Exhibit
10.7


 


EXECUTION COPY


 


CANADIAN PLEDGE AND SECURITY AGREEMENT


 


 


dated as of March 24, 2005


 


 


among


 


PROGRESS RAIL CANADA CORPORATION

and

PROGRESS RAIL TRANSCANADA CORPORATION

as Canadian Grantors


 


and


 


GE CANADA FINANCE HOLDING COMPANY

as Canadian Collateral
Agent


 


CDN PLEDGE AND SECURITY AGREEMENT


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1 - DEFINITIONS

  	
  1

  
	
  1.1

  	
  Terms Defined in Credit
  Agreement

  	
  1

  
	
  1.2

  	
  Terms Defined in PPSA

  	
  2

  
	
  1.3

  	
  Additional Definitions

  	
  2

  
	
  1.4

  	
  Definitions;
  Interpretation

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 2 – GRANT OF
  SECURITY

  	
  12

  
	
  2.1

  	
  Grant of Security

  	
  12

  
	
  2.2

  	
  Excluded Collateral

  	
  13

  
	
  2.3

  	
  Attachment of Security
  Interest

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 3 – SECURITY FOR
  OBLIGATIONS

  	
  14

  
	
  3.1

  	
  Security for Obligations

  	
  14

  
	
  3.2

  	
  Continuing Liability under
  Collateral

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 4 – REPRESENTATIONS
  AND WARRANTIES AND COVENANTS

  	
  14

  
	
  4.1

  	
  Generally

  	
  14

  
	
  4.2

  	
  Equipment and Inventory

  	
  18

  
	
  4.3

  	
  Receivables Contracts

  	
  19

  
	
  4.4

  	
  Pledged Equity Interests

  	
  20

  
	
  4.5

  	
  Pledged Debt

  	
  22

  
	
  4.6

  	
  Deposit Accounts

  	
  23

  
	
  4.7

  	
  Investment Related
  Property Generally

  	
  25

  
	
  4.8

  	
  Material Contracts

  	
  28

  
	
  4.9

  	
  Letter of Credit Rights

  	
  28

  
	
  4.10

  	
  Intellectual Property

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 5 – ACCESS; RIGHT OF INSPECTION AND
  FURTHER ASSURANCES; ADDITIONAL GRANTORS

  	
  33

  
	
  5.1

  	
  Access; Right of
  Inspection

  	
  33

  
	
  5.2

  	
  Further Assurances

  	
  33

  
	
  5.3

  	
  Additional Canadian
  Grantors

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 6 – COLLATERAL AGENT APPOINTED
  ATTORNEY-IN-FACT

  	
  35

  
	
  6.1

  	
  Power of Attorney

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 7 – REMEDIES

  	
  37

  
	
  7.1

  	
  Generally

  	
  37

  
	
  7.2

  	
  Appointment of Receiver

  	
  40

  
	
  7.3

  	
  Application of Proceeds

  	
  41

  
	
  7.4

  	
  Sales on Credit

  	
  41

  
	
  7.5

  	
  Investment Related Property

  	
  42

  
	
  7.6

  	
  Intellectual Property

  	
  43

  
	
  7.7

  	
  Cash Proceeds

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 8 – CANADIAN
  COLLATERAL AGENT

  	
  46

  



 


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  SECTION 9 – CONTINUING
  SECURITY INTEREST; TRANSFER OF SECURED OBLIGATIONS

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 10 – STANDARD OF
  CARE; COLLATERAL AGENT MAY PERFORM

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 11 – INDEMNITY AND
  EXPENSES

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 12 – MISCELLANEOUS

  	
  49

  
	
  12.1

  	
  Reinstatement

  	
  49

  
	
  12.2

  	
  Notices

  	
  50

  
	
  12.3

  	
  Expenses

  	
  50

  
	
  12.4

  	
  Amendments and Waivers

  	
  50

  
	
  12.5

  	
  Successors and Assigns

  	
  50

  
	
  12.6

  	
  Independence of Covenants

  	
  50

  
	
  12.7

  	
  Survival of
  Representations, Warranties and Agreements

  	
  51

  
	
  12.8

  	
  Severability

  	
  51

  
	
  12.9

  	
  GOVERNING LAW

  	
  51

  
	
  12.10

  	
  CONSENT TO JURISDICTION

  	
  51

  
	
  12.11

  	
  WAIVER OF JURY TRIAL

  	
  52

  
	
  12.12

  	
  Counterparts

  	
  52

  
	
  12.13

  	
  Effectiveness

  	
  52

  
	
  12.14

  	
  Entire Agreement

  	
  52

  
	
  12.15

  	
  Receipt of Copy of
  Agreement

  	
  53

  
	
  12.16

  	
  Choice of Language

  	
  53

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I – GENERAL
  INFORMATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE II – COLLATERAL
  LOCATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE III – INVESTMENT
  RELATED PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE IV – EXCLUDED
  DEPOSIT ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE V – LETTERS OF
  CREDIT

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE VI – INTELLECTUAL
  PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  ANNEX I – PLEDGE
  SUPPLEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ANNEX II – NEW CANADIAN
  GRANTOR PLEDGE SUPPLEMENT

  	
   

  



 


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This CANADIAN PLEDGE AND SECURITY AGREEMENT, dated
as of March 24, 2005 (this “Agreement”),
is made between Progress Rail Canada Corporation and Progress Rail Transcanada
Corporation (each, a “Canadian Grantor”), and
GE Canada Finance Holding Company acting in the capacity of Canadian collateral
agent for the benefit of the Canadian Secured Parties (in such capacity, the “Canadian Collateral Agent”).


 


RECITALS:


 


WHEREAS reference is made to that certain Credit Agreement, dated as of the
date hereof (as it may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by
and among Progress Rail Services Holdings Corp. (the “Parent”),
each of the domestic subsidiaries of Parent party thereto (such subsidiaries,
together with the Parent, the “U.S.  Borrowers”), Progress Rail
Canada Corporation, Progress Rail Transcanada Corporation (the ‘‘Canadian Borrowers”, and together with
the U.S. Borrowers, the “Borrowers”), the
Issuing Banks, General Electric Capital Corporation (“GECC”),
as U.S. Administrative Agent, GE Canada Finance Holding Company, as Canadian
Administrative Agent, the Lenders and the other parties thereto from time to
time;


 


WHEREAS each Canadian Grantor will realize substantial direct and indirect
benefits as a result of the transactions contemplated by the Credit Agreement;


 


WHEREAS subject to the terms and conditions of the Credit Agreement, certain
Canadian Grantors may enter into one or more Swap Agreements with one or more
Canadian Lenders or Affiliates of Canadian Lenders;


 


WHEREAS certain Canadian Grantors may from time to time receive, accept or
obtain Banking Services; and


 


WHEREAS in consideration of the extensions of credit
and other accommodations of the Canadian Lenders and GECC (and their respective
Affiliates) pursuant to the Credit Agreement, the Swap Agreements and the
Banking Services, respectively, each Canadian Grantor has agreed to grant a
security interest in substantially all of its assets to secure all Canadian
Secured Obligations (as defined herein) as more specifically set forth herein.


 


NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, each Canadian Grantor
and the Canadian Collateral Agent agree as follows:


 


SECTION 1 - DEFINITIONS


 


1.1                               Terms Defined in Credit Agreement


 


Terms defined in the Credit Agreement and not
otherwise defined in Section 1.2 or Section 1.3 have, as used herein, the
respective meanings provided for therein.


 


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1.2                               Terms Defined in PPSA


 


Terms
defined in the PPSA and used herein shall, unless otherwise defined herein,
have the same meaning as ascribed to such term in the PPSA, including “Accessions”,
“Account”, “Chattel Paper”, “Document of Title”, “Goods”, “Intangible”, “Instruments”,
“Money”, “Security”, “financing statement” and “financing change statement”.
However, the term “Goods” when used herein shall not include “consumer goods”
as that term is defined in the PPSA.


 


1.3                               Additional Definitions


 


In
this Agreement the following terms shall have the following meanings:


 


(1)                                  “Account Debtor” shall mean each Person who is obligated on a
Receivable.


 


(2)                                  “Accounts” shall mean, with respect to any Canadian
Grantor, all “accounts,” as such term is defined in the PPSA, now owned or
hereafter acquired by such Canadian Grantor and, in any event, shall include
all accounts due or accruing due and all agreements, books, accounts receivable,
other receivables, book debts, claims and demand of every nature and kind and
other forms of monetary obligations (other than forms of monetary obligations
evidenced by Chattel Paper, Securities or Instruments) now owned or hereafter
received or acquired by or belonging or owing to such Canadian Grantor, whether
or not yet earned by performance on the part of such Canadian Grantor and all
invoices, letters, documents and papers recording, evidencing or relating
thereto.


 


(3)                                  “Additional Canadian
Grantors” shall mean those
additional Persons that may become parties to this Agreement as additional
Canadian Grantors, by executing a counterpart agreement in form and substance
satisfactory to the Canadian Collateral Agent.


 


(4)                                  “Agreement” shall have the meaning set forth in the
preamble.


 


(5)                                  “Blocked Account” shall have the meaning set forth in Section
4.6(2)(a).


 


(6)                                  “Blocked Account Agreement” shall mean, with respect to any Collateral
Deposit Account of a Canadian Grantor (other than Excluded Deposit Accounts), a
blocked account agreement between such Canadian Grantor, each applicable
depository bank and the Canadian Collateral Agent, all in form and substance
satisfactory to the Canadian Collateral Agent, acting reasonably.


 


(7)                                  “Canadian Collateral Account”
shall mean an account in the
name of the Canadian Borrowers subject to a Blocked Account Agreement.


 


(8)                                  “Canadian Collateral Agent” shall have the meaning set forth in the
preamble.


 


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(9)                                  “Canadian Collection Account”
shall have the meaning set
forth in Section 4.6(2)(c).


 


(10)                            “Canadian Concentration
Account” shall have the
meaning set forth in Section 4.6(2)(a).


 


(11)                            “Canadian Secured
Obligations” shall mean all
Canadian Obligations.


 


(12)                            “Cash Proceeds” shall mean all proceeds of any Collateral
consisting of cash, cheques and other near-cash items.


 


(13)                            “Chattel Paper” (i) shall mean all “chattel paper” as defined
in the PPSA and (ii) shall include all chattel paper in which any Canadian
Grantor now or hereafter has an interest, and any part of such interest.


 


(14)                            “CIPO” shall mean the Canadian Intellectual Property
Office, or any other ministry, department, agency or subdivision of the
Government of Canada succeeding to the powers and responsibilities of the Canadian
Intellectual Property Office.


 


(15)                            “Collateral” shall have the meaning set forth in Section
2.1.


 


(16)                            “Collateral Deposit Account”
shall have the meaning set
forth in Section 4.6(1)(a).


 


(17)                            “Collateral Records” shall mean books, records, ledger cards,
files, correspondence, customer lists, blueprints, technical specifications,
manuals, computer software, computer printouts, tapes, disks and other
electronic storage media and related data processing software and similar items
that at any time evidence or contain information relating to any of the Collateral
or are otherwise necessary or helpful in the collection thereof or realization
thereupon.


 


(18)                            “Collateral Support” shall mean all property (real or personal)
assigned, hypothecated or otherwise securing any Collateral and shall include
any security agreement or other agreement granting a lien or security interest
in such real or personal property.


 


(19)                            “Compliance Date” shall mean, as to any Canadian Grantor, the
date that is the latest of: (i) the Effective Date, (ii) the last day of the
last Fiscal Quarter of the Canadian Borrowers, (iii) the date such Canadian
Grantor becomes an Additional Canadian Grantor in accordance with Section 5.3
hereof and (iv) with respect to any amendment or supplement to any Schedule
hereto delivered by such Canadian Grantor, the date on which such Canadian
Grantor amended or supplemented such Schedule


 


(20)                            “Contracts” shall mean any contracts, agreements,
indentures, policies of insurance, licenses, commitments, entitlements,
engagements or other arrangements, whether written or unwritten, to which any
Canadian Grantor is now or hereafter a party or has a benefit, right, or in which
any Canadian Grantor now or hereafter has an interest.


 


3

















 


(21)                            “Copyright Licenses” shall mean any and all agreements granting
any right in, to or under any Copyright (whether such Canadian Grantor is
licensee or licensor thereunder) including, without limitation, each such
agreement referred to in Schedule VI (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge Supplement
hereunder).


 


(22)                            “Copyrights” shall mean (i) all copyrights arising under
the laws of Canada, whether registered or unregistered and whether published or
unpublished (including, without limitation, those listed in Schedule VI,
as such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder), all registrations and recordings
thereof, and all applications in connection therewith, including, without
limitation, all registrations, recordings and applications in CIPO, (ii) all
extensions, continuations, reversions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to sue at law or in
equity for any past, present and future infringement, misappropriation,
dilution, violation or other impairment thereof, including, without limitation,
the right to receive all income, royalties, proceeds and damages therefore,
whether now or hereafter due or payable, and (v) all payments and royalties and
rights to payments and royalties arising out of the sale, lease, license,
assignment, or other disposition thereof.


 


(23)                            “Credit Agreement” shall have the meaning set forth in the
preamble.


 


(24)                            “Deposit Account” shall mean any demand, time, savings,
passbook or like account maintained with a depository institution.


 


(25)                            “Documents of Title” (i) shall mean all “documents of title” as
defined in the PPSA and (ii) shall include all documents of title, whether
negotiable or non-negotiable, including, without limitation, all warehouse
receipts and bills of lading, in which any Canadian Grantor now or hereafter
has an interest, and any part thereof.


 


(26)                            “Dominion Event” shall occur (i) in the event that, at any
time, Availability is less than US$35,000,000 and (ii) at the discretion of the
Canadian Collateral Agent, upon the occurrence of an Event of Default.


 


(27)                            “Equipment” shall mean: (i) all “equipment” as defined in
the PPSA, (ii) all machinery, manufacturing equipment, data processing
equipment, computers, office equipment, furnishings, furniture, appliances, and
tools (in each case, regardless of whether characterized as equipment under the
PPSA), (iii) all fixtures and (iv) all accessions or additions thereto, all
parts thereof, whether or not at any time of determination incorporated or
installed therein or attached thereto, and all replacements therefor, wherever
located, now or hereafter existing.


 


(28)                            “Excluded Deposit Accounts” shall mean Deposit Accounts specifically
listed on Schedule IV hereto under the heading “Excluded Deposit
Accounts”, it being understood that the balance of any such Excluded Deposit
Accounts shall not at any time exceed US$50,000 individually or US$250,000 in
aggregate for all such Excluded Deposit Accounts or, if the


 


4

















 


Excluded Deposit Accounts
are denominated in Canadian Dollars, the Canadian Dollar Equivalent of such
respective amounts.


 


(29)                            “Goods” (i) shall mean all “goods” as defined in the
PPSA and (ii) shall include, without limitation, all Inventory, Equipment,
fixtures and Software Embedded In Goods.


 


(30)                            “Indemnitee” shall mean the Canadian Collateral Agent, and
its Affiliates’ officers, partners, directors, trustees, employees and agents.


 


(31)                            “Insolvency Statutes” shall mean, collectively, the Bankruptcy and Insolvency Act (Canada) and
the Companies’ Creditors Arrangement Act (Canada),
as now and hereafter in effect, or any successor statute.


 


(32)                            “Instruments” (i) shall mean all “instruments” as defined
in the PPSA and (ii) shall include all letters of credit, advices of and all
other instruments in which any Canadian Grantor now or hereafter has an
interest, and any part thereof.


 


(33)                            “Insurance” shall mean: (i) all insurance policies
covering any or all of the Collateral (regardless of whether the Canadian
Collateral Agent is the loss payee thereof) and (ii) any key man life insurance
policies.


 


(34)                            “Intangibles” (i) shall mean all “intangibles” as defined
in the PPSA and (ii) shall include, without limitation, all interest rate or
currency protection or hedging arrangements, all tax refunds, all rights in
action, and all licenses, permits, concessions and authorizations, (in each case,
regardless of whether characterized as intangibles under the PPSA).


 


(35)                            “Intellectual Property” shall mean all rights, title and interests in
or relating to intellectual property and industrial property arising under any
requirement of law and all IP Ancillary Rights relating thereto, including all
Copyrights, Patents, Trademarks, Internet Domain Names, Trade Secrets, Software
and Intellectual Property Licenses.


 


(36)                            “Intellectual Property
Licenses” shall mean all
contractual obligations (and all related IP Ancillary Rights), whether written
or oral, granting any right, title and interest in of relating to any
Intellectual Property, including but not limited to, the Copyright Licenses,
Patent Licenses, Trademark Licenses, Trade Secret Licenses and Software
Licenses.


 


(37)                            “Inventory” shall mean: (i) all “inventory” as defined in
the PPSA and (ii) all goods held for sale or lease or to be furnished under
contracts of service or so leased or furnished, all raw materials, work in
process, finished goods, and materials used or consumed in the manufacture,
packing, shipping, advertising, selling, leasing, furnishing or production of
such inventory or otherwise used or consumed in any Canadian Grantor’s
business; and all goods which are returned to or repossessed by any Canadian
Grantor, and all accessions thereto and products thereof (in each case,
regardless of whether characterized as inventory under the PPSA).


 


5

















 


(38)                            “Investment Accounts” shall mean the Collateral Account and Deposit
Accounts.


 


(39)                            “Investment Related Property”
shall mean all of the
following: all (i) Pledged Equity Interests, (ii) Pledged Debt, (iii) the
Investment Accounts.


 


(40)                            “IP Ancillary Rights” shall mean, with respect to any other
Intellectual Property, as applicable, all foreign counterparts to, and all
divisionals, reversions, continuations, continuations-in-part, reissues,
reexaminations, renewals and extensions of, such Intellectual Property and all
income, royalties, proceeds and Liabilities at any time due or payable or
asserted under or with respect to any of the foregoing or otherwise with
respect to such Intellectual Property, including all rights to sue or recover
at law or in equity for any past, present or future infringement,
misappropriation, dilution, violation or other impairment thereof, and, in each
case, all rights to obtain any other IP Ancillary Right.


 


(41)                            “Lock Box Agreement” shall have the meaning set forth in Section
4.6(2)(a).


 


(42)                            “Lock Boxes” shall have the meaning set forth in Section 4.6(2)(a).


 


(43)                            “Material Contract” shall mean any contract or other arrangement
to which any Canadian Grantor is a party for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a
Material Adverse Effect.


 


(44)                            “Material Intellectual
Property” shall mean Intellectual
Property that is owned by or licensed to a Canadian Grantor and material to the
conduct of any Canadian Grantor’s business.


 


(45)                            “Money” shall mean “money” as defined in the PPSA.


 


(46)                            “Non-Assignable Contract” shall mean any agreement, contract or license
to which any Canadian Grantor is a party that by its terms purport to restrict
or prevent or penalize the assignment or granting of a security interest
therein (either by its terms or by any applicable law).


 


(47)                            “Non-payment Contract” means any Contract to which any Canadian
Grantor is a party other than any Contract where the Account Debtor’s principal
obligation is a monetary obligation; provided that Non-payment Contracts
shall not include any Receivables Contracts.


 


(48)                            “Patent Licenses” shall mean all agreements granting any right
in, to, or under any Patent (whether such Canadian Grantor is licensee or
licensor thereunder) including without limitation, each such agreement referred
to in Schedule VI (as such schedule may be amended or supplemented from
time to time in connection with the delivery of a Pledge Supplement hereunder).


 


(49)                            “Patents” shall mean all letters patent of Canada and
foreign patents and certificates of invention, or similar industrial property
rights, now or hereafter in force, including, but not


 


6

















 


limited to each such patent
referred to in Schedule VI (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge
Supplement hereunder), and with respect to any and all of the foregoing, (i)
all applications therefore including, without limitations, such patent
applications referred to in Schedule VI (as such schedule may be amended or supplemented from time to time
in connection with the delivery of a Pledge Supplement hereunder), (ii) all
reissues, divisionals, continuations, continuations-in-part, extensions,
renewals, and reexaminations of the foregoing, (iii) all rights corresponding
thereto throughout the world, (iv) all inventions and improvements described
therein, (v) all rights to sue at law or in equity for any past, present and
future infringement, misappropriation, dilution, violation or other impairment
thereof, including, without limitation, the right to receive all income,
royalties, proceeds and damages therefore, whether now or hereafter due or
payable, and (vi) all payments and royalties and rights to payments and
royalties arising out of the
sale, lease, license, assignment, or other disposition thereof.


 


(50)                            “Permitted Sale” shall mean those sales, transfers or
assignments permitted by Section 6.03 of the Credit Agreement, but only so long
as the proceeds of such sales, transfers or assignments are applied in
accordance with clauses (b) and (c) of Section 2.12 of the Credit Agreement.


 


(51)                            “Pledged Alternative Equity
Interests” shall mean (i)
all participation or other interests in any equity or profits of any business
entity and the certificates, if any, representing such interests, (ii) all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such interests and (iii) any other warrant, right or option to acquire any
of the foregoing; provided that Pledged Alternative Equity Interests
shall not include any Pledged Stock, Pledged Partnership Interests, Pledged LLC
Interests and Pledged Trust Interests.


 


(52)                            “Pledged Debt” shall mean (i) all indebtedness for borrowed
money owed to such Canadian Grantor, whether or not evidenced by any instrument
or promissory note, including, without limitation, all indebtedness described
on Schedule III under the heading “Pledged Debt” (as such schedule may
be amended or supplemented from time to time in connection with the delivery of
a Pledge Supplement hereunder), (ii) all monetary obligations owing to any
Canadian Grantor from any other Canadian Grantor the instruments evidencing any
of the foregoing, and (iii) all interest, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing.


 


(53)                            “Pledged Equity Interests” shall mean all Pledged Stock, Pledged NSULC
Stock, Pledged LLC Interests, Pledged Partnership Interests, Pledged Trust
Interests and Pledged Alternative Equity Interests.


 


(54)                            “Pledged LLC Interests” shall mean all interests in any limited
liability company including, without limitation, all limited liability company
interests listed on Schedule III under the heading “Pledged LLC
Interests” (as such schedule may be amended or supplemented from


 


7

















 


time to time in connection
with the delivery of a Pledge Supplement hereunder) and the certificates, if
any, representing such limited liability company interests and any interest of
such Canadian Grantor on the books and records of such limited liability
company or on the books and records of any securities intermediary pertaining
to such interest and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such limited liability company interests and any other warrant,
right or option to acquire any of the foregoing.


 


(55)                            “Pledged NSULC Stock” shall mean all Pledged Stock of a Person that
is a Nova Scotia unlimited liability company, now owned or hereafter acquired
by a Canadian Grantor.


 


(56)                            “Pledged Partnership
Interests” shall mean all
interests in any general partnership, limited partnership, limited liability partnership
or other partnership including, without limitation, all partnership interests
listed on Schedule III under the heading “Pledged Partnership Interests”
(as such schedule may be amended or supplemented from time to time in
connection with the delivery of a Pledge Supplement hereunder) and the
certificates, if any, representing such partnership interests and any interest
of such Canadian Grantor on the books and records of such partnership or on the
books and records of any securities intermediary pertaining to such interest
and all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such partnership interests and any other warrant, right or option to acquire
any of the foregoing.


 


(57)                            “Pledged Stock” shall mean all shares of capital stock owned
by such Canadian Grantor, including, without limitation, all shares of capital
stock described on Schedule III under the heading “Pledged Stock” (as
such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder), and the certificates, if
any, representing such shares and any interest of such Canadian Grantor in the
entries on the books of the issuer of such shares or on the books of any
securities intermediary pertaining to such shares, and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares and any
other warrant, right or option to acquire any of the foregoing.


 


(58)                            “Pledged Trust Interests” shall mean all interests in a Delaware
business trust or other trust including, without limitation, all trust
interests listed on Schedule III under the heading “Pledged Trust
Interests” (as such schedule may be amended or supplemented from time to time
in connection with the delivery of a Pledge Supplement hereunder) and the
certificates, if any, representing such trust interests and any interest of such
Canadian Grantor on the books and records of such trust or on the books and
records of any securities intermediary pertaining to such interest and all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise


 


8

















 


distributed in respect of or
in exchange for any or all of such trust interests and any other warrant, right
or option to acquire any of the foregoing.


 


(59)                            “PPSA” shall mean the Personal Property Security Act (Ontario), including the regulations
thereto, provided that, if perfection or the effect of perfection or
non-perfection or the priority of any Lien created hereunder on the Collateral
is governed by the personal property security legislation or other applicable
legislation with respect to personal property security as in effect in a
jurisdiction other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable
legislation as in effect from time to time in such other jurisdiction for purposes
of the provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.


 


(60)                            “Proceeds” (i) shall mean all “proceeds” as defined in
the PPSA, (ii) shall include payments or distributions made with respect to any
Investment Related Property and (iii) shall include whatever is receivable or
received when Collateral or proceeds are sold, leased, licensed, exchanged,
collected or otherwise disposed of, whether such disposition is voluntary or involuntary.


 


(61)                            “Receivables” or “Receivables
Contracts” shall mean all (i) Accounts, (ii) Chattel Paper, (iii)
Instruments and (iv) to the extent not otherwise covered above, all other
rights to payment, whether or not earned by performance, for goods or other
property sold, leased, licensed, assigned or otherwise disposed of, or services
rendered or to be rendered, regardless of how classified under the PPSA
together with all of Canadian Grantors’ rights, if any, in any goods or other
property giving rise to such right to payment and all Collateral Support and
all Receivables Records; provided that Receivables Contracts shall not
include any Investment Related Property.


 


(62)                            “Receivables Records” shall mean (i) all original copies of all
documents, instruments or other writings or electronic records or other Records
evidencing the Receivables Contracts, (ii) all books, correspondence, credit or
other files, Records, ledger sheets or cards, invoices, and other papers
relating to Receivables Contracts, including, without limitation, all tapes,
cards, computer tapes, computer discs, computer runs, record keeping systems
and other papers and documents relating to the Receivables Contracts, whether
in the possession or under the control of Canadian Grantor or any computer
bureau or agent from time to time acting for Canadian Grantor or otherwise,
(iii) all evidences of the filing of financing statements and the registration of
other instruments in connection therewith, and amendments, supplements or other
modifications thereto, notices to other creditors or agents thereof, and
certificates, acknowledgments, or other writings, including, without
limitation, lien search reports, from filing or other registration officers,
(iv) all credit information, reports and memoranda relating thereto and (v) all
other written or non-written forms of information related in any way to the foregoing
or any Receivable.


 


9

















 


(63)                            “Representation Date” shall mean each of (i) the date hereof, (ii)
each date on which a Borrowing is made and (iii) each date on which any Letter
of Credit is issued, amended, renewed or extended.


 


(64)                            “Securities” (i) shall mean “securities” as defined in the
PPSA and (ii) shall include any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as “securities”
or any certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.


 


(65)                            “Software” shall mean any and all computer programs,
including any and all software implementations of algorithms, models and
methodologies, whether in source code or object code; databases and
compilations, including any and all data, databases and collections of data, whether
machine readable or otherwise; descriptions, flow-charts and other work product
used to design, plan, organize and develop any of the foregoing, screens, user
interfaces, report formats, firmware, development tools, templates, menus,
buttons and icons; and all configurations and documentation including user
manuals and other training materials related to any of the foregoing,
including, without limitation, any such programs referred to in Schedule VI
(as such schedule may be amended or supplemented from time to time in
connection with the delivery of a Pledge Supplement hereunder).


 


(66)                            “Software Embedded in Goods” means, with respect to any Goods, any
computer program embedded in Goods and any supporting information or
documentation provided in connection with the program if (i) the program is
associated with the Goods in such a manner that it customarily is considered
part of the Goods or (ii) by becoming the owner of the Goods a person acquires
a right to use the program in connection with the Goods.


 


(67)                            “Software Licenses” shall mean any and all agreements granting
any right in or to any Software (whether such Canadian Grantor is licensee or
licensor thereunder) including, without limitation, each such agreement
referred to in Schedule VI (as such schedule may be amended or supplemented
from time to time in connection with the delivery of a Pledge Supplement hereunder).


 


(68)                            “Trade Secret Licenses” shall mean any and all agreements granting
any right in or to any Trade Secret (whether such Canadian Grantor is licensee
or licensor thereunder) including, without limitation, each such agreement
referred to in Schedule VI (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge Supplement
hereunder).


 


(69)                            “Trade Secrets” shall mean all trade secrets and all other
confidential or proprietary information and know-how, whether or not reduced to
a writing or other tangible form, now or hereafter in force, owned or used in,
or contemplated at any time for use in, the business of any


 


10

















 


Canadian Grantor (all of the
foregoing being collectively called a “Trade Secret”), including with respect
to any and all of the foregoing: (i) all documents and things embodying,
incorporating, or referring in any way thereto, (ii) all rights to sue at law
or in equity for any past, present and future infringement, misappropriation,
dilution, violation or other impairment thereof, including, without limitation,
the right to receive all income, royalties, proceeds and damages therefore,
whether now or hereafter due or payable, and (iii) all payments and royalties
and rights to payments and royalties arising out of the sale, lease, license,
assignment, or other dispositions thereof.


 


(70)                            “Trademark Licenses” shall mean any and all agreements granting
any right in or to any Trademark (whether such Canadian Grantor is licensee or
licensor thereunder) including, without limitation, each such agreement
referred to in Schedule VI (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge Supplement
hereunder).


 


(71)                            “Trademarks” shall mean all federal, provincial and
foreign trademarks, service marks, certification marks, collective marks, trade
names, corporate names, company names, business names, fictitious business
names, Internet domain names, trade styles, logos, other source or business
identifiers, designs and general intangibles of a like nature, rights of
publicity and privacy pertaining to the names, likeness, signature and
biographical data of natural persons, now or hereafter in force, and, with
respect to any and all of the foregoing: (i) all registrations and recordation
thereof and all applications in connection therewith including, but not limited
to, such registrations and applications referred to in Schedule VI (as
such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder), (ii) all renewals and
extensions thereof (iii) the goodwill of the business associated therewith and
symbolized thereby, (iv) all rights corresponding thereto throughout the world,
(v) all rights to sue at law or in equity for any past, present and future
infringement, misappropriation, dilution, violation or other impairment
thereof, including, without limitation, the right to receive all income,
royalties, proceeds and damages therefore, whether now or hereafter due or
payable, and (vi) all payments and royalties and rights to payments and
royalties arising out of the sale, lease, license assignment or other
disposition thereof.


 


1.4                               Definitions; Interpretation


 


References to “Sections,” “Annexes” and “Schedules”
shall be to Sections, Annexes and Schedules, as the case may be, of this
Agreement unless otherwise specifically provided. Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The use herein of the word “include” or “including”, when following
any general statement, term or matter, shall not be construed to limit such statement,
term or matter to the specific items or matters set forth immediately following
such word or to similar items or matters, whether or not nonlimiting language
(such as


 


11

















 


“without limitation” or “but
not limited to” or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that fall within
the broadest possible scope of such general statement, term or matter. If any conflict
or inconsistency exists between this Agreement and the Credit Agreement, the
Credit Agreement shall govern. All references herein to provisions of the PPSA
shall include all successor provisions under any subsequent version or
amendment to any Article of the PPSA.


 


SECTION 2 –
GRANT OF SECURITY


 


2.1                               Grant of Security


 


Each Canadian Grantor hereby grants to the
Canadian Collateral Agent a security interest and continuing lien on all of
such Canadian Grantor’s right, title and interest in, to and under all personal
property of such Canadian Grantor including, but not limited to the following,
in each case whether now owned or existing or hereafter acquired or arising and
wherever located (all of which being hereinafter collectively referred to as
the “Collateral”):


 


(a)                                  all Accounts;


 


(b)                                 all Deposit Accounts;


 


(c)                                  all Goods;


 


(d)                                 all Chattel Paper;


 


(e)                                  all Documents of Title;


 


(f)                                    all Equipment;


 


(g)                                 all Insurance


 


(h)                                 all Intangibles;


 


(i)                                     all Instruments;


 


(j)                                     all Intellectual Property;


 


(k)                                  all Inventory;


 


(l)                                     all Investment Related Property;


 


(m)                               all Money;


 


(n)                                 all Non-payment Contracts;


 


12

















 


(o)                                 all Receivables Contracts and Receivable
Records;


 


(p)                                 all Collateral Records;


 


(q)                                 to the extent not otherwise included above,
Material Contracts, motor vehicles and other personal property of any kind and
all Collateral Support relating to any of the foregoing;


 


(r)                                    all property of such Canadian Grantor held by
any Canadian Secured Party, including all property of every description, in the
custody of or in the transit to such Canadian Secured Party for any purpose;


 


(s)                                  to the extent not otherwise included above,
all Proceeds, products, accessions, rents and profits of or in respect of any
of the foregoing; and


 


(t)                                    all other personal property not otherwise
described above.


 


2.2                               Excluded Collateral


 


The security interest granted under Section
2.1 shall not attach to (the following property collectively referred to as the
“Excluded Property”)
(a) any lease, license, contract, property rights or agreement to which each
Canadian Grantor is a party or any of its rights or interests thereunder if the
grant of such security interest shall constitute or result in (i) the
abandonment, invalidation or unenforceability of any right, title or interest
of any Canadian Grantor therein or (ii) in a breach or termination pursuant to
the terms of, or a default under, any such lease, license, contract property
rights or agreement (other than to the extent that any such term would be
rendered ineffective pursuant to any relevant jurisdiction or any other
applicable law (including the Insolvency Statutes) or principles of equity), or
(b) applications filed at CIPO to register trademarks or service marks on the
basis of any Canadian Grantor’s “intent to use” such trademarks or service
marks unless and until the filing of a “Statement of Use” or “Amendment to
Allege Use” has been filed and accepted, whereupon such applications shall be
automatically subject to the Lien granted herein and deemed included in the
Collateral.


 


2.3                               Attachment of Security Interest


 


Each Canadian Grantor and the Canadian
Collateral Agent hereby acknowledge that (a) value has been given, (b) such
Canadian Grantor has rights in the Collateral in which it has granted a
security interest and (c) this Agreement constitutes a security agreement as
that term is defined in the PPSA.


 


13

















 


SECTION 3 – SECURITY FOR OBLIGATIONS


 


3.1                               Security for Obligations


 


This Agreement secures, and the Collateral is
collateral security for, the prompt and complete payment or performance in full
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts that would
become due but for the operation of the automatic stay under the Insolvency
Statutes), of all Canadian Secured Obligations.


 


3.2                               Continuing Liability under Collateral


 


Notwithstanding anything herein to the
contrary, (i) each Canadian Grantor shall remain liable for all obligations
under the Collateral and nothing contained herein is intended or shall be a
delegation of duties to the Canadian Collateral Agent or any Canadian Secured
Patry and (ii) each Canadian Grantor shall remain liable under each of the
agreements included in the Collateral, including, without limitation, any
agreements relating to Pledged Partnership Interests or Pledged LLC Interests,
to perform all of the obligations undertaken by it thereunder all in accordance
with and pursuant to the terms and provisions thereof and neither the Canadian Collateral
Agent nor any Canadian Secured Party shall have any obligation or liability under
any of such agreements by reason of or arising out of this Agreement or any
other document related thereto nor shall the Canadian Collateral Agent nor any
Canadian Secured Party have any obligation to make any inquiry as to the nature
or sufficiency of any payment received by it or have any obligation to take any
action to collect or enforce any rights under any agreement included in the
Collateral, including, without limitation, any agreements relating to Pledged
Partnership Interests or Pledged LLC Interests, (iii) the exercise by the
Canadian Collateral Agent of any of its rights hereunder shall not release any
Canadian Grantor from any of its duties or obligations under the contracts and
agreements included in the Collateral.


 


SECTION 4 –
REPRESENTATIONS AND WARRANTIES AND COVENANTS


 


4.1                               Generally


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on each Representation Date,
that:


 


(a)                                  it owns or leases the Collateral purported to
be owned or leased by it or otherwise has the rights it purports to have in
each item of Collateral and, as to all Collateral whether now existing or
hereafter acquired, and in each case holds such rights free and clear of any
and all Liens, other than Liens permitted by Section 6.02 of the Credit
Agreement, including, without limitation, Liens arising as a result of such
Canadian Grantor becoming bound (as a result of merger or otherwise) as debtor
under a security agreement entered into by another Person;


 


14

















 


(b)                                 such Canadian Grantor has been duly organized
as a corporation, limited liability company or limited partnership, as
applicable, under the laws of its jurisdiction of organization or formation and
remains duly existing as such;


 


(c)                                  such Canadian Grantor has not filed any
certificates of domestication, transfer or continuance in any other
jurisdiction;


 


(d)                                 the execution and delivery of this Agreement
by such Canadian Grantor and the performance by it of its obligations under
this Agreement are within its corporate, limited liability company or other
powers and have been duly authorized by all necessary corporate or other
action;


 


(e)                                  upon (i) the filing of all financing
statements naming each Canadian Grantor as “debtor” and the Canadian Collateral
Agent as “secured party” and describing the Collateral in the filing offices
set forth opposite such Canadian Grantor’s name on Schedule I(E) (as
such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder), (ii) the execution of
Blocked Account Agreements with respect to the Blocked Accounts, and (iii) and
the filing of the Canadian Railcar Security Agreement with the Office of the
Registrar General of Canada, the security interests granted to the Canadian
Collateral Agent hereunder constitute valid and perfected first priority Liens
(subject only to Liens permitted by Section 6.02 of the Credit Agreement); provided
that recording of this Agreement with CIPO may be necessary to perfect the
security interest of the Canadian Collateral Agent in Intellectual Property;
and the taking of actions outside Canada may be required in order to perfect
the Canadian Collateral Agent’s Lien in foreign registered or applied-for
Intellectual Property owned by each Canadian Grantor;


 


(f)                                    other than the financing statements filed in
favour of the Canadian Collateral Agent, no effective financing statement,
fixture filing or other instrument similar in effect under any applicable law
covering all or any part of the Collateral is on file in any filing or
recording office, including the filing office of the Office of the Registrar
General of Canada, except for (x) financing statements for which proper financing
change statements relating to their discharge have been delivered to the Canadian
Collateral Agent for filing and (y) financing statements filed in connection
with Liens permitted by Section 6.02 of the Credit Agreement;


 


(g)                                 no authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority or regulatory
body is required for either (x) the pledge or grant by any Canadian Grantor of
the Liens purported to be created in favour of the Canadian Collateral Agent
hereunder or (y) the exercise by Canadian Collateral Agent of any rights or
remedies in respect of any Collateral (whether specifically granted or created
hereunder or created or provided for by applicable law), except (1) for the
filings contemplated by Section 4.1(l)(e) above and (2) as


 


15

















 


may
be required, in connection with the disposition of any Investment Related
Property, by laws generally affecting the offering and sale of Securities, or
as may be required under laws pertaining to Intellectual Property, including
the filing of this Agreement with CIPO;


 


(h)                                 all actions and consents, including all
filings, notices, registrations and recordings necessary or desirable for the
exercise by the Canadian Collateral Agent of the voting or other rights
provided for in this Agreement or the exercise of remedies in respect of the
Collateral have been made or obtained, except for (x) the filing of the
Canadian Railcar Security Agreement with the Office of the Registrar General of
Canada with respect to Collateral which is rolling stock, or parts or
accessories thereof, (y) the recording of the security interest with CIPO with
respect to applications and registrations of Intellectual Property owned by
each Canadian Grantor included in the Collateral and (z) the taking of actions
outside Canada that may be required to perfect the Canadian Collateral Agent’s
Lien in foreign registered or applied-for Intellectual Property owned by each
Canadian Grantor included in the Collateral which is protected under
non-Canadian law; provided that the exercise of remedies with respect to
issued Patents, and registrations and applications for other Intellectual
Property included in the Collateral may require additional recordings with the
applicable Intellectual Property registries;


 


(i)                                     it has indicated on Schedule I(A) (as
such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder): (w) the type of
organization of such Canadian Grantor, (x) the jurisdiction of organization of
such Canadian Grantor, (y) its organizational identification number and (z) the
jurisdiction where the chief executive office or its sole place of business is,
and for the one-year period preceding the date hereof has been, located;


 


(j)                                     the full legal name of such Canadian Grantor
is as set forth on Schedule I(A) and it has not done, during the five
(5) years immediately prior to the Effective Date, and does not do, business
under any other name (including any trade-name or fictitious business name)
except for those names set forth on Schedule I(B) (as such schedule may
be amended or supplemented from time to time in connection with the delivery of
a Pledge Supplement hereunder);


 


(k)                                  except as provided on Schedule I(C),
it has not changed its name, jurisdiction of organization, chief executive
office or sole place of business (or, if such Canadian Grantor is a natural
person, principal residence or principal place of business) or its corporate
structure in any way (e.g. by merger, consolidation, change in corporate form
or otherwise) within the past five (5) years;


 


16

















 


(1)                                  such Canadian Grantor has not within the last
five (5) years become bound (whether as a result of merger or otherwise) as
debtor under a security agreement entered into by another Person, which has not
heretofore been terminated other than the agreements identified on Schedule
I(D) (as such schedule may be amended or supplemented from time to time in
connection with the delivery of a Pledge Supplement hereunder);


 


(m)                               with respect to each agreement identified on Schedule
I(D), it has indicated on Schedule
I(A) and Schedule I(B) the information required pursuant to Sections
4.1(l)(h) and 4.1(l)(i) with respect to each Canadian Grantor under each such
agreement;


 


(n)                                 all information supplied by any Canadian
Grantor with respect to any of the Collateral (in each case taken as a whole
with respect to any particular Collateral) is accurate and complete in all
material respects; and


 


(o)                                 none of the Collateral constitutes, or is the
Proceeds of, “consumer goods” (as defined in the PPSA) growing crops, the
unborn young of animals, timber to be cut or minerals and hydrocarbons to be
extracted.


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees that:


 


(a)                                  except for the security interest created by
this Agreement, it shall not create or suffer to exist any Lien upon or with
respect to any of the Collateral, except Liens permitted by Section 6.02 of the
Credit Agreement, and such Canadian Grantor shall defend the Collateral against
all Persons at any time claiming any interest therein;


 


(b)                                 it shall not produce, use or permit any
Collateral to be used unlawfully or in violation of any provision of this
Agreement or any applicable statute, regulation or ordinance or any policy of
insurance covering the Collateral;


 


(c)                                  it shall not change such Canadian Grantor’s
name, identity, corporate structure (e.g. by merger, consolidation, change in
corporate form or otherwise), sole place of business, chief executive office,
type of organization or jurisdiction of organization or establish any trade names
unless it shall have (a) notified the Canadian Collateral Agent in writing, by
executing and delivering to the Canadian Collateral Agent a completed Pledge
Supplement, substantially in the form of Annex I, together with all
Supplements to Schedules thereto, without concurrently notifying the Collateral
Agent of any such change or establishment, identifying such new proposed name,
identity, corporate structure, sole place of business, chief executive office,
jurisdiction of organization or trade name and providing such other information
in connection therewith as the Canadian Collateral Agent may reasonably request
and (b) taken all actions reasonably necessary or


 


17

















 


advisable
to maintain the continuous validity, perfection and the same or better priority
of the Canadian Collateral Agent’s security interest in the Collateral granted
or intended to be granted and agreed to hereby; and


 


(d)                                 it shall not sell, transfer, assign, abandon
or permit to lapse (by operation of law or otherwise) any Collateral except as
permitted by the Credit Agreement.


 


4.2                               Equipment and Inventory


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor represents and warrants, on each Representation Date, that:


 


(a)                                  as of each Compliance Date, all of the
Equipment and Inventory included in the Collateral is kept for the past five
(5) years only at the locations specified in Schedule II (as such
schedule may be amended or supplemented from time to time in connection with
the delivery of a Pledge Supplement hereunder).


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor covenants and agrees that:


 


(a)                                  it shall keep the Equipment and the Inventory
(if any) included in the Collateral in the locations specified on Schedule
II (as such schedule may be
amended or supplemented from time to time in connection with the delivery of a
Pledge Supplement hereunder) or otherwise disclosed as required by Section 5.01
of the Credit Agreement unless it shall have notified the Canadian Collateral
Agent in writing, by executing and delivering to the Canadian Collateral Agent a
completed Pledge Supplement, substantially in the form of Annex I,
together with all Schedules thereto, identifying such new locations and
providing such other information in connection therewith as the Canadian
Collateral Agent may reasonably request; provided that the foregoing shall not
restrict (i) movement of Equipment for repairs in the ordinary course of
business or (ii) movement of Collateral with an aggregate value of less than
US$500,000;


 


(b)                                 taken all actions necessary or advisable to
maintain the continuous validity, perfection and the same or better priority of
the Canadian Collateral Agent’s security interest in the Collateral intended to
be granted and agreed to hereby, or to enable the Canadian Collateral Agent to
exercise and enforce its rights and remedies hereunder, with respect to such
Equipment and Inventory;


 


(c)                                  to the extent any Inventory is included in
the Collateral, it shall keep correct and accurate records of such Inventory,
in a manner sufficient to allow for timely delivery of Borrowing Base
Certificates and inventory reports required by section 5.01 of the Credit
Agreement; and


 


18

















 


(d)                                 with respect to any item of Equipment which
is covered by a certificate of title under a statute of any jurisdiction under
the law of which indication of a security interest on such
certificate is required as a condition of perfection thereof, it shall, upon
the request of the Canadian Collateral Agent, (A) provide information with
respect to any such Equipment in excess of US$250,000 individually or
US$1,000,000 in the aggregate, (B) assist the Collateral Agent with the
execution and filing with the registrar of motor vehicles or other appropriate authority
in such jurisdiction an application or other document requesting the notation
or other indication of the security interest created hereunder on such
certificate of title and take any other actions reasonably requested by the
Canadian Collateral Agent in connection with noting or otherwise indicating the
security interest created hereunder on such certificate of title, and (C)
deliver to the Canadian Collateral Agent copies of all such applications or
other documents filed during such calendar quarter and copies of all such
certificates of title issued during such calendar quarter indicating the
security interest created hereunder in the items of Equipment covered thereby.


 


4.3                               Receivables Contracts


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor represents and warrants, on each Representation Date, that:


 


(a)                                  no Account is evidenced by, or constitutes,
an Instrument or Chattel Paper which has not been delivered to, or otherwise
subjected to the control of, the Canadian Collateral Agent to the extent
required by, and in accordance with Section 4.3(3); and


 


(b)                                 each Canadian Grantor has delivered to the
Canadian Collateral Agent a complete and correct copy of each standard form of
document under which an Eligible Account may arise.


 


(2)                                  Covenants and Agreements: Each Canadian Grantor hereby covenants and
agrees that:


 


(a)                                  it shall keep and maintain at its own cost
and expense satisfactory and complete records of the Receivables Contracts in a
manner necessary to permit timely delivery of all reports required by Section
5.01 of the Credit Agreement;


 


(b)                                 it shall perform in all material respects all
of its obligations with respect to the Receivables Contracts relating to
Eligible Accounts;


 


(c)                                  it shall not amend, modify, terminate or
waive any provision of any Receivable except in the ordinary course of business
and in a manner which could not reasonably be expected to have a Material
Adverse Effect. Other than in the ordinary course of business as generally
conducted by it on and prior to the date


 


19

















 


hereof
and except as otherwise provided in subsection (v) below, upon the occurrence
and during the continuance of an Event of Default, such Canadian Grantor shall
not (w) grant any extension or renewal of the time of payment of any
Receivable, (x) compromise or settle any dispute, claim or legal proceeding with
respect to any Receivable for less than the total unpaid balance thereof, (y)
release, wholly or partially, any Person liable for the payment thereof, or (z)
allow any credit or discount thereon; and


 


(d)                                 it shall mark conspicuously, in form and manner
reasonably satisfactory to the Canadian Collateral Agent, all Chattel Paper and
Instruments with a value in excess of US$250,000 individually or US$1,000,000
in aggregate (other than any delivered to the Canadian Collateral Agent as
provided herein) with an appropriate reference to the fact that the Canadian
Collateral Agent has a security interest therein.


 


(3)                                  Delivery and Control of Receivables Contracts.  With
respect to any Receivables Contracts in excess of US$250,000 individually or
US$1,000,000 in the aggregate that is evidenced by, or constitutes, Chattel
Paper or Instruments, each Canadian Grantor shall cause each originally
executed copy thereof to be delivered to the Canadian Collateral Agent (or its
agent or designee) appropriately indorsed to the Canadian Collateral Agent or
indorsed in blank: (i) with respect to any such Receivables Contracts in
existence on the date hereof, on or prior to the date hereof and (ii) with
respect to any such Receivables Contracts hereafter arising, within thirty (30)
days of such Canadian Grantor acquiring rights therein. Any Receivable not
otherwise required to be delivered or subjected to the control of the Canadian
Collateral Agent in accordance with this Section 4.3(3) shall be delivered or
subjected to such control upon request of the Canadian Collateral Agent.


 


4.4                               Pledged Equity Interests


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on each Representation Date,
that:


 


(a)                                  Schedule III (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge
Supplement hereunder) sets forth under the headings “Pledged Stock,” “Pledged LLC
Interests,” “Pledged Partnership Interests” and “Pledged Trust Interests,”
respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests owned by any Canadian Grantor
and such Pledged Equity Interests constitute the percentage of issued and
outstanding shares of stock, percentage of membership interests, percentage of
partnership interests or percentage of beneficial interest of the respective
issuers thereof indicated on such Schedule;


 


(b)                                 all of the Pledged Stock has been duly
authorized, validly issued and is fully paid and nonassessable;


 


20

















 


(c)                                  except as set forth on Schedule III(B)
it has not acquired any equity interests of another entity within the past five
(5) years;


 


(d)                                 it is the record and beneficial owner of the
Pledged Equity Interests free of all Liens, rights or claims of other Persons
other than Liens permitted by Section 6.02 of the Credit Agreement and, except
as set forth in Schedule III there are no outstanding warrants, options
or other rights to purchase, or shareholder, voting trust or similar agreements
outstanding with respect to, or property that is convertible into, or that
requires the issuance or sale of, any Pledged Equity Interests;


 


(e)                                  without limiting the generality of Section
4.1(l)(e), no consent of any Person including any other general or limited
partner, any other member of a limited liability company, any other shareholder
or any other trust beneficiary is necessary or desirable in connection with the
creation, perfection or first priority status of the security interest of the
Canadian Collateral Agent in any Pledged Equity Interests or the exercise by
the Canadian Collateral Agent of the voting or other rights provided for in
this Agreement or the exercise of remedies in respect thereof; and


 


(f)                                    none of the Pledged LLC Interests nor Pledged
Partnership Interests are or represent interests in issuers that are: (a)
registered as investment companies, (b) are dealt in or traded on securities
exchanges or markets or (c) have opted to be treated as securities under the
uniform commercial code of any jurisdiction.


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees that:


 


(a)                                  without the prior written consent of the
Canadian Collateral Agent, it shall not vote to enable or take any other action
to: (a) amend or terminate any partnership agreement, limited liability company
agreement, certificate of incorporation, by-laws or other organizational
documents in any way that materially changes the rights of such Canadian
Grantor with respect to any Investment Related Property or adversely affects
the validity, perfection or priority of the Canadian Collateral Agent’s
security interest, (b) permit any issuer of any Pledged Equity Interest to
issue any additional stock, partnership interests, limited liability company
interests or other equity interests of any nature unless such issuer shall
contemporaneously cause such additional stock or equity interest to become
Pledged Equity Interests hereunder or to issue securities convertible into or
granting the right of purchase or exchange for any stock or other equity
interest of any nature of such issuer, (c) other than as permitted under the
Credit Agreement, permit any issuer of any Pledged Equity Interest to dispose
of all or a material portion of their assets, (d) waive any default under or
breach of any terms of organizational document relating to the issuer of any
Pledged Equity Interest or the terms of any Pledged Debt except to the extent
that such waiver (i) could not


 


21

















 


be
reasonably expected to have a Material Adverse Effect and (ii) could not reasonably
be expected to have any adverse affect on any Lender, Issuing Bank or Agent or
their respective rights and remedies under the Loan Documents or their interests
in the Collateral, or (e) cause any issuer of any Pledged Partnership Interests
or Pledged LLC Interests which are not securities (for purposes of the PPSA) on
the date hereof to elect or otherwise take any action to cause such Pledged
Partnership Interests or Pledged LLC Interests to be treated as securities for
purposes of the PPSA; provided that, if any issuer of any Pledged
Partnership Interests or Pledged LLC Interests takes any such action in
violation of the foregoing in this clause (c), such Canadian Grantor shall
promptly notify the Canadian Collateral Agent in writing of any such election
or action and, in such event, shall take all steps necessary or advisable to
establish the Canadian Collateral Agent’s “control” thereof;


 


(b)                                 it shall comply with all of its material obligations
under any partnership agreement or limited liability company agreement relating
to Pledged Partnership Interests or Pledged LLC Interests and shall enforce all
of its material rights with respect to any Investment Related Property; and


 


(c)                                  each Canadian Grantor consents to the grant
by each other Canadian Grantor of a security interest in all Investment Related
Property to the Canadian Collateral Agent and, without limiting the foregoing,
consents to the transfer of any Pledged Equity Interest to the Canadian
Collateral Agent or its nominee following an Event of Default and to the
substitution of the Canadian Collateral Agent or its nominee as a partner in
any partnership or as a member in any limited liability company with all the
rights and powers related thereto. Any transferee or assignee of any Pledged
Equity Interest shall become a holder of such interest to the same extent as the
Canadian Grantor, entitled to participate in the management of the person and,
upon the transfer of the entire interest of such Canadian Grantor, such Canadian
Grantor shall, by operation of law, cease to be a holder of such Pledged Equity
Interest.


 


4.5                               Pledged Debt


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on the Effective Date and on
the Representation Date, that, as of each Compliance Date, (i) Schedule III
(as such schedule may be amended or supplemented from time to time in
connection with the delivery of a Pledge Supplement hereunder) sets forth under
the heading “Pledged Debt” all of the Pledged Debt owned by any Canadian
Grantor in excess of US$250,000 and all of such Pledged Debt owed to such
Canadian Grantor by any other Loan Party or the Subsidiary of any Loan Party
has been duly authorized, executed or issued, and delivered and is the legal,
valid and binding obligation of the issuers thereof and is not in
default and constitutes all of the issued and outstanding inter-company
indebtedness evidenced by an


 


22

















 


instrument or certificated
security of the respective issuers thereof owing to such Canadian Grantor and
(ii) none of the Pledged Debt is evidenced by an instrument or certificated
security, except for Pledged Debt which, in aggregate, is less than US$250,000.


 


(2)                                  Covenants and Agreements. Each Canadian Grantor hereby covenants and
agrees that it shall notify the Canadian Collateral Agent of any default under
any Pledged Debt that has caused, either in any case or in the aggregate, a
Material Adverse Effect.


 


4.6                               Deposit Accounts


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on each Representation Date,
that:


 


(a)                                  Schedule III (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge
Supplement hereunder) sets forth under the heading “Deposit Accounts”, all of
the Deposit Accounts maintained by each Canadian Grantor in which all cash,
cheques or similar payments relating or constituting payments made in respect
of Receivables Contracts or other proceeds of Collateral will be deposited (as “Collateral Deposit Account”);


 


(b)                                 it is the sole account holder of each such
Collateral Deposit Account and such Canadian Grantor has not consented to, and
is not otherwise aware of, any Person (other than the Canadian Collateral Agent
pursuant hereto) having either sole dominion or control over, or any other
interest in, any such Collateral Deposit Account or any money or other property
deposited therein; and


 


(c)                                  it has taken all actions necessary or
desirable to establish the cash management arrangements specified in Section
4.6(2) over the Collateral Deposit Accounts, other than the Excluded Deposit
Accounts.


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees that:


 


(a)                                  on or before the Effective Date, each
Canadian Grantor shall, (a) for each of its Collateral Deposit Accounts (other
than the Excluded Deposit Accounts), enter execute and deliver a Blocked
Account Agreement, and (b) establish lock box service (the “Lock Boxes”) with
the bank(s) set forth on Schedule III under the heading “Lock Boxes”,
which lock boxes shall be subject to irrevocable lockbox agreements in form and
substance acceptable to the Canadian and shall be accompanied by (i) an
acknowledgement by the bank where the Lock Box is located of the Lien of the Canadian
Collateral Agent granted hereunder and (ii) an agreement to, upon notice by the
Canadian Collateral Agent to the bank where the Lock Box is located, wire all
amounts collected therein to the Collection Account (a “Lock Box Agreement”). Each
of the Blocked Account Agreements and Lock Box Agreements, as applicable, shall
require at all times


 


23

















 


during
the effectiveness thereof, unless otherwise instructed by the Canadian
Collateral Agent, the transfer, on each of the applicable bank’s business days,
of all amounts in the Lock Boxes and Collateral Deposit Accounts to a
concentration account for deposits in the applicable currency in the name of
such Canadian Grantor (collectively, the “Canadian
Concentration Accounts”) (such Collateral Deposit Accounts
and Canadian Concentration Accounts, collectively the “Blocked Accounts”);


 


(b)                                 each Canadian Grantor shall direct all of its
Account Debtors to forward payments directly to Lock Boxes subject to Lock Box
Agreements. After the occurrence of a Dominion Event, the Canadian Collateral
Agent shall have sole access to the Lock Boxes at all times and each Canadian
Grantor shall take all actions necessary to grant the Canadian Collateral Agent
such sole access. At no time after the occurrence of a Dominion Event shall any
Canadian Grantor remove any item from a Lock Box or from a Collateral Deposit
Account without the Canadian Collateral Agent’s prior written consent. If any
Canadian Grantor should refuse or neglect to notify any Account Debtor to
forward payments directly to a Lock Box subject to a Lock Box Agreement after
notice from the Canadian Collateral Agent, the Canadian Collateral Agent shall
be entitled to make such notification directly to the applicable Account Debtor.
 If notwithstanding the foregoing
instructions, any Canadian Grantor receives any Proceeds of any Receivables
Contract, such Canadian Grantor shall receive such payments as the Canadian
Collateral Agent’s trustee, and shall immediately deposit all cash, cheques or
other similar payments related to or constituting payments made in respect of
Receivables Contracts received by it to a Collateral Deposit Account;


 


(c)                                  the Canadian Collateral Agent shall establish
a Canadian Dollar denominated account and a U.S. Dollar denominated account (each,
a “Canadian Collection Account”), in the name of the Canadian
Collateral Agent, or its appointee or agent in Canada maintained at a bank or
financial institution in Canada acceptable to the Canadian Collateral Agent.
The Canadian Collection Accounts shall be under the exclusive control of the
Canadian Collateral Agent or its appointee or agent;


 


(d)                                 until a Dominion Event has occurred, all
amounts in the Concentration Accounts shall be withdrawn and be remitted to, or
as directed by, the Administrative Borrower from time to time, and the Canadian
Collateral Agent shall withdraw amounts from the Canadian Collection Accounts
and remit such amounts to, or as directed by the Administrative Borrower, from
time to time;


 


(e)                                  after the occurrence of a Dominion Event, (i)
all funds deposited into any Blocked Account shall be swept on a daily basis
into the appropriately denominated Canadian Collection Account and (ii) the
Canadian Collateral Agent shall hold


 


24

















 


and
apply funds received into the Canadian Collection Accounts as provided by the
terms of Section 7.3; and


 


(f)                                    before opening or replacing any Collateral
Deposit Account, other Deposit Account, or establishing a new Lock Box, each
Canadian Grantor shall (a) obtain the Canadian Collateral Agent’s consent in
writing to the opening of such Deposit Account or Lock Box, and (b) cause each
bank or financial institution in which it seeks to open such Deposit Account or
Lock Box to enter into a Blocked Account Agreement with the Canadian Collateral
Agent. In the case of Deposit Accounts or Lock Boxes maintained with Lenders,
the terms of such Blocked Account Agreement shall be subject to the provisions
of the Credit Agreement regarding setoffs.


 


(3)                                  All amounts deposited in the Canadian
Collection Accounts shall be deemed received by the Canadian Collateral Agent
in accordance with Section 2.20 of the Credit Agreement and shall, after having
been credited in immediately available funds to the Canadian Collection
Account, be applied (and allocated) by Canadian Collateral Agent in accordance
with Section 2.20 of the Credit Agreement. In no event shall any amount be so
applied unless and until such amount shall have been credited in immediately
available funds to the Canadian Collection Account.


 


4.7                               Investment Related Property Generally


 


(1)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees that:


 


(a)                                  in the event it acquires rights in any
Investment Related Property after the date hereof, it shall deliver to the
Canadian Collateral Agent a completed Pledge Supplement, substantially in the
form of Annex I, together with all Supplements to Schedules thereto,
reflecting such new Investment Related Property and all other Investment Related
Property. Notwithstanding the foregoing, it is understood and agreed that the
security interest of the Canadian Collateral Agent shall attach to all
Investment Related Property immediately upon any Canadian Grantor’s acquisition
of rights therein and shall not be affected by the failure of any Canadian
Grantor to deliver a supplement to Schedule III as required hereby;


 


(b)                                 except as provided in the next sentence, in
the event such Canadian Grantor receives any dividends, interest or
distributions on any Investment Related Property, or any securities or other property
upon the merger, consolidation, liquidation or dissolution of any issuer of any
Investment Related Property, then (a) such dividends, interest or distributions
and securities or other property shall be included in the definition of
Collateral without further action and (b) such Canadian Grantor shall
immediately take all steps, if any, necessary or advisable to ensure the
validity, perfection, priority and, if applicable, control of the Canadian
Collateral Agent over such Investment Related Property (including,


 


25

















 


without
limitation, delivery thereof to the Canadian Collateral Agent) and pending any
such action such Canadian Grantor shall be deemed to hold such dividends,
interest, distributions, securities or other property in trust for the benefit
of the Canadian Collateral Agent and shall be segregated from all other
property of such Canadian Grantor. Notwithstanding the foregoing, so long as no
Event of Default shall have occurred and be continuing, the Canadian Collateral
Agent authorizes each Canadian Grantor to retain all ordinary cash dividends
and distributions paid in accordance with Section 6.06 of the Credit Agreement,
and all scheduled payments of interest; and


 


(c)                                  each Canadian Grantor shall take such
additional actions, including, without limitation, causing the issuer to
register the pledge on its books and records or making such filings or
recordings, in each case as may be necessary or advisable, under the laws of
such issuer’s jurisdiction to insure the validity, perfection and priority of
the security interest of the Canadian Collateral Agent.  Upon the occurrence of an Event of Default,
the Canadian Collateral Agent shall have the right, without notice to any
Canadian Grantor except as set forth in Section 7.5(6), to transfer all or any
portion of the Investment Related Property to its name or the name of its
nominee or agent. In addition, the Canadian Collateral Agent shall have the
right at any time, without notice to any Canadian Grantor, to exchange any
certificates or instruments representing any Investment Related Property for
certificates or instruments of smaller or larger denominations.


 


(2)                                  Delivery and Control.  Each
Canadian Grantor agrees that with respect to any Investment Related Property in
which it currently has rights it shall comply with the provisions of this Section
4.7(2) on or before the Representation Date and with respect to any Investment
Related Property hereafter acquired by such Canadian Grantor it shall comply
with the provisions of this Section 4.7(2) immediately upon acquiring rights
therein, in each case in form and substance satisfactory to the Canadian
Collateral Agent.  With respect to any
Investment Related Property that is represented by a certificate or that is an “Instrument”
(other than any Investment Related Property credited to a Securities Account)
it shall cause such certificate or Instrument to be delivered to the Canadian
Collateral Agent, endorsed in blank or accompanied by a duly executed transfer
power. With respect to any Investment Related Property, other than Pledged NSULC
Stock, that is an “uncertificated security”, it shall cause the issuer of such
uncertificated security to register the Canadian Collateral Agent as the
registered owner thereof on the books and records of the issuer.


 


(3)                                  Voting and Distributions.


 


(a)                                  So long as no Event of Default shall have
occurred and be continuing:


 


(i)                                     except as otherwise provided under the
covenants and agreements relating to Investment Related Property in this
Agreement or elsewhere herein or in the Credit Agreement, each Canadian Grantor
shall be entitled to


 


26

















 


exercise
or refrain from exercising any and all voting and other consensual rights
pertaining to the Investment Related Property or any part thereof for any
purpose not inconsistent with the terms of this Agreement or the Credit
Agreement; provided, no Canadian Grantor shall exercise or refrain from
exercising any such right if the Canadian Collateral Agent shall have notified
such Canadian Grantor that, in the Canadian Collateral Agent’s reasonable
judgment, such action would have a Material Adverse Effect on the value of the
Investment Related Property or any part thereof; and provided further, such
Canadian Grantor shall give the Canadian Collateral Agent at least five (5) Business
Days prior written notice of the manner in which it intends to exercise, or the
reasons for refraining from exercising, any such right; it being understood,
however, that neither the voting by such Canadian Grantor of any Pledged Stock
for, or such Canadian Grantor’s consent to, the election of directors (or
similar governing body) at a regularly scheduled annual or other meeting of
stockholders or with respect to incidental matters at any such meeting, nor
such Canadian Grantor’s consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement, shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within
the meaning of this Section 4.7(3)(a)(i), and no notice of any such voting or consent
need be given to the Canadian Collateral Agent; and


 


(ii)                                  the Canadian Collateral Agent shall promptly
execute and deliver (or cause to be executed and delivered) to each Canadian
Grantor all proxies, and other instruments as such Canadian Grantor may from
time to time reasonably request for the purpose of enabling such Canadian
Grantor to exercise the voting and other consensual rights when and to the
extent which it is entitled to exercise pursuant to clause (i) above; and


 


(b)                                 upon the occurrence and during the
continuation of an Event of Default:


 


(i)                                     subject to Section 7.5(6), all rights of each
Canadian Grantor to exercise or refrain from exercising the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant hereto
shall cease and all such rights shall thereupon become vested in the Canadian
Collateral Agent who shall thereupon have the sole right to exercise such
voting and other consensual rights; and


 


(ii)                                  in order to permit the Canadian Collateral
Agent to exercise the voting and other consensual rights which it may be
entitled to exercise pursuant hereto and to receive all dividends and other
distributions which it may be entitled to receive hereunder: (1) each Canadian
Grantor shall promptly


 


27

















 


execute
and deliver (or cause to be executed and delivered) to the Canadian Collateral
Agent all proxies, dividend payment orders and other instruments as the
Canadian Collateral Agent may from time to time reasonably request and (2) each
Canadian Grantor acknowledges that the Canadian Collateral Agent may utilize
the power of attorney set forth in Section 6.


 


4.8                               Material Contracts


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on each Representation Date,
that:


 


(a)                                  no Material Contract of such Canadian Grantor
prohibits assignment or requires consent of or notice to any Person in
connection with the assignment to the Canadian Collateral Agent hereunder,
except such as has been given or made or is currently sought pursuant to
Section 4.8(2)(b).


 


(2)                                  Covenants and Agreements. Each Canadian Grantor hereby covenants and
agrees that:


 


(a)                                  in addition to any rights under Section 4.3
relating to Receivables Contracts, the Canadian Collateral Agent may at any
time notify, or require such Canadian Grantor to so notify, the counterparty on
any Material Contract of such Canadian Grantor of the security interest of the
Canadian Collateral Agent therein. In addition, after the occurrence and during
the continuance of an Event of Default, the Canadian Collateral Agent may upon written
notice to the applicable Canadian Grantor, notify, or require such Canadian Grantor
to notify, the counterparty to make all payments under the Material Contracts
of such Canadian Grantor directly to the Canadian Collateral Agent;


 


(b)                                 with respect to any Non-assignable Contract,
each Canadian Grantor shall, subject to applicable laws, within thirty (30)
days of the date hereof with respect to any Non-Assignable Contract in effect
on the date hereof and within thirty (30) days after entering into any
Non-Assignable Contract after the Effective Date, request in writing the
consent of the counterparty or counterparties to the Non-Assignable Contract
pursuant to the terms of such Non-Assignable Contract or applicable law to the
assignment or granting of a security interest in such Non-Assignable Contract
to Canadian Collateral Agent and use its best efforts to obtain such consent as
soon as practicable thereafter.


 


4.9                               Letter of Credit Rights


 


(1)                                  Representations and Warranties.  Each
Canadian Grantor hereby represents and warrants, on each Representation Date,
that:


 


28

















 


(a)                                  all material letters of credit to which such
Canadian Grantor has rights are listed on Schedule V (as such schedule
may be amended or supplemented from time to time in connection with the
delivery of a Pledge Supplement hereunder); and


 


(b)                                 it has obtained the consent of each issuer of
any material letter of credit to which such Canadian Grantor has rights to the
assignment of the proceeds of the letter of credit to the Canadian Collateral
Agent.


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees that with respect to any material
letter of credit hereafter arising to which such Canadian Grantor has rights it
shall obtain the consent of the issuer thereof to the assignment of the
proceeds of the letter of credit to the Canadian Collateral Agent and shall
deliver to the Canadian Collateral Agent a completed Pledge Supplement,
substantially in the form of Annex I, together with all Supplements to
Schedules thereto.


 


4.10                        Intellectual Property


 


(1)                                  Representations and Warranties.  Except
as disclosed in Schedule VI(e) (as such schedule may be amended or
supplemented from time to time in connection with the delivery of a Pledge
Supplement hereunder), each Canadian Grantor hereby represents and warrants, on
each Representation Date, that:


 


(a)                                  as of each Compliance Date, Schedule VI
(as such schedule may be amended or supplemented from time to time in
connection with the delivery of a Pledge Supplement hereunder) sets forth a
true and complete list of the following Intellectual Property such Canadian
Grantor owns or is licensed to use as of the Effective Date separately
identifying Material Intellectual Property and material Software and including
for each of the foregoing items (1) the owner, (2) the title, (3) the
jurisdiction in which such item has been registered or otherwise arises or in
which an application for registration has been filed, and (4) as applicable, the
registration or application number and registration or application date. As of
each Compliance Date, the Intellectual Property set forth on Schedule VI
constitutes all of the Intellectual Property material to the business of such
Canadian Grantor as currently conducted and as proposed to be conducted.


 


(b)                                 as of each Compliance Date, all Intellectual
Property included in the Collateral is standing in the name of such Canadian
Grantor as identified on Schedule VI;


 


(c)                                  as of each Compliance Date, such Canadian
Grantor, and such Canadian Grantor owns or has the valid right to use the
Intellectual Property used in or necessary to conduct its business free and
clear of all Liens, claims, encumbrances and material licenses, granted by such
Canadian Grantor, except for Liens permitted by Section 6.02 of the Credit
Agreement and the Intellectual Property Licenses set


 


29

















 


forth
on Schedule VI (as such schedule may be amended or supplemented from
time to time in connection with the delivery of a Pledge Supplement hereunder);


 


(d)                                 as of each Compliance Date, with the
exception of the Trademarks listed in Schedule VI(c) all Material
Intellectual Property owned by such Canadian Grantor and, to the best of such
Canadian Grantor’s knowledge, licensed to such Canadian Grantor: (i) is valid,
in full force and effect, subsisting, unexpired and enforceable and has not
been abandoned and (ii) has not been adjudged invalid or unenforceable, in
whole or in part, and such Canadian Grantor has performed all acts and has paid
all renewal, maintenance, and other fees and taxes required to maintain each
item of Intellectual Property set forth on Schedule VI, in full force and
effect;


 


(e)                                  no action, investigation, suit, audit, claim,
demand, order dispute or proceeding is pending or, to the best of such Canadian
Grantor’s knowledge, threatened against such Canadian Grantor challenging the
enforceability of, or such Canadian Grantor’s right to register, the validity
of, or such Canadian Grantor’s right to own, use, or license any Material
Intellectual Property;


 


(f)                                    to the knowledge of such Canadian Grantor,
the conduct of such Canadian Grantor’s business does not infringe upon any
Intellectual Property right owned or controlled by a third party; no claim is
pending, or to the best of such Canadian Grantor’s knowledge, threatened, that
the conduct of such Canadian Grantor’s business or the use of any Intellectual
Property owned or used by such Canadian Grantor violates the asserted rights of
any third party;


 


(g)                                 no third party is, to the best of such
Canadian Grantor’s knowledge, infringing upon, misappropriating or otherwise
violating any Intellectual Property owned or used by such Canadian Grantor, or
any of its respective licensees, and no claims of infringement or other
violation have been asserted by such Canadian Grantor that remain unresolved;


 


(h)                                 no settlement or consents, covenants not to
sue, co-existence agreements, nonassertion assurances, or releases have been
entered into by such Canadian Grantor, or to which such Canadian Grantor is
bound, that materially adversely effect such Canadian Grantor’s rights to own
or use any Intellectual Property;


 


(i)                                     such Canadian Grantor has not made or entered
into any Contracts to assign, sell, transfer, or grant an option to assign,
sell or transfer any Intellectual Property, that has not been terminated or
released; and


 


(j)                                     there is no effective financing statement or
other document or instrument now executed, or on file or recorded in any public
office, granting a security interest in or otherwise encumbering any part of
the Intellectual Property owned, used or


 


30

















 


held
for use by such Canadian Grantor, other than in favour of the Canadian
Collateral Agent.


 


(2)                                  Covenants and Agreements.  Each
Canadian Grantor hereby covenants and agrees as follows:


 


(a)                                  such Canadian Grantor shall (and shall cause
its licensees to) not do any act or omit to do any act whereby any of the
Material Intellectual Property included in the Collateral may lapse, become
abandoned, invalidated, harmed, become destroyed, dedicated to the public,
unenforceable or otherwise impaired;


 


(b)                                 such Canadian Grantor shall promptly notify
the Canadian Collateral Agent if it knows or has reason to know that any item
of Intellectual Property included in the Collateral that is in use or is
planned on being used in the future and has material value may become (a)
forfeited, misused, abandoned or dedicated to the public or placed in the
public domain, (b) invalid or unenforceable, or (c) subject to any adverse
determination or development (including the institution of proceedings) in any
action or proceeding at CIPO or any foreign counterpart thereof, or any court
arbitral tribunal or regulatory agency, regarding the validity or
enforceability of such Canadian Grantor’s ownership of, interest in, right to
use, register, own or maintain any such item of Intellectual Property;


 


(c)                                  such Canadian Grantor shall (and shall cause
all its licensees to) not knowingly do any act or omit to do any act to
infringe, misappropriate, dilute, violate or otherwise impair the Intellectual
Property of any other person;


 


(d)                                 such Canadian Grantor shall take all
necessary and reasonable steps with CIPO or any foreign counterpart thereof,
including the payment of applicable fees, to pursue any application for, and
maintain any issued Patent and registration of, each Trademark, Patent and
Copyright owned by such Canadian Grantor and which is now or shall become
included in the Collateral, including, but not limited to, those items on Schedule
VI (as such schedule may be amended or supplemented from time to time in
connection with the delivery of a
Pledge Supplement hereunder) except for those items of Intellectual Property
that are no longer in use or planned on being used in the future and which have
do not have material value;


 


(e)                                  in the event that any Intellectual Property
owned by or exclusively licensed to such Canadian Grantor is infringed,
misappropriated, diluted or otherwise violated by a third party, such Canadian
Grantor shall promptly take all necessary and reasonable actions to stop such
infringement, misappropriation, dilution or other violation and to protect its
exclusive rights in such Intellectual Property, including, but not limited to,
the initiation of a suit for injunctive relief and to recover damages;


 


31

















 


(f)                                    such Canadian Grantor shall take all steps
reasonably necessary to protect the secrecy of all material Trade Secrets,
including, without limitation, entering into confidentiality agreements with
employees and labeling and restricting access to secret information and
documents;


 


(g)                                 such Canadian Grantor shall promptly (but in
no event more than thirty (30) days) report to the Canadian Collateral Agent of
any and all of the following; (i) the filing by such Canadian Grantor or on its
behalf of any application to register any Intellectual Property owned by such
Canadian Grantor in whole or in part, with CIPO or any foreign counterpart
thereof, (ii) the registration of any Intellectual Property owned by such Canadian
Grantor in whole or in part by any such office, or (iii) the acquisition by
such Canadian Grantor of any issued Patent, or application or registration of
any other Intellectual Property, and (iv) the existence of any Contract
granting an Intellectual Property License which is in the nature of a Contract
described in Section Error! Reference source
not found., and, in each case, such Canadian Grantor shall execute
and deliver to the Canadian Collateral Agent a completed Pledge Supplement,
substantially in the form of Annex I, together with all Supplements to
Schedules thereto and signed counterparts of the Trademark Security Agreement,
Patent Security Agreement, or Copyright Security Agreement, as applicable,
together with all supplements to the schedules thereto; and any and all
additional agreements, instruments, documents, and papers as the Canadian
Collateral Agent may reasonably request to evidence the Canadian Collateral
Agent’s and the Canadian Secured Parties’ security interest in such
Intellectual Property;


 


(h)                                 except with the prior written consent of the
Canadian Collateral Agent or as permitted under the Credit Agreement, such
Canadian Grantor shall not execute, and there will not be on file in any public
office, any financing statement or other document or instruments, except
financing statements or other documents or instruments filed or to be filed in
favour of the Canadian Collateral Agent and such Canadian Grantor shall not
sell, assign, transfer, license, grant any option with respect to, or create
any Lien upon, the Intellectual Property, except for Liens permitted by Section
6.02 of the Credit Agreement and the Lien created by and under this Agreement
and the other Loan Documents;


 


(i)                                     such Canadian Grantor shall use best efforts
to avoid the inclusion in any Intellectual Property License or any other
material Contract regarding Intellectual Property to which it hereafter becomes
a party, of provisions that would impair or prevent the creation of a security
interest in, or the assignment of, such Canadian Grantor’s rights and interests
under such Contract or in any Intellectual Property acquired under such
Contracts; and


 


32

















 


(j)                                     such Canadian Grantor shall use best efforts
to continue to collect, at its own expense, all amounts and royalties due or to
become due to such Canadian Grantor in respect of any Intellectual Property. In
connection with such collections, such Canadian Grantor may take (and, at the
Canadian Collateral Agent’s reasonable direction, shall take) such action as
such Canadian Grantor or the Canadian Collateral Agent may deem reasonably
necessary or advisable to enforce collection of such amounts. Notwithstanding
the foregoing, the Canadian Collateral Agent shall have the right at any time,
to notify, or require any Canadian Grantor to notify, any obligors with respect
to any such amounts of the existence of the security interest created hereby.


 


SECTION 5
– ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS


 


5.1                               Access; Right of Inspection


 


The Canadian Collateral Agent and its representatives shall have the
right to enter any premises of any Canadian Grantor during normal business
hours, and upon the occurrence and continuance of an Event of Default, at any
time, and inspect any property of each Canadian Grantor where any of the
Collateral of such Canadian Grantor granted pursuant to this Agreement is
located for the purpose of inspecting the same, observing its use or otherwise
protecting its interests therein.


 


5.2                               Further Assurances


 


Each Canadian Grantor agrees that from time to time, at the expense of
such Canadian Grantor, that it shall promptly execute and deliver all further
instruments and documents, and take all further action, that may be reasonably
necessary or desirable, or that the Canadian Collateral Agent may reasonably
request, in order to create and/or maintain the validity, perfection or
priority of and protect any security interest granted or purported to be
granted hereby or to enable the Canadian Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, each Canadian Grantor shall;


 


(a)                                  file such financing statements or financing
change statements, and execute and deliver such other agreements, instruments,
endorsements, powers of attorney or notices, as may be necessary or desirable,
or as the Canadian Collateral Agent may reasonably request, in order to perfect
and preserve the Liens granted or purported to be granted hereby;


 


(b)                                 take all actions reasonably necessary to
ensure the recordation of appropriate evidence of the Liens granted hereunder
in Intellectual Property with any intellectual property registry in which said
Intellectual Property is registered or in


 


33

















 


which an application for registration is pending including, without
limitation, CIPO and the foreign counterparts thereof;


 


(c)                                  at any reasonable time, upon request by the
Canadian Collateral Agent, assemble all or part of the Collateral as directed
by the Canadian Collateral Agent and make it available to the Canadian
Collateral Agent at a place to be designated by the Canadian Collateral Agent
that is reasonably convenient to both parties and allow inspection of the
Collateral by the Canadian Collateral Agent, or persons designated by the
Canadian Collateral Agent; and


 


(d)                                 at the Canadian Collateral Agent’s request,
appear in and defend any action or proceeding that may affect such Canadian
Grantor’s title to or the Canadian Collateral Agent’s Lien in all or any part
of the Collateral.


 


(2)                                  Each Canadian Grantor hereby authorizes the
Canadian Collateral Agent to take all steps it deems reasonably necessary to
maintain and preserve the Collateral, consistent with the Canadian Grantor’s
obligations to do so hereunder, including, with respect to Intellectual
Property included in the Collateral, the making of additional filings, the
payment of maintenance fees, and the defense of challenges to the Canadian
Grantor’s title or validity, all at the Canadian Grantor’s expense.


 


(3)                                  Each Canadian Grantor hereby authorizes the
filing of any financing statements or financing change statements, or any
similar document in any jurisdictions and with any filing offices as the
Canadian Collateral Agent may determine, in its sole discretion, are necessary
or advisable to perfect the Lien granted to the Canadian Collateral Agent under
this Agreement. Such financing statements or financing change statements may
describe the Collateral in the same manner as described herein or may contain
an indication or description of collateral that describes such property in any
other manner as the Canadian Collateral Agent may determine, in its sole
discretion, is necessary, advisable or prudent to ensure the perfection of the
Lien in the Collateral granted to the Canadian Collateral Agent under this
Agreement, including, without limitation, describing such property as “all
assets” or “all personal property, whether now owned or hereafter acquired.”
Each Canadian Grantor shall furnish to the Canadian Collateral Agent from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Canadian Collateral Agent may reasonably request, all in reasonable detail.


 


(4)                                  Each Canadian Grantor hereby authorizes the
Canadian Collateral Agent to modify this Agreement after obtaining such
Canadian Grantor’s approval of or signature to such modification by amending Schedule VI
(as such schedule may be amended or supplemented from time to time in connection
with the delivery of a Pledge Supplement hereunder) to include reference to any
right, title or interest in any existing Intellectual Property or any
Intellectual Property acquired or developed by any Canadian Grantor after the
execution hereof.


 


34

















 


5.3                               Additional Canadian Grantors


 


From time to time subsequent to the date hereof, additional Persons may
become parties hereto as additional Canadian Grantors (each, an “Additional Canadian Grantor”), by
executing and delivering to the Canadian Collateral Agent a completed Pledge
Supplement, substantially in the form of Annex II. Upon delivery of any
such counterpart agreement to the Canadian Collateral Agent, notice of which is
hereby waived by Canadian Grantors, each Additional Canadian Grantor shall be a
Canadian Grantor and shall be as fully a party hereto as if Additional Canadian
Grantor were an original signatory hereto. Each Canadian Grantor expressly
agrees that its obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Canadian Grantor hereunder,
nor by any election of Canadian Collateral Agent not to cause any subsidiary of
Canadian Grantors to become an Additional Canadian Grantor hereunder. This
Agreement shall be fully effective as to any Canadian Grantor that is or
becomes a party hereto regardless of whether any other Person become or fails
to become or ceases to be a Canadian Grantor hereunder.


 


SECTION 6
– COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT


 


6.1                               Power of Attorney


 


(1)                                  Each Canadian Grantor hereby irrevocably
appoints the Canadian Collateral Agent (such appointment being coupled with an
interest) as such Canadian Grantor’s attorney-in-fact, with full authority in
the place and stead of such Canadian Grantor and in the name of such Canadian
Grantor, the Canadian Collateral Agent or otherwise, from time to time in the
Canadian Collateral Agent’s discretion to take any action and to execute any
instrument that the Canadian Collateral Agent may deem reasonably necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation, the following:


 


(a)                                  to prepare, sign, and file for recordation in
any Intellectual Property registry, appropriate evidence of the Lien granted
herein in the Intellectual Property in the name of such Canadian Grantor as
assignor or pledgor;


 


(b)                                 to take or cause to be taken all actions
necessary to perform or comply or cause performance or compliance with the
terms of this Agreement, including, without limitation, upon the occurrence and
continuance of an Event of Default access to pay or discharge taxes or Liens
(other than Liens permitted by Section 6.02 of the Credit Agreement)
levied or placed upon or threatened against the Collateral, the legality or
validity thereof and the amounts necessary to discharge the same to be
determined by the Canadian Collateral Agent in its sole discretion, any such
payments made by the Canadian Collateral Agent to become obligations of such
Canadian Grantor to the Canadian Collateral Agent, due and payable immediately
without demand; and


 


35

















 


(c)                                  Upon the occurrence and during the
continuance of any Event of Default;


 


(i)                                     to obtain and adjust insurance required to be
maintained by such Canadian Grantor or paid to the Canadian Collateral Agent
pursuant to the Loan Documents;


 


(ii)                                  to ask for, demand, collect, sue for,
recover, compound, receive and give acquittance and receipts for moneys due and
to become due under or in respect of any of the Collateral;


 


(iii)                               to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection with Section 6.1(1)(b) above;


 


(iv)                              to file any claims or take any action or
institute any proceedings that the Canadian Collateral Agent may deem necessary
or desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Canadian Collateral Agent with respect to any of the
Collateral; and


 


(v)                                 to sell, transfer, assign, lease, license,
pledge, make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Canadian Collateral Agent were
the absolute owner thereof for all purposes, and to do, at the Canadian
Collateral Agent’s option and such Canadian Grantor’s expense, at any time or
from time-to-time, all acts and things that the Canadian Collateral Agent deems
reasonably necessary to protect, preserve, or realize upon the Collateral and
the Canadian Collateral Agent’s security interest therein as fully and
effectively as such Canadian Grantor might do.


 


(2)                                  The powers conferred on the Canadian
Collateral Agent hereunder are solely to protect its interest in the Collateral
and the interests of the Canadian Secured Parties and shall not impose any duty
upon it to exercise any such powers. Except for the exercise of reasonable care
in the custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Canadian Collateral Agent shall
have no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.  The Canadian Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Canadian Collateral Agent
accords its own property. Neither the Canadian Collateral Agent nor any of its
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Canadian Grantor or otherwise. If any
Canadian Grantor fails to perform any agreement contained herein, the Canadian
Collateral Agent may itself perform, or cause performance of, such agreement,
and the expanses of the


 


36

















 


Canadian
Collateral Agent incurred in connection therewith shall be payable by each
Canadian Grantor under Section 12.3 relating to the payment of expenses.


 


SECTION 7
– REMEDIES


 


7.1                               Generally


 


(1)                                  If
any Event of Default shall have occurred and be continuing, the Canadian
Collateral Agent may exercise in respect of the Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it at
law or in equity, all the rights and remedies of the Canadian Collateral Agent
on default under the PPSA (whether or not the PPSA applies to the affected
Collateral) to collect, enforce or satisfy any Canadian Secured Obligations
then owing, whether by acceleration or otherwise, and also may pursue any of
the following separately, successively or simultaneously:


 


(a)                                  require
any Canadian Grantor to, and each Canadian Grantor hereby agrees that it shall
at its expense and promptly upon request of the Canadian Collateral Agent
forthwith, assemble all or part of the Collateral as directed by the Canadian
Collateral Agent and make it available to the Canadian Collateral Agent at a
place the Canadian Collateral Agent shall reasonably select;


 


(b)                                 enter
onto the property where any Collateral is located through self-help, without
any obligation to pay rent and take possession thereof with or without judicial
process;


 


(c)                                  prior
to the disposition of the Collateral, store, process, repair or recondition the
Collateral or otherwise prepare the Collateral for disposition in any manner to
the extent the Canadian Collateral Agent deems appropriate; provided that
processed, reconditioned, or repaired products that are sold under the Canadian
Grantor’s Trademarks shall be of at least substantially comparable quality to
the same products those sold under such Trademarks at the time of the Event of
Default, and shall, if applicable, be labeled as “reconditioned”, or the like,
to the extent required by law;


 


(d)                                 require
that each Canadian Grantor store and keep any Collateral pending further action
by the Canadian Collateral Agent, and while Collateral is so stored or kept,
provide such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain Collateral in good condition, and prior
to its disposition, shall have the right to hold or use Collateral, or any part
thereof, to the extent that it deems appropriate for the purpose of preserving
Collateral or its value or for any other purpose deemed appropriate by the
Canadian Collateral Agent; provided that the Canadian Collateral Agent shall
not have any obligation to any Canadian Grantor to maintain or preserve the rights
of any Canadian


 


37

















 


Grantor as against
third parties with respect to Collateral while Collateral is in the possession
of the Canadian Collateral Agent;


 


(c)                                  seek
the appointment of a receiver or keeper pursuant to Section 7.2 to take
possession of the Collateral and to enforce any of the Canadian Collateral
Agent’s remedies (for the benefit of the Canadian Secured Parties), with
respect to such appointment without prior notice or hearing as to such
appointment; and


 


(f)                                    without
notice, except as specified below or under the PPSA, sell, assign, lease,
license (on an exclusive or nonexclusive basis, to the extent the Canadian
Grantor has the lawful right to do so), or otherwise dispose of the Collateral
or any part thereof in one or more parcels at public or private sale, at any of
the Canadian Collateral Agent’s offices or elsewhere, for cash, on credit or
for future delivery, at such time or times and at such price or prices and upon
such other terms as the Canadian Collateral Agent may deem best.


 


(2)                                  The
Canadian Collateral Agent or any Canadian Secured Party may be the purchaser of
any or all of the Collateral at any public or private (to the extent to portion
of the Collateral being privately sold is of a kind that is customarily sold on
a recognized market or the subject of widely distributed standard price
quotations) sale in accordance with the PPSA and the Canadian Collateral Agent,
as Canadian Collateral Agent for and representative of the Canadian Secured
Parties, shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at
any such sale made in accordance with the PPSA, to use and apply any of the
Canadian Secured Obligations as a credit on account of the purchase price for
any Collateral payable by the Canadian Collateral Agent at such sale. Each
purchaser at any such sale shall hold the property sold absolutely free from
any claim or right on the part of any Canadian Grantor, and each Canadian
Grantor hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the
future have under any rule of law or statute now existing or hereafter
enacted. Each Canadian Grantor agrees that, to the extent notice of sale shall
be required by law, at least fifteen (15) days notice to such Canadian Grantor
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Canadian
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Canadian Collateral Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. Each Canadian Grantor
agrees that it would not be commercially unreasonable for the Canadian
Collateral Agent to dispose of the Collateral or any portion thereof by using
Internet sites that provide for the auction of assets of the types included in
the Collateral or that have the reasonable capability of doing so, or that
match buyers and sellers of assets. Each Canadian Grantor hereby waives any
claims against the Canadian Collateral Agent arising by reason of the fact that
the price at which any Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale, even if
the Canadian


 


38

















 


Collateral Agent accepts
the first offer received and does not offer such Collateral to more than one
offeree. If the proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Canadian Secured Obligations, each Canadian Grantor
shall be liable for the deficiency and the fees of any attorneys employed by
the Canadian Collateral Agent to collect such deficiency. Each Canadian Grantor
further agrees that a breach of any of the covenants contained in this Section will
cause irreparable injury to the Canadian Collateral Agent, that the Canadian
Collateral Agent has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this Section shall
be specifically enforceable against such Canadian Grantor, and such Canadian
Grantor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no default
has occurred giving rise to the Canadian Secured Obligations becoming due and
payable prior to their stated maturities. Nothing in this Section shall in
any way alter the rights of the Canadian Collateral Agent hereunder.


 


(3)                                  The
Canadian Collateral Agent may sell the Collateral without giving any warranties
as to the Collateral. The Canadian Collateral Agent may specifically disclaim
or modify any warranties of title or the like. This procedure will not be
considered to adversely effect the commercial reasonableness of any sale of the
Collateral.


 


(4)                                  To
the extent that applicable laws impose duties on the Canadian Collateral Agent
to exercise remedies in a commercially reasonable manner, each Canadian Grantor
acknowledges and agrees that it is not commercially unreasonable for the
Canadian Collateral Agent:


 


(a)                                  to
fail to incur significant costs, expenses or other liabilities reasonably
deemed as such by the Canadian Collateral Agent to prepare Collateral for
disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition;


 


(b)                                 to
fail to obtain Permits or other consents for access to Collateral to sell or
otherwise dispose of or for the collection or sale or disposition of
Collateral, or, if not required by other applicable law, to fail to obtain
Permits or other consents for the collection or disposition of Collateral;


 


(c)                                  to
fail to exercise remedies against Account Debtors or other Persons obligated on
Collateral or to remove Liens on Collateral or to remove any adverse claims against
Collateral;


 


(d)                                 to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature or to
contact other Persons, whether or not in the same business as any Canadian
Grantor, for expressions of interest in acquiring any of such Collateral;


 


(e)                                  to
exercise collection remedies against Account Debtors and other Persons
obligated on Collateral, directly or through the use of collection agencies or
other


 


39

















 


collection
specialists, to hire one or more professional auctioneers to assist in the
disposition of Collateral, whether or not the Collateral is of a specialized
nature or, to the extent deemed appropriate by the Canadian Collateral Agent,
to obtain the services of other brokers, investment bankers, consultants and
other professionals to assist the Canadian Collateral Agent in the collection
or disposition of any of the Collateral, or to utilize Internet sites that
provide for the auction of assets of the types included in Collateral or that
have the reasonable capacity of doing so, or that match buyers and sellers of
assets to dispose of Collateral;


 


(f)                                  to
dispose of assets in wholesale rather than retail markets;


 


(g)                                 to
disclaim disposition warranties, such as title, possession or quiet enjoyment;
and


 


(h)                                 to
purchase insurance or credit enhancements to insure the Canadian Collateral
Agent against risks of loss, collection or disposition of Collateral or to
provide to the Canadian Collateral Agent a guaranteed return from the
collection or disposition of Collateral.


 


(5)                                 Each
Canadian Grantor acknowledges that the purpose of this clause is to provide a
non-exhaustive list of actions or omissions that are commercially reasonable
when exercising remedies against the Collateral and that other actions or
omissions by the Canadian Secured Parties shall not be deemed commercially
unreasonable solely on account of not being indicated in this clause. Without
limitation upon the foregoing, nothing contained in this clause shall be
construed to grant any rights to any Canadian Grantor or to impose any duties
on the Canadian Collateral Agent that would not have been granted or imposed by
this Agreement or by applicable law in the absence of this clause.


 


7.2                              Appointment
of Receiver


 


If an
Event of Default shall have occurred and be continuing, the Canadian Collateral
Agent may appoint or reappoint by instrument in writing, any Person or Persons,
whether an officer or officers or an employee or employees of a Canadian
Grantor or not, to be an interim receiver, receiver or receivers (hereinafter
called a “Receiver”, which term when used herein
shall include a receiver and manager) of such Collateral (including any
interest, income or profits therefrom) and may remove any Receiver so appointed
and appoint another in his/her/its stead. Any such Receiver shall, to the
extent permitted by applicable law, so far as concerns responsibility for
his/her/its acts, be deemed the agent of the Canadian Grantor and not of the
Collateral Agent, and the Collateral Agent shall not be in any way responsible
for any misconduct, negligence or non-feasance on the part of any such Receiver
or his/her/its servants, agents or employees. Subject to the provisions of the
instrument appointing him/her/it, any such Receiver shall (i) have such
powers as have been granted to the Collateral Agent under this Section 7,
and (ii) shall be entitled to exercise such powers at any time that such
powers would


 


40

















 


otherwise be exercisable
by the Collateral Agent under this Section 7, which powers shall include
the power to take possession of the Collateral, to preserve the Collateral or
its value, to carry on or concur in carrying on all or any part of the business
of Canadian Grantor and to sell, lease, license or otherwise dispose of or
concur in selling, leasing, licensing or otherwise disposing of the Collateral.
To facilitate the foregoing powers, any such Receiver may, to the exclusion of
all others, including the Canadian Grantor, enter upon, use and occupy all premises
owned or occupied by the Canadian Grantor wherein the Collateral may be
situate, maintain the Collateral upon such premises, borrow money on a secured
or unsecured basis and use the Collateral directly in carrying on the Canadian
Grantor’s business or as security for loans or advances to enable the Receiver
to carry on the Canadian Grantor’s business or otherwise, as such Receiver
shall, in its reasonable discretion, determine. Except as may be otherwise
directed by the Canadian Collateral Agent, all money received from time to time
by such Receiver in carrying out his/her/its appointment shall be received in
trust for and be paid over to the Canadian Collateral Agent, and any surplus
shall be applied in accordance with applicable law. Every such Receiver may, in
the discretion of the Canadian Collateral Agent, be vested with all or any of
the rights and powers of the Canadian Collateral Agent.


 


7.3                               Application
of Proceeds


 


Except as expressly provided elsewhere in this
Agreement, all proceeds received by the Canadian Collateral Agent in respect of
any sale, any collection from, or other realization upon all or any part of the
Collateral shall be applied in full or in part by the Canadian Collateral Agent
against, the Canadian Secured Obligations in the following order of priority: first,
to the payment of all costs and expenses of such sale, collection or other
realization, including reasonable compensation to the Canadian Collateral
Agent, any Receiver and any agents or counsel of the Canadian Collateral Agent,
and all other expenses, liabilities and advances made or incurred by the
Canadian Collateral Agent or any Receiver in connection therewith, and all
amounts for which the Canadian Collateral Agent is entitled to indemnification
hereunder (in its capacity as the Canadian Collateral Agent) and all advances
made by the Canadian Collateral Agent hereunder for the account of the
applicable Canadian Grantor, and to the payment of all costs and expenses paid
or incurred by the Canadian Collateral Agent in connection with the exercise of
any right or remedy hereunder or under any Loan Document, all in accordance
with the terms hereof or thereof; second, to the extent of any excess of
such proceeds, to the payment of all other Canadian Secured Obligations for the
ratable benefit of each Canadian Secured Party in the order set forth in Section 2.20
of the Credit Agreement, and third, to the extent of any excess of such
proceeds, to the payment to or upon the order of such Canadian Grantor or to
whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.


 


7.4                               Sales
on Credit


 


If Canadian Collateral Agent sells any of the
Collateral upon credit, Canadian Grantor will be credited only with payments
actually made by purchaser and received by Canadian


 


41

















 


Collateral Agent and
applied to indebtedness of the purchaser. In the event the purchaser fails to
pay for the Collateral, Canadian Collateral Agent may resell the Collateral and
Canadian Grantor shall be credited with proceeds of the sale.


 


7.5                               Investment
Related Property


 


(1)                                  Unless
an Event of Default shall have occurred and be continuing and the Canadian
Collateral Agent shall have given notice to the relevant Canadian Grantor of
the Canadian Collateral Agent’s intent to exercise its corresponding rights
pursuant to Section 7.5(2), each Canadian Grantor shall be permitted to
receive all payments made in respect of the Pledged Debt and all cash dividends
or distributions paid in respect of the Pledged Equity Interests unless
otherwise prohibited by the Credit Agreement, shall remain the legal and
beneficial owner of the Investment Related Property pledged by such Canadian
Grantor and shall retain all of the incidents of such ownership, including the
right to exercise all voting and corporate rights with respect to such
Investment Related Property.


 


(2)                                  If
an Event of Default has occurred and is continuing and the Canadian Collateral
Agent has given notice of its intent to exercise its rights pursuant to this Section to
the relevant Canadian Grantor or Canadian Grantors, (i) unless otherwise
provided in the Credit Agreement, the Canadian Collateral Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Related Property and make application thereof to the
Canadian Secured Obligations in the order set forth in Section 7.3, and (ii) any
or all of the Pledged Equity Interests shall, at the sole discretion of the
Canadian Collateral Agent, be registered in the name of the Canadian Collateral
Agent or its nominee, and the Canadian Collateral Agent or its nominee may
thereafter exercise (x) all voting, corporate and other rights pertaining to
such Pledged Equity Interests at any meeting of shareholders of the relevant
issuer or issuers or otherwise and (y) any and all rights of conversion,
exchange and subscription and any other rights, privileges or options
pertaining to such Investment Related Property as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Equity Interests upon the merger, amalgamation,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of any issuer, or upon the exercise by any Canadian
Grantor or the Canadian Collateral Agent of any right, privilege or option
pertaining to such Pledged Stock, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Canadian Collateral Agent may determine), all
without liability except to account for property actually received by it, but
the Canadian Collateral Agent shall have no duty to any Canadian Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing unless the Canadian Collateral Agent
has given notice of its intent to exercise as set forth above. For greater
certainty, nothing in this Agreement shall be construed to subject the Canadian
Collateral Agent or any Canadian Secured Party to liability as a member or
owner of any Issuer nor shall the Canadian Collateral Agent or any Canadian Secured
Party be deemed to have assumed any obligations under any operating


 


42

















 


agreement, subscription
agreement, keep-well agreement, shareholder agreement, partnership or similar
agreement relating to the Pledged Stock or otherwise.


 


(3)                                 Each
Canadian Grantor hereby authorizes and instructs each issuer of any Pledged
Equity Interest pledged by such Canadian Grantor hereunder to comply with any
instruction received by it from the Canadian Collateral Agent in writing that
(x) states that an Event of Default has occurred and is continuing, (y) states
that the Canadian Collateral Agent has given notice of its intent to exercise
its rights pursuant to Section 7.5(2) and (z) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Canadian Grantor, and each Canadian Grantor agrees that
each issuer shall be fully protected in so complying.


 


(4)                                  Each
Canadian Grantor agrees to use its best efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any
portion of the Investment Related Property pursuant to this clause valid and
binding and in compliance with all applicable laws. Each Canadian Grantor
further agrees that a breach of any covenant contained in this clause will
cause irreparable injury to the Canadian Collateral Agent and other Secured
Parties, that the Canadian Collateral Agent and the other Canadian Secured
Parties have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this clause shall be
specifically enforceable against such Canadian Grantor, and such Canadian
Grantor hereby waives and agrees not to assert any defense against an action
for specific performance of such covenants except for a defense that no Event
of Default has occurred under the Credit Agreement.


 


(5)                                  Upon
the occurrence and during the continuation of an Event of Default, the Canadian
Collateral Agent shall have the right to apply the balance from any Deposit Account
or instruct the bank at which any Deposit Account is maintained to pay the
balance of any Deposit Account to or for the benefit of the Canadian Collateral
Agent.


 


(6)                                  Notwithstanding
any other provision of this Agreement, none of the rights and remedies granted
to the Canadian Collateral Agent herein in respect of any Pledged NSULC Stock
(other than the grant of the security interest) shall be exercisable or
otherwise vest in the Collateral Agent or any other Canadian Secured Party
hereunder and the applicable Canadian Grantor shall remain the legal and
beneficial owner of the Pledged NSULC Stock and shall retain all of the
incidents of such ownership until (i) an Event of Default has occurred,
and (ii) the Canadian Collateral Agent has given notice to the applicable
Canadian Grantor of such Event of Default and its intention to exercise such
rights and remedies in respect of such Pledged NSULC Stock. Nothing herein
shall be construed to subject the Canadian Collateral Agent or any other
Canadian Secured Party hereunder to liability as a member or owner of shares of
a Nova Scotia unlimited liability company.


 


7.6                               Intellectual Property


 


(1)                                 Anything
contained herein to the contrary notwithstanding, upon the occurrence and
during the continuation of an Event of Default:


 


43

















 


(a)                                  the
Canadian Collateral Agent shall have the right (but not the obligation) to
bring suit or otherwise commence any action or proceeding in the name of any
Canadian Grantor, the Canadian Collateral Agent or otherwise, in the Canadian
Collateral Agent’s sole discretion, to enforce any Intellectual Property which
is included in the Collateral, in which event, such Canadian Grantor shall, at
the request of the Canadian Collateral Agent, do any and all lawful acts and
execute any and all documents required by the Canadian Collateral Agent in aid
of such enforcement and such Canadian Grantor shall promptly, upon demand,
reimburse and indemnify the Canadian Collateral Agent as provided in Section 11
relating to indemnity and expenses in connection with the exercise of its
rights under this Section, and, to the extent that the Canadian Collateral
Agent shall elect not to bring suit to enforce any Intellectual Property as
provided in this Section, each Canadian Grantor agrees to take all reasonable
measures, whether by action, suit, proceeding or otherwise, to prevent the
infringement of any of the Intellectual Property by others, and for that
purpose, agrees to diligently maintain any action, suit or proceeding against
any Person so infringing as shall be necessary to prevent such infringement;


 


(b)                                 upon
written demand from the Canadian Collateral Agent, each Canadian Grantor shall
assign, convey or otherwise transfer to the Canadian Collateral Agent, or such
Canadian Collateral Agent’s designee, all of such Canadian Grantor’s right,
title and interest in and to the Intellectual Property included in the
Collateral, and shall execute and deliver to the Canadian Collateral Agent such
documents as are necessary to effectuate and record such assignment,
conveyance, or transfer of, or other evidence of foreclosure upon, such
Intellectual Property;


 


(c)                                  in
the event of any assignment, conveyance or other transfer of any of the
Trademarks included in the Collateral, the goodwill symbolized by any such
Trademarks shall be included in such sale or transfer, and such Canadian
Grantor shall supply to the Canadian Collateral Agent or its designee such
Canadian Grantor’s manufacturing, advertising, and distribution know-how, and
copies of records embodying such know-how, relating to products and services
theretofore sold under such Trademarks;


 


(d)                                 each
Canadian Grantor agrees that an assignment, conveyance, or transfer of any
Intellectual Property included in the Collateral shall be applied to reduce the
Canadian Secured Obligations outstanding only to the extent that the Canadian
Collateral Agent receives cash proceeds in respect of such assignment,
conveyance, or other transfer of the Intellectual Property;


 


(e)                                  within
five (5) Business Days after written notice from the Canadian Collateral
Agent, each Canadian Grantor shall make available to the Canadian Collateral
Agent, to the extent within such Canadian Grantor’s power and authority, such


 


44

















 


 


personnel in such
Canadian Grantor’s employ on the date of such Event of Default as the Canadian
Collateral Agent may reasonably designate, by name, title or by job
responsibility, to permit such Canadian Grantor to continue, directly or
indirectly, to produce, advertise, and sell the products and services sold or
delivered by such Canadian Grantor under Intellectual Property included in the
Collateral on the Canadian Collateral Agent’s behalf and to be compensated by
the Canadian Collateral Agent at such Canadian Grantor’s expense) consistent
with the salary and benefit structure applicable to each, as of the date of
such Event of Default;


 


(f)                                    the
Canadian Collateral Agent shall have the right to notify, or require each
Canadian Grantor to notify, any obligors with respect to payments due or to
become due to such Canadian Grantor in respect of the Intellectual Property, of
the existence of the security interest created herein, to direct such obligors
to make payment of all such amounts directly to the Canadian Collateral Agent,
and, upon such notification and at the expense of such Canadian Grantor, to
enforce collection of any such amounts and to adjust, settle or compromise the
amount of such payment, to the same extent as such Canadian Grantor could have
done;


 


(g)                                 all
amounts and proceeds (including cheques and other instruments) received by any
Canadian Grantor in respect of amounts due to such Canadian Grantor in respect
of the Collateral or any portion thereof shall be received in trust for the
benefit of the Canadian Collateral Agent hereunder, shall be segregated from
other funds of such Canadian Grantor and shall be forthwith paid over or
delivered to the Canadian Collateral Agent in the same form as so received
(with any necessary endorsement) to be held as cash Collateral and applied as
provided by Section 7.7 relating to cash proceeds; and


 


(h)                                 no
Canadian Grantor shall adjust, settle or compromise the amount or payment of
any such amount or release wholly or partly any obligor with respect thereto or
allow any credit or discount thereon.


 


(2)                                  If
(i) an Event of Default shall have occurred and, by reason of cure,
waiver, modification, amendment or otherwise, no longer be continuing, (ii) no
other Event of Default shall have occurred and be continuing, (iii) an
assignment or other transfer to the Canadian Collateral Agent of any rights,
title and interests in and to the Intellectual Property shall have been
previously made and shall have become absolute and effective, and (iv) the
Canadian Secured Obligations shall not have become immediately due and payable,
upon the written request of any Canadian Grantor, the Canadian Collateral Agent
shall promptly execute and deliver to such Canadian Grantor, at such Canadian
Grantor’s sole cost and expense, such assignments or other transfer as may be
necessary to reassign to such Canadian Grantor any such rights, title and
interests as may have been assigned to the Canadian Collateral Agent as
aforesaid, subject to any disposition thereof (including a lease or license)
that may have been


 


45

















 


made by the Canadian Collateral
Agent; provided, after giving effect to such reassignment, the Canadian
Collateral Agent’s security interest granted pursuant hereto, as well as all
other rights and remedies of the Canadian Collateral Agent granted hereunder,
shall continue to be in full force and effect; and provided further, the
rights, title and interests so reassigned shall be free and clear of any Liens
granted by or on behalf of the Canadian Collateral Agent and the Canadian
Collateral Agents.


 


(3)                                  Solely
for the purpose of enabling the Canadian Collateral Agent to exercise rights
and remedies under this Section 7, at such time as the Canadian Collateral
Agent shall be lawfully entitled to exercise such rights and remedies, each
Canadian Grantor hereby grants to the Canadian Collateral Agent, to the extent
it has the right to do so at law and under its contractual obligations, an
irrevocable, non-exclusive worldwide license (exercisable without payment of
royalty or other compensation to such Canadian Grantor), to use, operate under,
license, or sublicense any Intellectual Property now or hereafter owned by or
licensed to such Canadian Grantor, subject, in the case of Trademarks, to the
maintenance of quality standards with respect to the products and services sold
under such Trademarks at a level at least substantially comparable to that
prevailing at the time of Event of Default. The foregoing license grant to the
Canadian Collateral Agent is in addition to, and not in limitation of, Canadian
Collateral Agent’s rights under Section 7.1 or the Power of Attorney
granted under Section 6.


 


7.7                               Cash Proceeds


 


All Cash Proceeds
shall be held by each Canadian Grantor in trust for the Canadian Collateral
Agent, segregated from other funds of such Canadian Grantor, and shall,
forthwith upon receipt by such Canadian Grantor, be turned over to the Canadian
Collateral Agent in the exact form received by such Canadian Grantor (duly
indorsed by such Canadian Grantor to the Canadian Collateral Agent, if
required) and held by the Canadian Collateral Agent in the Canadian Collateral
Account. Any Cash Proceeds received by the Canadian Collateral Agent (whether
from a Canadian Grantor or otherwise) (i) if no Event of Default shall
have occurred and be continuing, shall be held by the Canadian Collateral Agent
for the benefit of the Canadian Secured Parties, as collateral security for the
Canadian Secured Obligations (whether matured or unmatured) and (ii) if an
Event of Default shall have occurred and be continuing, may, in the sole
discretion of the Canadian Collateral Agent, (A) be held by the Canadian
Collateral Agent for the ratable benefit of each Canadian Secured Party, as
collateral security for the Canadian Secured Obligations (whether matured or
unmatured) and/or (B) then or at any time thereafter may be applied by the
Canadian Collateral Agent against the Canadian Secured Obligations then due and
owing in accordance with Section 2.20 of the Credit Agreement.


 


SECTION 8 – CANADIAN COLLATERAL AGENT


 


(1)                                  The
Canadian Collateral Agent has been appointed to act as Canadian Collateral
Agent hereunder by each Canadian Secured Party either pursuant to the Loan
Documents or by their acceptance of the benefits hereof. The Canadian
Collateral Agent shall only be obligated, and


 


46

















 


shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including, without
limitation, the release or substitution of Collateral), solely in accordance
with this Agreement and the Credit Agreement. 
Without the written consent of the Canadian Secured Parties that would
be affected thereby, no amendment, modification, termination, or consent shall
be effective if the effect thereof would release all or substantially all of
the Collateral except as expressly provided herein. In furtherance of the
foregoing provisions of this Section, each Canadian Secured Party, by its
acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Collateral hereunder, it being
understood and agreed by such Canadian Secured Party that all rights and
remedies hereunder may be exercised solely by the Canadian Collateral Agent for
the benefit of each Canadian Secured Party in accordance with the terms of this
Section.


 


(2)                                  Subject
to the appointment and acceptance of a successor Canadian Collateral Agent as
provided in this Section 8(2), the Canadian Collateral Agent may resign at
any time by notifying the Lenders, the Administrative Agents, the Issuing Banks
and the Administrative Borrower. Upon any such resignation, the applicable
Required Lenders shall have the right, in consultation with the Administrative
Borrower, to appoint a successor. If no successor shall have been so appointed
by such Required Lenders and shall have accepted such appointment within 30
days after the retiring Canadian Collateral Agent gives notice of its
resignation, then the retiring Canadian Collateral Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Canadian Collateral Agent
which shall be a commercial bank or an Affiliate of any such commercial bank.


 


(3)                                  Upon
the acceptance of any appointment as Canadian Collateral Agent under the terms
of this Section by a successor Canadian Collateral Agent, that successor
Canadian Collateral Agent shall thereby also be deemed the successor Canadian
Collateral Agent and such successor Canadian Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Canadian Collateral Agent under this Agreement, and the
retiring Canadian Collateral Agent under this Agreement shall promptly (i) transfer
to such successor Canadian Collateral Agent all sums, Securities and other
items of Collateral held hereunder, together with all records and other
documents necessary or appropriate in connection with the performance of the
duties of the successor Canadian Collateral Agent under this Agreement, and (ii) execute
and deliver to such successor Canadian Collateral Agent such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Canadian
Collateral Agent of the security interests created hereunder, whereupon such retiring
or removed Canadian Collateral Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring or removed Canadian
Collateral Agent’s resignation or removal hereunder as the Canadian Collateral
Agent, the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Agreement while it was
the Canadian Collateral Agent hereunder.


 


47

















 


SECTION 9
– CONTINUING SECURITY
INTEREST; TRANSFER OF SECURED OBLIGATIONS


 


This Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the payment in full of all Canadian Secured
Obligations, the cancellation or termination of the commitments and any other
contingent obligation included in the Canadian Secured Obligations, be binding
upon each Canadian Grantor, its successors and assigns, and inure, together
with the rights and remedies of the Canadian Collateral Agent hereunder, to the
benefit of the Canadian Collateral Agent and its successors, transferees and
assigns. Without limiting the generality of the foregoing, but subject to the
terms of the Loan Documents, each Canadian Secured Party may assign or
otherwise transfer any Canadian Secured Obligations held by it to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to each Canadian Secured Party herein or
otherwise. Upon the payment in full of all Canadian Secured Obligations, the
cancellation or termination of the commitments and any other contingent
obligation included in the Canadian Secured Obligations, the security interest
granted hereby shall terminate hereunder and of record and all rights to the
Collateral shall revert and be deemed reassigned to Canadian Grantors. Upon any such termination, the Canadian
Collateral Agent shall, at the Canadian Grantors’ request and expense, execute
and deliver to Canadian Grantors such documents as Canadian Grantors shall
reasonably request to evidence such termination reversions and/or reassignment,
without recourse, representation, or warranty of any kind.


 


SECTION 10
– STANDARD OF CARE;
COLLATERAL AGENT MAY PERFORM


 


The powers
conferred on the Canadian Collateral Agent hereunder are solely to protect its
interest in the Collateral and the interests of the Secured Parties and shall
not impose any duty upon it to exercise any such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Canadian
Collateral Agent shall have no duty as to any Collateral or as to the taking of
any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral. The Canadian Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Canadian Collateral Agent accords its own
property. Neither the Canadian Collateral Agent nor any of its directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Canadian Grantor or otherwise. If any Canadian Grantor
fails to perform any agreement contained herein, the Canadian Collateral Agent
may itself perform, or cause performance of, such agreement, and the expenses
of the Canadian Collateral Agent incurred in connection therewith shall be
payable by each Canadian Grantor under Section 12.3 relating to the
payment of expenses.


 


48

















 


SECTION 11 – INDEMNITY AND EXPENSES


 


(1)                                  Each
Canadian Grantor agrees:


 


(a)                                  to
defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold
harmless each Indemnitee, from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting from this Agreement
and the transactions contemplated hereby (including without limitation
enforcement of this Agreement), except to the extent such claims, losses or
liabilities result from such Indemnitee’s gross negligence or willful
misconduct; and


 


(b)                                 to
pay to the Canadian Collateral Agent promptly following written demand the
amount of any and all reasonable costs and reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents in
accordance with the terms and conditions of the Credit Agreement.


 


(2)                                  The
obligations of each Canadian Grantor in this Section 11 shall survive the
termination of this Agreement and the discharge of such Canadian Grantor’s
other obligations under this Agreement, the Credit Agreement, the Swap
Agreements, Banking Services and any other Loan Documents.


 


SECTION 12
– MISCELLANEOUS


 


12.1                       Reinstatement


 


Each Canadian
Grantor agrees that, if any payment made by any Loan Party or other Person and
applied to the Canadian Secured Obligations is at any time annulled, avoided,
set aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of Collateral are
required to be returned by any Secured Party to such Loan Party, its estate,
trustee, receiver or any other party, including any Canadian Grantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, any Lien or other Collateral securing
such liability shall be and remain in full force and effect, as fully as if
such payment had never been made. If, prior to any of the foregoing, any Lien
or other Collateral securing such Canadian Grantor’s liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender,
such Lien or other Collateral shall be reinstated in full force and effect and
such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of any such Canadian Grantor in
respect of any Lien or other Collateral securing such obligation or the amount
of such payment.


 


49

















 


12.2                       Notices


 


All notices and
other communications provided for herein shall be shall be made at the
addresses, in the manner and with the effect provided in Section 9.01 of
the Credit Agreement, provided, however, that for this purpose, the address of
each Canadian Grantor shall be the one specified opposite its signature below.


 


12.3                       Expenses


 


Each Canadian
Grantor will upon demand pay to the Canadian Collateral Agent the amount of any
and all reasonable expenses to the same extent and on the same terms as set
forth in Section 9.04(a) of the Credit Agreement.


 


12.4                       Amendments and Waivers


 


(1)                                  Canadian
Collateral Agent’s Consent.  Subject
to Section 12.4(2), no amendment, modification, termination or waiver of
any provision of this Agreement, or consent to any departure by any Canadian
Grantor therefrom, shall in any event be effective without the written
concurrence of the Canadian Collateral Agent.


 


(2)                                  No
Waiver; Remedies Cumulative.  No
failure or delay on the part of the Canadian Collateral Agent in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise
of any such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights, powers and remedies
existing under this Agreement and the other Loan Documents are cumulative, and
not exclusive of, any rights or remedies otherwise available.  Any forbearance or failure to exercise, and
any delay in exercising, any right, power or remedy hereunder shall not impair
any such right, power or remedy or be construed to be a waiver thereof, nor
shall it preclude the further exercise of any such right, power or remedy.


 


12.5                       Successors  and Assigns


 


This Agreement
shall be binding upon the parties hereto and their respective successors and
assigns including all persons who become bound as debtor to this Agreement. No
Canadian Grantor shall, without the prior written consent of the Canadian
Collateral Agent, assign any right, duty or obligation hereunder.


 


12.6                       Independence of Covenants


 


All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.


 


50

















 


12.7                        Survival
of Representations, Warranties and
Agreements


 


All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof. Notwithstanding anything herein or implied by
law to the contrary, the agreements of each Canadian Grantor set forth in Section 11
and Section 12.3 shall survive the payment of the Canadian Secured
Obligations and the termination hereof.


 


12.8                       Severability


 


In case any provision in or obligation hereunder shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.


 


12.9                       GOVERNING LAW


 


THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF
CANADA APPLICABLE IN THE PROVINCE OF ONTARIO.


 


12.10                CONSENT TO JURISDICTION


 


(1)                                  EACH
CANADIAN GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND
ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY COURT OF THE PROVINCE OF
ONTARIO OR ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH CANADIAN GRANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH PROVINCE OF
ONTARIO OR NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL
COURT. EACH CANADIAN GRANTOR 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 THE CANADIAN COLLATERAL AGENT OR ANY CANADIAN SECURED PARTY MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST ANY CANADIAN GRANTOR OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.


 


(2)                                  Each
Canadian Grantor hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to


 


51

















 


the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in Section 12.10(1). 
Each Canadian Grantor 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.


 


(3)                                 Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 12.2. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.


 


12.11                WAIVER OF JURY TRIAL


 


EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT  OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.


 


12.12                Counterparts


 


This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of
this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


12.13                Effectiveness


 


This Agreement
shall become effective upon the execution of a counterpart hereof by each of
the parties hereto and receipt by Canadian Grantors and the Canadian Collateral
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.


 


12.14                Entire Agreement


 


This Agreement and
the other Loan Documents embody the entire agreement and understanding between
Canadian Grantors and the Canadian Collateral Agent and supersede all prior
agreements and understandings between such parties relating to the subject
matter hereof


 


52

















 


and thereof. Accordingly,
the Loan Documents may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.


 


12.15                Receipt
of Copy of Agreement


 


Each Canadian
Grantor acknowledges receipt of a copy of this Agreement.


 


12.16                Choice
of Language


 


It is the express
wish of the parties that this document and any related documents be drawn up
and executed in English. Les parties aux présentes ont expressément demandé que
ce document et tous les documents s’y rattachant soient rédigés et signés en
anglais.


 


[SIGNATURE PAGE FOLLOWS]


 


53

















 


IN
WITNESS WHEREOF, each Canadian Grantor and the Canadian
Collateral Agent have caused this Agreement to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first
written above.


 


	
   

  	
  PROGRESS
  RAIL CANADA

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H.
  Wangerin, Jr.

  
	
   

  	
  Name: 

  	
  William H. Wangerin,
  Jr.

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROGRESS
  RAIL TRANSCANADA

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H.
  Wangerin, Jr.

  
	
   

  	
  Name:

  	
  William H. Wangerin,
  Jr.

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GE
  CANADA FINANCE HOLDING

  COMPANY,

  
	
   

  	
  as Canadian Collateral
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen B. Smith

  
	
   

  	
  Name:

  	
  Stephen B. Smith

  
	
   

  	
  Title: President