 


(iii)          Except for non-compliance that could not
reasonably be expected to result in a Material Adverse Effect and except as
disclosed in Schedule 4.01(m), all past non-compliance with Environmental Laws
and Environmental Permits has been resolved without ongoing obligations or
costs, and no circumstances exist that could (A) form the basis of an
Environmental Action against any Loan Party or any of its Subsidiaries or any
of the properties described in the Mortgages that could have a Material Adverse
Effect or (B) cause any such property to be subject to any restrictions on
ownership, occupancy, current use or transferability under any Environmental
Law.


 


(iv)          Except as disclosed in Schedule 4.01(m), none
of the properties currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries is listed or proposed for listing on the NPL or any
analogous foreign, state or local list or, to the knowledge of any Loan Party,
is adjacent to any such property.


 


(v)           Except as disclosed in Schedule 4.01(m) and
for events or conditions that could not reasonably be expected to result,
either individually or in the aggregate, in a material liability to any Loan
Party, (A) neither any Loan Party or any of its Subsidiaries, nor, to the
knowledge of any Loan Party, any other Person has owned or operated any
underground or aboveground storage tanks or any surface impoundments, septic
tanks, pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or operated by
any Loan Party or any of its Subsidiaries or described in the Mortgages or, to
the best of its knowledge, on any property formerly owned or operated by any
Loan Party or any of its Subsidiaries, (B) there is no asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries or described in the Mortgages,
(C) there are no wetlands or any areas subject to any legal requirement or
restriction in any way related to wetlands (including, without limitation,
requirements or restrictions related to buffer or transition areas or open
waters) at or affecting any property currently owned or operated by any Loan
Party or any of its Subsidiaries or described in the Mortgages, and
(D) neither any Loan Party or any of its Subsidiaries, nor, to the
knowledge of any Loan Party, any other Person has released or discharged
Hazardous Materials on any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries or described in any of the Mortgages.


 


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(vi)          Except as disclosed in Schedule 4.01(m) and
for investigations, assessments or actions that could not reasonably be
expected to result, either individually or in the aggregate, in a material
liability to any Loan Party, neither any Loan Party or any of its Subsidiaries,
nor, to the knowledge of any Loan Party, any other party, is undertaking,
either individually or together with other potentially responsible parties, any
investigation or assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of material quantities or
concentrations of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law; and all Hazardous
Materials generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries or described in the Mortgages have been disposed of in
a manner not reasonably expected to result in material liability to any Loan
Party or any of its Subsidiaries.


 


(n)           Securities Laws. 
Neither any Loan Party nor any of its Subsidiaries is an “investment
company,” or an “affiliated person” of, or “promoter” or “principal underwriter”
for, an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended.


 


(o)           Solvency.  Each Loan Party is,
individually and together with its Subsidiaries, Solvent.


 


(p)           Existing Debt.  Set
forth on Schedule 4.01(p) hereto is a complete and accurate list of all
Existing Debt, showing as of the date of such Schedule the principal amount
outstanding thereunder, and such principal amount has not been increased from
that amount shown on such Schedule.


 


(q)           Surviving Debt.  Set
forth on Schedule 3.01(d) hereto is a complete and accurate list of all Debt of
the U.S. Borrower and its Restricted Subsidiaries (after giving effect to the
Transactions) surviving the Initial Extension of Credit, showing as of the date
of such Schedule the principal amount outstanding thereunder, the maturity date
thereof and the amortization schedule therefor, and such principal amount has
not been increased from that amount shown on such Schedule.


 


(r)            Owned Real Property.  Set
forth on Schedule 4.01(r) hereto is a complete and accurate list as of the
Closing Date of all real property owned by the U.S. Borrower or any of its
Restricted Subsidiaries, showing as of the Closing Date the street address,
county or other relevant jurisdiction, state and record owner thereof.  Such U.S. Borrower or such Restricted
Subsidiary has good, marketable and insurable fee simple title to such real
property, free and clear of all Liens, other than Permitted Liens and Liens
created under the Loan Documents.  To the
best of the U.S. Borrower’s knowledge, except as set forth on Schedule 4.01(r),
all of the improvements located on the properties listed on Schedule 4.01(r)
lie entirely within the boundaries of such properties and none of such
improvements violate any minimum setback requirements, other dimensional
regulations or restrictions of record.


 


(s)           Leased Real Property.  Set
forth on Schedule 4.01(s) hereto is a complete and accurate list as of the
Closing Date of all leases of real property under which the U.S. Borrower or
any of its Restricted Subsidiaries is the lessee, showing as of the Closing
Date the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost


 


68





















 


thereof.  Each such lease is the legal, valid and
binding obligation of the lessor thereof, enforceable in accordance with its
terms.


 


(t)            Leases of Real Property.  Set
forth on Schedule 4.01(t) hereto is a complete and accurate list as of the
Closing Date of all leases (the “Leases”) of real property under which
the U.S. Borrower or any of its Restricted Subsidiaries is the landlord, showing
as of the Closing Date the street address, county or other relevant
jurisdiction, state, lessor, lessee, expiration date and annual rental cost
thereof.  Each such lease is the legal,
valid and binding obligation of the lessee thereof, enforceable in accordance
with its terms.


 


(u)           Intellectual Property.  Set
forth on Part A of Schedule 4.01(u) hereto is a complete and accurate list as
of the Closing Date of all United States and Canadian registered patents,
trademarks, trade names, service marks and copyrights, and all applications
therefor and licenses thereof, of the U.S. Borrower or any of its Restricted
Subsidiaries, showing as of the Closing Date the jurisdiction in which
registered and the registration numbers. 
Set forth on Part B of Schedule 4.01(t) hereto is a list, which is
complete and accurate in all material respects, as of the Closing Date of all
other registered patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of the U.S.
Borrower or any of its Restricted Subsidiaries, showing as of the Closing Date
the jurisdiction in which registered and the registration numbers.


 


(v)           Restricted Subsidiaries.  All
Subsidiaries of each Loan Party are Restricted Subsidiaries, and there exists
no Unrestricted Subsidiary of any Loan Party as of the Closing Date.


 


(w)          Senior Indebtedness.  The
Obligations of the U.S. Borrower under the Loan Documents constitute “Senior
Indebtedness” and “Designated Senior Indebtedness” of the U.S. Borrower under
and as defined in the Subordinated Debt Documents.  The Obligations of each Subsidiary Guarantor
under the Guarantee and Collateral Agreement constitute “Guarantor Senior
Indebtedness” of such Subsidiary Guarantor under and as defined in the
Subordinated Debt Documents.


 


ARTICLE V



COVENANTS OF THE BORROWERS


 


SECTION 5.01.  Affirmative Covenants.  So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Borrower will:


 


(a)           Compliance with Laws, Etc. 
Comply, and cause each of its Subsidiaries to comply, in all material
respects, with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA, and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act
of 1970, except such as may be contested in good faith or as to which a bona
fide dispute may exist and except to the extent that noncompliance therewith
could not reasonably be expected to have a Material Adverse Effect.


 


(b)           Payment of Taxes, Etc.  Pay
and discharge, and cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all material taxes, assessments


 


69





















 


and governmental charges or
levies imposed upon it or upon its property prior to the date on which material
penalties attach thereto, and (ii) all lawful material claims that, if unpaid,
might by law become a material Lien upon the property of the U.S. Borrower or
its Restricted Subsidiaries not otherwise expressly permitted under this
Agreement; provided, however, that neither Borrower nor any of
its Subsidiaries shall be required to pay or discharge any such tax, assessment,
charge or claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves (in the good faith judgment of its
management) are being maintained in accordance with GAAP.


 


(c)           Maintenance of Insurance. 
Maintain, and cause each of its Restricted Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations
(at the time the relevant coverage is placed or renewed) in such amounts and
covering such risks as is usually carried by companies engaged in the same or
similar businesses and owning similar properties in the same general areas in
which such Borrower or such Restricted Subsidiary operates.


 


(d)           Preservation of Corporate, Limited Liability
Company and Partnership Existence, Etc.  Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect; provided,
however, that each Borrower and its Restricted Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(c) and provided
further that neither Borrower nor any of its Restricted Subsidiaries
shall be required to preserve any right, permit, license, approval, privilege
or franchise if the Board of Directors of such Borrower or such Restricted
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of such Borrower or such Restricted Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to such Borrower, such Restricted Subsidiary or the Lender
Parties.


 


(e)           Conduct of Business.  From
and after the Closing Date, engage, and cause its Subsidiaries (taken as a
whole) to engage, primarily in (i) the vehicle component business and any
activity or business incidental, directly related or similar thereto, or any
other lines of business carried on by such Borrower and its Subsidiaries on the
Closing Date or utilizing such Borrower’s or Subsidiaries’ manufacturing
capabilities on the Closing Date and (ii) other businesses or activities that
constitute a reasonable extension, development or expansion thereof or that are
ancillary or reasonably related thereto.


 


(f)            Visitation Rights.  At
any reasonable time and from time to time, upon reasonable notice and during
normal business hours, permit any authorized representatives designated by the
Administrative Agent or the Majority Lenders to examine and make copies of and
abstracts from the records and books of account of, and visit the properties
of, such Borrower and any of its Restricted Subsidiaries, and to discuss the
affairs, finances and accounts of such Borrower and any of its Restricted
Subsidiaries with any of their officers or directors and with their independent
certified public accountants; provided that such Borrower may, if it so
chooses, be present at or participate in any such discussion.


 


(g)           Keeping of Books. 
Keep, and cause each of its Subsidiaries to keep, proper books of record
and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of such Borrower and each such
Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.


 


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(h)           Maintenance of Properties, Etc. 
Maintain and preserve, and cause each of its Restricted Subsidiaries to
maintain and preserve, all of its properties that are used or useful in the
conduct of its business (including intellectual property) in good working order
and condition, ordinary wear and tear excepted, in each case consistent with
past practice, and will from time to time make or cause to be made all
appropriate repairs, renewals and replacements thereof, except where the
failure to do so would not reasonably be likely to have a Material Adverse
Effect.


 


(i)            Transactions with Affiliates. 
Conduct, and cause each of its Restricted Subsidiaries to conduct, all
transactions otherwise permitted under the Loan Documents with any of their
Affiliates on terms that are fair and reasonable and no less favorable to such
Borrower or such Restricted Subsidiary than it would obtain in a comparable arm’s-length
transaction with a Person not an Affiliate, other than (i) transactions between
or among the Loan Parties and any Restricted Subsidiaries of the U.S. Borrower,
(ii) payment of customary annual fees to KKR, Trimaran or their respective
Affiliates for management consulting and financial services rendered to such
Borrower and its Restricted Subsidiaries and investment banking fees paid to
KKR, Trimaran or their respective Affiliates for services rendered to such
Borrower and its Restricted Subsidiaries in connection with divestitures,
acquisitions, financings and other transactions to the extent permitted under
this Agreement, (iii) reasonable and customary fees paid to members of the U.S.
Borrower’s board of directors, (iv) transactions permitted by Section 5.02(f),
and (v) transactions otherwise expressly permitted hereunder.


 


(j)            Covenant to Guarantee Obligations and to Give
Security.  When (i) any new Restricted Subsidiary of
the U.S. Borrower is formed, acquired or designated by the U.S. Borrower or any
of its Restricted Subsidiaries, or (ii) the acquisition of any property,
real or personal, by any Loan Party is made, and such property, in the judgment
of the Administrative Agent, shall not already be subject to a perfected first
priority security interest in favor of the Administrative Agent for the benefit
of the Secured Parties, then, in each case at the expense of the U.S. Borrower:


 


(A)          within
20 days after such formation, acquisition or designation, in the case of a new
Restricted Subsidiary that is a Domestic Subsidiary of the U.S. Borrower or any
of its Restricted Subsidiaries, cause each such Restricted Subsidiary to duly
execute and deliver to the Administrative Agent an Assumption Agreement under
which such Restricted Subsidiary becomes a Subsidiary Guarantor and a Grantor
(as defined in the Guarantee and Collateral Agreement); provided that no
Restricted Subsidiary which is not wholly-owned (directly or indirectly) by the
U.S. Borrower and the organizational documents or agreements with other
shareholders of which prohibit the execution, delivery or performance of any
such assumption agreement shall be required to execute, deliver or perform such
assumption agreement if, after using its reasonable efforts, the U.S. Borrower
has failed to obtain any necessary consents or approvals for the issuance of
such assumption agreement,


 


(B)           within
20 days after such formation, acquisition or designation in the case of a wholly-owned
Restricted Subsidiary which is a first-tier Subsidiary of (x) the U.S. Borrower
or (y) any other Restricted Subsidiary that is a Domestic Subsidiary, cause the
U.S. Borrower (or other relevant Restricted Subsidiary), to pledge the stock or
other equity interests of each such Restricted Subsidiary and to duly execute
and deliver such amendments to the Guarantee and Collateral Agreement or such
other documents as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in 100% of the issued and outstanding stock or other equity
interests of such Restricted Subsidiary owned by such


 


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Loan Party, together with
delivery to the Administrative Agent of certificates representing such pledged
stock or other equity interests accompanied by undated stock powers or other
appropriate powers or assignments executed in blank; provided, in the
case of a first-tier Restricted Subsidiary which is a Foreign Subsidiary (other
than the Canadian Borrower), the U.S. Borrower (or other relevant Restricted
Subsidiary) shall not be required to pledge more than 66% of the issued and
outstanding stock or other equity interests of such Restricted Subsidiary, and provided
further that the stock of any Restricted Subsidiary which is not
wholly-owned (directly or indirectly) will be owned by a wholly-owned
Restricted Subsidiary of the U.S. Borrower whose stock or other equity
interests have been pledged in accordance with the Loan Documents,


 


(C)           within
20 Business Days after such request, formation or acquisition, in the case of a
new Restricted Subsidiary that is a Canadian Subsidiary of the Canadian
Borrower or any of its Restricted Subsidiaries, cause each such Restricted
Subsidiary to duly execute and deliver to the Administrative Agent a Security
Agreement Supplement (as defined in the Canadian Security Agreement), securing
payment of all the Obligations of the Canadian Borrower under the Loan
Documents and constituting Liens on all properties specified in such Security
Agreement Supplement; provided that no Restricted Subsidiary which is
not wholly-owned (directly or indirectly) by the Canadian Borrower and the
organizational documents or agreements with other shareholders of which
prohibit the execution, delivery or performance of any such security agreement
shall be required to execute, deliver or perform such security agreement if,
after using its reasonable efforts, the Canadian Borrower has failed to obtain
any necessary consents or approvals for the execution, delivery or performance
of such security agreement,


 


(D)          within
20 days after such request, formation or acquisition, furnish to the
Administrative Agent all necessary information with respect to such Restricted
Subsidiary and its Restricted Subsidiaries which may be required to update the
applicable Schedules to this Agreement and to the Collateral Documents,
respectively,


 


(E)           within
30 days after such request, formation or acquisition, in the case of a new
Restricted Subsidiary that is a Domestic Subsidiary of the U.S. Borrower or any
of its Restricted Subsidiaries, duly execute and deliver, and cause each such
Restricted Subsidiary, and cause each direct and indirect parent of such
Restricted Subsidiary to duly execute and deliver to the Administrative Agent
Mortgages, pledges, proper financing statements, assignments, assumption
agreements and other security agreements, as specified by and in form and
substance reasonably satisfactory to the Administrative Agent, securing payment
of all the Obligations of the Loan Parties under the Loan Documents and
constituting Liens on all such properties; provided that no Restricted
Subsidiary which is not wholly-owned (directly or indirectly) by the U.S.
Borrower and the organizational documents or agreements with other shareholders
of which prohibit the execution, delivery or performance of any such Mortgages,
pledges, proper financing statements, assignments, assumption agreements and other
security agreements shall be required to execute, deliver or perform such
Mortgages, pledges, proper financing statements, assignments, assumption
agreements and other security agreements if, after using its reasonable
efforts, the U.S. Borrower has failed to obtain any necessary consents or
approvals for the execution, delivery or performance of such Mortgages,
pledges, proper financing statements, assignments, assumption agreements and
other security agreements,


 


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(F)           within
30 days after such request, formation or acquisition, duly execute and deliver,
and cause each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (other than any Foreign Subsidiary) to take whatever action
(including, without limitation, the recording of mortgages, the filing of
Uniform Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or advisable in the
opinion of the Administrative Agent to vest in the Administrative Agent (or in
any representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the mortgages,
pledges, assignments, assumption agreements and other security agreements
delivered pursuant to this Section 5.01(j), enforceable against all third
parties in accordance with their terms,


 


(G)           as
promptly as practicable after such request, formation or acquisition, deliver,
upon the reasonable request of the Administrative Agent, to the Administrative
Agent with respect to each parcel of real property owned, leased or held by the
entity that has a fair market value in excess of $1,500,000 and is the subject
of such request, formation or acquisition a Mortgage, Mortgage Policy, Opinion,
Survey, environmental assessment report and, to the extent available,
engineering, soils and other reports, each in scope, form and substance
satisfactory to the Administrative Agent; provided, however, that
(1) to the extent that the U.S. Borrower or any of its Restricted
Subsidiaries shall have otherwise received any of the foregoing items with
respect to such real property, such items shall promptly after the receipt
thereof be delivered to the Administrative Agent, and (2) the
Administrative Agent may, in its sole discretion, waive any of the foregoing
requirements with respect to any such parcels of real property owned, leased or
held,


 


(H)          at
any time and from time to time, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative
Agent may deem necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreements and assumption agreements, and


 


(I)            within
60 days after such request, deliver to the Administrative Agent a signed copy
of a favorable opinion, addressed to the Administrative Agent, of counsel for
the Borrowers reasonably acceptable to the Administrative Agent as to the
matters contained in this Section 5.01(j), as to such guarantees and security
agreements being legal, valid and binding obligations of each of the Borrowers
and their respective Restricted Subsidiaries enforceable in accordance with
their terms and as to such other matters as the Administrative Agent may
reasonably request.


 


(k)           Investments in Canadian Borrower.  In
the case of the U.S. Borrower, make loans or advances, or make equity
contributions, to the Canadian Borrower from time to time in amounts sufficient
to enable the Canadian Borrower to perform its Obligations pursuant to Sections
2.02(d), 2.04, 2.06, 2.07, 2.12, 9.04(b) and 9.14(b).


 


(l)            Maintenance of Cash Management Systems. 
Maintain lockbox accounts and other cash management systems reasonably
acceptable to the Administrative Agent.


 


(m)          Compliance with Environmental Laws. 
Comply, and cause each of its Subsidiaries and all lessees and other
Persons operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental Permits;
obtain


 


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and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its Subsidiaries
to conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that
neither the U.S. Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances.


 


(n)           Preparation of Environmental Reports.  At
the request of the Administrative Agent from time to time, provide to the
Lender Parties within 60 days after such request, at the expense of the U.S.
Borrower, an environmental site assessment report for any of its or its
Subsidiaries’ properties described in such request, prepared by an environmental
consulting firm acceptable to the Administrative Agent, indicating the presence
or absence of Hazardous Materials and the estimated cost of any compliance,
removal or remedial action in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Administrative Agent determines at any time that a material risk exists that
any such report will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to prepare
such report at the expense of the U.S. Borrower, and the U.S. Borrower hereby
grants and agrees to cause any Subsidiary that owns any property described in
such request to grant at the time of such request, to the Administrative Agent,
the Lender Parties, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to enter
onto its or their respective properties to undertake such an assessment.


 


(o)           Post-Closing Deliveries. 
Within 90 days after the Closing Date, provide the following, each in
form and substance reasonably satisfactory to the Administrative Agent:


 


(i)            (A)  fully paid date-down endorsements (the “Date-down
Endorsements”) to the Mortgage Policies issued in respect of the Existing
Mortgaged Properties, or new or redated Mortgage Policies, to be dated no
earlier than the recording date of the applicable Mortgage Amendments, insuring
the Mortgages covering the Existing Mortgaged Properties (as amended by the
Mortgage Amendments) as of a date no earlier than the recordation date of the
applicable Mortgage Amendment to be valid first and subsisting Liens on the
property described therein, free and clear of all defects (including, but not
limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting
only Permitted Liens and Liens created under the Loan Documents, provided
that, with respect to the Existing Mortgaged Property that is located in
Canada, in lieu of a Mortgage Policy and a Date-down Endorsement in respect
thereof, a legal opinion in form and substance and from Canadian counsel
reasonably acceptable to the Administrative Agent shall be required, and (B)
all further instruments and documents, and take all further action, including,
without limitation, the recordation of the Mortgage Amendments, that may be
necessary or desirable in order to continue to perfect and protect the security
interest of the Secured Parties in such Mortgages;


 


(ii)           counterparts
of Mortgages covering the properties listed on Schedule 3.01(k)(ix) and not
marked with an asterisk (the “New Mortgaged Properties” and, together
with the Existing Mortgaged Properties, the “Mortgaged Properties”),
duly executed by the appropriate Loan Party, together with:


 


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(A)          fully
paid American Land Title Association Lender’s Extended Coverage title insurance
policies (the “Mortgage Policies”) in form and substance, with
endorsements and in amount reasonably acceptable to the Administrative Agent,
issued, coinsured and reinsured by title insurers (the “Title Company”)
acceptable to the Administrative Agent, insuring such Mortgages as of the time
of recording of the relevant Mortgages to be valid first and subsisting Liens
on the property described therein, free and clear of all defects (including,
but not limited to, mechanics’ and materialmen’s Liens) and encumbrances,
excepting only Permitted Liens and Liens created under the Loan Documents, and
providing for such other affirmative insurance (including endorsements for
future advances under the Loan Documents and for mechanics’ and materialmen’s
Liens) and such coinsurance and direct access reinsurance as the Administrative
Agent may have deemed reasonably necessary or desirable,


 


(B)           to
the extent requested by the Administrative Agent, American Land Title
Association form surveys (the “Surveys”), dated no more than 60 days
prior to the Closing Date, certified to the Administrative Agent and the issuer
of the Mortgage Policies in a manner satisfactory to the Administrative Agent
by a land surveyor duly registered and licensed in the States in which the New
Mortgaged Properties are located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site improvements, the
location of any easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations and the absence of encroachments,
either by such improvements or on to such New Mortgaged Properties, and other
defects, other than encroachments and other defects acceptable to the
Administrative Agent; provided that, notwithstanding the foregoing, if
an existing survey of any New Mortgaged Property is sufficient to enable the
Title Company to issue the applicable Mortgage Policy without a survey
exception and include in such policy any survey-dependent endorsement which the
Administrative Agent reasonably requests, then no new Survey shall be required
with respect to such New Mortgaged Property,


 


(C)           to
the extent existing and with any Loan Party, an appraisal of each of the New
Mortgaged Properties,


 


(D)          to
the extent existing and with any Loan Party, engineering, soils and other
reports with respect to each of the New Mortgaged Properties,


 


(E)           opinions
of local counsel (the “Opinions”) for the Borrowers in each state in
which a Mortgaged Property is located with respect to the enforceability of
such Mortgages and any related fixture filings, in form and substance
reasonably satisfactory to the Administrative Agent, and, with respect to the
property located in Ontario, Canada, such opinion shall also opine as to the
status of title, and


 


(F)           evidence
that all other actions that the Administrative Agent may have reasonably deemed
necessary or desirable in order to create valid first and subsisting Liens on
the New Mortgaged Properties (subject to Permitted Liens) have been taken.


 


Notwithstanding anything
to the contrary in this Section 5.01(o)(ii), for any of the New Mortgaged
Properties in which the interest of the applicable Loan Party is a leasehold
interest and for which the consent of the landlord or other action by the
landlord is required in order for the applicable Loan Party to comply with the
provisions of this Section 5.01(o)(ii), the U.S. Borrower agrees to use, and to
cause each of the other Loan Parties to use, commercially reasonable efforts to
obtain such consent or cause the


 


75





















 


landlord to take such
other action; however, if after use of such commercially reasonable
efforts, any landlord consent is not obtained or any landlord does not take
such other action, then the Loan Parties shall not be required to deliver the
applicable Mortgage, Mortgage Policies or other items required hereunder or to
undertake the applicable action; and


 


(iii)          (A)
a duly executed pledge of shares agreement or equivalent document (the “TTI
Mexican Pledge Agreement”), in form and substance reasonably satisfactory
to the Administrative Agent, and evidence of the completion of all recordings,
filings and other actions necessary under Mexican law to perfect the pledge by
TTI of 65% of the stock of Bostrom Mexico S.A. de C.V., (B) certificates
representing 65% of the issued and outstanding stock of Bostrom Mexico S.A. de
C.V., accompanied by undated stock powers executed in blank and (C) a favorable
opinion of Mexican counsel, in form and substance reasonably satisfactory to
the Administrative Agent, and to such other matters as the Administrative Agent
may reasonably request.


 


SECTION 5.02.  Negative
Covenants.  So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, neither Borrower will, at any time:


 


(a)           Liens, Etc.  Create, incur, assume or
suffer to exist, or permit any of its Restricted Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now owned or
hereafter acquired, except:


 


(i)            Liens
created under the Loan Documents;


 


(ii)           Permitted
Liens;


 


(iii)          Liens
existing on the date hereof and described on Schedule 5.02(a) hereto;


 


(iv)          (A)
purchase money Liens upon or in real property or equipment acquired or held by
the Borrowers or any of their Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment to be subject to
such Liens, or Liens existing on any such property or equipment at the time of
acquisition (other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount and
(B) Liens to secure Debt incurred within 270 days of the acquisition,
construction or improvement of fixed or capital assets to finance the
acquisition, construction or improvement of such fixed or capital assets or
otherwise incurred during such 270 day period in respect of Capital
Expenditures permitted pursuant to Section 5.02(j); provided, however,
that no such Lien shall extend to or cover any property other than the property
or equipment being acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced; and provided  further,
however, that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iv) shall not exceed the aggregate amount
permitted under Section 5.02(b)(iii)(B) at any


 


76





















 


time outstanding and that
any such Debt shall not otherwise be prohibited by the terms of the Loan
Documents;


 


(v)           Liens
arising in connection with Capitalized Leases permitted under Section
5.02(b)(iii)(B); provided that no such Lien shall extend to or cover any
Collateral or assets other than the assets subject to such Capitalized Leases;


 


(vi)          Liens
on property of a Person existing at the time such Person becomes a Restricted
Subsidiary of either Borrower or is merged into or consolidated with such
Borrower or any Restricted Subsidiary of such Borrower in accordance with
Section 5.02(c); provided that such Liens were not created in
contemplation of such merger, consolidation or investments and do not extend to
any assets other than those of the Person merged into or consolidated with such
Borrower or such Subsidiary or acquired by such Borrower or such Subsidiary;


 


(vii)         Liens
to secure Debt permitted pursuant to Section 5.02(b)(iii)(F); provided
that such Liens do not extend to any assets other than the property or stock of
the Person or Persons with respect to which the related Investment was made;


 


(viii)        the
replacement, extension or renewal of any Lien permitted hereunder upon or in
the same property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby;


 


(ix)           Liens
on the assets of the Mexican Subsidiary or any of its Restricted Subsidiaries
to secure Debt permitted under Section 5.02(b)(ii)(B); and


 


(x)            other
Liens securing Obligations of the U.S. Borrower and its Restricted Subsidiaries
in an aggregate principal amount not to exceed $25,000,000 at any time
outstanding.


 


(b)           Debt.  Create, incur, assume or
suffer to exist, or permit any of its Restricted Subsidiaries to create, incur,
assume or suffer to exist, any Debt other than:


 


(i)            in
the case of the Borrowers,


 


(A)          Subordinated
Debt evidenced by the Senior Subordinated Notes and any other Subordinated Debt
incurred or issued after the Closing Date; provided that (w) the terms
of any such Subordinated Debt, and of any Subordinated Debt Document entered
into or issued in connection therewith, are not prohibited by the Loan
Documents, (x) the terms relating to subordination of such Subordinated Debt
are no less favorable in any material respect to the Loan Parties or the Lender
Parties than the terms of the Senior Subordinated Notes, (y) the covenants and
defaults, taken as a whole, applicable to such Subordinated Debt are no more
restrictive than those contained in the Senior Subordinated Note Indenture and
(z) such Subordinated Debt has no scheduled principal payments prior to August
1, 2012; and provided  further that the U.S. Borrower shall apply
the Net Cash Proceeds of any Subordinated Debt incurred or issued after the
Closing Date as a mandatory prepayment of the Advances in accordance with
Section 2.06(b)(ii),


 


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(B)           Debt
in respect of Hedge Agreements incurred in the ordinary course of business and
consistent with prudent business practice, and


 


(C)           Debt
consisting of an undertaking by the U.S. Borrower to guaranty the obligations
of the Mexican Subsidiary with respect to Debt in an aggregate principal amount
not to exceed $25,000,000;


 


(ii)           in
the case of any of its Restricted Subsidiaries,


 


(A)          Debt
owed to the Borrowers or to a Restricted Subsidiary of the Borrowers,


 


(B)           in
the case of the Mexican Subsidiary only, Debt in an aggregate principal amount
not to exceed $25,000,000 at any time outstanding, and


 


(C)           in
the case of Subsidiary Guarantors only, guaranty Obligations in respect of the
Senior Subordinated Notes and any other Subordinated Debt of the Borrowers; provided
that such guaranty Obligations are unsecured and subordinated on the same terms
as the Obligations of the U.S. Borrower in respect of the Senior Subordinated
Notes are subordinated; and


 


(iii)          in
the case of the Borrowers and any of their Restricted Subsidiaries,


 


(A)          Debt
under the Loan Documents,


 


(B)           Debt
secured by Liens permitted by Section 5.02(a)(iv) and Capitalized Leases not to
exceed an aggregate principal amount equal to $50,000,000 at any time
outstanding,


 


(C)           the
Surviving Debt, and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt; provided that the
terms of any such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in connection therewith,
are not prohibited by the Loan Documents; provided  further that
the principal amount of such Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension,
refunding or refinancing, and the direct and contingent obligors therefor shall
not be changed, as a result of or in connection with such extension, refunding
or refinancing,


 


(D)          Debt
of any Person existing at the time such Person is merged into or consolidated
with, or acquired by, either Borrower or any Restricted Subsidiary or becomes a
Restricted Subsidiary of either Borrower in accordance with the provisions of
Section 5.02(e)(viii) or (xiii); provided that (x) such Debt was not
incurred in contemplation of such merger, consolidation or investment, (y)  neither Borrower nor any Restricted
Subsidiary which acquired such Person is liable for such Debt and (z) the
aggregate principal amount of all Debt incurred pursuant hereunder shall, when
taken together with any Debt incurred pursuant to clause (F) of this Section
5.02(b)(iii), in no event exceed $150,000,000 in the aggregate at any time
outstanding,


 


(E)           indorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business,


 


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(F)           Debt
incurred in connection with an Investment made pursuant to Section
5.02(e)(viii); provided that the aggregate principal amount of all Debt
incurred pursuant hereunder shall, when taken together with any Debt incurred
pursuant to clause (D) of this Section 5.02(b)(iii), in no event exceed $150,000,000
in the aggregate at any time outstanding,


 


(G)           Debt
consisting of guaranty Obligations in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of the U.S.
Borrower and its Restricted Subsidiaries,


 


(H)          Debt
in respect of any bankers’ acceptance, letter of credit, warehouse receipt or
similar facilities entered into in the ordinary course of business, and


 


(I)            other
Debt outstanding in an aggregate principal amount not to exceed $125,000,000 at
any time outstanding.


 


(c)           Mergers, Etc. 
Merge into or consolidate with any Person or permit any Person to merge
into it, or permit any of its Restricted Subsidiaries to do so, except that:


 


(i)            any
Subsidiary of either Borrower may merge into or consolidate with any other
Subsidiary of such Borrower; provided that, in the case of any such
merger or consolidation involving a Restricted Subsidiary, the Person formed by
such merger or consolidation shall be a wholly-owned Restricted Subsidiary of
such Borrower,


 


(ii)           any
Subsidiary of either Borrower may merge into or consolidate with such Borrower;
provided that that such Subsidiary shall have no Debt, other than Debt
permitted to be incurred by the U.S. Borrower under Section 5.02(b), and provided
further such Borrower shall be the surviving entity in any such merger
or consolidation, and


 


(iii)          in
connection with any acquisition permitted under Section 5.02(e), the U.S.
Borrower or any Restricted Subsidiary may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate with it; provided
that (A) the Person surviving such merger or consolidation shall be the U.S.
Borrower or a Restricted Subsidiary, as the case may be, or shall assume all
obligations of the U.S. Borrower or such Restricted Subsidiary, as the case may
be, under the Loan Documents in a manner reasonably satisfactory to the
Administrative Agent, (B) such merger or consolidation shall not result in a
Change of Control, and (C) the Person surviving such merger or consolidation
shall have no Debt other than Debt permitted to be incurred under Section
5.02(b).


 


(d)           Sales, Etc., of Assets. 
Sell, lease, transfer or otherwise dispose of, or permit any of its
Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of, any
assets, or grant any option or other right to purchase, lease or otherwise
acquire any assets, except:


 


(i)            sales,
transfers or other dispositions of used or surplus equipment, vehicles,
inventory or other assets in the ordinary course of its business;


 


(ii)           sales
of assets for fair value in an aggregate amount not to exceed $200,000,000
during the term of this Agreement; provided  further that (A) any
non-cash consideration in respect of such sale in the form of Debt of any
Person in an amount in


 


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excess of $1,000,000
shall be evidenced by a promissory note which shall be pledged to the
Administrative Agent for the benefit of the Secured Parties pursuant to the
Guarantee and Collateral Agreement as security for the Obligations of such
pledgor hereunder, and the Net Cash Proceeds of any such sales shall be applied
pursuant to, and in the amount and the order of priority set forth in, Section
2.06(b)(ii), (B) immediately before and after giving effect to such sale, no
Default shall have occurred and be continuing or would result therefrom and (C)
with respect to any such sale (or series of related sales) in an aggregate
amount in excess of $20,000,000, immediately after giving effect to such sale,
the U.S. Borrower and its Restricted Subsidiaries shall be in pro forma
compliance with the covenants contained in Section 5.04, calculated based on
the relevant financial statements delivered pursuant to Section 5.03(b) or (c),
as though such sale had occurred at the beginning of the Measurement Period
covered thereby, as evidenced by a certificate of the chief financial officer
of the U.S. Borrower furnished to the Lender Parties demonstrating such
compliance;


 


(iii)          sales
or contributions of equipment or other personal property to Restricted
Subsidiaries or other joint ventures; provided that the aggregate fair
market value of the assets so sold or contributed to Foreign Subsidiaries or
such other joint ventures by the U.S. Borrower or any Domestic Subsidiary
(determined, in each case, at the time of such sale or contribution) does not
exceed $15,000,000 during the term of this Agreement; and


 


(iv)          the
sale for fair value of the Light Wheels Facility.


 


(e)           Investments in Other Persons.  Make
or hold, or permit any of its Restricted Subsidiaries to make or hold, any
Investment in any Person other than:


 


(i)            Investments
existing on December 31, 2004 and described on Schedule 5.02(e), and any
extensions, renewals or reinvestments thereof, so long as the aggregate amount
of all Investments pursuant to this clause (measured by the amount actually
invested) is not increased at any time above the amount of such Investments
existing on such date;


 


(ii)           loans
and advances to employees in the ordinary course of business of the U.S.
Borrower and its Restricted Subsidiaries as presently conducted in an aggregate
amount not to exceed $5,000,000 at any time outstanding and other loans and
advances to employees for the purchase of capital stock of the U.S. Borrower;


 


(iii)          Investments
by the Borrowers and their Restricted Subsidiaries in Cash Equivalents;


 


(iv)          Investments
by the Borrowers in Hedge Agreements permitted under Section 5.02(b)(i)(B);


 


(v)           Investments
consisting of intercompany Debt permitted under Section 5.02(b)(ii) and other
Investments permitted under this Section 5.02(e) by the Borrowers and their
Restricted Subsidiaries in Persons that are Restricted Subsidiaries at the time
of the making of such Investments;


 


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(vi)          Investments
received in connection with the bankruptcy or reorganization of suppliers or
customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business;


 


(vii)         in
the case of the U.S. Borrower, Investments required pursuant to Section
5.01(k);


 


(viii)        Investments
in Restricted Subsidiaries or in other Persons that become Restricted
Subsidiaries; provided that with respect to all such Investments (A)
immediately before and after giving effect thereto, no Default shall have
occurred and be continuing or would result therefrom; (B) any business acquired
or invested in pursuant to this clause shall comply with the requirements of
Section 5.01(e); and (C) immediately after giving effect to such Investment or
the acquisition of a company or business pursuant to this clause, the U.S.
Borrower and its Restricted Subsidiaries shall be in pro forma compliance with
the covenants contained in Section 5.04, calculated based on the relevant
financial statements delivered pursuant to Section 5.03(b) or (c), as though
such Investment or acquisition had occurred at the beginning of the Measurement
Period covered thereby, as evidenced by a certificate of the chief financial
officer of the U.S. Borrower furnished to the Lender Parties demonstrating such
compliance;


 


(ix)           Investments
to the extent that payment for such Investment is made solely with capital
stock of the U.S. Borrower;


 


(x)            Investments
constituting non-cash proceeds of sales, transfers and other dispositions of
assets permitted pursuant to Section 5.02(d)(ii);


 


(xi)           Investments
made to pay for the repurchase, retirement or other acquisition of capital
stock of the U.S. Borrower in an aggregate amount at the time of such Investment
not in excess of the lesser of (A) the Available Amount at such time and
(B) the aggregate amount of such Investments then permitted to be made
under the Subordinated Debt Documents;


 


(xii)          Investments
constituting seller notes or other similar instruments or any non-cash proceeds
of sales, transfers and other dispositions of assets in connection with the
sale or other disposition of the Light Wheels Facility; and


 


(xiii)         other
Investments in an aggregate amount outstanding for all such Investments not to
exceed $125,000,000 plus, at any time, the Available Amount at such time.


 


(f)            Dividends, Etc.  In
the case only of the U.S. Borrower, declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations
or securities to its stockholders as such, or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of the U.S. Borrower or any warrants, rights or options to acquire such
capital stock or to issue or sell any such capital stock or any warrants,
rights or options to acquire such capital stock, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described below or would result therefrom, (i) the U.S. Borrower may declare and
pay dividends


 


81





















 


and distributions payable
only in common stock of the U.S. Borrower, (ii) the U.S. Borrower may redeem in
whole or in part any capital stock of the U.S. Borrower for another class of capital
stock or rights to acquire capital stock of the U.S. Borrower or with proceeds
from substantially concurrent equity contributions or issuances of new shares
of capital stock; provided that such other class of capital stock
contains terms and provisions at least as advantageous to the Lender Parties as
those contained in the capital stock redeemed thereby, (iii) the U.S. Borrower
may repurchase shares of its capital stock (and/or options or warrants in
respect thereof) held by its officers, directors and employees, so long as such
repurchase is pursuant to, and in accordance with the terms of, management
and/or employee stock plans, stock subscription agreements on shareholder
agreements, (iv) the U.S. Borrower may, so long as after giving effect to the
payment of any dividends pursuant to this subclause (iv) the Leverage Ratio is
less than or equal to 4.00:1.00, pay dividends in any Fiscal Year in an amount
not to exceed 50% of the Cumulative Available Consolidated Net Income and (v)
either Borrower may make Investments permitted pursuant to Section 5.02(e)(xi).


 


(g)           Prepayments, Etc., of Debt. 
Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Subordinated Debt, other than
(i) prepayments, repurchases or redemptions made with the proceeds of
equity cash contributions by the Investor Group to the U.S. Borrower, (ii) any
prepayment of Debt owed by any Loan Party to any other Loan Party, (iii)
prepayments, repurchases or redemptions made with the proceeds of Subordinated
Debt that is permitted by Section 5.02(b)(i)(A), (iv) any exchange of
Subordinated Debt for preferred or common stock of the U.S. Borrower, provided
however that such exchange (A) is made in satisfaction of any
Obligations owed by the U.S. Borrower under, or in connection with, such
Subordinated Debt and (B) shall not result in any Change of Control, and
(v) so long as no Default or Event of Default has occurred and is
continuing, prepayments, repurchases or redemptions for an aggregate price not
in excess of the Available Amount at the time of any such prepayment,
repurchase or redemption.


 


(h)           Amendment, Etc.
of Documents.  (i)  Amend
or otherwise change, or consent to any amendment or change of, any of the terms
of any Subordinated Debt Document in a manner that would be adverse to the
Lender Parties in any material respect or permit any of its Subsidiaries to do
any of the foregoing or (ii) designate any Indebtedness (other than the
Obligations of the Loan Parties pursuant to the Loan Documents) as “Designated
Senior Indebtedness” (or any other defined term having a similar purpose) for
purposes of the Senior Subordinated Note Indenture.


 


(i)            Partnerships, Etc.  Become
a general partner in any general or limited partnership or joint venture which
is not a limited liability entity, or permit any of its Restricted Subsidiaries
to do so, other than any Restricted Subsidiary the sole assets of which consist
of its interest in such partnership or joint venture.


 


(j)            Capital Expenditures. 
(i)  Make, or permit any of its Restricted Subsidiaries to
make, any Capital Expenditures that would cause the aggregate amount of all
Capital Expenditures of the U.S. Borrower and its Restricted Subsidiaries in
any Fiscal Year (exclusive of those described in clause (ii) below) to exceed
an amount equal to (A) for the Fiscal Year 2005, $65,000,000 and (B) for each
Fiscal Year thereafter, the greater of the amount set forth in the table below
opposite such Fiscal Year and 6% of Consolidated Revenues of the U.S. Borrower
for such Fiscal Year, in each case as determined for and at the end of the
prior Fiscal Year; provided that the unused portion of Capital
Expenditures permitted in any Fiscal Year and not used in such period may be
carried over and added to the amount otherwise permitted in the


 


82





















 


immediately three succeeding
Fiscal Years, it being understood that for purposes of the foregoing, the
Borrowers and their Restricted Subsidiaries shall be deemed to have used the
amount originally available during each such succeeding Fiscal Year prior to
any such carry-over amount, and provided  further that the
aggregate amount so carried over at any time may not exceed $25,000,000:


 




	
  Fiscal Year

  	
   

  	
  Capital Expenditures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2006

  	
   

  	
  $

  	
  70,000,000

  	
   

  
	
  2007

  	
   

  	
  $

  	
  70,000,000

  	
   

  
	
  2008

  	
   

  	
  $

  	
  70,000,000

  	
   

  
	
  2009

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  2010

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  2012

  	
   

  	
  $

  	
  75,000,000

  	
   

  






 


(ii)           Make,
or permit any of its Restricted Subsidiaries to make, any additional Capital
Expenditures, except that such additional Capital Expenditures may be made
using the proceeds from cash equity contributions by the Investor Group to the
U.S. Borrower.


 


(k)           Negative Pledge.  Enter into or suffer to exist, or permit any
of its Restricted Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any of
its property or assets other than (i) in favor of the Secured Parties or (ii)
in connection with (A) any Surviving Debt or (B) any Debt permitted by Section
5.02(b)(i)(A), or (iii) customary restrictions in Subordinated Debt Documents
requiring equal and ratable liens if other Subordinated Debt is secured.


 


SECTION 5.03.  Reporting Requirements.  So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Borrower will furnish to the Lender Parties:


 


(a)           Default or Litigation Notice. 
Promptly upon any Responsible Officer of either Borrower or any of their
respective Subsidiaries obtaining knowledge thereof, notice of (i) the
occurrence of any event that constitutes a Default or an Event of Default,
which notice shall specify the nature thereof, the period of existence thereof
and what action the appropriate Borrower proposes to take with respect thereto,
and (ii) any litigation or governmental proceeding pending against either
Borrower or any of their respective Subsidiaries that could reasonably be
expected to result in a Material Adverse Effect.


 


(b)           Quarterly Financials.  As
soon as available and in any event within 45 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, a Consolidated balance sheet
of the U.S. Borrower and its Subsidiaries and, if the U.S. Borrower has any
Unrestricted Subsidiaries, the U.S. Borrower and its Restricted Subsidiaries,
in each case as of the end of such Fiscal Quarter and the related Consolidated
statements of income and cash flow for the period commencing at the end of the
previous Fiscal Quarter and ending with the end of such Fiscal Quarter and for
the period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding period of (A) the preceding
Fiscal Year, and (B) the applicable annual forecast delivered pursuant to
Section 5.03(d), all in reasonable detail and duly certified (subject to year-end
audit adjustments) by the chief financial officer of such Borrower as having


 


83





















 


been prepared in accordance
with GAAP, together with (i) a certificate of said officer stating that no Default
has occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that such Borrower has
taken and proposes to take with respect thereto, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the U.S.
Borrower in determining compliance with the covenants contained in Sections
5.02(j) and 5.04; provided that in the event of any change in GAAP used
in the preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Sections 5.02(j)
and 5.04, a statement of reconciliation conforming such financial statements to
GAAP and (iii) if there is any change in the Pro Forma EBITDA Adjustment
from the amount set forth in any certificate previously delivered to the
Administrative Agent pursuant to Section 5.03(j), setting forth the
recalculated amount of such Pro Forma EBITDA Adjustment and, in reasonable
detail satisfactory to the Administrative Agent, the calculations and basis
therefor.


 


(c)           Annual Financials.  As
soon as available and in any event within 90 days after the end of each Fiscal
Year, a Consolidated balance sheet of (i) the U.S. Borrower and its
Subsidiaries and (ii) if the U.S. Borrower has any Unrestricted Subsidiaries,
the U.S. Borrower and its Restricted Subsidiaries, in each case as of the end
of such Fiscal Year and the related Consolidated statements of income and cash
flow for such Fiscal Year setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year, accompanied by an opinion
which shall be unqualified as to the scope of the audit and as to the going
concern status of the U.S. Borrower and its Subsidiaries or the U.S. Borrower and
its Restricted Subsidiaries, as the case may be, taken as a whole, of Deloitte
& Touche LLP or other independent public accountants of recognized standing
acceptable to the Majority Lenders, together with (A) a certificate of such
accounting firm to the Lender Parties stating that in the course of the regular
audit of the business of the U.S. Borrower and its Subsidiaries or the U.S.
Borrower and its Restricted Subsidiaries, as the case may be, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof, (B) a schedule in form satisfactory to
the Administrative Agent of the computations used by the U.S. Borrower in
determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Sections 5.02(j) and 5.04; provided that in the event of
any change in GAAP used in the preparation of such financial statements, the
U.S. Borrower shall also provide, if necessary for the determination of
compliance with Sections 5.02(j) and 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (C) a certificate of the chief
financial officer of the U.S. Borrower stating that no Default has occurred and
is continuing or, if a default has occurred and is continuing, a statement as
to the nature thereof and the action that the U.S. Borrower has taken and
proposes to take with respect thereto.


 


(d)           Annual Forecasts.  As
soon as available and in any event no later than 60 days after the beginning of
each Fiscal Year, forecasts prepared by management of the U.S. Borrower, in
reasonable detail and in form customarily prepared by management of such
Borrower for its internal use and setting forth an explanation for the
principal assumptions on which such forecasts were based, of balance sheets,
income statements and cash flow statements on a quarterly basis for the Fiscal
Year following such Fiscal Year then ended and on an annual basis for each of
the four Fiscal Years thereafter.


 


(e)           ERISA.  Promptly after any Loan Party
or any ERISA Affiliate obtains knowledge, or has reason to know, of the
occurrence of any of the following events that individually or in the aggregate
(including in the aggregate such events previously disclosed or


 


84





















 


exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would be
reasonably likely to have a Material Adverse Effect, a certificate of a
Responsible Officer of the U.S. Borrower setting forth details as to such
occurrence and the action, if any, that any Loan Party or any ERISA Affiliate
is required or proposes to take, together with any notices (required, proposed
or otherwise) given to or filed with or by or received by any Loan Party, any
ERISA Affiliate, the PBGC, a Plan participant (other than notices relating to
an individual participant’s benefits) or the Plan administrator with respect
thereto:  that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred or an
application has been or is to be made to the Secretary of the Treasury for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Internal Revenue Code with respect to a Plan; that a Plan having an
Unfunded Current Liability has been or is to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA (including the giving
of written notice thereof); that a Plan has an Unfunded Current Liability that
has or is reasonably expected to result in a lien under ERISA or the Internal
Revenue Code; that proceedings are reasonably expected to be or have been
instituted to terminate a Plan having an Unfunded Current Liability (including
the giving of written notice thereof); that a proceeding has been instituted
against any Loan Party or any ERISA Affiliate pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Plan; that the PBGC has notified any
Loan Party or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that any Loan Party or any ERISA Affiliate has failed to
make a required installment or other payment pursuant to Section 412 of the
Internal Revenue Code with respect to a Plan; or that any Loan Party or any ERISA
Affiliate has incurred or is reasonably expected to incur (or has been notified
in writing that it will incur) any liability (including any contingent or
secondary liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 or the Internal Revenue Code.


 


(f)            Environmental Conditions. 
Promptly after obtaining knowledge of any one or more of the following
environmental matters, unless such environmental matters would not,
individually or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect:


 


(i)            notice
of any pending or threatened Environmental Action against the U.S. Borrower or
any of its Subsidiaries or any Real Estate (as defined below);


 


(ii)           notice
of any condition or occurrence on any Real Estate that (x) results in
noncompliance by the U.S. Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to form the
basis of an Environmental Action against the U.S. Borrower or any of its
Subsidiaries or any Real Estate;


 


(iii)          notice
of any condition or occurrence on any Real Estate that could reasonably be
anticipated to cause such Real Estate to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Estate under any
Environmental Law; and


 


(iv)          notice
of the taking of any removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Estate.


 


85





















 


All such notices shall
describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and the U.S. Borrower’s
response thereto.  The term “Real Estate”
shall mean land, buildings and improvements owned or leased by the U.S.
Borrower or any of its Subsidiaries, but excluding all operating fixtures and
equipment, whether or not incorporated into improvements.


 


(g)           Designation Certificate.  Upon
the designation of any Subsidiary (i) as a Restricted Subsidiary from an
Unrestricted Subsidiary or (ii) as an Unrestricted Subsidiary from a
Restricted Subsidiary, a certificate of the chief financial officer of the U.S.
Borrower certifying as to compliance with the provisions of Section 5.02(a),
5.02(b) and 5.02(e) and demonstrating compliance with the provisions of Section
5.04 and setting forth the calculations and basis therefor, in each case after
giving effect to such designation in reasonable detail satisfactory to the
Administrative Agent.


 


(h)           Amendment of Documents. 
Promptly after the same shall become effective, copies of any amendment
or supplement to, or other modification of, any Subordinated Debt Document.


 


(i)            Securities Reports/Other Information. 
Promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports that any Loan Party or any of its
Subsidiaries sends to its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, that any Loan Party or any of
its Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any national
securities exchange (in each case to the extent not theretofore delivered to
the Lender Parties pursuant to this Agreement), and with reasonable promptness
such other information (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of any Lender Party may reasonably request in
writing from time to time.


 


(j)            Pro Forma EBITDA Adjustment Certificate.  Upon
the consummation of the acquisition of any Restricted Subsidiary, a certificate
of the chief financial officer of the U.S. Borrower demonstrating compliance
with the provisions of Section 5.02(e)(viii) and 5.04 and, if there is to be
any Pro Forma EBITDA Adjustment, setting forth the amount of such Pro Forma
EBITDA Adjustment and, in reasonable detail satisfactory to the Administrative
Agent, the calculations and basis therefor.


 


SECTION 5.04.  Financial Covenants.  So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the U.S. Borrower will:


 


(a)           Leverage Ratio.  Maintain
at the end of each Fiscal Quarter a Leverage Ratio of not more than the ratio
set forth below for each Measurement Period set forth below:


 




	
  Measurement

  Period Ending

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2005

  	
   

  	
  6.50:1

  	
   

  
	
  June 30, 2005

  	
   

  	
  6.50:1

  	
   

  
	
  September 30, 2005

  	
   

  	
  6.25:1

  	
   

  
	
  December 31,
  2005

  	
   

  	
  5.75:1

  	
   

  
	
  March 31, 2006

  	
   

  	
  5.75:1

  	
   

  






 


86





















 




	
  June 30, 2006

  	
   

  	
  5.75:1

  	
   

  
	
  September 30,
  2006

  	
   

  	
  5.50:1

  	
   

  
	
  December 31,
  2006

  	
   

  	
  5.00:1

  	
   

  
	
  March 31, 2007

  	
   

  	
  5.00:1

  	
   

  
	
  June 30, 2007

  	
   

  	
  5.00:1

  	
   

  
	
  September 30,
  2007

  	
   

  	
  5.00:1

  	
   

  
	
  December 31,
  2007

  	
   

  	
  5.00:1

  	
   

  
	
  March 31, 2008

  	
   

  	
  5.00:1

  	
   

  
	
  June 30, 2008

  	
   

  	
  5.00:1

  	
   

  
	
  September 30,
  2008

  	
   

  	
  4.75:1

  	
   

  
	
  December 31,
  2008

  	
   

  	
  4.50:1

  	
   

  
	
  March 31, 2009

  	
   

  	
  4.50:1

  	
   

  
	
  June 30, 2009

  	
   

  	
  4.50:1

  	
   

  
	
  September 30,
  2009

  	
   

  	
  4.25:1

  	
   

  
	
  December 31,
  2009 and thereafter

  	
   

  	
  4.00:1

  	
   

  






 


(b)           Interest Coverage Ratio. 
Maintain at the end of each Fiscal Quarter an Interest Coverage Ratio of
not less than the ratio set forth below for each Measurement Period set forth
below:


 




	
  Measurement 

  Period Ending

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  June 30, 2005

  	
   

  	
  2.25:1

  	
   

  
	
  September 30,
  2005

  	
   

  	
  2.25:1

  	
   

  
	
  December 31,
  2005

  	
   

  	
  2.35:1

  	
   

  
	
  March 31, 2006

  	
   

  	
  2.35:1

  	
   

  
	
  June 30, 2006

  	
   

  	
  2.35:1

  	
   

  
	
  September 30,
  2006

  	
   

  	
  2.35:1

  	
   

  
	
  December 31,
  2006

  	
   

  	
  2.35:1

  	
   

  
	
  March 31, 2007

  	
   

  	
  2.35:1

  	
   

  
	
  June 30, 2007

  	
   

  	
  2.35:1

  	
   

  
	
  September 30,
  2007

  	
   

  	
  2.35:1

  	
   

  
	
  December 31,
  2007

  	
   

  	
  2.35:1

  	
   

  
	
  March 31, 2008

  	
   

  	
  2.35:1

  	
   

  
	
  June 30, 2008

  	
   

  	
  2.35:1

  	
   

  
	
  September 30,
  2008

  	
   

  	
  2.35:1

  	
   

  
	
  December 31,
  2008

  	
   

  	
  2.50:1

  	
   

  
	
  March 31, 2009

  	
   

  	
  2.50:1

  	
   

  
	
  June 30, 2009

  	
   

  	
  2.50:1

  	
   

  
	
  September 30,
  2009

  	
   

  	
  2.50:1

  	
   

  
	
  December 31, 2009 and thereafter

  	
   

  	
  2.75:1

  	
   

  






 


87





















 


(c)           Fixed Charge Coverage Ratio. 
Maintain at the end of each Fiscal Quarter a Fixed Charge Coverage Ratio
of not less than the ratio set forth below for each Measurement Period set
forth below:


 




	
  Measurement

  Period Ending

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31, 2005

  	
   

  	
  1.15:1

  	
   

  
	
  June 30, 2005

  	
   

  	
  1.15:1

  	
   

  
	
  September 30,
  2005

  	
   

  	
  1.15:1

  	
   

  
	
  December 31,
  2005

  	
   

  	
  1.25:1

  	
   

  
	
  March 31, 2006

  	
   

  	
  1.25:1

  	
   

  
	
  June 30, 2006

  	
   

  	
  1.25:1

  	
   

  
	
  September 30,
  2006

  	
   

  	
  1.30:1

  	
   

  
	
  December 31,
  2006

  	
   

  	
  1.35:1

  	
   

  
	
  March 31, 2007

  	
   

  	
  1.35:1

  	
   

  
	
  June 30, 2007

  	
   

  	
  1.35:1

  	
   

  
	
  September 30,
  2007

  	
   

  	
  1.35:1

  	
   

  
	
  December 31,
  2007

  	
   

  	
  1.35:1

  	
   

  
	
  March 31, 2008

  	
   

  	
  1.35:1

  	
   

  
	
  June 30, 2008

  	
   

  	
  1.35:1

  	
   

  
	
  September 30,
  2008

  	
   

  	
  1.35:1

  	
   

  
	
  December 31,
  2008

  	
   

  	
  1.35:1

  	
   

  
	
  March 31, 2009

  	
   

  	
  1.35:1

  	
   

  
	
  June 30, 2009

  	
   

  	
  1.35:1

  	
   

  
	
  September 30,
  2009

  	
   

  	
  1.35:1

  	
   

  
	
  December 31,
  2009 and thereafter

  	
   

  	
  1.40:1

  	
  ;

  






 


provided, however that, if a
Default occurs as a result of a breach of this Section 5.04 with respect to any
Measurement Period ending prior to or on June 30, 2006, then the Investor Group
may, within two days of the date of delivery, pursuant to Section 5.03(b), of
quarterly financial statements that disclose the occurrence of such Default,
make a cash equity contribution to the U.S. Borrower in such amount as shall be
necessary to cure such Default (but in no event shall such amount exceed
$5,000,000 in the aggregate for any such Measurement Period), it being
understood that, (i) for purposes of calculating the applicable financial
covenants, the amount of such cash equity contribution shall be added, on a
dollar-for-dollar basis, to EBITDA for such Measurement Period, and (ii) for
purposes of this proviso only, if such cash equity contribution is timely made,
a Default shall be deemed to have been cured as if the U.S. Borrower would have
been in compliance with Section 5.04 assuming that such cash equity
contribution by the Investor Group to the U.S. Borrower was made on the last
day of the applicable Measurement Period and the U.S. Borrower used such amount
to prepay Advances.


 


88





















 


ARTICLE VI



GUARANTY


 


SECTION 6.01.  Guaranty.  The U.S. Borrower hereby unconditionally and
irrevocably guarantees (the provisions set forth in this Article VI being the “Guaranty”)
the punctual payment when due, whether at scheduled maturity or at a date fixed
for prepayment or by acceleration, demand or otherwise, of all of the
Obligations of the Canadian Borrower now or hereafter existing under or in
respect of the Loan Documents, whether direct or indirect, absolute or
contingent, and whether for principal, interest, fees, indemnification
payments, costs, expenses or otherwise (such Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Lender Parties in enforcing any rights
under this Guaranty.  Without limiting
the generality of the foregoing, the liability of the U.S. Borrower shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by the Canadian Borrower under or in respect of the Loan
Documents but for the fact that such Guaranteed Obligations are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Canadian Borrower.


 


SECTION 6.02.  Guaranty Absolute.  (a) 
The U.S. Borrower guarantees that all of the Guaranteed Obligations will
be paid strictly in accordance with the terms of the Loan Documents, regardless
of any Requirements of Law now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Administrative Agent or any of
the other Lender Parties with respect thereto. 
The Obligations of the U.S. Borrower under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of the Canadian Borrower
under or in respect of the Loan Documents, and a separate action or actions may
be brought and prosecuted against the U.S. Borrower to enforce this Guaranty,
irrespective of whether any action is brought against the Canadian Borrower or
whether the Canadian Borrower is joined in any such action or actions.  The liability of the U.S. Borrower under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of, and
the U.S. Borrower hereby irrevocably waives any defenses it may now have or may
hereafter acquire in any way relating to, any and all of the following:


 


(i)            any lack of validity or enforceability of any
of the Loan Documents or any other agreement or instrument relating thereto;


 


(ii)           any change in the time, manner or place of
payment of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of the Canadian Borrower under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to departure
from any of the Loan Documents (including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional credit to
the Canadian Borrower or any of its Subsidiaries or otherwise);


 


(iii)          any taking, exchange, release or
nonperfection of any of the Collateral, or any taking, release or amendment or
waiver of, or consent to departure from, the Guarantee and Collateral Agreement
or any other guarantee, for all or any of the Guaranteed Obligations;


 


(iv)          any manner of application of Collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the Guaranteed
Obligations or any other Obligations of the Canadian Borrower under or in
respect of the Loan Documents, or any other property and assets of the Canadian
Borrower or any of its Subsidiaries;


 


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(v)           any change, restructuring or termination of
the legal structure or existence of the Canadian Borrower or any of its
Subsidiaries;


 


(vi)          any failure of any of the Lender Parties to
disclose to the Canadian Borrower any information relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Canadian Borrower now or hereafter known to such Lender Party;


 


(vii)         the failure of any other Person to execute
the Guarantee and Collateral Agreement or any other guarantee or agreement or
the release or reduction of liability of the Canadian Borrower or any other
guarantor or surety with respect to the Guaranteed Obligations; or


 


(viii)        any other circumstance (including, without
limitation, any statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the other Lender Parties)
that might otherwise constitute a defense available to, or a discharge of, the
U.S. Borrower or any other guarantor or surety.


 


This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any of the other Lender Parties or by any other Person
upon the insolvency, bankruptcy or reorganization of the Canadian Borrower or
otherwise, all as though such payment had not been made, and the U.S. Borrower
hereby unconditionally and irrevocably agrees that it will indemnify the
Administrative Agent and each of the other Lender Parties, upon demand, for all
of the costs and expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Administrative Agent or such other Lender
Party in connection with any such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, a fraudulent transfer or a similar payment
under any bankruptcy, insolvency or similar Requirements of Law.


 


(b)           The U.S.
Borrower hereby further agrees that, as between the U.S. Borrower, on the one
hand, and the Administrative Agent and the Lender Parties, on the other hand,
(i) the Guaranteed Obligations of the Canadian Borrower may be declared to be
forthwith due and payable as provided in Section 7.01 (and shall be deemed to
have become automatically due and payable in the circumstances provided in
Section 7.01) for purposes of this Guaranty, notwithstanding any stay,
injunction or other prohibition preventing such declaration in respect of such
Guaranteed Obligations (or preventing such Guaranteed Obligations from becoming
automatically due and payable) as against any other Person and (ii) in the
event of any declaration of acceleration of such Guaranteed Obligations (or
such Guaranteed Obligations being deemed to have become automatically due and
payable) as provided in Section 7.01, such Guaranteed Obligations (whether or
not due and payable by the Canadian Borrower) shall forthwith become due and
payable by the U.S. Borrower for all purposes of this Guaranty.


 


SECTION 6.03.  Waivers and
Acknowledgments.  (a)  The U.S. Borrower hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, protest, dishonor
and any other notice with respect to any of the Guaranteed Obligations and this
Guaranty, and any requirement that the Administrative Agent or any of the other
Lender Parties protect, secure, perfect or insure any Lien or any property or
assets subject thereto or exhaust any right or take any action against the
Canadian Borrower or any other Person or any of the Collateral.


 


(b)           The U.S.
Borrower hereby waives (i) any defense arising by reason of any claim or
defense based upon an election of remedies by the Administrative Agent or the
other Lender Parties


 


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which in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration, contribution or
indemnification rights of the U.S. Borrower or any other rights of the U.S.
Borrower to proceed against the Canadian Borrower, any other guarantor or any
other Person or any of the Collateral, and (ii) any defense based on any right
of setoff or counterclaim against or in respect of the Obligations of the U.S.
Borrower under this Guaranty.


 


(c)           The U.S.
Borrower hereby unconditionally and irrevocably waives any duty on the part of
the Administrative Agent or any of the other Lender Parties to disclose to the
U.S. Borrower any fact or other matter relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the Canadian Borrower or any of its Subsidiaries or the property and assets thereof
now or hereafter known by the Administrative Agent or such other Lender Party.


 


(d)           The U.S.
Borrower hereby unconditionally waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.


 


(e)           The U.S.
Borrower hereby acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in Section 6.02 and in this Section
6.03 are knowingly made in contemplation of such benefits.


 


SECTION 6.04.  Subrogation.  The U.S. Borrower hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may hereafter
acquire against the Canadian Borrower or any other insider guarantor that arise
from the existence, payment, performance or enforcement of the Obligations of
the U.S. Borrower under this Guaranty or any of the other Loan Documents,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any claim or remedy of the Administrative Agent or any of the other Lender
Parties against the Canadian Borrower or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute, common law or any other Requirements of Law,
including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until such time as all of
the Guaranteed Obligations and all of the other amounts payable under this
Guaranty shall have been paid in full in cash. 
If any amount shall be paid to the U.S. Borrower in violation of the
immediately preceding sentence at any time prior to the latest of the payment
in full in cash of all of the Guaranteed Obligations and all of the other
amounts payable under this Guaranty, such amount shall be received and held in
trust for the benefit of the Administrative Agent and the other Lender Parties,
shall be segregated from the other property and funds of the U.S. Borrower and
shall be delivered forthwith to the Administrative Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and the other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as Collateral for any of the Guaranteed
Obligations or any of the other amounts payable under this Guaranty thereafter
arising.  If (a) the U.S. Borrower
shall pay to the Administrative Agent all or any part of the Guaranteed
Obligations and (b) all of the Guaranteed Obligations and all of the other
amounts payable under this Guaranty shall have been paid in full in cash, the
Administrative Agent and the other Lender Parties will, at the U.S. Borrower’s
request and expense, execute and deliver to the U.S. Borrower appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer of subrogation to the U.S. Borrower of an interest in
the Guaranteed Obligations resulting from the payment made by the U.S. Borrower
under this Guaranty.


 


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SECTION 6.05.  Continuing Guaranty;
Assignments.  This Guaranty is
a continuing guarantee and shall (a) remain in full force and effect until the
payment in full in cash of all of the Guaranteed Obligations and all of the
other amounts payable under this Guaranty, (b) be binding upon the U.S.
Borrower and its successors and assigns and (c) inure to the benefit of, and be
enforceable by, the Administrative Agent and the other Lender Parties and their
respective successors, transferees and assigns. 
Without limiting the generality of clause (c) of the immediately preceding
sentence, any of the Lender Parties may assign or otherwise transfer all or any
portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender under this Article VI or otherwise, in each case
as provided in Section 9.07.


 


ARTICLE VII



EVENTS OF DEFAULT


 


SECTION 7.01.  Events of Default.  If any of the following events (“Events of
Default”) shall occur and be continuing:


 


(a)           either Borrower shall (i) fail to pay any
principal of any Advance owing by it when the same shall become due and payable
or (ii) fail to pay any interest on any Advance owing by it, or any fees
payable pursuant to Section 2.08, or any other amounts owing by it under any
Loan Document, in each case within five days after the due date thereof; or


 


(b)           any representation or warranty made by any
Loan Party in any Loan Document or any certificate delivered or required to be
delivered pursuant thereto shall prove to have been untrue in any material
respect on the date as of which made or deemed made; or


 


(c)           either Borrower shall default in the due
performance or observance by it of any term, covenant or agreement required to
be performed or observed by it contained in Section 5.01(j), 5.02, 5.03(a) or
5.04; or


 


(d)           any Loan Party shall default in the due
performance or observance by it of any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the U.S. Borrower by the Administrative Agent or any Lender
Party; or


 


(e)           any Loan Party or any of its Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal amount of at
least $30,000,000 (or its equivalent in another currency) either individually
or in the aggregate (but excluding Debt outstanding hereunder) of such Loan
Party or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the acceleration
of, the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed (other than by a
regularly scheduled


 


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required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made other than in connection with a
sale of assets permitted by Section 5.02(d), in each case prior to the stated
maturity thereof; or


 


(f)            any Loan Party or any of its Subsidiaries
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall occur;
or any Loan Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or


 


(g)           one or more judgments or decrees shall be
entered against either Borrower or any of the Restricted Subsidiaries involving
a liability of $30,000,000 or more in the aggregate for all such judgments and
decrees for the Borrowers and their Restricted Subsidiaries (to the extent not
paid or fully covered by insurance provided by a carrier not disputing
coverage) and any such judgments or decrees shall not have been satisfied, vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or


 


(h)           any provision of any Loan Document after
delivery thereof pursuant to the Existing Credit Agreement or Section 3.01 or
5.01(j) hereof shall for any reason cease to be valid and binding on or
enforceable against any Loan Party party to it, or any such Loan Party shall so
state in writing; or


 


(i)            any Collateral Document after delivery
thereof pursuant to the Existing Credit Agreement or Section 3.01 or 5.01(j) hereof
shall for any reason (other than pursuant to the terms thereof) cease to create
a valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby; or


 


(j)            any Change of Control shall occur; or


 


(k)           (i) any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or granted
under Section 412 of the Internal Revenue Code; any Plan is or shall have been
terminated or is the subject of termination proceedings under ERISA (including
the giving of written notice thereof); an event shall have occurred or a
condition shall exist in either case entitling the PBGC to terminate any Plan
or to appoint a trustee to administer any Plan (including the giving of written
notice thereof); any Plan shall have an accumulated funding deficiency (whether
or not waived); or any Loan Party or any ERISA Affiliate has incurred or is
likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 of the Internal Revenue Code (including the giving of written
notice thereof), (ii) there could result from any event or events set
forth in clause (i) of this Section 7.01(k) the imposition of a lien, the
granting of a security interest, or a liability, or the reasonable likelihood
of incurring a lien, security interest or liability,


 


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and (iii) such lien,
security interest or liability will or would be reasonably likely to result in
a liability of any Loan Party or any ERISA Affiliate of $30,000,000 or more; or


 


(l)            the Senior Subordinated Notes or any other
Subordinated Debt shall cease, for any reason, to be validly subordinated, to
the extent required by this Agreement, to the Obligations of the Borrowers and
the Subsidiary Guarantors under the Loan Documents;


 


then, and in any such event, the Administrative Agent
(i) shall at the request, or may with the consent, of the Majority Lenders, by
notice to the Appropriate Borrower, declare the obligation of each Appropriate
Lender to make Advances (other than Letter of Credit Advances by the Issuing
Bank or a U.S. Revolving Credit Lender pursuant to Section 2.03(c) and Swing
Line Advances by a U.S. Revolving Credit Lender pursuant to Section 2.02(b))
and of the Issuing Bank to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Lenders, (A) by notice to the Appropriate
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Borrower and (B) by notice to each party required under the terms of any
agreement in support of which a Standby Letter of Credit is issued, request
that all Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to any Loan Party or any of its Restricted Subsidiaries
under the Federal Bankruptcy Code, (x) the obligation of each Lender to make
Advances (other than Letter of Credit Advances by the Issuing Bank or a U.S.
Revolving Credit Lender pursuant to Section 2.03(c) and Swing Line Advances by
a U.S. Revolving Credit Lender pursuant to Section 2.02(b)) and of the Issuing
Bank to issue Letters of Credit shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by each Borrower.


 


SECTION 7.02.  Application of Funds. 
(a)  Any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order: 


 


(i)            First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (other than principal and interest, but
including fees and expenses of counsel to the Administrative Agent and the
Lender Parties) payable to the Administrative Agent and the Lender Parties
ratably among them in proportion to the amounts described in this clause First
payable to them;


 


(ii)           Second, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Advances, ratably among the Lender Parties in
proportion to the respective amounts described in this clause Second
payable to them;


 


(iii)          Third, to payment of that portion of the Obligations constituting unpaid
principal of the Advances, ratably among the Lender Parties in proportion to
the respective amounts described in this clause Third payable to them;


 


(iv)          Fourth, to the Administrative Agent for the account of the Issuing Bank, to
cash collateralize the aggregate Available LC Amount of all outstanding Letters
of Credit;


 


(v)           Fifth, to the payment of all other Obligations of the Loan Parties owing
under or in respect of the Loan Documents that are due and payable to the
Administrative Agent and the other Secured Parties on such date, ratably based
upon the respective aggregate amounts of all


 


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such Obligations owing to
the Administrative Agent and the other Secured Parties on such date; and


 


(vi)          Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the U.S. Borrower or as otherwise required by
law.


 


(b)           Notwithstanding
any other provision of this Section 7.02, the Canadian Borrower shall not be
liable for or required to repay any Obligation of the Loan Parties under the
Loan Documents other than those Obligations incurred under the Canadian
Revolving Facility.


 


ARTICLE VIII



THE ADMINISTRATIVE AGENT


 


SECTION 8.01.  Authorization and Action.  Each Lender Party (in its capacities as a
Lender, the Swing Line Bank (if applicable), the Issuing Bank (if applicable)
and a potential Hedge Bank) hereby appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental thereto.  As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement or collection
of the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement or applicable law.  The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by either Borrower pursuant to the terms of this Agreement.


 


SECTION 8.02.  Administrative Agent’s Reliance, Etc. 
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct.  Without limitation of the generality of the
foregoing, the Administrative Agent:  (a)
may treat the payee of any Note as the holder thereof until the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 9.07; (b) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation
to any Lender Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or oral) made in or
in connection with the Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of any Loan Party or
to inspect the property (including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the
proper party or parties.


 


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SECTION 8.03.  Citicorp and Affiliates.  With respect to its Commitments, the Advances
made by it and the Notes issued to it, Citicorp shall have the same rights and
powers under the Loan Documents as any other Lender Party and may exercise the
same as though it were not the Administrative Agent; and the term “Lender Party”
or “Lender Parties” shall, unless otherwise expressly indicated, include
Citicorp in its individual capacity. 
Citicorp and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if Citicorp were not the
Administrative Agent and without any duty to account therefor to the Lender
Parties.


 


SECTION 8.04.  Lender Party Credit Decision.  Each Lender Party acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender Party also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.


 


SECTION 8.05.  Indemnification. 
(a)  Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrowers) from and against such Lender Party’s ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative
Agent under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s gross negligence or willful
misconduct.  Without limitation of the
foregoing, each Lender Party agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
payable by the Borrowers under Section 9.04, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrowers.  For purposes of this
Section 8.05(a), the Lender Parties’ respective ratable shares of any amount
shall be determined, at any time, according to the sum of (i) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lender Parties, (ii) their respective Pro Rata Shares of the
aggregate Available LC Amount of all Letters of Credit outstanding at such time,
(iii) the aggregate unused portions of their respective Term Commitments at
such time and (iv) their respective Unused Canadian Revolving Credit
Commitments and Unused U.S. Revolving Credit Commitments at such time; provided
that the aggregate principal amount of Swing Line Advances owing to the Swing
Line Bank and of Letter of Credit Advances owing to the Issuing Bank shall be
considered to be owed to the U.S. Revolving Credit Lenders ratably in
accordance with their respective U.S. Revolving Credit Commitments.  In the event that any Defaulted Advance shall
be owing by any Defaulting Lender at any time, such Lender Party’s Commitment
with respect to the Facility under which such Defaulted Advance was required to
have been made shall be considered to be unused for purposes of this Section
8.05(a) to the extent of the amount of such Defaulted Advance.  The failure of any Lender Party to reimburse
the Administrative Agent promptly upon demand for its ratable share of any
amount required to be paid by the Lender Party to the Administrative Agent as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse the Administrative Agent for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of any other
Lender Party to reimburse the Administrative Agent for such other Lender Party’s
ratable share of such amount.  Without
prejudice to


 


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the survival of
any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05(a) shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


(b)           Each U.S.
Revolving Credit Lender severally agrees to indemnify the Issuing Bank (to the
extent not promptly reimbursed by the Borrowers) from and against such Lender
Party’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however,
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank’s gross negligence or
willful misconduct.  Without limitation
of the foregoing, each such Lender Party agrees to reimburse the Issuing Bank
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) payable by the
Borrowers under Section 9.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrowers.  For purposes of this Section 8.05(b), the
Lender Parties’ respective ratable shares of any amount shall be determined, at
any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(ii) their respective Pro Rata Shares of the aggregate Available LC Amount of
all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term Commitments at such time plus (iv) their
respective Unused U.S. Revolving Credit Commitments and Unused Canadian
Revolving Credit Commitments at such time; provided that the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the U.S. Revolving Credit Lenders ratably in accordance with their
respective U.S. Revolving Credit Commitments. 
In the event that any Defaulted Advance shall be owing
by any Defaulting Lender at any time, such Lender Party’s Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 8.05(b)
to the extent of the amount of such Defaulted Advance.  The failure of any Lender Party to reimburse
the Issuing Bank promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to the Issuing Bank as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse the Issuing Bank for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse the Issuing Bank for such other Lender Party’s ratable share of such
amount.  Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 8.05(b) shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


SECTION 8.06.  Successor Administrative Agents.  The Administrative Agent may resign as to any
or all of the Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrowers and may be removed as to all of the Facilities
at any time with or without cause by the Majority Lenders.  Upon any such resignation or removal, the
Majority Lenders shall, with the consent of the U.S. Borrower (such consent not
to be unreasonably withheld or delayed) have the right to appoint a successor
Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned or been removed.  If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and consented to by the U.S.
Borrower, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent’s giving of notice of resignation or the Majority
Lenders’ removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties and with the consent
of the U.S. Borrower (such consent not to be unreasonably withheld or delayed)
appoint a successor Administrative Agent, which shall be a


 


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commercial bank
organized under the laws of the United States or of any State thereof and
having a combined capital and surplus of at least $250,000,000.  Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to all of
the Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Majority Lenders may request, in order
to continue the perfection of the Liens granted or purported to be granted by
the Collateral Documents, such successor Administrative Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the Loan
Documents. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Majority Lenders may request, in order
to continue the perfection of the Liens granted or purported to be granted by
the Collateral Documents, such successor Administrative Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Administrative Agent as to such Facilities, other than
with respect to funds transfers and other similar aspects of the administration
of Borrowings under such Facilities, issuances of Letters of Credit
(notwithstanding any resignation as Administrative Agent with respect to the
Letter of Credit Facility) and payments by the Borrowers in respect of such
Facilities, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement as to such Facilities, other than
as aforesaid.  After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent as to all of
the Facilities, the provisions of this Article VIII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.


 


SECTION 8.07.  Lead Arrangers, Syndication Agent and Documentation Agent.  The Lead Arrangers, the Syndication Agent and
the Documentation Agent shall have no duties or obligations under this
Agreement or the other Loan Documents in their respective capacities as Lead
Arranger, Syndication Agent and Documentation Agent, as the case may be.


 


ARTICLE IX



MISCELLANEOUS


 


SECTION 9.01.  Amendments,
Etc.  No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor
consent to any departure by either Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed (or, in the case of
the Collateral Documents, consented to) by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders (other than any Lender that is, at such time, a Defaulting Lender), do
any of the following at any time: 
(i) waive any of the conditions specified in Section 3.01 or, in
the case of the Initial Extension of Credit, Section 3.02, (ii) change the
number of Lenders or the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Advances or (z) the aggregate Available LC
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder, (iii) amend
this Section 9.01, (iv) release the U.S. Borrower from its guaranty
obligations or reduce or limit the obligations of the U.S. Borrower under
Section 6.01 of the Guaranty or (v) otherwise limit either Borrower’s
liability with respect to the Obligations owing to the Administrative Agent and
the Lender Parties under any of the Loan Documents, (b) no amendment,
waiver or consent shall, unless in writing and signed by the Majority Lenders
and by each affected Lender, (i) increase the Commitments of


 


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such Lender or
subject such Lender to any additional obligations, (ii) reduce the principal
of, or interest (other than a waiver of increased interest following Default
pursuant to Section 2.07(b)) on, the Notes held by such Lender or any
reimbursement obligation in respect of any Letter of Credit or any fees or
other amounts payable hereunder to such Lender or (iii) postpone any date fixed
for any payment of principal or interest on the Notes held by such Lender or
any reimbursement obligation in respect of any Letter of Credit or any fees or
other amounts payable hereunder to such Lender or the final maturity date of
any Facility and (c) no amendment, waiver or consent shall, unless in writing
and signed by the Majority Facility Lenders, (i) waive, reduce, postpone or
change the order of application of, or right to decline to receive, any
repayment or prepayment of principal required to be paid pursuant Sections 2.04
or 2.06 or (ii) amend, modify or waive any provision of Section 2.11, 2.13 or
7.02(a); provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Bank or the Issuing Bank,
as the case may be, in addition to the Lenders required above to take such
action, affect the rights or obligations of the Swing Line Bank or the Issuing
Bank, as the case may be, under this Agreement; and provided  further
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.


 


Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Majority Lenders, the Administrative Agent and each
Borrower (a) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Advances and
the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination
of the Majority Lenders and Majority Facility Lenders.


 


In
addition, notwithstanding the foregoing, this Agreement may be amended with the
written consent of the Administrative Agent, each Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit the
refinancing, replacement or modification of all outstanding Term Loans (“Refinanced
Term Loans”) with a replacement term loan tranche hereunder (“Replacement
Term Loans”), provided that (a) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans and (c) the weighted average life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing.


 


In
addition, notwithstanding the foregoing, this Agreement may be amended to
provide for any New Term Facility of any Series contemplated by Section 2.16,
to permit any New Term Advances from time to time outstanding thereunder and
the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Advances
and the accrued interest and fees in respect thereof, and to provide for any
other matters related to any such New Term Facility upon (a) execution and
delivery of a Joinder Agreement by the U.S. Borrower, the Administrative Agent
and each New Term Lender providing New Term Commitments in respect of such
Series and (b) delivery to the Administrative Agent of such other opinions and
documents as are reasonably requested by the Administrative Agent pursuant to
Section 2.16 in connection with any such transaction.


 


SECTION 9.02.  Notices, Etc. 
(a)  All notices and other
communications provided for hereunder shall be either (x) in writing (including
telegraphic or telecopy communication) and mailed, telegraphed, telecopied or
delivered or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), in an electronic medium and delivered as set
forth in Section 9.02(b), if to


 


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the U.S. Borrower,
to its address at P.O. Box 15600, 7140 Office Circle, Evansville, IN 47716,
Attn:  Office of General Counsel, with a
copy to KKR at 2800 Sand Hill Road, Suite 200, Menlo Park, CA  94205, Attn: 
Fred Goltz; if to the Canadian Borrower, addressed to it c/o the U.S.
Borrower at the U.S. Borrower’s address; if to any Initial Lender or the
Initial Issuing Bank, to its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender Party, to its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party; and if to the Administrative Agent, to its address at
Two Penns Way, New Castle, Delaware 19720, Attention:  Bank Loan Syndications Department, with a
copy to 388 Greenwich Street, New York, New York 10013, Attention:  Mark Floyd; or, as to either Borrower 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 to each other party, at such
other address as shall be designated by such party in a written notice to the
U.S. Borrower and the Administrative Agent pursuant to this Section 9.02; provided
that materials required to be delivered pursuant to Sections 5.03(b), (c) and
(i) shall be delivered to the Administrative Agent as specified in Section
9.02(b) or as otherwise specified to the U.S. Borrower by the Administrative
Agent.  All such notices and communications
shall, when mailed, telegraphed, telecopied or e-mailed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by e-mail, respectively, except that notices and
communications to the Administrative Agent pursuant to Sections 2.02, 2.03,
2.05, 2.06(a) and 2.09(a) and with respect to selected Interest Periods in
respect of Eurodollar Rate Advances shall not be effective until received by
the Administrative Agent.  Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.


 


(b)           So long as
Citicorp is the Administrative Agent, materials required to be delivered
pursuant to Sections 5.03(b), (c) and (i) shall be delivered to the
Administrative Agent in an electronic medium in a format acceptable to the
Administrative Agent and the Lenders by e-mail at
oploanswebadmin@citigroup.com.  Each Borrower
agrees that the Administrative Agent may make such materials, as well as any
other written information, documents, instruments and other material relating
to such Borrower, any of its Subsidiaries or any other materials or matters
relating to this Agreement, the Notes or any of the transactions contemplated
hereby (collectively, the “Communications”) available to the Lenders by
posting such notices on “e-Disclosure” (the “Platform”), the
Administrative Agent’s internet delivery system that is part of Fixed Income
Direct, Global Fixed Income’s primary web portal.  Although the primary web portal is secured
with a dual firewall and a User ID/Password Authorization System and the
Platform is secured through a single user per deal authorization method whereby
each user may access the Platform only on a deal-by-deal basis, each Borrower
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided “as is” and “as
available” and (iii) neither the Administrative Agent nor any of its Affiliates
warrants the accuracy, adequacy or completeness of the Communications or the
Platform and each expressly disclaims liability for errors or omissions in the
Communications or the Platform.  No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform.


 


(c)           Each Lender
agrees that notice to it (as provided in the next sentence) (a “Notice”)
specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials
to such Lender for purposes of this Agreement; provided that, if
requested by any Lender, the Administrative Agent shall deliver a copy of the
Communications to such Lender by e-mail or telecopier.  Each Lender agrees (i) to notify the
Administrative Agent in writing of such Lender’s e-mail address to which a
Notice may be sent by


 


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electronic
transmission (including by electronic communication) on or before the date such
Lender becomes a party to this Agreement (and from time to time thereafter to
ensure that the Administrative Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.


 


SECTION 9.03.  No Waiver;
Remedies.  No failure on the part of
any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise
of any other right.  The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.


 


SECTION 9.04.  Costs, Expenses. 
(a)  Each Borrower agrees to pay
on demand (i) all costs and expenses of the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of the Loan Documents (including, without limitation, (A) all due
diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors’ rights generally
and any proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors’ rights
generally (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).


 


(b)           Each Borrower
agrees to indemnify and hold harmless the Administrative Agent, each Lender
Party and each of their Affiliates and their officers, directors, trustees,
employees, agents and advisors (each, an “Indemnified Party”) from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the
Facilities, any real property owned by, leased by or leased to any Loan Party,
the actual or proposed use of the proceeds of the Advances or the Letters of
Credit, the Loan Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition by the
Investor Group or any of their Subsidiaries or Affiliates of all or any portion
of the stock or substantially all the assets of such Borrower or any of its
Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials on
any property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent, in each case, such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party’s gross negligence or willful
misconduct.  In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated.


 


(c)           If any payment
of principal of, or Conversion of, any Eurodollar Rate Advance is made by
either Borrower to or for the account of a Lender Party other than on the last
day of the Interest


 


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Period
for such Advance, as a result of a payment or Conversion pursuant to Section
2.06, 2.09(b)(i) or 2.10(c), acceleration of the maturity of the Notes pursuant
to Section 7.01 or for any other reason, such Borrower shall, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.


 


(d)           If any Loan
Party fails to pay when due any costs, expenses or other amounts payable by it
under any Loan Document, including, without limitation, fees and expenses of
counsel and indemnities, such amount may be paid on behalf of such Loan Party
by the Administrative Agent or any Lender Party, in its sole discretion.


 


(e)           Without
prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrowers
contained in Sections 2.10 and 2.12 and this Section 9.04 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under any of the other Loan Documents.


 


SECTION 9.05.  Right of
Set-off.  Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 7.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of either Borrower against any
and all of the Obligations of such Borrower now or hereafter existing under
this Agreement and the Note or Notes (if any) held by such Lender Party,
irrespective of whether such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be
unmatured.  Each Lender Party agrees
promptly to notify such Borrower after any such set-off and application; 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 Party and its respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender Party and its respective
Affiliates may have.


 


SECTION 9.06.  Binding Effect. 
This Agreement shall become effective when it shall have been executed
by each Borrower and the Administrative Agent and when the Administrative Agent
shall have been notified by each Initial Lender, the Initial Issuing Bank, the
Existing Issuing Bank and the Swing Line Bank that such Person has executed it
and thereafter shall be binding upon and inure to the benefit of each Borrower,
the Administrative Agent and each Lender Party and their respective successors
and assigns, except that neither Borrower shall have the right to assign its
rights or Obligations hereunder or any interest herein without the prior
written consent of the Lender Parties.


 


SECTION 9.07.  Assignments and Participations.  (a) 
Each Lender may, with the consent of the Administrative Agent, and, so
long as no Event of Default has occurred and is continuing, with the consent of
the Appropriate Borrower (in each case, such consent not to be unreasonably withheld
or delayed), assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided, however, that no consent by
either Borrower or the Administrative Agent shall be required for an assignment
to any Person who is an Affiliate or a Related Fund of such Lender, and provided
further that (i) each such assignment shall be of


 


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a uniform, and not
a varying, percentage of all rights and obligations under and in respect of one
or more Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or a Related Fund of any Lender or an assignment which will result in a
group of Lenders which are managed by the same Person holding a Commitment or
an Advance (as the case may be) of not less than $1,000,000 or an assignment of
all of a Lender’s rights and obligations under this Agreement or all of a
Lender’s rights and obligations with respect to its Term Commitment, the amount
of the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or
integral multiples of $200,000 in excess thereof), (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and, other than in the case of an
assignment to an Affiliate of such Lender, a processing and recordation fee of
$3,500, provided that only one such fee shall be payable in connection
with simultaneous assignments by or to two or more Related Funds.


 


(b)           Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance, (x) the assignee thereunder
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,
have the rights and obligations of a Lender or Issuing Bank, as the case may
be, hereunder and (y) the Lender or Issuing Bank assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender’s or Issuing Bank’s rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.10, 2.12 and 9.04).


 


(c)           By executing
and delivering an Assignment and Acceptance, the Lender Party assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows:  (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (ii) such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of either Borrower or any other Loan Party or the performance or observance by
any Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Administrative Agent, such
assigning Lender Party or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in


 


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accordance
with their terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Lender or Issuing Bank, as the case may
be.


 


(d)           The
Administrative Agent, acting for this purpose (but only for this purpose) as
the agent of the Borrowers, shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of, and principal amount
of the Advances owing under each Facility to, each Lender Party from time to
time (the “Register”).  The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers, the Administrative Agent and the
Lender Parties shall treat each Person whose name is recorded in the Register
as a Lender Party hereunder for all purposes of this Agreement.  The Register shall be available for
inspection by the Borrowers or any Lender Party at any reasonable time and from
time to time upon reasonable prior notice.


 


(e)           Upon its
receipt of an Assignment and Acceptance executed by an assigning Lender Party
and an assignee, together with any Note or Notes subject to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Appropriate Borrower.  In the case of any assignment by a Lender,
within five Business Days after its receipt of such notice, the Appropriate
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
a Facility pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder under such Facility, a new Note to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder.  Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1, A-2 or A-3 hereto, as the case may be.


 


(f)            The Issuing
Bank may, with the consent of the Administrative Agent, and, so long as no
Event of Default shall have occurred and be continuing, with the consent of the
U.S. Borrower (such consent not to be unreasonably withheld), assign to an
Eligible Assignee all of its rights and obligations under the undrawn portion
of its Letter of Credit Commitment at any time; provided, however,
that (i) each such assignment shall be to an Eligible Assignee and
(ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500.


 


(g)           Each Lender
Party may sell participations to one or more Persons (other than any Loan Party
or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Advances owing to it and the Note or Notes (if
any) held by it); provided, however, that (i) such Lender Party’s
rights and obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Administrative
Agent and the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party’s rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest (other than increased interest
following Default pursuant to


 


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Section
2.07(b)) on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any Termination Date
or any New Term Advance Maturity Date, or date fixed for payment of interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or release the U.S. Borrower from its
Obligations under Article VI hereof, and (vi) neither Borrower shall be subject
to any increased liability to any Lender Party pursuant to this Agreement by
virtue of such participation.


 


(h)           Any Lender
Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 9.07, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Borrowers furnished to such Lender Party by or on behalf of the
Borrowers; provided, however, that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information received by it
from such Lender Party.


 


(i)            Notwithstanding
any other provision set forth in this Agreement, any Lender Party may at any
time create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Advances owing to it and the Note
or Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.


 


(j)            Notwithstanding
anything to the contrary contained herein, any Lender that is a fund that
invests in bank loans may create a security interest in all or any portion of
the Advances owing to it and the Note or Notes held by it to the trustee or
other representative for holders of obligations owed, or securities issued, by
such fund as security for such obligations or securities, provided that,
unless and until such trustee or other representative actually becomes a Lender
in compliance with the other provisions of this Section 9.07, (i) no such
pledge shall release the pledging Lender from any of its obligations under the
Loan Documents and (ii) such trustee or representative shall not be entitled to
exercise any of the rights of a Lender under the Loan Documents even though
such trustee or representative may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise.


 


SECTION 9.08.  Replacements of Lenders Under Certain Circumstances.  The U.S. Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.10 or 2.12, (b) is affected in the manner described in Section
2.10(c) and as a result thereof any of the actions described in such Section is
required to be taken or (c) becomes a Defaulting Lender, with a replacement
bank or other financial institution; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) the
Appropriate Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts (other than any disputed
amounts), pursuant to Section 2.10, 2.11 or 2.12, as the case may be, owing to
such replaced Lender prior to the date of replacement, (iv) the replacement
bank or institution, if not already a Lender, and the terms and conditions of
such replacement, shall be reasonably satisfactory to the Administrative Agent,
(v) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 9.07 (provided that such
Borrower shall be obligated to pay the registration and processing fee referred
to therein) and (vi) any such replacement shall not be deemed to be a waiver of
any rights that either Borrower, the Administrative Agent or any other Lender
Party shall have against the replaced Lender.


 


SECTION 9.09.  Execution in Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the


 


105





















 


same
agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery
of a manually executed counterpart of this Agreement.


 


SECTION 9.10.  No
Liability of the Issuing Bank.  The
U.S. Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit.  Neither the Issuing Bank nor any
of its officers or directors shall be liable or responsible for:  (a) the use that may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of documents, or of any
endorsement thereon, even if such documents should prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (c) payment by the
Issuing Bank against presentation of documents that do not comply with the
terms of a Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that the U.S. Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to the U.S. Borrower, to the extent
of any direct, but not consequential, damages suffered by the U.S. Borrower
that the U.S. Borrower proves were caused by (i) the Issuing Bank’s willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank’s willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying
with the terms and conditions of the Letter of Credit.  In furtherance and not in limitation of the
foregoing, the Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.


 


SECTION 9.11.  Confidentiality. 
(a)  The Administrative Agent and
each Lender shall hold all non-public information furnished by or on behalf of
either Borrower in connection with such Lender’s evaluation of whether to
become a Lender hereunder or obtained by such Lender or the Administrative
Agent pursuant to the requirements of this Agreement (“Confidential
Information”), in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices.  Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrowers, other than (i) to the Administrative Agent’s or
such Lender Party’s Affiliates and their officers, directors, trustees,
employees, agents and advisors, to pledgees under Section 9.07(j) and to actual
or prospective Eligible Assignees and participants, and then only on a
confidential basis, (ii) as required by any law, rule or regulation or judicial
process and (iii) as requested or required by any state, federal or foreign
authority or examiner regulating such Lender Party or the Administrative Agent.


 


(b)           Each of the
Borrowers, the Administrative Agent, CGMI and each Lender Party (and each of
their respective officers, directors, employees, accountants, attorneys and
other advisors, agents and representatives) may disclose to any and all
persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the transactions contemplated by this Agreement or any other Loan
Document and all materials of any kind (including opinions and other tax
analyses) that are provided to any of them relating to such U.S. tax treatment
and U.S. tax structure.


 


SECTION 9.12.  Release of Collateral.  (a) 
Upon the sale, lease, transfer or other disposition of any item of
Collateral of any Loan Party (including, without limitation, as a result of the
sale, in accordance with the terms of the Loan Documents, of the Loan Party
that owns such Collateral) in accordance with the terms of the Loan Documents,
the Administrative Agent will, at the U.S. Borrower’s expense, execute and
deliver to such Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents in accordance with
the terms of the Loan Documents.


 


106





















 


(b)           Upon the sale,
lease, transfer or other disposition of all of the capital stock of any Loan
Party that is Subsidiary Guarantor in accordance with the terms of the Loan
Documents, the Administrative Agent will, at the U.S. Borrower’s expense,
execute and deliver to such Loan Party such documents as such Loan Party may
reasonably request to evidence its release as a Subsidiary Guarantor from its
Obligations under the Guarantee and Collateral Agreement in accordance with the
terms of the Loan Documents.


 


SECTION 9.13.  Jurisdiction,
Etc.  (a)  Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court.  Each Borrower irrevocably consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Borrower at its address
specified in Section 9.02 and agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction.  Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.


 


(b)           Each of the
parties hereto irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party in any New York State or federal court. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


SECTION 9.14.  Judgment. 
(a)  If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
any of the other Loan Documents in U.S. dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase U.S. dollars with
such other currency at Citibank on the Business Day preceding that on which
final judgment is given.


 


(b)           The obligation
of each Borrower in respect of any sum due from it to any Lender Party or the
Administrative Agent hereunder or under any of the other Loan Documents held by
such Lender Party shall, notwithstanding any judgment in a currency other than
U.S. dollars, be discharged only to the extent that on the Business Day of
receipt by such Lender Party or the Administrative Agent (as the case may be)
of any sum adjudged to be so due in such other currency such Lender Party or
the Administrative Agent (as the case may be) may in accordance with normal
banking procedures purchase U.S. dollars with such other currency; if the U.S.
dollars so purchased are less than the sum originally due by such Borrower to
such Lender Party or the Administrative Agent (as the case may be) in U.S.
dollars, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Lender Party or the Administrative Agent (as
the case may be) against such loss, and if the U.S. dollars so purchased exceed
the sum originally due by such Borrower to any Lender Party or the
Administrative


 


107





















 


Agent
(as the case may be) in U.S. dollars, such Lender Party or the Administrative
Agent (as the case may be) agrees to remit to such Borrower such excess.


 


SECTION 9.15.  Reference to and Effect on the Loan Documents.  Each Borrower hereby confirms and agrees that
each of the Canadian Revolving Credit Notes, to the extent each is outstanding
as of the date hereof, is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects, except that, upon the
effectiveness of this Agreement and on and after the date hereof, each
reference in such Notes to the “Credit Agreement”, “thereunder”, “thereof”, “therein”
or words of like import referring to the Existing Credit Agreement shall mean
and be a reference to this Agreement.


 


SECTION 9.16.  Governing Law. 
This Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.


 


SECTION 9.17.  Waiver of Jury Trial. 
Each of the Borrowers, the Administrative Agent and the Lender Parties
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Advances or the actions of the
Administrative Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.


 


108





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
   

  	
   

  	
  ACCURIDE CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Terrence J. Keating

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Terrence
  J. Keating

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  President
  and Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ACCURIDE CANADA INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Terrence J. Keating

  	
   

  
	
   

  	
   

  	
   

  	
  Name:  Terrence
  J. Keating

  	
   

  
	
   

  	
   

  	
   

  	
  Title:  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITICORP USA, INC., as Administrative Agent

  	
   

  
	
   

  	
   

  	
  and as Swing Line Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Stephen R. Sellhausen

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Stephen R. Sellhausen

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as

  	
   

  
	
   

  	
   

  	
  Joint Lead Arranger and as Joint Book-Runner

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Stephen R. Sellhausen

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Stephen R. Sellhausen

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LEHMAN BROTHERS INC., as

  	
   

  
	
   

  	
   

  	
  Joint Lead Arranger and as Joint Book-Runner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Name: V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Sr. Vice President

  	
   

  



 





















 


	
   

  	
   

  	
  LEHMAN COMMERCIAL PAPER INC., as

  	
   

  
	
   

  	
   

  	
  Syndication Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Name: V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS SECURITIES LLC, as Documentation

  	
   

  
	
   

  	
   

  	
  Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Thomas J.W. Archie

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Thomas J.W. Archie

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 

  	
  /s/ Barbara S. Wang

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Barbara S. Wang

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Director and Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Region Americas Legal

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITIBANK, N.A., as Initial Issuing Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITIBANK, N.A., as Existing Issuing Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITICORP USA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Scott Sartorius

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
						



 





















 


	
   

  	
   

  	
  LEHMAN COMMERCIAL PAPER INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Name: V. Paul Arzouian

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS AG, STAMFORD BRANCH, as an

  	
   

  
	
   

  	
   

  	
  Issuing Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Doris Mesa

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Doris Mesa

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Associate Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Banking Products Services, US

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Joselin Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Joselin Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Associate Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Banking Products Services, US

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS LOAN FINANCE LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Doris Mesa

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Doris Mesa

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Associate Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Banking Products Services, US

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Joselin Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Joselin Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Associate Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Banking Products Services, US

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UBS AG, CANADA BRANCH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Wilfred V. Saint

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Wilfred V. Saint

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Banking Products Services, US

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Reto Jenal

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Reto Jenal

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Executive Director

  	
   

  



 





















 


	
   

  	
   

  	
  GE CANADA FINANCE HOLDING 

  	
   

  
	
   

  	
   

  	
  COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Ellis Gaston

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Ellis Gaston

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Duly Authorized Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEUTSCHE BANK TRUST COMPANY 

  	
   

  
	
   

  	
   

  	
  AMERICAS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Marguerite Sutton

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Marguerite Sutton

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FIFTH THIRD BANK (SOUTHERN

  	
   

  
	
   

  	
   

  	
  INDIANA)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Dwight E. Hamilton

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Dwight E. Hamilton

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Kevin Martin

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Kevin Martin

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXPORT DEVELOPMENT CANADA

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Marc Blondin

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Marc Blondin

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Financial Services Manager

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Shawn Cusick

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Shawn Cusick

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Financial Services Manager