exv10w1



 















$120,000,000




CREDIT AGREEMENT




dated as of November 2, 2004,




by and among




SCP POOL CORPORATION,



as US Borrower,




SCP DISTRIBUTORS INC.,



as Canadian Borrower,




the Lenders referred to herein,




WACHOVIA BANK, NATIONAL ASSOCIATION,



as Administrative Agent,



Swingline Lender and Issuing Lender,




CONGRESS FINANCIAL CORPORATION (CANADA),



as Canadian Dollar Lender,




JPMORGAN CHASE BANK,



as Syndication Agent,




HIBERNIA NATIONAL BANK,



as Documentation Agent




and




WELLS FARGO BANK NATIONAL ASSOCIATION,



as Documentation Agent




WACHOVIA CAPITAL MARKETS, LLC



as Sole Lead Arranger and Sole Book Manager
















 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS	 	 	1	 
	SECTION 1.1
	 	Definitions	 	 	1	 
	SECTION 1.2
	 	Other Definitions and Provisions	 	 	23	 
	SECTION 1.3
	 	Accounting Terms	 	 	24	 
	SECTION 1.4
	 	UCC Terms	 	 	24	 
	SECTION 1.5
	 	Rounding	 	 	24	 
	SECTION 1.6
	 	References to Agreement and Laws	 	 	24	 
	SECTION 1.7
	 	Times of Day	 	 	24	 
	SECTION 1.8
	 	Letter of Credit Amounts	 	 	24	 
	ARTICLE II REVOLVING CREDIT FACILITY	 	 	24	 
	SECTION 2.1
	 	Revolving Credit Loans	 	 	24	 
	SECTION 2.2
	 	Canadian Dollar Loans.	 	 	25	 
	SECTION 2.3
	 	Swingline Loans	 	 	27	 
	SECTION 2.4
	 	Procedure for Advances of Revolving Credit Loans, Canadian Dollar Loans and Swingline Loans	 	 	28	 
	SECTION 2.5
	 	Repayment of Loans	 	 	30	 
	SECTION 2.6
	 	Permanent Reduction of the Aggregate Commitment	 	 	32	 
	SECTION 2.7
	 	Termination of Revolving Credit Facility	 	 	33	 
	SECTION 2.8
	 	Nature of Obligations	 	 	33	 
	SECTION 2.9
	 	Increase of Aggregate Commitment	 	 	33	 
	ARTICLE III LETTER OF CREDIT FACILITY	 	 	34	 
	SECTION 3.1
	 	L/C Commitment	 	 	34	 
	SECTION 3.2
	 	Procedure for Issuance of Letters of Credit	 	 	35	 
	SECTION 3.3
	 	Commissions and Other Charges	 	 	35	 
	SECTION 3.4
	 	L/C Participations	 	 	36	 
	SECTION 3.5
	 	Reimbursement Obligation of the US Borrower	 	 	37	 
	SECTION 3.6
	 	Obligations Absolute	 	 	37	 
	SECTION 3.7
	 	Effect of Letter of Credit Application	 	 	38	 
	ARTICLE IV GENERAL LOAN PROVISIONS	 	 	38	 
	SECTION 4.1
	 	Interest	 	 	38	 
	SECTION 4.2
	 	Notice and Manner of Conversion or Continuation of Revolving Credit Loans	 	 	41	 
	SECTION 4.3
	 	Fees	 	 	41	 
	SECTION 4.4
	 	Manner of Payment	 	 	41	 
	SECTION 4.5
	 	Evidence of Indebtedness	 	 	42	 
	SECTION 4.6
	 	Adjustments	 	 	43	 
	SECTION 4.7
	 	Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent	 	 	44	 
	SECTION 4.8
	 	Changed Circumstances	 	 	44	 







i









 






	 	 	 	 	 	 	 
	SECTION 4.9
	 	Indemnity	 	 	45	 
	SECTION 4.10
	 	Increased Costs	 	 	46	 
	SECTION 4.11
	 	Taxes	 	 	48	 
	SECTION 4.12
	 	Mitigation Obligations; Replacement of Lenders	 	 	50	 
	SECTION 4.13
	 	Redenomination of Canadian Dollar Loans	 	 	51	 
	SECTION 4.14
	 	US Borrower as Agent for the Canadian Borrower	 	 	51	 
	ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING	 	 	52	 
	SECTION 5.1
	 	Closing	 	 	52	 
	SECTION 5.2
	 	Conditions to Closing and Initial Extensions of Credit	 	 	52	 
	SECTION 5.3
	 	Conditions to All Extensions of Credit	 	 	55	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWERS	 	 	56	 
	SECTION 6.1
	 	Representations and Warranties	 	 	56	 
	SECTION 6.2
	 	Survival of Representations and Warranties, Etc	 	 	64	 
	ARTICLE VII FINANCIAL INFORMATION AND NOTICES	 	 	64	 
	SECTION 7.1
	 	Financial Statements and Projections	 	 	64	 
	SECTION 7.2
	 	Officer's Compliance Certificate	 	 	65	 
	SECTION 7.3
	 	Accountants' Certificate	 	 	65	 
	SECTION 7.4
	 	Other Reports	 	 	65	 
	SECTION 7.5
	 	Notice of Litigation and Other Matters	 	 	66	 
	SECTION 7.6
	 	Accuracy of Information	 	 	67	 
	ARTICLE VIII AFFIRMATIVE COVENANTS	 	 	67	 
	SECTION 8.1
	 	Preservation of Corporate Existence and Related Matters	 	 	67	 
	SECTION 8.2
	 	Maintenance of Property	 	 	67	 
	SECTION 8.3
	 	Insurance	 	 	68	 
	SECTION 8.4
	 	Accounting Methods and Financial Records	 	 	68	 
	SECTION 8.5
	 	Payment and Performance of Obligations	 	 	68	 
	SECTION 8.6
	 	Compliance With Laws and Approvals	 	 	68	 
	SECTION 8.7
	 	Environmental Laws	 	 	68	 
	SECTION 8.8
	 	Compliance with ERISA	 	 	69	 
	SECTION 8.9
	 	Compliance With Agreements	 	 	69	 
	SECTION 8.10
	 	Visits and Inspections	 	 	69	 
	SECTION 8.11
	 	Additional Subsidiaries	 	 	69	 
	SECTION 8.12
	 	Use of Proceeds	 	 	70	 
	SECTION 8.13
	 	Further Assurances	 	 	70	 
	ARTICLE IX FINANCIAL COVENANTS	 	 	70	 
	SECTION 9.1
	 	Average Total Leverage Ratio	 	 	70	 
	SECTION 9.2
	 	Fixed Charge Coverage Ratio	 	 	70	 







ii









 






	 	 	 	 	 	 	 
	ARTICLE X NEGATIVE COVENANTS	 	 	71	 
	SECTION 10.1
	 	Limitations on Indebtedness	 	 	71	 
	SECTION 10.2
	 	Limitations on Liens	 	 	72	 
	SECTION 10.3
	 	Limitations on Loans, Advances, Investments and Acquisitions	 	 	73	 
	SECTION 10.4
	 	Limitations on Mergers and Liquidation	 	 	77	 
	SECTION 10.5
	 	Limitations on Sale of Assets	 	 	77	 
	SECTION 10.6
	 	Limitations on Dividends and Distributions	 	 	78	 
	SECTION 10.7
	 	Limitations on Exchange and Issuance of Capital Stock	 	 	78	 
	SECTION 10.8
	 	Transactions with Affiliates.	 	 	78	 
	SECTION 10.9
	 	Certain Accounting Changes; Organizational Documents	 	 	79	 
	SECTION 10.10
	 	Amendments; Payments and Prepayments of Subordinated Indebtedness	 	 	79	 
	SECTION 10.11
	 	Restrictive Agreements	 	 	79	 
	SECTION 10.12
	 	Nature of Business.	 	 	79	 
	ARTICLE XI UNCONDITIONAL US BORROWER GUARANTY	 	 	80	 
	SECTION 11.1
	 	Guaranty of Obligations	 	 	80	 
	SECTION 11.2
	 	Nature of Guaranty	 	 	80	 
	SECTION 11.3
	 	Demand by the Administrative Agent	 	 	81	 
	SECTION 11.4
	 	Waivers	 	 	81	 
	SECTION 11.5
	 	Modification of Loan Documents etc.	 	 	81	 
	SECTION 11.6
	 	Reinstatement	 	 	82	 
	SECTION 11.7
	 	No Subrogation	 	 	82	 
	ARTICLE XII DEFAULT AND REMEDIES	 	 	83	 
	SECTION 12.1
	 	Events of Default	 	 	83	 
	SECTION 12.2
	 	Remedies	 	 	85	 
	SECTION 12.3
	 	Rights and Remedies Cumulative; NonWaiver; etc	 	 	86	 
	SECTION 12.4
	 	Crediting of Payments and Proceeds	 	 	87	 
	SECTION 12.5
	 	Administrative Agent May File Proofs of Claim	 	 	87	 
	SECTION 12.6
	 	Judgment Currency	 	 	88	 
	ARTICLE XIII THE ADMINISTRATIVE AGENT	 	 	89	 
	SECTION 13.1
	 	Appointment and Authority	 	 	89	 
	SECTION 13.2
	 	Delegation of Duties	 	 	89	 
	SECTION 13.3
	 	Exculpatory Provisions	 	 	89	 
	SECTION 13.4
	 	Reliance by the Administrative Agent	 	 	90	 
	SECTION 13.5
	 	Notice of Default	 	 	90	 
	SECTION 13.6
	 	NonReliance on the Administrative Agent and Other Lenders	 	 	90	 
	SECTION 13.7
	 	Indemnification	 	 	91	 
	SECTION 13.8
	 	The Administrative Agent in Its Individual Capacity	 	 	91	 
	SECTION 13.9
	 	Resignation of the Administrative Agent; Successor Administrative Agent	 	 	92	 
	SECTION 13.10
	 	Guaranty Matters	 	 	93	 
	SECTION 13.11
	 	Other Agents, Arrangers and Managers	 	 	93	 







iii









 






	 	 	 	 	 	 	 
	ARTICLE XIV MISCELLANEOUS	 	 	93	 
	SECTION 14.1
	 	Notices	 	 	93	 
	SECTION 14.2
	 	Amendments, Waivers and Consents	 	 	94	 
	SECTION 14.3
	 	Expenses; Indemnity	 	 	96	 
	SECTION 14.4
	 	Setoff	 	 	97	 
	SECTION 14.5
	 	Governing Law	 	 	97	 
	SECTION 14.6
	 	Jurisdiction and Venue	 	 	97	 
	SECTION 14.7
	 	Binding Arbitration; Waiver of Jury Trial	 	 	98	 
	SECTION 14.8
	 	Reversal of Payments	 	 	99	 
	SECTION 14.9
	 	Injunctive Relief; Punitive Damages	 	 	99	 
	SECTION 14.10
	 	Accounting Matters	 	 	99	 
	SECTION 14.11
	 	Successors and Assigns; Participations	 	 	100	 
	SECTION 14.12
	 	Confidentiality	 	 	102	 
	SECTION 14.13
	 	Performance of Duties	 	 	103	 
	SECTION 14.14
	 	All Powers Coupled with Interest	 	 	103	 
	SECTION 14.15
	 	Survival of Indemnities	 	 	103	 
	SECTION 14.16
	 	Titles and Captions	 	 	103	 
	SECTION 14.17
	 	Severability of Provisions	 	 	103	 
	SECTION 14.18
	 	Counterparts	 	 	104	 
	SECTION 14.19
	 	Integration	 	 	104	 
	SECTION 14.20
	 	Term of Agreement	 	 	104	 
	SECTION 14.21
	 	Advice of Counsel, No Strict Construction.	 	 	104	 
	SECTION 14.22
	 	Inconsistencies with Other Documents; Independent Effect of Covenants	 	 	104	 







iv









 






EXHIBITS




	 	 	 	 	 
	Exhibit A-1

	 	-
	 	Form of Revolving Credit Note
	Exhibit A-2

	 	-
	 	Form of Swingline Note
	Exhibit A-3

	 	-
	 	Form of Canadian Note
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	Exhibit C

	 	-
	 	Form of Notice of Account Designation
	Exhibit D

	 	-
	 	Form of Notice of Repayment
	Exhibit E

	 	-
	 	Form of Notice of Conversion/Continuation
	Exhibit F

	 	-
	 	Form of Officer’s Compliance Certificate
	Exhibit G

	 	-
	 	Form of Assignment and Assumption
	Exhibit H

	 	-
	 	Form of Subsidiary Guaranty Agreement







SCHEDULES




	 	 	 	 	 
	Schedule 1.1

	 	-
	 	Existing Letters of Credit
	Schedule 6.1(a)

	 	-
	 	Jurisdictions of Organization and Qualification
	Schedule 6.1(b)

	 	-
	 	Subsidiaries and Capitalization
	Schedule 6.1(i)

	 	-
	 	ERISA Plans
	Schedule 6.1(l)

	 	-
	 	Material Contracts
	Schedule 6.1(m)

	 	-
	 	Labor and Collective Bargaining Agreements
	Schedule 6.1(t)

	 	-
	 	Indebtedness and Guaranty Obligations
	Schedule 6.1(u)

	 	-
	 	Litigation
	Schedule 10.2

	 	-
	 	Existing Liens
	Schedule 10.3

	 	-
	 	Existing Loans, Advances and Investments







v









 






     CREDIT AGREEMENT, dated as of November 2, 2004, by and among SCP POOL
CORPORATION, a Delaware corporation (the “US Borrower”), SCP DISTRIBUTORS INC.,
a company organized under the laws of Ontario (the “Canadian Borrower”), the
lenders who are or may become a party to this Agreement (collectively, the
“Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent for the Lenders, CONGRESS FINANCIAL
CORPORATION (CANADA), as Canadian Dollar Lender, JPMORGAN CHASE BANK, as
Syndication Agent, HIBERNIA NATIONAL BANK, as Documentation Agent and WELLS
FARGO BANK NATIONAL ASSOCIATION, as Documentation Agent.



STATEMENT OF PURPOSE




     The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:



ARTICLE I




DEFINITIONS




     SECTION 1.1 Definitions. The following terms when used in this Agreement
shall have the meanings assigned to them below:



     “Accounts Securitization” means, with respect to the US Borrower and its
Subsidiaries (other than Superior Commerce), any pledge, sale, transfer,
contribution, conveyance or other disposition of (i) accounts, chattel paper,
instruments or general intangibles (each as defined in the UCC) arising in
connection with the sale of goods or the rendering of services by such Person,
including, without limitation, the related rights to any finance, interest,
late payment charges or similar charges (such items, the “Receivables”), (ii)
such Person’s interest in the inventory or goods the sale of which by such
Person gave rise to such Receivable (but only to the extent such inventory or
goods consists of returned or repossessed inventory or goods, if any), (iii)
all other guaranties, letters of credit, insurance and security interests or
liens purporting to secure or support payment of such Receivable, (iv) all
insurance contracts, service contracts, books and records associated with such
Receivable, (v) any lockbox, post office box or similar deposit account related
solely to the accounts being transferred, (vi) cash collections and cash
proceeds of such Receivable and (vii) any proceeds of the foregoing (all such
items referenced in clauses (i) through (vii), the “Transferred Assets”) which
such sale, transfer, contribution, conveyance or other disposition is funded by
the recipient of such Transferred Assets in whole or in part by borrowings or
the issuance of instruments or securities that are paid principally from the
cash derived from such Transferred Assets; provided that the aggregate amount
of gross proceeds available to the US Borrower or any Subsidiary in connection
with all such transactions shall not at any time exceed $125,000,000 and
provided further that such sale, transfer, contribution, conveyance or other
disposition and any Indebtedness arising from such sale,



 









 





transfer, contribution, conveyance or other disposition shall be without
recourse to the US Borrower or any of its Subsidiaries (other than Superior
Commerce) except with respect to (A) reductions in the balance of such
Receivable as a result of any defective or rejected goods or set off by the
obligor of such Receivable transferred by such Person, (B) breaches of
representations or warranties by such Person in the Receivables Sale Agreement
or any other receivables sale agreements which contain representations and
warranties which are no broader in scope and obligation than the
representations and warranties contained in the Receivables Sale Agreement and
(C) indemnification of Superior Commerce to the extent provided in the
Receivables Sale Agreement or any other receivables sale agreements which
contain indemnification terms and provisions which are no broader in scope and
obligation than the terms and provisions contained in the Receivables Sale
Agreement.




     “Administrative Agent” means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 13.9.



     “Administrative Agent’s Office” means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1(c).



     “Administrative Questionnaire” means an Administrative Questionnaire in a
form supplied by the Administrative Agent.



     “Affiliate” means, with respect to any Person, any other Person (other
than with respect to any Borrower or any Subsidiary thereof) which directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such first Person or any Subsidiary thereof.
The term “control” means (a) the power to vote ten percent (10%) or more of the
securities or other equity interests of a Person having ordinary voting power,
or (b) the possession, directly or indirectly, of any other power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.



     “Aggregate Commitment” means the aggregate amount of the Lenders’
Commitments hereunder, as such amount may be reduced or otherwise modified at
any time or from time to time pursuant to the terms hereof. On the Closing
Date, the Aggregate Commitment shall be One Hundred Twenty Million Dollars
($120,000,000).



     “Agreement” means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.



     “Applicable Law” means all applicable provisions of constitutions, laws,
statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.



     “Applicable Margin” means the corresponding percentages per annum as set
forth below:




2









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Base Rate +
	 	 	 	 	 	 	 	 	 	 	 	 	and Canadian
	Pricing Level	 	Average Total Leverage Ratio	 	Facility Fee	 	LIBOR +	 	Base Rate+
	1

	 	Greater than or equal to 2.50 to 1.00
	 	 	0.250	%	 	 	1.250	%	 	 	0.000	%
	2

	 	Greater than or equal to 2.00 to
1.00, but less than 2.50 to 1.00
	 	 	0.225	%	 	 	1.025	%	 	 	0.000	%
	3

	 	Greater than or equal to 1.50 to
1.00, but less than 2.00 to 1.00
	 	 	0.200	%	 	 	0.800	%	 	 	0.000	%
	4

	 	Greater than or equal to 1.00 to
1.00 but less than 1.50 to 1.00
	 	 	0.175	%	 	 	0.700	%	 	 	0.000	%
	5

	 	Less than 1.00 to 1.00
	 	 	0.150	%	 	 	0.600	%	 	 	0.000	%







The Applicable Margin shall be determined and adjusted quarterly on the date
(each a “Calculation Date”) ten (10) Business Days after the date by which the
Borrowers are required to provide an Officer’s Compliance Certificate pursuant
to Section 7.2 for the most recently ended fiscal quarter of the US Borrower;
provided, however, that (a) the Applicable Margin shall be based on Pricing
Level 4 until the first Calculation Date occurring after the Closing Date and,
thereafter the Pricing Level shall be determined by reference to the Average
Total Leverage Ratio as of the last day of the most recently ended fiscal
quarter of the US Borrower preceding the applicable Calculation Date, and (b)
if the Borrowers fail to provide the Officer’s Compliance Certificate as
required by Section 7.2 for the most recently ended fiscal quarter of the US
Borrower preceding the applicable Calculation Date, the Applicable Margin from
such Calculation Date shall be based on Pricing Level 1 until such time as an
appropriate Officer’s Compliance Certificate is provided, at which time the
Pricing Level shall be determined by reference to the Average Total Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the US
Borrower preceding such Calculation Date. The Applicable Margin shall be
effective from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Margin shall be applicable to all Extensions of
Credit then existing or subsequently made or issued.




     “Approved Fund” means any Person (other than a natural Person), including,
without limitation, any special purpose entity, that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business; provided,
that such Approved Fund must be administered by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



     “Arbitration Rules” has the meaning assigned thereto in Section 14.7(a).



     “Assignment and Assumption” means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 14.11), and accepted by the Administrative
Agent, in substantially the form of Exhibit G or any other form approved by the
Administrative Agent.



3









 





     “Attributable Indebtedness” means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or
principal amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease.



     “Average Accounts Securitization Proceeds” means, for any period, as
determined on a Consolidated basis, without duplication, for the US Borrower
and its Subsidiaries, the average for such period of the total amount of
borrowings or issuances of instruments or securities in connection with any
Accounts Securitization as of each calendar month end during such period;
provided that if any calendar month ending as of any date set forth below is
included in any period for which the Average Accounts Securitization is being
determined, the total amount of borrowings or issuances of instruments or
securities as of such calendar month end shall be deemed to be the amount set
forth below opposite such date:



	 	 	 	 	 
	Calendar	 	Total Borrowings or
	Month Ending
	 	Issuances as of such Calendar Month End

	November 30, 2003
	 	$	45,767,000	 
	December 31, 2003
	 	$	42,418,000	 
	January 31, 2004
	 	$	33,478,000	 
	February 29, 2004
	 	$	40,838,000	 
	March 31, 2004
	 	$	49,998,000	 
	April 30, 2004
	 	$	83,203,000	 
	May 31, 2004
	 	$	100,000,000	 
	June 30, 2004
	 	$	100,000,000	 
	July 31, 2004
	 	$	97,000,000	 
	August 31, 2004
	 	$	79,480,000	 
	September 30, 2004
	 	$	69,770,000	 
	October 31, 2004
	 	$	59,670,000	 







     “Average Total Funded Indebtedness” means, for any period, as determined
on a Consolidated basis, without duplication, for the US Borrower and its
Subsidiaries in accordance with GAAP, the average for such period of the Total
Funded Indebtedness as of each calendar month end during such period; provided
that if any calendar month ending as of any date set forth below is included in
any period for which the Average Total Funded Indebtedness is being determined,
the Total Funded Indebtedness as of such calendar month end shall be deemed to
be the amount set forth below opposite such date:



	 	 	 	 	 
	Calendar	 	 
	Month Ending
	 	Total Funded Indebtedness as of such Calendar Month End

	November 30, 2003
	 	$	44,289,538	 
	December 31, 2003
	 	$	48,863,621	 







4









 






	 	 	 	 	 
	Calendar	 	 
	Month Ending
	 	Total Funded Indebtedness as of such Calendar Month End

	January 31, 2004
	 	$	70,382,695	 
	February 29, 2004
	 	$	74,096,929	 
	March 31, 2004
	 	$	103,259,639	 
	April 30, 2004
	 	$	87,908,276	 
	May 31, 2004
	 	$	80,183,191	 
	June 30, 2004
	 	$	64,328,922	 
	July 31, 2004
	 	$	60,452,652	 
	August 31, 2004
	 	$	37,215,034	 
	September 30, 2004
	 	$	35,671,129	 
	October 31, 2004
	 	$	53,537,267	 







     “Average Total Leverage Ratio” means the ratio determined pursuant to
Section 9.1.



     “Bankruptcy Event of Default” means any Event of Default pursuant to
Sections 12.1(j) or (k).



     “Base Rate” means, at any time, the higher of (a) the Prime Rate and (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime
Rate or the Federal Funds Rate.



     “Base Rate Loan” means any Loan bearing interest at a rate based upon the
Base Rate as provided in Section 4.1(a).



     “Benefited Lender” has the meaning assigned thereto in Section 4.6.



     “Borrowers” means, collectively, the US Borrower and the Canadian
Borrower.



     “Business Day” means:



     (a) for all purposes other than as set forth in clauses (b) or (c) below,
any day other than a Saturday, Sunday or legal holiday on which banks in
Charlotte, North Carolina and New York, New York, are open for the conduct of
their commercial banking business;



     (b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, any day that is a
Business Day described in clause (a) and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market; and



     (c) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any Canadian Dollar Loan, any day that
is a Business Day described in clause (a) and on which banks are open for
business in Toronto, Ontario.



     “Calculation Date” has the meaning assigned thereto in the definition of
Applicable Margin.



5









 





     “Canadian Base Rate” means at any time, the greater of (i) the rate of
interest publicly announced from time to time by the Canadian Reference Bank as
its prime rate in effect for determining interest rates on Canadian Dollar
denominated commercial loans in Canada (which such rate is not necessarily the
most favored rate of the Canadian Reference Bank and the Canadian Reference
Bank may lend to its customers at rates that are at, above or below such rate)
or, if the Canadian Reference Bank ceases to announce a rate so designated, any
similar successor rate designated by the Canadian Reference Bank and (ii) the
annual rate of interest equal to the sum of (A) the CDOR Rate at such time plus
(B) one percent (1%) per annum.



     “Canadian Base Rate Loan” means any Canadian Dollar Loan which bears
interest at a rate determined by reference to the Canadian Base Rate.



     “Canadian Borrower” has the meaning assigned thereto in the introductory
paragraph hereto.



     “Canadian Dollar” or “C$” means, at any time of determination, the then
official currency of Canada.



     “Canadian Dollar Commitment” means the lesser of (a) Five Million Dollars
($5,000,000) and (b) the Aggregate Commitment.



     “Canadian Dollar Lender” means Congress Financial Corporation (Canada), in
its capacity as Canadian Dollar Lender hereunder.



     “Canadian Dollar Loan” means any revolving credit loan made by the
Canadian Dollar Lender pursuant to Section 2.2.



     “Canadian Note” means the Canadian Note made by the Canadian Borrower
payable to the order of the Canadian Dollar Lender, substantially in the form
of Exhibit A-3 hereto, evidencing the Canadian Dollar Loans, and any
amendments, supplements and modifications thereto, any substitutes therefor and
any replacements, restatements, renewals or extensions thereof, in whole or in
part.



     “Canadian Reference Bank” means Bank of Montreal, or its successor and
assigns, or such other bank as the Canadian Dollar Lender may from time to time
designate.



     “Capital Asset” means, with respect to the US Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the US
Borrower and its Subsidiaries.



     “Capital Expenditures” means with respect to the US Borrower and its
Subsidiaries for any period, the aggregate cost of all Capital Assets acquired
by the US Borrower and its Subsidiaries during such period, as determined in
accordance with GAAP.



6









 





     “Capital Lease” means any lease of any property by the US Borrower or any
of its Subsidiaries, as lessee, that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the US Borrower and its Subsidiaries.



     “Capital Stock” means (a) in the case of a corporation, capital stock, (b)
in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.



     “Cash Equivalents” means any investments permitted pursuant to Section
10.3(b).



     “CDOR Rate” means the rate of interest per annum determined on the basis
of an average thirty (30) day rate applicable to Canadian Dollar bankers’
acceptances appearing on the “Reuters Screen CDOR Page” (as defined in the
International Swap Dealer Association, Inc.’s definitions, as amended,
restated, supplemented or otherwise modified from time to time) as of 10:00
a.m. (Toronto, Ontario time) one Canadian Business Day prior to the first day
of the applicable Interest Period (rounded upward, if necessary, to the nearest
1/100th of 1%). If, for any reason, such rate does not appear on the Reuters
Screen CDOR Page, then the “CDOR Rate” shall be determined by the Canadian
Dollar Lender to be the arithmetic average of the rate per annum at which
deposits in Canadian Dollars would be offered by first class banks in Canada to
the Canadian Dollar Lender. Each calculation by the Canadian Dollar Lender of
the CDOR Rate shall be conclusive and binding for all purposes, absent manifest
error.



     “Change in Control” means (a) any event or series of events in which in
any person or group of persons (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended) acting in concert obtain
beneficial ownership or control in one or more series of transactions of more
than thirty percent (30%) of the Capital Stock or thirty percent (30%) of the
voting power of the US Borrower entitled to vote in the election of members of
the board of directors of the US Borrower, (b) during any period of twelve (12)
consecutive months, a majority of the members of the board of directors of the
US Borrower cease to be composed of individuals (i) who were members of the
board of directors on the first day of such period, (ii) whose election or
nomination to the board of directors was approved by individuals who comprised
a majority of the board of directors on the first day of such period or (iii)
whose election or nomination to the board of directors was approved by (A)
individuals who were members of the board of directors on the first day of such
period or (B) individuals whose election or nomination to the board of
directors was approved by a majority of the board of directors on the first day
of such period; provided that in each case such individuals constituted a
majority of the board of directors at the time of such election or nomination,
or (c) there shall have occurred under any indenture or other evidence of
Indebtedness in excess of $5,000,000 any “change in control” (as defined in
such indenture or other evidence of Indebtedness) obligating the US Borrower to
repurchase, redeem or repay all or any part of the Indebtedness or Capital
Stock provided for therein.



7









 





     “Change in Law” means the occurrence, after the date of this Agreement, of
any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or
in the administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.



     “Closing Date” means the date of this Agreement or such later Business Day
upon which each condition described in Section 5.2 shall be satisfied or waived
in all respects in a manner acceptable to the Administrative Agent, in its sole
discretion.



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



     “Commitment” means, as to any Lender, the obligation of such Lender to
make Loans (including, without limitation, to participate in Canadian Dollar
Loans and Swingline Loans) to and issue or participate in Letters of Credit
issued for the account of any Borrower hereunder, in an aggregate principal or
face amount at any time outstanding not to exceed the amount set forth opposite
such Lender’s name on the Register, as the same may be reduced or modified at
any time or from time to time pursuant to the terms hereof.



     “Commitment Percentage” means, as to any Lender at any time, the ratio of
(a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment.



     “Consolidated” means, when used with reference to financial statements or
financial statement items of the US Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.



     “Credit Facility” means, collectively, the Revolving Credit Facility, the
Swingline Facility and the L/C Facility.



     “Credit Parties” means, collectively, the US Borrower, the Canadian
Borrower and the Subsidiary Guarantors.



     “Default” means any of the events specified in Section 12.1 which with the
passage of time, the giving of notice or any other condition, would constitute
an Event of Default.



     “Defaulting Lender” means any Lender that (a) has failed to fund any
portion of the Revolving Credit Loans, participations in Canadian Dollar Loans,
participations in Swingline Loans or participations in L/C Obligations required
to be funded by it hereunder within one (1) Business Day of the date required
to be funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid
by it hereunder within one (1) Business Day of the date when due, unless such
amount is the subject of a good faith dispute, or (c) has been deemed insolvent
or become the subject of a bankruptcy or insolvency proceeding.



     “Disputes” has the meaning set forth in Section 14.7.



8









 





     “Dollar Amount” means, (a) with respect to each Loan made or continued (or
to be made or continued) in Dollars, the principal amount thereof and (b) with
respect to each Loan made or continued (or to be made or continued) in Canadian
Dollars, the amount of Dollars which is equivalent to the principal amount of
such Loan at the most favorable spot exchange rate determined by the
Administrative Agent at approximately 11:00 a.m. (Toronto, Ontario time) two
(2) Business Days before such Loan is made or continued (or to be made or
continued. When used with respect to any other sum expressed in Canadian
Dollars, “Dollar Amount” shall mean the amount of Dollars which is equivalent
to the amount so expressed in Canadian Dollars at the most favorable spot
exchange rate determined by the Administrative Agent to be available to it at
the relevant time.



     “Dollars” or “$” means, unless otherwise qualified, dollars in lawful
currency of the United States.



     “Domestic Subsidiary” means any Subsidiary organized under the laws of any
political subdivision of the United States.



     “EBITDA” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the US Borrower and its
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
income and franchise taxes, (ii) Interest Expense, and (iii) amortization, (iv)
depreciation, and (v) extraordinary losses incurred other than in the ordinary
course of business less (c) any extraordinary gains realized other than in the
ordinary course of business.



     “EBITR” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the US Borrower and its
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
income and franchise taxes, (ii) Interest Expense, (iii) Rental Expense and
(iv) extraordinary losses incurred other than in the ordinary course of
business less (c) any extraordinary gains realized other than in the ordinary
course of business.



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c)
an Approved Fund, and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, (ii) in the case of any assignment of
a Commitment, the Canadian Dollar Lender, the Swingline Lender and the Issuing
Lender, and (iii) unless a Default or Event of Default has occurred and is
continuing, the Borrowers (each such approval not to be unreasonably withheld
or delayed); provided that notwithstanding the foregoing, “Eligible Assignee”
shall not include the US Borrower, the Canadian Borrower or any of their
Affiliates or Subsidiaries.



     “Employee Benefit Plan” means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the US
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
(6) years been maintained for the employees of the US Borrower or any current
or former ERISA Affiliate.



9









 





     “Environmental Claims” means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or
proceedings relating in any way to any actual or alleged violation of or
liability under any Environmental Law or relating to any permit issued, or any
approval given, under any such Environmental Law, including, without
limitation, any and all claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to human
health or the environment.



     “Environmental Laws” means any and all federal, foreign, state, provincial
and local laws, statutes, ordinances, codes, rules, standards and regulations,
permits, licenses, approvals, interpretations and orders of courts or
Governmental Authorities, relating to the protection of human health or the
environment, including, but not limited to, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Materials.



     “ERISA” means the Employee Retirement Income Security Act of 1974, and the
rules and regulations thereunder, each as amended or modified from time to
time.



     “ERISA Affiliate” means any Person who together with any Credit Party is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.



     “Eurodollar Reserve Percentage” means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Board of
Governors of the Federal Reserve system (or any successor) for determining the
maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities or
any similar category of liabilities for a member bank of the Federal Reserve
System in New York City.



     “Event of Default” means any of the events specified in Section 12.1;
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.



     “Excluded Taxes” means, with respect to the Administrative Agent, any
Lender, the Canadian Dollar Lender, the Issuing Lender or any other recipient
of any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which such Borrower is located
and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrowers under Section 4.12(b)), any withholding tax that is
imposed on amounts payable



10









 





to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(or designates a new lending office) or is attributable to such Foreign
Lender’s failure or inability (other than as a result of a Change in Law) to
comply with Section 4.11(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the applicable
Borrower with respect to such withholding tax pursuant to Section 4.11(a).
Notwithstanding anything to the contrary contained in this definition,
“Excluded Taxes” shall not include any withholding tax imposed at any time on
payments made by or on behalf of the Canadian Borrower (including, without
limitation, any payment made to any Lender under Section 2.2(b)(iii)) or any
other Foreign Subsidiary to any Lender hereunder or under any other Loan
Document, provided that such Lender shall have complied with the last paragraph
of Section 4.11(e).




     “Existing Facility” means that certain credit facility established
pursuant to the Credit Agreement dated as of November 27, 2001 by among the US
Borrower, as borrower, the lenders party thereto, as lenders and Bank One, NA,
as administrative agent (as amended, restated, supplemented or otherwise
modified).



     “Existing Letters of Credit” means all letters of credit described on
Schedule 1.1.



     “Extensions of Credit” means, as to any Lender at any time, (a) an amount
equal to the sum of (i) the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding, (ii) such Lender’s Commitment
Percentage of the L/C Obligations then outstanding, (iii) such Lender’s
Commitment Percentage of the Swingline Loans then outstanding and (iv) such
Lender’s Commitment Percentage of the Canadian Dollar Loans then outstanding,
or (b) the making of any Loan or participation in any Letter of Credit by such
Lender, as the context requires.



     “FDIC” means the Federal Deposit Insurance Corporation, or any successor
thereto.



     “Federal Funds Rate” means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any
reason, such rate is not available, then “Federal Funds Rate” shall mean a
daily rate which is determined, in the opinion of the Administrative Agent, to
be the rate at which federal funds are being offered for sale in the national
federal funds market at 9:00 a.m. (Charlotte time). Rates for weekends or
holidays shall be the same as the rate for the most immediately preceding
Business Day.



     “Fee Letter” means the separate fee letter agreement executed by the US
Borrower and the Administrative Agent and/or certain of its affiliates dated
October 8, 2004.



     “Fiscal Year” means the fiscal year of the US Borrower and its
Subsidiaries ending on December 31.



     “Foreign Lender” means, with respect to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is resident for tax



11









 





purposes. For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.




     “Foreign Subsidiary” means any Subsidiary that is not a Domestic
Subsidiary.



     “GAAP” means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the US Borrower and its Subsidiaries throughout the period indicated
and (subject to Section 14.10) consistent with the prior financial practice of
the US Borrower and its Subsidiaries.



     “Governmental Approvals” means all authorizations, consents, approvals,
permits, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.



     “Governmental Authority” means the government of the United States or any
other nation, or of any political subdivision thereof, whether state,
provincial or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).



     “Guaranty Obligation” means, with respect to the US Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Indebtedness or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of any such Person (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation (whether arising by virtue of partnership arrangements, by
agreement to keep well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement condition or otherwise) or (b)
entered into for the purpose of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided, that
the term Guaranty Obligation shall not include endorsements for collection or
deposit in the ordinary course of business.



     “Hazardous Materials” means any substances or materials (a) which are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release
of which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum



12









 





hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.




     “Hedging Agreement” means any agreement with respect to any Interest Rate
Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement,
currency option agreement or other agreement or arrangement designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices, all as amended, restated, supplemented or otherwise
modified from time to time.



     “Hedging Obligations” means all existing or future payment and other
obligations owing by any Borrower under any Hedging Agreement (which such
Hedging Agreement is permitted hereunder) with any Person that is a Lender or
an Affiliate of a Lender at the time such Hedging Agreement is executed.



     “Indebtedness” means, with respect to the US Borrower and its Subsidiaries
at any date and without duplication, the sum of the following calculated in
accordance with GAAP:



     (a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures,
notes or other similar instruments of any such Person;



     (b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition, earn-out or similar agreements), except trade payables
arising in the ordinary course of business not more than ninety (90) days past
due;



     (c) the Attributable Indebtedness of such Person with respect to such
Person’s obligations in respect of Capital Leases and Synthetic Leases
(regardless of whether accounted for as indebtedness under GAAP);



     (d) all Indebtedness of any other Person secured by a Lien on any asset
owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;



     (e) all Guaranty Obligations of any such Person;



     (f) all obligations, contingent or otherwise, of any such Person relative
to the face amount of letters of credit, whether or not drawn, including,
without limitation, any Reimbursement Obligation, and banker’s acceptances
issued for the account of any such Person;



     (g) all obligations of any such Person to redeem, repurchase, exchange,
defease or otherwise make payments in respect of Capital Stock of such Person;



     (h) all net obligations incurred by any such Person pursuant to Hedging
Agreements;



13









 





     (i) the outstanding attributed principal amount under any asset
securitization program; and



     (j) all outstanding payment obligations with respect to Synthetic Leases.



     For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Hedging Agreement on any date shall be deemed to be the Termination Value
thereof as of such date.



     “Indemnified Taxes” means Taxes and Other Taxes other than Excluded Taxes.



     “Independent Issuer” means either Wachovia (or any successor thereto) or,
solely with respect to certain Independent Letters of Credit in existence on
the Closing Date, Bank One, NA (or any successor thereto), in its capacity as
issuer of an Independent Letter of Credit; provided that Bank One, NA, shall
cease to be an Independent Issuer upon the original expiration of any
Independent Letters of Credit issued by Bank One, NA.



     “Independent Letters of Credit” means those letters of credit issued by
the Independent Issuer for the account of the US Borrower in an aggregate
maximum face amount not to exceed $3,000,000. The Independent Letters of
Credit shall be issued outside of the Credit Facility and shall not constitute
Letters of Credit under this Agreement. Each Independent Letter of Credit
shall expire on a date satisfactory to the Independent Issuer, which date shall
be no later than the earlier of (A) one (1) year after the date of its issuance
(but any Independent Letter of Credit may, by its terms, be renewable annually
with the consent of the Independent Issuer), and (B) the fifth (5th) Business
Day prior to the Maturity Date.



     “Interest Expense” means, with respect to the US Borrower and its
Subsidiaries for any period, the gross interest expense (including, without
limitation, interest expense attributable to Capital Leases and all net payment
obligations pursuant to Hedging Agreements) of the US Borrower and its
Subsidiaries, all determined for such period on a Consolidated basis, without
duplication, in accordance with GAAP.



     “Interest Period” has the meaning assigned thereto in Section 4.1(b).



     “Interest Rate Contract” means any interest rate swap agreement, interest
rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.



     “ISP98” means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.



14









 





     “Issuing Lender” means (a) Wachovia (or any successor thereto), in its
capacity as issuer of any Letter of Credit under this Agreement and (b) solely
with respect to the Existing Letters of Credit, Bank One, NA (or any successor
thereto) (provided that Bank One, NA, shall cease to be an Issuing Lender upon
the original expiration of any Existing Letters of Credit issued by Bank One,
NA).



     “L/C Commitment” means the lesser of (a) Twenty Million Dollars
($20,000,000) and (b) the Aggregate Commitment.



     “L/C Facility” means the letter of credit facility established pursuant to
Article III.



     “L/C Obligations” means at any time, an amount equal to the sum of (a) the
aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.



     “L/C Participants” means the collective reference to all the Lenders other
than the Issuing Lender and the Canadian Dollar Lender.



     “Lender” means each Person executing this Agreement as a Lender
(including, without limitation, the Canadian Dollar Lender, the Issuing Lender
and the Swingline Lender unless the context otherwise requires) set forth on
the signature pages hereto and each Person that hereafter becomes a party to
this Agreement as a Lender pursuant to Section 14.11.



     “Lending Office” means, with respect to any Lender, the office of such
Lender maintaining such Lender’s Commitment Percentage of the Extensions of
Credit.



     “Letter of Credit Application” means an application, in the form specified
by the Issuing Lender from time to time, requesting the Issuing Lender to issue
a Letter of Credit.



     “Letters of Credit” means the collective reference to the standby letters
of credit issued pursuant to Section 3.1 and the Existing Letters of Credit.



     “LIBOR” means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for
a period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does
not appear on Telerate Page 3750, then “LIBOR” shall be determined by the
Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for a period
equal to such Interest Period. Each calculation by the Administrative Agent of
LIBOR shall be conclusive and binding for all purposes, absent manifest error.



15









 





     “LIBOR Rate” means a rate per annum (rounded upwards, if necessary, to the
next higher 1/100th of 1%) determined by the Administrative Agent pursuant to
the following formula:



	 	 	 
	

	 	LIBOR
	LIBOR Rate =

	 	

	

	 	1.00-Eurodollar Reserve Percentage







     “LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the
LIBOR Rate as provided in Section 4.1(a).



     “Lien” means, with respect to any asset, any mortgage, leasehold mortgage,
lien, pledge, charge, security interest, hypothecation or encumbrance of any
kind in respect of such asset. For the purposes of this Agreement, a Person
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.



     “Loan Documents” means, collectively, this Agreement, each Note, the
Letter of Credit Applications, the Subsidiary Guaranty Agreement and each other
document, instrument, certificate and agreement executed and delivered by each
Borrower or any Subsidiary thereof in connection with this Agreement or
otherwise referred to herein or contemplated hereby (excluding any Hedging
Agreement), all as may be amended, restated, supplemented or otherwise modified
from time to time.



     “Loans” means the collective reference to the Revolving Credit Loans, the
Canadian Dollar Loans and the Swingline Loans and “Loan” means any of such
Loans.



     “Material Adverse Effect” means, with respect to the US Borrower or any
of its Subsidiaries, a material adverse effect on (a) the properties, business,
operations or condition (financial or otherwise) of such Persons taken as a
whole, (b) the ability of any such Person to perform its obligations under the
Loan Documents to which it is a party or (c) the legality, validity, binding
effect or enforceability against the US Borrower or any Subsidiary thereof of
any Loan Document to which it is a party.



     “Material Contract” means (a) any contract or other agreement, written or
oral, of the US Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $5,000,000 per
annum, or (b) any other contract or agreement, written or oral, of the US
Borrower or any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.



     “Maturity Date” means the earliest to occur of (a) November 2, 2009,
(b) the date of termination by the Borrowers pursuant to Section 2.6, or (c)
the date of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 12.2(a).



     “Multiemployer Plan” means a “multiemployer plan” as defined in Section
4001(a)(3) of ERISA to which the US Borrower or any ERISA Affiliate is making,
or is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.



16









 





     “Net Income” means, with respect to the US Borrower and its Subsidiaries,
for any period of determination, the net income (or loss) of the US Borrower
and its Subsidiaries for such period, determined on a Consolidated basis in
accordance with GAAP; provided that there shall be excluded from Net Income (a)
the net income (or loss) of any Person (other than a Subsidiary which shall be
subject to clause (c) below), in which the US Borrower or any of its
Subsidiaries has a joint interest with a third party, except to the extent such
net income is actually paid to the US Borrower or any of its Subsidiaries by
dividend or other distribution during such period, (b) the net income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary of such Person
or is merged into or consolidated with such Person or any of its Subsidiaries
or that Person’s assets are acquired by such Person or any of its Subsidiaries
except to the extent included pursuant to the foregoing clause (a), (c) the net
income (if positive) of any Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary to the US
Borrower or any of its Subsidiaries of such net income (i) is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute rule or governmental regulation
applicable to such Subsidiary or (ii) would be subject to any taxes payable on
such dividends or distributions.



     “Note” means a Revolving Credit Note, a Canadian Note or a Swingline Note.



     “Notice of Account Designation” has the meaning assigned thereto in
Section 2.4(b).



     “Notice of Borrowing” has the meaning assigned thereto in Section 2.4(a).



     “Notice of Conversion/Continuation” has the meaning assigned thereto in
Section 4.2.



     “Notice of Repayment” has the meaning assigned thereto in Section 2.5(c).



     “Obligations” means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing
after the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all Hedging Obligations and (d) all other fees and commissions
(including attorneys’ fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by the US
Borrower or any of its Subsidiaries to the Lenders or the Administrative Agent,
in each case under any Loan Document or otherwise, with respect to any Loan or
Letter of Credit of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note.



     “Officer’s Compliance Certificate” means a certificate of the chief
financial officer or the treasurer of the US Borrower substantially in the form
of Exhibit F.



     “Operating Lease” means, as to any Person as determined in accordance with
GAAP, any lease of property (whether real, personal or mixed) by such Person as
lessee which is not a Capital Lease.



     “Other Taxes” means all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or



17









 





under any other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.




     “Participant” has the meaning assigned thereto in Section 14.11(d).



     “Payment Event of Default” means any Event of Default pursuant to Sections
12.1(a) or (b).



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



     “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of
the Code and which (a) is maintained for the employees of the US Borrower or
any ERISA Affiliates or (b) has at any time within the preceding six (6) years
been maintained for the employees of the US Borrower or any of its current or
former ERISA Affiliates.



     “Permitted Acquisition” means any Permitted Domestic Acquisition or any
Permitted Foreign Acquisition.



     “Permitted Acquisition Consideration” means the aggregate amount of the
purchase price (including, but not limited to, any assumed debt, earn-outs
(valued at the maximum amount payable thereunder), deferred payments, or
Capital Stock of the US Borrower, net of the applicable acquired company’s cash
(including Cash Equivalents) balance as shown on its most recent financial
statements delivered in connection with the applicable Permitted Acquisition)
to be paid on a singular basis in connection with any applicable Permitted
Acquisition as set forth in the applicable acquisition documents executed by
the US Borrower or any of its Subsidiaries in order to consummate the
applicable Permitted Acquisition.



     “Permitted Domestic Acquisition” means any acquisition permitted pursuant
to Section 10.3(c).



     “Permitted Foreign Acquisition” means any acquisition permitted pursuant
to Section 10.3(d).



     “Permitted Liens” means the Liens permitted pursuant to Section 10.2.



     “Person” means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, governmental authority
or other entity.



     “Prime Rate” means, at any time, the rate of interest per annum publicly
announced from time to time by Wachovia as its prime rate. Each change in the
Prime Rate shall be effective as of the opening of business on the day such
change in such prime rate occurs. The parties hereto acknowledge that the rate
announced publicly by Wachovia as its prime rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its customers or
other banks.



     “Quoted Swingline Rate” means a rate to be agreed upon from time to time
by the Swingline Lender and the US Borrower.



18









 





     “Quoted Swingline Rate Loan” means any Swingline Loan bearing interest at
a rate based upon the Quoted Swingline Rate as provided in Section 4.1.



     “Receivables Sale Agreement” means that certain Receivables Sale Agreement
dated as of March 27, 2003 by and among SCP Distributors LLC, SCP Services LP
and Superior Pool Products LLC, as originators, and Superior Commerce, as buyer
(as amended, restated, supplemented or otherwise modified).



     “Register” has the meaning assigned thereto in Section 14.11(c).



     “Reimbursement Obligation” means the obligation of the US Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.



     “Related Parties” means, with respect to any Person, such Person’s
Affiliates and the directors, officers, employees, agents and advisors of such
Person and of such Person’s Affiliates.



     “Rental Expense” means, with respect to the US Borrower and its
Subsidiaries for any period, the aggregate fixed amounts payable with respect
to Operating Leases of the US Borrower and its Subsidiaries for such period,
determined on a Consolidated basis in accordance with GAAP.



     “Required Lenders” means, at any date, any combination of Lenders whose
Commitments aggregate more than fifty percent (50%) of the Aggregate Commitment
or, if the Credit Facility has been terminated pursuant to Section 12.2, any
combination of Lenders holding more than fifty percent (50%) of the aggregate
Extensions of Credit (with the aggregate amount of each Lender’s risk
participation and funded participation in Canadian Dollar Loans, Swingline
Loans and L/C Obligations being deemed “held” by such Lender for the purposes
of this definition); provided that the Commitment of, and the portion of the
Extensions of Credit, as applicable, held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.



     “Responsible Officer” means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Credit Party or any
other officer of a Credit Party reasonably acceptable to the Administrative
Agent. Any document delivered hereunder that is signed by a Responsible
Officer of a Credit Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of such Credit Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Credit Party.



     “Revolving Credit Facility” means the revolving credit facility
established pursuant to Article II.



     “Revolving Credit Loans” means any revolving credit loan denominated in
Dollars made to the US Borrower pursuant to Section 2.1, and all such revolving
credit loans collectively as the context requires.



19









 





     “Revolving Credit Note” means a promissory note made by the US Borrower in
favor of a Lender evidencing the Revolving Credit Loans made by such Lender,
substantially in the form of Exhibit A-1 hereto, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.



     “Solvent” means, as to the US Borrower and its Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on
its business and transactions and all business and transactions in which it is
about to engage and is able to pay its debts as they mature, (b) has assets
having a value, both at fair valuation and at present fair saleable value,
greater than the amount required to pay its probable liabilities (including
contingencies), and (c) does not believe that it will incur debts or
liabilities beyond its ability to pay such debts or liabilities as they mature.



     “Subordinated Indebtedness” means the collective reference to any
Indebtedness of the US Borrower or any Subsidiary subordinated in right and
time of payment to the Obligations and containing such other terms and
conditions, in each case as are satisfactory to the Required Lenders.



     “Subsidiary” means as to any Person, any corporation, partnership, limited
liability company or other entity of which more than fifty percent (50%) of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors or other managers of such corporation, partnership,
limited liability company or other entity is at the time owned by or the
management is otherwise controlled, directly or indirectly, by such Person
(irrespective of whether, at the time, Capital Stock of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified references to “Subsidiary” or
“Subsidiaries” herein shall refer to those of the US Borrower.



     “Subsidiary Guarantors” means each Domestic Subsidiary of the US Borrower
in existence on the Closing Date (other than the Superior Commerce) or which
becomes a party to the Subsidiary Guaranty Agreement pursuant to Section 8.11.



     “Subsidiary Guaranty Agreement” means the unconditional guaranty agreement
of even date executed by the Subsidiary Guarantors in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders,
substantially in the form of Exhibit H, as amended, restated, supplemented or
otherwise modified from time to time.



     “Superior Commerce” means Superior Commerce LLC, a Delaware limited
liability company, and its successors and assigns.



     “Swingline Commitment” means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Aggregate Commitment.



     “Swingline Facility” means the swingline facility established pursuant to
Section 2.3.



20









 





     “Swingline Lender” means Wachovia in its capacity as swingline lender
hereunder.



     “Swingline Loan” means any swingline loan made by the Swingline Lender to
the US Borrower pursuant to Section 2.3, and all such swingline loans
collectively as the context requires.



     “Swingline Note” means a promissory note made by the US Borrower in favor
of the Swingline Lender evidencing the Swingline Loans made by the Swingline
Lender, substantially in the form of Exhibit A-2 hereto, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.



     “Swingline Termination Date” means the first to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with Section 13.9
and (b) the Maturity Date.



     “Synthetic Lease” means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.



     “Taxes” means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.



     “Termination Event” means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
“Reportable Event” described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the US
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if the plan assets are not sufficient
to pay all plan liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by
the PBGC, or (e) any other event or condition which would constitute grounds
under Section 4042(a) of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan, or (f) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the partial
or complete withdrawal of the US Borrower of any ERISA Affiliate from a
Multiemployer Plan if withdrawal liability is asserted by such plan, or (h) any
event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.



     “Termination Value” means, in respect of any one or more Hedging
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Agreements, (a) for any date on or
after the date such Hedging Agreements have been



21









 





closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for such
Hedging Agreements, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Hedging
Agreements (which may include a Lender or any Affiliate of a Lender).




     “Total Funded Indebtedness” means, with respect to the US Borrower and its
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP:



     (a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures,
notes or other similar instruments of any such Person;



     (b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition, earn-out or similar agreements), except trade payables
arising in the ordinary course of business not more than ninety (90) days past
due;



     (c) the Attributable Indebtedness of such Person with respect to such
Person’s obligations in respect of Capital Leases and Synthetic Leases
(regardless of whether accounted for as indebtedness under GAAP);



     (d) all Indebtedness of any other Person secured by a Lien on any asset
owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;



     (e) all obligations, contingent or otherwise, of any such Person relative
to the face amount of letters of credit, whether or not drawn, including,
without limitation, any Reimbursement Obligation, and banker’s acceptances
issued for the account of any such Person; and



     (f) all Guaranty Obligations of any such Person with respect to
outstanding Indebtedness of the types specified in clauses (a) through (e)
above.



     For all purposes hereof, the Total Funded Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person.



     “UCC” means the Uniform Commercial Code as in effect in the State of North
Carolina, as amended or modified from time to time.



22









 





     “Uniform Customs” means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), effective January, 1994 International Chamber of
Commerce Publication No. 500.



     “United States” means the United States of America.



     “US Borrower” has the meaning assigned thereto in the introductory
paragraph hereto.



     “US Borrower Guaranteed Obligations” shall have the meaning set forth in
Section 11.1.



     “US Borrower Guaranty” means the unconditional guaranty of the payment of
the Obligations of the Canadian Borrower by the US Borrower under Article XI
hereof.



     “Wachovia” means Wachovia Bank, National Association, a national banking
association, and its successors.



     “Wholly-Owned” means, with respect to a Subsidiary, that all of the shares
of Capital Stock of such Subsidiary are, directly or indirectly, owned or
controlled by the US Borrower and/or one or more of its Wholly-Owned
Subsidiaries (except for directors’ qualifying shares or other shares required
by Applicable Law to be owned by a Person other than the US Borrower).



     SECTION 1.2 Other Definitions and Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document: (a) the definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined, (b) whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms, (c) the words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”, (d) the word
“will” shall be construed to have the same meaning and effect as the word
“shall”, (e) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (f) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (g) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (h) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (i) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (j) the term “documents” includes any and all
instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or
electronic form, (k) in the computation of periods of time from a specified
date to a later specified date, the word “from” means “from and including;” the
words “to” and “until” each mean “to but excluding;” and the word “through”
means “to and including”, and (l) Section headings herein and in the other Loan
Documents are included for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.



23









 





     SECTION 1.3 Accounting Terms. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
financial statements required by Section 7.1(b), except as otherwise
specifically prescribed herein.



     SECTION 1.4 UCC Terms. Terms defined in the UCC in effect on the Closing
Date and not otherwise defined herein shall, unless the context otherwise
indicates, have the meanings provided by those definitions. Subject to the
foregoing, the term “UCC” refers, as of any date of determination, to the UCC
then in effect.



     SECTION 1.5 Rounding. Any financial ratios required to be maintained by
the Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).



     SECTION 1.6 References to Agreement and Laws. Unless otherwise expressly
provided herein, (a) references to formation documents, governing documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Applicable Law
shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Applicable Law.



     SECTION 1.7 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).



     SECTION 1.8 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.



ARTICLE II




REVOLVING CREDIT FACILITY




     SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make Revolving Credit Loans to
the US Borrower in Dollars from time to




24










 




time from the Closing Date through, but
not including, the Maturity Date as requested by the US Borrower in accordance
with the terms of Section 2.4; provided that, based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, (a) the aggregate principal amount
of all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Aggregate Commitment less the sum of all
outstanding Canadian Dollar Loans, Swingline Loans and L/C Obligations and (b)
the aggregate principal amount of all outstanding Revolving Credit Loans from
any Lender to the US Borrower shall not at any time exceed such Lender’s
Commitment less such Lender’s Commitment Percentage of all outstanding Canadian
Dollar Loans, Swingline Loans and L/C Obligations. Each Revolving Credit Loan
by a Lender shall be in a principal amount equal to such Lender’s Commitment
Percentage of the aggregate principal amount of Revolving Credit Loans
requested on such occasion. Subject to the terms and conditions hereof, the US
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until
the Maturity Date.




     SECTION 2.2 Canadian Dollar Loans.



     (a) Availability. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties set forth herein, the
Canadian Dollar Lender agrees to make Canadian Dollar Loans to the Canadian
Borrower from time to time from the Closing Date through, but not including,
the Maturity Date as requested by the US Borrower, on behalf of the Canadian
Borrower, in accordance with the terms of Section 2.4; provided that, based
upon the Dollar Amount of all outstanding Loans and L/C Obligations, the
aggregate principal amount of all outstanding Canadian Dollar Loans (after
giving effect to any amount requested) shall not exceed the lesser of (i) the
Aggregate Commitment less the sum of all outstanding Revolving Credit Loans,
Swingline Loans and L/C Obligations and (ii) the Canadian Dollar Commitment.
Subject to the terms and conditions hereof, the Canadian Borrower may borrow,
repay and reborrow Canadian Dollar Loans hereunder until the Maturity Date.



     (b) Refunding of Canadian Dollar Loans.



          (i) Upon the occurrence and during the continuance of an Event of Default,
each Canadian Dollar Loan may, at the discretion of the Canadian Dollar Lender,
be converted immediately to a Base Rate Loan funded in Dollars by the Lenders
in an amount equal to the Dollar Amount of such Canadian Dollar Loan; provided
that the Borrowers shall pay to the Canadian Dollar Lender any and all costs,
fees and other expenses incurred by the Canadian Dollar Lender in effecting
such conversion. Such Base Rate Loan shall thereafter be reflected as a
Revolving Credit Loan of the Lenders to the US Borrower on the books and
records of the Administrative
Agent. Each Lender shall fund its respective Commitment Percentage of such
Revolving Credit Loan as required to repay Canadian Dollar Loans outstanding to
the Canadian Dollar Lender upon such demand by the Canadian Dollar Lender in no
event later than 1:00 p.m. on the next succeeding Business Day after such
demand is made. No Lender’s obligation to fund its respective Commitment
Percentage of any Revolving Credit Loan required to repay such Canadian Dollar
Loan shall be affected by any other Lender’s failure to fund its Commitment
Percentage of such Revolving Credit Loan, nor shall any Lender’s Commitment
Percentage be increased as a result of any such failure of any other Lender to
fund its Commitment Percentage of such Revolving Credit Loan.



25









 





          (ii) The Borrowers shall pay to the Canadian Dollar Lender on demand the
amount of such Canadian Dollar Loans to the extent that the Lenders fail to
refund in full the outstanding Canadian Dollar Loans requested or required to
be refunded. In addition, the Borrowers hereby authorize the Administrative
Agent to charge any account maintained by Borrowers with the Canadian Dollar
Lender or any Affiliate thereof (up to the amount available therein) in order
to immediately pay the Canadian Dollar Lender the amount of such Canadian
Dollar Loans to the extent amounts received from the Lenders are not sufficient
to repay in full the outstanding Canadian Dollar Loans requested or required to
be refunded. If any portion of any such amount paid to the Canadian Dollar
Lender shall be recovered by or on behalf of the Canadian Borrower or US
Borrower from the Canadian Dollar Lender in bankruptcy or otherwise, the loss
of the amount so recovered shall be ratably shared among all the Lenders in
accordance with their respective Commitment Percentages.



          (iii) Each Lender acknowledges and agrees that its obligation to refund
Canadian Dollar Loans in accordance with the terms of this Section is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
Article V. Further, each Lender acknowledges and agrees that if prior to the
refunding of any outstanding Canadian Dollar Loans pursuant to this Section, a
Bankruptcy Event of Default shall have occurred, each Lender will, on the date
the applicable Revolving Credit Loan would have been made to refund such
Canadian Dollar Loans, purchase an undivided participating interest in such
Canadian Dollar Loans in an amount equal to its Commitment Percentage of the
aggregate amount of such Canadian Dollar Loans. Each Lender will immediately
transfer to the Administrative Agent, for the account of the Canadian Dollar
Lender, in immediately available funds in Canadian Dollars, the amount of its
participation. Whenever, at any time after the Canadian Dollar Lender has
received from any Lender such Lender’s participating interest in the refunded
Canadian Dollar Loans, the Canadian Dollar Lender receives any payment on
account thereof, the Canadian Dollar Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded).



          (iv) In the event that any Lender fails to make payment to the Canadian
Dollar Lender of any amount due under this Section, the Administrative Agent,
on behalf of the Canadian Dollar Lender, shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Canadian Dollar Lender receives such payment
from such Lender or such obligation is otherwise fully satisfied. In addition
to the foregoing, if for any reason any Lender fails to make payment to the
Canadian
Dollar Lender of any amount due under this Section, such Lender shall be
deemed, at the option of the Administrative Agent, to have unconditionally and
irrevocably purchased from the Canadian Dollar Lender, without recourse or
warranty, an undivided interest and participation in the applicable Canadian
Dollar Loan, and such interest and participation may be recovered from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of demand and ending on the
date such amount is received.



26









 





     SECTION 2.3 Swingline Loans.



     (a) Availability. Subject to the terms and conditions of this Agreement,
the Swingline Lender agrees to make Swingline Loans to the US Borrower from
time to time from the Closing Date through, but not including, the Swingline
Termination Date; provided, that (i) all Swingline Loans shall be denominated
in Dollars and (ii) based upon the Dollar Amount of all outstanding Loans and
L/C Obligations, the aggregate principal amount of all outstanding Swingline
Loans (after giving effect to any amount requested), shall not exceed the
lesser of (i) the Aggregate Commitment less the sum of all outstanding
Revolving Credit Loans, Canadian Dollar Loans and L/C Obligations and (ii) the
Swingline Commitment. Subject to the terms and conditions hereof, the US
Borrower may borrow, repay and reborrow Swingline Loans hereunder until the
Maturity Date.



     (b) Refunding.



          (i) Swingline Loans shall be refunded by the Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Lenders in accordance
with their respective Commitment Percentages and shall thereafter be reflected
as Revolving Credit Loans of the Lenders on the books and records of the
Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 1:00 p.m. on the next succeeding Business Day after such
demand is made. No Lender’s obligation to fund its respective Commitment
Percentage of a Swingline Loan shall be affected by any other Lender’s failure
to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender’s
Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Commitment Percentage of a Swingline Loan.



          (ii) The US Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from the Lenders
are not sufficient to repay in full the outstanding Swingline Loans requested
or required to be refunded. In addition, the US Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the US Borrower with
the Swingline Lender or any Affiliate thereof (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. If any portion of any such amount paid to the
Swingline Lender shall be recovered by or on behalf of the US Borrower from the
Swingline Lender in bankruptcy or otherwise, the loss of the amount so
recovered shall
be ratably shared among all the Lenders in accordance with their respective
Commitment Percentages.



          (iii) Each Lender acknowledges and agrees that its obligation to refund
Swingline Loans in accordance with the terms of this Section is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, non-satisfaction of the conditions set forth in
Article V. Further, each Lender acknowledges and agrees and acknowledges that
if prior to the refunding of any outstanding Swingline Loans pursuant to this
Section, a Bankruptcy Event of Default shall have occurred, each Lender will,
on



27









 




the date the applicable Revolving Credit Loan would have been made, purchase
an undivided participating interest in the Swingline Loan to be refunded in an
amount equal to its Commitment Percentage of the aggregate amount of such
Swingline Loan. Each Lender will immediately transfer to the Swingline Lender,
in immediately available funds, the amount of its participation and upon
receipt thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received
from any Lender such Lender’s participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was
outstanding and funded).




          (iv) In the event that any Lender fails to make payment to the Swingline
Lender of any amount due under this Section, the Administrative Agent, on
behalf of the Swingline Lender, shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Swingline Lender receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the Swingline
Lender of any amount due under this Section, such Lender shall be deemed, at
the option of the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swingline Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swingline Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is
received.



     SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Canadian
Dollar Loans and Swingline Loans.



     (a) Requests for Borrowing. The US Borrower, on behalf of itself and the
Canadian Borrower, shall give the Administrative Agent irrevocable prior
written notice substantially in the form attached hereto as Exhibit B (a
“Notice of Borrowing”) not later than (i) 12:00 noon on the same Business Day
as each Base Rate Loan and each Swingline Loan, (ii) 12:00 noon at least three
(3) Business Days before each LIBOR Rate Loan, and (iii) 12:00 noon (Toronto,
Ontario time) at least one (1) Business Day before each Canadian Base Rate
Loan, of its intention to borrow, specifying:




     (A) if the applicable Borrower is the US Borrower or the Canadian
Borrower;




     (B) the date of such borrowing, which shall be a Business Day;




     (C) whether such Loan is to be a Revolving Credit Loan, Swingline
Loan or Canadian Dollar Loan;




     (D) if such Loan is a Revolving Credit Loan, whether such Revolving
Credit Loan shall be a LIBOR Rate Loan or a Base Rate Loan;



28









 






     (E) if such Loan is a LIBOR Rate Loan, the duration of the Interest
Period applicable thereto;




     (F) if such Loan is a Swingline Loan, whether such Swingline Loan
shall be a Base Rate Loan or a Quoted Swingline Rate Loan; and




     (G) the amount of such borrowing, which shall be, (1) with respect
to Base Rate Loans (other than Swingline Loans) in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof, (2)
with respect to LIBOR Rate Loans in an aggregate principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof, (3) with
respect to Swingline Loans in an aggregate principal amount of $100,000
or a whole multiple of $100,000 in excess thereof and (4) with respect to
Canadian Base Rate Loans in an aggregate principal amount of C$500,000 or
a whole multiple of C$100,000 in excess thereof.


A Notice of Borrowing received after the times set forth above shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.




     (b) Disbursement of Revolving Credit Loans, Canadian Dollar Loans and
Swingline Loans.



          (i) Not later than 1:00 p.m. on the proposed borrowing date for any
Revolving Credit Loan, each Lender will make available to the Administrative
Agent, for the account of the US Borrower, at the office of the Administrative
Agent in Dollars in funds immediately available to the Administrative Agent,
such Lender’s Commitment Percentage of the Revolving Credit Loans to be made on
such borrowing date.



          (ii) Not later than 12:00 noon (Toronto, Ontario time) on the proposed
borrowing date for any Canadian Base Rate Loan, the Canadian Dollar Lender will
make available to the Administrative Agent, for the account of the Canadian
Borrower, at the office of the Canadian Dollar Lender in Canadian Dollars in
funds immediately available to the Administrative Agent, the Canadian Base Rate
Loan to be made on such borrowing date.



          (iii) Not later than 1:00 p.m. on the proposed borrowing date for any
Swingline Loan, as applicable, the Swingline Lender will make available to the
Administrative Agent, for
the account of the US Borrower, at the office of the Administrative Agent in
Dollars in funds immediately available to the Administrative Agent, the
Swingline Loans to be made on such borrowing date.



          (iv) The Borrowers hereby irrevocably authorize the Administrative Agent
to disburse the proceeds of each borrowing requested pursuant to this Section
in immediately available funds by crediting or wiring such proceeds to the
deposit account of the applicable Borrower identified in the most recent notice
substantially in the form of Exhibit C hereto (a “Notice of Account
Designation”) delivered by the US



29









 




Borrower, on behalf of itself and the
Canadian Borrower, to the Administrative Agent or as may be otherwise agreed
upon by the US Borrower, on behalf of itself and the Canadian Borrower, and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse any amount with respect
to any Revolving Credit Loan, Canadian Dollar Loan or Swingline Loan requested
pursuant to this Section to the extent that such amount has not been made
available by the applicable to the Administrative Agent.




          (v) Revolving Credit Loans to be made for the purpose of (A) refunding
Swingline Loans shall be made by the Lenders as provided in Section 2.3(b) and
(B) refunding Canadian Dollar Loans shall be made by the Lenders as provided in
Section 2.2(b).



     SECTION 2.5 Repayment of Loans.



     (a) Repayment on Maturity Date. The Borrowers agree to repay the
outstanding principal amount of (i) all Revolving Credit Loans in full in
Dollars on the Maturity Date, (ii) all Canadian Dollar Loans in full in
Canadian Dollars on the Maturity Date, and (iii) all Swingline Loans in
accordance with Section 2.3(b) or, if earlier, on the Maturity Date, together,
in each case, with all accrued but unpaid interest thereon.



     (b) Mandatory Repayment of Revolving Credit Loans.



          (i) Aggregate Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, (A) solely because of currency
fluctuation, the outstanding principal amount of all outstanding Extensions of
Credit exceeds one hundred and five percent (105%) of the Aggregate Commitment
or (B) for any other reason, the outstanding principal amount of all
outstanding Extensions of Credit exceeds the Aggregate Commitment, then, in
each such case, the Borrowers shall (1) first, if (and to the extent) necessary
to eliminate such excess, immediately repay outstanding Swingline Loans (and/or
reduce any pending request for a borrowing of such Loans submitted in respect
of such Loans on such day) by the Dollar Amount of such excess, (2) second, if
(and to the extent) necessary to eliminate such excess, immediately repay
outstanding Revolving Credit Loans which are Base Rate Loans (and/or reduce any
pending requests for a borrowing or continuation or conversion of such Loans
submitted in respect of such Loans on such day) by the Dollar Amount of such
excess, (3) third, if (and to the extent) necessary to eliminate such excess,
immediately repay outstanding Revolving Credit Loans which are LIBOR Rate Loans
(and/or reduce any pending requests for a borrowing or
continuation or conversion of such Loans submitted in respect of such Loans on
such day) by the Dollar Amount of such excess, (4) fourth, if (and to the
extent) necessary to eliminate such excess, immediately repay outstanding
Canadian Dollar Loans (and/or reduce any pending requests for a borrowing or
continuation or conversion of such Loans submitted in respect of such Loans on
such day) by the Dollar Amount of such excess, and (4) fifth, with respect to
any Letters of Credit then outstanding, make a payment of cash collateral into
a cash collateral account opened by the Administrative Agent for the benefit of
the Lenders in an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit (such cash collateral to be applied in
accordance with Section 12.2(b)).



30









 





          (ii) Canadian Dollar Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, (A) solely because of currency
fluctuation, the outstanding principal amount of all Canadian Dollar Loans
exceeds one hundred five percent (105%) of the Canadian Dollar Commitment or
(B) for any other reason, the outstanding principal amount of all Canadian
Dollar Loans exceeds the Canadian Dollar Commitment, then, in each such case,
such excess shall be immediately repaid, in Canadian Dollars, by the Canadian
Borrower to the Administrative Agent for the account of the Canadian Dollar
Lender.



          (iii) Swingline Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, and for any reason, the outstanding
principal amount of all Swingline Loans exceeds the Swingline Commitment, then,
in each such case, such excess shall be immediately repaid, in Dollars, by the
US Borrower to the Administrative Agent for the account of the Swingline
Lender.



          (iv) Excess L/C Obligations. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(v)), based upon the Dollar Amount of
all outstanding Loans and L/C Obligations, and for any reason, the outstanding
amount of all L/C Obligations exceeds the L/C Commitment, then, in each such
case, the US Borrower shall make a payment of cash collateral into a cash
collateral account opened by the Administrative Agent, for the benefit of
itself and the Lenders, in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (such cash collateral to be applied
in accordance with Section 12.2(b)).



          (v) Compliance and Payments. The Borrowers’ compliance with this Section
2.5(b) shall be tested from time to time by the Administrative Agent at its
sole discretion, but in any event shall be tested on the date on which (A) the
US Borrower requests that the applicable Lenders make a Revolving Credit Loan,
(B) the US Borrower, on behalf of the Canadian Borrower, requests that the
Canadian Lender make a Canadian Dollar Loan, (C) the US Borrower requests that
the Swingline Lender make a Swingline Loan or (D) the US Borrower requests that
the Issuing Lender issue a Letter of Credit. Each such repayment pursuant to
this Section 2.5(b) shall be accompanied by any amount required to be paid
pursuant to Section 4.9.



     (c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Loans, in whole or in part, (i) upon at least three (3) Business
Days’ irrevocable notice
to the Administrative Agent with respect to LIBOR Rate Loans and (ii) upon
irrevocable notice to the Administrative Agent before 12:00 noon on the same
Business Day with respect to Base Rate Loans, Swingline Loans and Canadian
Dollar Loans, substantially in the form attached hereto as Exhibit D (a “Notice
of Repayment”), specifying (A) the date of repayment, (B) the amount of
repayment, (C) whether the repayment is of Revolving Credit Loans, Canadian
Dollar Loans, Swingline Loans or a combination thereof, and, if of a



31









 




combination thereof, the amount allocable to each, (D) with respect to
Revolving Credit Loans, whether the repayment is of LIBOR Rate Loans, Base Rate
Loans, or a combination thereof, and, if of a combination thereof, the amount
allocable to each and (E) with respect to Swingline Loans, whether the
repayment is of Base Rate Loans, Quoted Swingline Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in an aggregate amount of (i) $500,000 or a whole multiple of $100,000
in excess thereof with respect to Base Rate Loans (other than Swingline Loans),
(ii) $1,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to LIBOR Rate Loans, (iii) C$500,000 or a whole multiple of C$100,000
in excess thereof with respect to Canadian Dollar Loans and (iv) $100,000 or a
whole multiple of $100,000 in excess thereof with respect to Swingline Loans.
A Notice of Repayment received after applicable time set forth above shall be
deemed received on the next Business Day. Each such repayment shall be
accompanied by any amount required to be paid pursuant to Section 4.9.




     (d) Limitation on Repayment of LIBOR Rate Loans. The Borrowers may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.



     (e) Payment of Interest. Each repayment pursuant to this Section shall be
accompanied by accrued interest on the amount repaid.



     (f) Hedging Agreements. No repayment pursuant to this Section shall
affect any Borrower’s obligations under any Hedging Agreement.



     SECTION 2.6 Permanent Reduction of the Aggregate Commitment.



     (a) Voluntary Reduction. The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written
notice to the Administrative Agent, to permanently reduce, without premium or
penalty, (i) the entire Aggregate Commitment at any time or (ii) portions of
the Aggregate Commitment, from time to time, in an aggregate principal amount
not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
Any reduction of the Aggregate Commitment shall be applied to the Commitment
of each Lender according to its Commitment Percentage. All fees accrued until
the effective date of any termination of the Aggregate Commitment shall be paid
on the effective date of such termination.



     (b) Corresponding Payment. Each permanent reduction permitted pursuant to
this Section shall be accompanied by a payment of principal sufficient to
reduce (i) the aggregate Dollar Amount of all outstanding Revolving Credit
Loans, Canadian Dollar Loans, Swingline Loans and L/C Obligations, as
applicable, after such reduction to the Aggregate Commitment as so reduced and
(ii) to the extent that the Canadian Commitment is reduced, the aggregate
Dollar Amount of all outstanding Canadian Dollar Loans to the Canadian
Commitment as so reduced. If the Aggregate Commitment as so reduced is less
than the aggregate amount of all outstanding Letters of Credit, the Borrowers
shall be required to deposit cash collateral in a cash collateral account
opened by the Administrative Agent in an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Such cash collateral
shall be applied in accordance with Section 12.2(b). Any reduction of the
Aggregate Commitment to zero shall be



32









 




accompanied by payment of all outstanding
Revolving Credit Loans, Swingline Loans and Canadian Dollar Loans (and
furnishing of cash collateral satisfactory to the Administrative Agent for all
L/C Obligations) and shall result in the termination of the Aggregate
Commitment, the Swingline Commitment, the Canadian Commitment and the Revolving
Credit Facility. Such cash collateral shall be applied in accordance with
Section 12.2(b). If the reduction of the Aggregate Commitment requires the
repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.




     SECTION 2.7 Termination of Revolving Credit Facility. The Revolving
Credit Facility shall terminate on the Maturity Date.



     SECTION 2.8 Nature of Obligations. The obligations of the US Borrower
hereunder and under the other Loan Documents shall be joint and several with
the Obligations of the Canadian Borrower. The obligations of the Canadian
Borrower hereunder and under the other Loan Documents shall not be joint and
several.



     SECTION 2.9 Increase of Aggregate Commitment. So long as no Default or
Event of Default shall have occurred and be continuing, at any time prior to
the Maturity Date, the US Borrower shall have the right from time to time upon
not less than thirty (30) days prior written notice to the Administrative Agent
to increase the Aggregate Commitment; provided that in no event shall the
Aggregate Commitment be increased to an amount greater than $160,000,000;
provided further that:



     (a) (i) Each existing Lender shall have the right, but not the obligation,
to commit to all or a portion of the proposed increase, (ii) the failure by any
existing Lender to respond to a request for such increase shall be deemed to be
a refusal of such request by such existing Lender and (iii) if the
Administrative Agent does not receive sufficient commitments from the existing
Lenders to fund the entire amount of the proposed increase, the US Borrower may
then solicit commitments from other banks, financial institutions or investment
funds.



     (b) Any increase in the Aggregate Commitment which is accomplished by
increasing the Commitment of any Lender or Lenders who are at the time of such
increase party to this Agreement (which Lender or Lenders shall consent to such
increase in their sole and absolute
discretion) shall be accomplished as follows: (i) this Agreement will be
amended by the Borrowers, the Administrative Agent and those Lender(s) whose
Commitment(s) is or are being increased (but without any requirement that the
consent of any other Lender be obtained) to reflect the revised Commitment of
each of the Lenders, (ii) entries in the Register will be revised to reflect
the revised Commitment and Commitment Percentage of each of the Lenders, (iii)
the outstanding Revolving Credit Loans and Commitment Percentages of Canadian
Dollar Loans, Swingline Loans and L/C Obligations will be reallocated on the
effective date of such increase among the Lenders in accordance with their
revised Commitment Percentages (and the Lenders agree to make all payments and
adjustments necessary to effect the reallocation and the Borrowers shall pay
any and all costs required pursuant to Section 4.9 in connection with such
reallocation as if such reallocation were a repayment) and (iv) if requested by
such Lender or Lenders, the US Borrower will deliver new Revolving Credit
Note(s) to the Lender or Lenders



33









 




whose Commitment(s) is or are being increased
reflecting the revised Commitment of such Lender(s).




     (c) Any increase in the Aggregate Commitment which is accomplished by
addition of a new Lender or Lenders under the Agreement shall be accomplished
as follows: (i) each new Lender shall be an Eligible Assignee and shall be
subject to the consent of the Administrative Agent and the US Borrower, on
behalf of itself and the Canadian Borrower, which consents shall not be
unreasonably withheld, (ii) this Agreement will be amended by the Borrowers,
the Administrative Agent and each new Lender (but without any requirement that
the consent of the any other Lender be obtained) to reflect the addition of
each new Lender as a Lender hereunder, (iii) entries in the Register will be
revised to reflect the revised Commitment and Commitment Percentages of each of
the Lenders (including each new Lender), (iv) the outstanding Revolving Credit
Loans and Commitment Percentages of Canadian Dollar Loans, Swingline Loans and
L/C Obligations will be reallocated on the effective date of such increase
among the Lenders (including each new Lender) in accordance with their revised
Commitment Percentages (and the Lenders (including each new Lender) agree to
make all payments and adjustments necessary to effect the reallocation and the
Borrowers shall pay any and all costs required pursuant to Section 4.9 in
connection with such reallocation as if such reallocation were a repayment) and
(v) at the request of each new Lender, the US Borrower will deliver a Revolving
Credit Note to each new Lender.



ARTICLE III




LETTER OF CREDIT FACILITY




     SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set
forth in Section 3.4(a), agrees to issue Letters of Credit for the account of
the US Borrower on any Business Day from the Closing Date through but not
including the Maturity Date in such form as may be approved from time to time
by the Issuing Lender; provided, that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, based upon the Dollar Amount of all outstanding Loans and L/C
Obligations, the aggregate amount of all outstanding L/C Obligations would
exceed the lesser of (i) the L/C Commitment or (ii) the Aggregate Commitment
less the aggregate principal amount
of all outstanding Loans. Each Letter of Credit (other than the Existing
Letters of Credit) shall (i) be denominated in Dollars in a minimum amount of
$30,000 or a lesser amount acceptable to the Issuing Lender, (ii) be a standby
letter of credit issued to support obligations of the US Borrower or any of its
Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business, (iii) expire on a date no later than the earlier of (A) five (5)
Business Days prior to the Maturity Date and (B) one year after its date of
issuance, and (iv) be subject to the Uniform Customs and/or ISP98, as set forth
in the Letter of Credit Application or as determined by the Issuing Lender and,
to the extent not inconsistent therewith, the laws of the State of North
Carolina. As of the Closing Date, each of the Existing Letters of Credit shall
constitute, for all purposes of this Agreement and the other Loan Documents, a
Letter of Credit issued and outstanding hereunder. The Issuing Lender shall
not at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed



34









 




by, any Applicable Law. References
herein to “issue” and derivations thereof with respect to Letters of Credit
shall also include extensions or modifications of any existing Letters of
Credit, unless the context otherwise requires.




     SECTION 3.2 Procedure for Issuance of Letters of Credit. The US Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at the Administrative Agent’s Office a
Letter of Credit Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Letter of
Credit Application, the Issuing Lender shall process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall, subject to Section 3.1 and Article V, promptly issue the
Letter of Credit requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Letter of Credit Application therefor and all such
other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Lender and the US
Borrower. The Issuing Lender shall promptly furnish to the US Borrower a copy
of such Letter of Credit and promptly notify each Lender of the issuance and
upon request by any Lender, furnish to such Lender a copy of such Letter of
Credit and the amount of such Lender’s participation therein.



     SECTION 3.3 Commissions and Other Charges.



     (a) Letter of Credit Commissions. The US Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit in an amount equal to the face amount of such Letter of Credit
multiplied by the Applicable Margin with respect to Revolving Credit Loans that
are LIBOR Rate Loans (determined on a per annum basis). Such commission shall
be payable quarterly in arrears on the last Business Day of each calendar
quarter, on the Maturity Date and thereafter on demand of the Administrative
Agent. The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all
commissions received pursuant to this Section in accordance with their
respective Commitment Percentages.



     (b) Issuance Fee. In addition to the foregoing commission, the US
Borrower shall pay to the Administrative Agent, for the account of the Issuing
Lender, an issuance fee with respect to each Letter of Credit in an amount
equal to the face amount of such Letter of Credit multiplied by one eighth of
one percent (0.125%) per annum. Such issuance fee shall be payable quarterly
in arrears on the last Business Day of each calendar quarter commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Maturity Date and thereafter on demand of the Issuing Lender (through the
Administrative Agent).



     (c) Other Costs. In addition to the foregoing fees and commissions, the
US Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, effecting payment under, amending or otherwise administering any
Letter of Credit.



35









 





     SECTION 3.4 L/C Participations.



     (a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions hereinafter stated, for such L/C Participant’s own account and
risk an undivided interest equal to such L/C Participant’s Commitment
Percentage in the Issuing Lender’s obligations and rights under and in respect
of each Letter of Credit issued hereunder and the amount of each draft paid by
the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
US Borrower through a Revolving Credit Loan or otherwise in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Issuing Lender
upon demand at the Issuing Lender’s address for notices specified herein an
amount equal to such L/C Participant’s Commitment Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed.



     (b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender the amount specified on the applicable due date. If any such
amount is paid to the Issuing Lender after the date such payment is due, such
L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal
Funds Rate as determined by the Administrative Agent during the period from and
including the date such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of the Issuing Lender with respect
to any amounts owing under
this Section shall be conclusive in the absence of manifest error. With
respect to payment to the Issuing Lender of the unreimbursed amounts described
in this Section, if the L/C Participants receive notice that any such payment
is due (A) prior to 1:00 p.m. (Charlotte time) on any Business Day, such
payment shall be due that Business Day, and (B) after 1:00 p.m. (Charlotte
time) on any Business Day, such payment shall be due on the following Business
Day.



     (c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its Commitment
Percentage of such payment in accordance with this Section, the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from
the US Borrower or otherwise, or any payment of interest on account thereof,
the Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.



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     SECTION 3.5 Reimbursement Obligation of the US Borrower. In the event of
any drawing under any Letter of Credit, the US Borrower agrees to reimburse
(either with the proceeds of a Revolving Credit Loan as provided for in this
Section or with funds from other sources), in same day funds, the Issuing
Lender on each date on which the Issuing Lender notifies the US Borrower of the
date and amount of a draft paid under any Letter of Credit for the amount of
(a) such draft so paid and (b) any amounts referred to in Section 3.3(c)
incurred by the Issuing Lender in connection with such payment. Unless the US
Borrower shall immediately notify the Issuing Lender that the US Borrower
intends to reimburse the Issuing Lender for such drawing from other sources or
funds, the US Borrower shall be deemed to have timely given a Notice of
Borrowing to the Administrative Agent requesting that the Lenders make a
Revolving Credit Loan bearing interest at the Base Rate on such date in the
amount of (a) such draft so paid and (b) any amounts referred to in Section
3.3(c) incurred by the Issuing Lender in connection with such payment, and the
Lenders shall make a Revolving Credit Loan bearing interest at the Base Rate in
such amount, the proceeds of which shall be applied to reimburse the Issuing
Lender for the amount of the related drawing and costs and expenses. Each
Lender acknowledges and agrees that its obligation to fund a Revolving Credit
Loan in accordance with this Section to reimburse the Issuing Lender for any
draft paid under a Letter of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Section 3.4(a) or Article V.
If the US Borrower has elected to pay the amount of such drawing with funds
from other sources and shall fail to reimburse the Issuing Lender as provided
above, the unreimbursed amount of such drawing shall bear interest at the rate
which would be payable on any outstanding Base Rate Loans which were then
overdue from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full.



     SECTION 3.6 Obligations Absolute. The US Borrower’s obligations under
this Article III (including, without limitation, the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the US
Borrower may have or have had against the Issuing Lender or any beneficiary of
a Letter of Credit or any other Person. The US Borrower also agrees that the
Issuing Lender and the L/C Participants shall not
be responsible for, and the US Borrower’s Reimbursement Obligation under
Section 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the US Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the US Borrower against any beneficiary of such Letter
of Credit or any such transferee. The Issuing Lender shall not be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing Lender’s
gross negligence or willful misconduct. The US Borrower agrees that any action
taken or omitted by the Issuing Lender under or in connection with any Letter
of Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct, shall be binding on the US Borrower and shall
not result in any liability of the Issuing Lender or any L/C Participant to the
US Borrower. The responsibility of the Issuing Lender to the US Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly



37









 




provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.




     SECTION 3.7 Effect of Letter of Credit Application. To the extent that
any provision of any Letter of Credit Application related to any Letter of
Credit is inconsistent with the provisions of this Article III, the provisions
of this Article III shall apply.



ARTICLE IV





GENERAL LOAN PROVISIONS




     SECTION 4.1 Interest.



     (a) Interest Rate Options. Subject to the provisions of this Section, at
the election of the US Borrower, on behalf of itself and the Canadian Borrower:




     (i) Revolving Credit Loans shall bear interest at (A) the Base Rate
plus the Applicable Margin or (B) the LIBOR Rate plus the Applicable
Margin (provided that the LIBOR Rate shall not be available until three
(3) Business Days after the Closing Date unless the US Borrower has
delivered to the Administrative Agent a letter in form and substance
satisfactory to the Administrative Agent indemnifying the Lenders in the
manner set forth in Section 4.9 of this Agreement);




     (ii) Canadian Dollar Loans shall bear interest at the Canadian Base
Rate plus the Applicable Margin; and




     (iii) Swingline Loans shall bear interest at (A) the Base Rate plus
the Applicable Margin or (B) the Quoted Swingline Rate.


The US Borrower, on behalf of itself and the Canadian Borrower, shall select
the rate of interest and Interest Period, if any, applicable to any Loan at the
time a Notice of Borrowing is given pursuant to Section 2.4 or at the time a
Notice of Conversion/Continuation is given pursuant to Section 4.2. Any
Revolving Credit Loan or any portion thereof as to which the US Borrower has
not duly specified an interest rate as provided herein shall be deemed a Base
Rate Loan. Any LIBOR Rate Loan or any portion thereof as to which the US
Borrower has not duly specified an Interest Period as provided herein shall be
deemed a LIBOR Rate Loan with an Interest Period of one (1) month. Any
Swingline Loan or any portion thereof as to which the US Borrower has not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan.




     (b) Interest Periods. In connection with each LIBOR Rate Loan, the US
Borrower, on behalf of itself and the Canadian Borrower, by giving notice at
the times described in Section 2.4 or 4.2, as applicable, shall elect an
interest period (each, an “Interest Period”) to be applicable to such LIBOR
Rate Loan, which Interest Period shall be a period of one (1), two (2), three
(3), or six (6) months; provided that:



38









 






     (i) the Interest Period shall commence on the date of advance of or
conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the immediately preceding Interest Period
expires;




     (ii) if any Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with
respect to a LIBOR Rate Loan would otherwise expire on a day that is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the
immediately preceding Business Day;




     (iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of
the relevant calendar month at the end of such Interest Period;




     (iv) no Interest Period shall extend beyond the Maturity Date; and




     (v) there shall be no more than six (6) Interest Periods in effect
at any time.



     (c) Default Rate. Subject to Section 12.3, upon the occurrence and during
the continuance of a Payment Event of Default or a Bankruptcy Event of Default
or, at the discretion of the Administrative Agent or as directed by the
Required Lenders, upon the occurrence and during the continuance of an Event of
Default other than a Payment Event of Default or Bankruptcy Event of Default,
(i) the Borrowers shall no longer have the option to request LIBOR Rate Loans,
Swingline Loans or Letters of Credit, (ii) all outstanding LIBOR Rate Loans
shall
bear interest at a rate per annum of two percent (2%) in excess of the rate
then applicable to LIBOR Rate Loans until the end of the applicable Interest
Period and thereafter at a rate equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans, (iii) all outstanding Canadian Base Rate
Loans shall bear interest at a rate per annum equal to two percent (2%) in
excess of the rate then applicable to Canadian Base Rate Loans and (iv) all
outstanding Base Rate Loans, Swingline Loans and other Obligations arising
hereunder or under any other Loan Document shall bear interest at a rate per
annum equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans. Interest shall continue to accrue on the Obligations after the
filing by or against any Borrower of any petition seeking any relief in
bankruptcy or under any act or law pertaining to insolvency or debtor relief,
whether state, federal or foreign. The interest accrued pursuant to this
Section 4.1(c) shall be payable by the applicable Borrower on demand of the
Administrative Agent.



     (d) Interest Payment and Computation.




     (i) Interest on each Base Rate Loan, each Canadian Base Rate Loan
and each Quoted Swingline Rate Loan shall be due and payable in arrears
on the last Business Day of each calendar quarter commencing December 31,
2004; and interest on each LIBOR



39









 





Rate Loan shall be due and payable on
the last day of each Interest Period applicable thereto, and if such
Interest Period extends over three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on LIBOR Rate
Loans and all fees payable hereunder shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed and
interest on Base Rate Loans and Canadian Base Rate Loans shall be
computed on the basis of a 365/66-day year and assessed for the actual
number of days elapsed.





     (ii) For greater certainty, whenever any amount is payable under
this Agreement or any other Loan Document by the Canadian Borrower as
interest or as a fee which requires the calculation of an amount using a
percentage per annum, each party to this Agreement acknowledges and
agrees that such amount shall be calculated as of the date payment is due
without application of the “deemed reinvestment principle” or the
“effective yield method” (e.g., when interest is calculated and payable
monthly, the rate of interest payable per month is 1/12 of the stated
rate of interest per annum).



     (e) Maximum Rate.




     (i) In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest under this Agreement charged or collected
pursuant to the terms of this Agreement exceed the highest rate
permissible under any Applicable Law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. In
the event that such a court determines that the Lenders have charged or
received interest hereunder in excess of the highest applicable rate, the
rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the
Administrative Agent’s option (A) promptly refund to the Borrowers any
interest received by the Lenders in excess of the maximum lawful rate or
(B) apply
such excess to the principal balance of the Obligations on a pro rata
basis. It is the intent hereof that the Borrowers not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrowers under
Applicable Law.




     (ii) Notwithstanding the provisions of this Section 4.1 or any other
provision of this Agreement, in no event shall the aggregate “interest”
(as such term is defined in Section 347 of the Criminal Code (Canada))
exceed the effective annual rate of interest on the “credit advanced” (as
such term is defined in Section 347 of the Criminal Code (Canada))
lawfully permitted under Section 347 of the Criminal Code (Canada). The
effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the term of
the applicable Loan, and in the event of a dispute, a certificate of a
Fellow of the Canadian Institute of Actuaries qualified for a period of
ten (10) years and appointed by the Canadian Dollar Lender will be
conclusive for the purposes of such determination. A certificate of an
authorized signing officer of the Canadian Dollar Lender as to each
amount and/or each rate of



40









 






interest payable hereunder from time to time
shall be conclusive evidence of such amount and of such rate, absent
manifest error.




     SECTION 4.2 Notice and Manner of Conversion or Continuation of Revolving
Credit Loans. Provided that no Default or Event of Default has occurred and is
then continuing, the US Borrower, on behalf of itself and the Canadian
Borrower, shall have the option to (a) convert at any time following the third
Business Day after the Closing Date all or any portion of any outstanding Base
Rate Loans (other than Swingline Loans) in a principal amount equal to
$1,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i)
convert all or any part of its outstanding LIBOR Rate Loans in a principal
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof into
Base Rate Loans (other than Swingline Loans) or (ii) continue such LIBOR Rate
Loans as LIBOR Rate Loans. Whenever the US Borrower, on behalf of itself and
the Canadian Borrower, desires to convert or continue Revolving Credit Loans as
provided above, the US Borrower, on behalf of itself and the Canadian Borrower,
shall give the Administrative Agent irrevocable prior written notice in the
form attached as Exhibit E (a “Notice of Conversion/Continuation”) not later
than 12:00 noon (Charlotte time) three (3) Business Days before the day on
which a proposed conversion or continuation of such Revolving Credit Loan is to
be effective specifying (A) the Revolving Credit Loans to be converted or
continued, and, in the case of any LIBOR Rate Loan to be converted or
continued, the last day of the Interest Period therefor, (B) the effective date
of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Revolving Credit Loans to be converted or continued,
and (D) the Interest Period to be applicable to such converted or continued
LIBOR Rate Loan. The Administrative Agent shall promptly notify the Lenders of
such Notice of Conversion/Continuation.



     SECTION 4.3 Fees.



     (a) Facility Fee. Commencing on the Closing Date, the Borrowers shall pay
to the Administrative Agent, for the account of the Lenders, a non-refundable
facility fee at a rate per annum equal to the Applicable Margin on the
Aggregate Commitment (regardless of usage). The facility fee shall be payable
in arrears on the last Business Day of each calendar quarter during the term of
this Agreement commencing December 31, 2004, and on the Maturity Date. Such
facility fee shall be distributed by the Administrative Agent to the Lenders
pro rata in accordance with the Lenders’ respective Commitment Percentages.



     (b) Administrative Agent’s and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrowers agree to pay to the Administrative Agent
and its affiliates, for their own account, the fees set forth in the Fee
Letter.



     SECTION 4.4 Manner of Payment.



     (a) Loans Denominated in Dollars. Each payment by the US Borrower on
account of the principal of or interest on any Loan or Letter of denominated in
Dollars or of any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders



41









 




under this Agreement or any Note (except as
set forth in Section 4.4(b)) shall be made in Dollars not later than 2:00 p.m.
on the date specified for payment under this Agreement to the Administrative
Agent at the Administrative Agent’s Office for the account of the Lenders
(other than as set forth below) pro rata in accordance with their respective
Commitment Percentages (except as specified below) in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 3:00 p.m. on such
day shall be deemed a payment on such date for the purposes of Section 12.1,
but for all other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment received after 3:00 p.m. shall be deemed
to have been made on the next succeeding Business Day for all purposes.




     (b) Canadian Dollar Loans. Each payment by the Borrowers on account of
the principal of or interest on the Canadian Dollar Loans shall be made in
Canadian Dollars not later than 2:00 p.m. (Toronto, Ontario time) on the date
specified for payment under this Agreement to the Administrative Agent’s
account with the Canadian Dollar Lender for the account of the Canadian Dollar
Lender (other than as set forth below) in immediately available funds, and
shall be made without any set-off, counterclaim or deduction whatsoever. Any
payment received after such time but before 3:00 p.m. (Toronto, Ontario time)
on such day shall be deemed a payment on such date for the purposes of Section
12.1, but for all other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment received after 3:00 p.m. (Toronto, Ontario
time) shall be deemed to have been made on the next succeeding Business Day for
all purposes.



     (c) General Payment Provisions. Upon receipt by the Administrative Agent
of each such payment, the Administrative Agent shall distribute to each Lender
at its address for notices set forth herein its pro rata share of such payment
in accordance with such Lender’s Commitment Percentage (except as specified
below) and shall wire advice of the amount of such credit to each Lender. Each
payment to the Administrative Agent of the Issuing Lender’s fees or L/C
Participants’ commissions shall be made in like manner, but for the account of
the Issuing Lender or the L/C Participants, as the case may be. Each payment
to the Administrative Agent of Administrative Agent’s fees or expenses shall be
made for the account of the Administrative Agent and any amount payable to any
Lender under Sections 4.9, 4.10, 4.11 or 14.2 shall be paid to the
Administrative Agent for the account of the applicable Lender. Each payment to
the Administrative Agent with respect to Swingline Loans (including, without
limitation, the Swingline Lender’s fees or expenses) shall be made for the
account of the Swingline Lender. Each payment to the Administrative Agent with
respect to the Canadian Dollar Loans (including, without limitation, the
Canadian Dollar Lender’s fees or expenses) shall be made for the account of the
Canadian Dollar Lender. Subject to Section 4.1(b)(ii) if any payment under
this Agreement shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day and
such extension of time shall in such case be included in computing any interest
if payable along with such payment.



     SECTION 4.5 Evidence of Indebtedness.



     (a) Extensions of Credit. The Extensions of Credit made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the



42









 




Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Extensions of
Credit made by the Lenders to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrowers shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Credit Note, a Canadian Note and/or a
Swingline Note, as applicable, which shall evidence such Lender’s Revolving
Credit Loans, Canadian Dollar Loans and/or Swingline Loans in addition to such
accounts or records. Each Lender may attach schedules to its Notes and endorse
thereon the date, amount and maturity of its Loans and payments with respect
thereto.




     (b) Participations. In addition to the accounts and records referred to
in subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Canadian Dollar Loans, Swingline
Loans and Letters of Credit. In the event of any conflict between the accounts
and records maintained by the Administrative Agent and the accounts and records
of any Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error.



     SECTION 4.6 Adjustments. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or other obligations hereunder resulting in
such Lender’s receiving payment of a proportion of the aggregate amount of its
Loans and accrued interest thereon or other such obligations (other than
pursuant to Sections 4.9, 4.10, 4.11 or 14.3 hereof) greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided that




     (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and




     (ii) the provisions of this Section shall not be construed to apply
to (x) any payment made by the Borrowers pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or participations in Canadian Dollar Loans, Swingline
Loans and Letters of Credit to any assignee or participant, other than to
a Borrower or any Subsidiary thereof (as to which the provisions of this
Section shall apply).



43









 




Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of such participation.




     SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make, to issue or to participate in Loans and Letters
of Credit, as applicable, are several and are not joint or joint and several.
Unless the Administrative Agent shall have received notice from a Lender prior
to a proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender’s ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Sections 2.4(b), and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrowers on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in
accordance with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender’s Commitment Percentage
of such borrowing is not made available to the Administrative Agent by such
Lender within three (3) Business Days after such borrowing date, the
Administrative Agent shall be entitled to recover such amount made available by
the Administrative Agent with interest thereon at the rate per annum applicable
to Base Rate Loans hereunder, on demand, from the Borrowers. The failure of
any Lender to make available its Commitment Percentage of any Loan requested by
the Borrowers shall not relieve it or any other Lender of its obligation, if
any, hereunder to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the
borrowing date. Notwithstanding anything set forth herein to the contrary, any
Lender that fails to make available its Commitment Percentage of any Loan shall
not (a) have any voting or consent rights under or with respect to any Loan
Document (except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender) or (b) constitute a “Lender” (or
be included in the calculation of Required Lenders hereunder) for any voting or
consent rights under or with respect to any Loan Document.



     SECTION 4.8 Changed Circumstances.



     (a) Circumstances Affecting LIBOR Rate and Canadian Dollar Availability.
If (i) with respect to any Interest Period for any LIBOR Rate Loan the
Administrative Agent or any Lender (after consultation with the Administrative
Agent) shall determine that, by reason of



44









 




circumstances affecting the foreign
exchange and interbank markets generally, deposits in eurodollars, in the
applicable amounts are not being quoted via the Telerate Page 3750 or offered
to the Administrative Agent or such Lender for such Interest Period, (ii) a
fundamental change has occurred in the foreign exchange or interbank markets
with respect to Canadian Dollars (including, without limitation, changes in
national or international financial, political or economic conditions or
currency exchange rates or exchange controls) or (iii) it has become otherwise
materially impractical for the Canadian Dollar Lender to make any Canadian
Dollar Loans, then the Administrative Agent shall forthwith give notice thereof
to the Borrowers. Thereafter, until the Administrative Agent notifies the
Borrowers that such circumstances no longer exist, the obligation of the
Lenders or the Canadian Dollar Lender, as applicable, to make LIBOR Rate Loans
or Canadian Dollar Loans, as applicable, and the right of the US Borrower to
convert any Revolving Credit Loan to or continue any Revolving Credit Loan as a
LIBOR Rate Loan shall be suspended, and (i) the US Borrower or the Canadian
Borrower, as applicable, shall repay in full (or cause to be repaid in full)
the then outstanding principal amount of each such LIBOR Rate Loan or Canadian
Dollar Loan, as applicable, together with accrued interest thereon, (A) with
respect to any LIBOR Rate Loan, on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan or (B) with respect to any Canadian
Dollar Loan, immediately upon the request of the Administrative Agent or (ii)
with respect to any LIBOR
Rate Loan, convert the then outstanding principal amount of such LIBOR Rate
Loan to a Base Rate Loan as of the last day of such Interest Period.




     (b) Laws Affecting LIBOR Rate and Canadian Dollar Availability. If, after
the date hereof, the introduction of, or any change in, any Applicable Law or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any of the Lenders (or any of their
respective Lending Offices) with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the Lenders
(or any of their respective Lending Offices) to honor its obligations hereunder
to make or maintain any LIBOR Rate Loan or Canadian Dollar Loan, such Lender
shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrowers and the other
Lenders. Thereafter, until the Administrative Agent notifies the Borrowers
that such circumstances no longer exist, (i) the obligations of the Lenders or
the Canadian Dollar Lender, as applicable, to make LIBOR Rate Loans or Canadian
Dollar Loans, as applicable, and the right of the US Borrower to convert any
Revolving Credit Loan or continue any Revolving Credit Loan as a LIBOR Rate
Loan shall be suspended and thereafter the US Borrower may select only Base
Rate Loans hereunder, (ii) if any of the Lenders may not lawfully continue to
maintain a LIBOR Rate Loan to the end of the then current Interest Period
applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall
immediately be converted to a Base Rate Loan for the remainder of such Interest
Period and (iii) if the Canadian Dollar Lender may not lawfully continue to
maintain a Canadian Dollar Loan, the applicable Canadian Dollar Loan shall
immediately be repaid in full (together with accrued interest thereon).



     SECTION 4.9 Indemnity. The US Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender’s obtaining, liquidating or employing deposits or other funds acquired
to effect, fund or maintain



45









 




any Revolving Credit Loan (a) as a consequence of
any failure by the US Borrower to make any payment when due of any amount due
hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the
US Borrower to borrow, continue or convert on a date specified therefor in a
Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any
payment, prepayment or conversion of any LIBOR Rate Loan on a date other than
the last day of the Interest Period therefor. The amount of such loss or
expense shall be determined, in the applicable Lender’s sole discretion, based
upon the assumption that such Lender funded its Commitment Percentage of the
LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for
determining such amount or amounts necessary to compensate such Lender shall be
forwarded to the US Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.




     SECTION
4.10 Increased Costs.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or advances, loans or other
credit extended or participated in by, any Lender (except any reserve
requirement reflected in the LIBOR Rate), the Canadian Dollar Lender or
the Issuing Lender (or any of their respective Lending Offices);




     (ii) subject any Lender, the Canadian Dollar Lender or the Issuing
Lender to any tax of any kind whatsoever with respect to this Agreement,
any Canadian Dollar Loan, any Letter of Credit, any participation in a
Canadian Dollar Loan or a Letter of Credit or any LIBOR Rate Loan made by
it, or change the basis of taxation of payments to such Lender, the
Canadian Dollar Lender or the Issuing Lender in respect thereof (except
for Indemnified Taxes or Other Taxes covered by Section 4.11 and the
imposition of, or any change in the rate of any Excluded Tax payable by
such Lender, the Canadian Dollar Lender or the Issuing Lender); or




     (iii) impose on any Lender, the Canadian Dollar Lender or the
Issuing Lender (or any of their respective Lending Offices) or the London
interbank market any other condition, cost or expense affecting this
Agreement, any Canadian Dollar Loan, any Letter of Credit, any
participation in a Canadian Dollar Loan or a Letter of Credit or any
LIBOR Rate Loan made by it;


and the result of any of the foregoing shall be to increase the cost to such
Lender, the Canadian Dollar Lender or the Issuing Lender of making, converting
into or maintaining any LIBOR Rate Loan or Canadian Dollar Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to
such Lender, the Canadian Dollar Lender or the Issuing Lender of participating
in, issuing or maintaining any Canadian Dollar Loan or Letter of Credit (or of
maintaining its obligation to participate in or to issue any Canadian Dollar
Loan or Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender, the Canadian Dollar Lender or the Issuing Lender
hereunder (whether of principal, interest or any other





46









 







amount) then, upon
request of such Lender, the Canadian Dollar Lender or the Issuing Lender, the
Borrowers shall promptly pay to any such Lender, the Canadian Dollar Lender or
the Issuing Lender, as the case may be, such additional amount or amounts as
will compensate such Lender, the Canadian Dollar Lender or the Issuing Lender,
as the case may be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender, the Canadian Dollar Lender or
the Issuing Lender determines that any Change in Law affecting such Lender, the
Canadian Dollar Lender or the Issuing Lender or any lending office of such
Lender, the Canadian Dollar Lender or such Lender’s, the Canadian Dollar
Lender’s or the Issuing Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s, the Canadian Dollar Lender’s or the Issuing Lender’s capital or
on the capital of such Lender’s, the Canadian Dollar Lender’s or the Issuing
Lender’s holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender, the Canadian Lender or the Issuing Lender or the
Loans made by, or participations in Letters of Credit held by, such Lender, the
Canadian Dollar Lender or the Issuing Lender or the Letters of Credit issued by
the Issuing Lender, to a level below that which such Lender, the Canadian
Dollar or the Issuing Lender or such Lender’s, the Canadian Dollar Lender’s or
the Issuing Lender’s holding company could
have achieved but for such Change in Law (taking into consideration such
Lender’s, the Canadian Dollar Lender’s or the Issuing Lender’s policies and the
policies of such Lender’s, the Canadian Dollar Lender’s or the Issuing Lender’s
holding company with respect to capital adequacy), then from time to time the
Borrowers shall promptly pay to such Lender, the Canadian Dollar Lender or the
Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender, the Canadian Dollar Lender or the Issuing Lender or
such Lender’s, the Canadian Dollar Lender’s or the Issuing Lender’s holding
company for any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender, the
Canadian Dollar Lender or the Issuing Lender setting forth the amount or
amounts necessary to compensate such Lender, the Canadian Dollar Lender or the
Issuing Lender or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrowers shall be
conclusive absent manifest error. The Borrowers shall pay such Lender, the
Canadian Dollar Lender or the Issuing Lender, as the case may be, the amount
shown as due on any such certificate within ten (10) days after receipt
thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender, the
Canadian Dollar Lender or the Issuing Lender to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s, the Canadian
Dollar Lender’s or the Issuing Lender’s right to demand such compensation;
provided that the Borrowers shall not be required to compensate a Lender, the
Canadian Dollar Lender or the Issuing Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine (9) months prior
to the date that such Lender, the Canadian Dollar Lender or the Issuing Lender,
as the case may be, notifies the Borrowers of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s, the Canadian Dollar
Lender’s or the Issuing Lender’s intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall
be extended to include the period of retroactive effect thereof).



47









 





     SECTION 4.11 Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any
obligation of the Borrowers hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes; provided that if any Borrower shall be required by
Applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, the
Lenders or the Issuing Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall timely pay
the full amount deducted to the relevant Governmental Authority in accordance
with Applicable Law.



     (b) Payment of Other Taxes by the Borrowers. Without limiting the
provisions of subsection (a) above, the Borrowers shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with Applicable Law.



     (c) Indemnification by the Borrowers. The Borrowers shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10) days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the US
Borrower by a Lender or the Issuing Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, shall be conclusive absent manifest error.



     (d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
a Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or under any other
Loan Document shall deliver to the applicable Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by Applicable Law or
reasonably requested by the applicable Borrower or the Administrative Agent,
such properly completed and executed documentation prescribed by Applicable Law
as will permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, any Lender, if requested by applicable
Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the applicable Borrower
or the Administrative Agent as will enable the applicable Borrower or the



48









 




Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Without limiting the
generality of the foregoing, in the event that applicable Borrower is a
resident for tax purposes in the United States, any Foreign Lender shall
deliver to the applicable Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the request of the applicable Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:





     (i) duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for benefits of an income tax treaty to which the
United States is a party,




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




     (iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the applicable Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation”
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or




     (iv) any other form prescribed by Applicable Law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by Applicable Law to permit applicable
Borrower to determine the withholding or deduction required to be made.



     Without limiting the obligations of the Lenders set forth above regarding
delivery of certain forms and documents to establish each Lender’s status for
U.S. withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the US Borrower, on behalf of itself and the Canadian
Borrower, as the Administrative Agent or the US Borrower, on behalf of itself
and the Canadian Borrower, shall reasonably request, on or prior to the Closing
Date, and in a timely fashion thereafter, such other documents and forms
required by any relevant taxing authorities under the Laws of any other
jurisdiction, duly executed and completed by such Lender, as are required under
such Laws to confirm such Lender’s entitlement to any available exemption from,
or reduction of, applicable withholding taxes in respect of all payments to be
made to such Lender outside of the United States by the Borrowers pursuant to
this Agreement or otherwise to establish such Lender’s status for withholding
tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify
the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of Applicable
Laws of any such jurisdiction that any Borrower make any deduction or
withholding for taxes from amounts payable to such Lender. Additionally, each
Borrower shall promptly deliver to the



49









 




Administrative Agent or any Lender, as
the Administrative Agent or such Lender shall reasonably request, on or prior
to the Closing Date, and in a timely fashion thereafter, such documents and
forms required by any relevant taxing authorities under the Laws of any
jurisdiction, duly executed and completed by such Borrower, as are required to
be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes
or Other Taxes, or otherwise in connection with the Loan Documents, with
respect to such jurisdiction




     (f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or
the Issuing Lender determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrowers or with respect to which the Borrowers have paid additional amounts
pursuant to this Section, it shall pay to the Borrowers an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrowers under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such
Lender or the Issuing Lender, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided that the Borrowers, upon the request of the
Administrative Agent, such Lender or the Issuing Lender, agree to repay the
amount paid over to the Borrowers (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the Issuing Lender in the event the Administrative Agent,
such Lender or the Issuing Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the
Administrative Agent, any Lender or the Issuing Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrowers or any other Person.



     (g) Survival. Without prejudice to the survival of any other agreement of
the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section shall survive the payment in full of the Obligations
and the termination of the Commitments.



     SECTION 4.12 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 4.10, or requires the Borrowers to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 4.11, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 4.10 or Section 4.11, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrowers hereby
agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under
Section 4.10, or if the Borrowers are required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 4.11, or if any Lender



50









 




defaults in its obligation to fund Loans
hereunder, then the Borrowers may, at their sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 14.11), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that:





     (i) the Borrowers shall have paid to the Administrative Agent the
assignment fee specified in Section 14.11;




     (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in Letters of
Credit, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other
Loan Documents (including any amounts under Section 4.9) from the
assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts);




     (iii) in the case of any such assignment resulting from a claim for
compensation under Section 4.10 or payments required to be made pursuant
to Section 4.11, such assignment will result in a reduction in such
compensation or payments thereafter; and




     (iv) such assignment does not conflict with Applicable Law.


A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.




     SECTION 4.13 Redenomination of Canadian Dollar Loans. If any Canadian
Dollar Loan is required to bear interest based at the Base Rate rather than the
Canadian Base Rate pursuant to any applicable provision hereof, such Loan shall
be funded in Dollars in an amount equal to the Dollar Amount of such Canadian
Dollar Loan, all subject to the provisions of Section 2.4(b). The Borrowers
shall reimburse the Lenders upon any such conversion for any amounts required
to be paid under Section 4.9.



     SECTION 4.14 US Borrower as Agent for the Canadian Borrower. The Canadian
Borrower hereby irrevocably appoints and authorizes the US Borrower (a) to
provide the Administrative Agent with all notices with respect to Extensions of
Credit obtained for the benefit of either Borrower and all other notices and
instructions under this Agreement, (b) to take such action on behalf of the
Borrowers as the US Borrower deems appropriate on its behalf to obtain
Extensions of Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement and (c) to act
as its agent for service of process and notices required to be delivered under
this Agreement or the other Loan Documents, it being understood and agreed that
receipt by the US Borrower of any summons, notice or other similar item shall
be deemed effective receipt by the Borrowers and their Subsidiaries.



51









 





ARTICLE V




CLOSING; CONDITIONS OF CLOSING AND BORROWING




     SECTION 5.1 Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, L.L.P. at 10:00 a.m. on November 2,
2004, or on such other place, date and time as the parties hereto shall
mutually agree.



     SECTION 5.2 Conditions to Closing and Initial Extensions of Credit. The obligation of the Lenders to close this Agreement and to make the
initial Loan or issue or participate in the initial Letter of Credit, if any,
is subject to the satisfaction of each of the following conditions:



     (a) Executed Loan Documents. This Agreement, a Revolving Credit Note in
favor of each Lender requesting a Revolving Credit Note, a Canadian Note in
favor of the Canadian Dollar Lender (if requested thereby), a Swingline Note in
favor of the Swingline Lender (if requested thereby), the Subsidiary Guaranty
Agreement, together with any other applicable Loan Documents, shall have been
duly authorized, executed and delivered to the Administrative Agent by the
parties thereto, shall be in full force and effect and no Default or Event of
Default shall exist hereunder or thereunder.



     (b) Closing Certificates; Etc. The Administrative Agent shall have
received each of the following in form and substance reasonably satisfactory to
the Administrative Agent:



          (i) Officer’s Certificate of the US Borrower. A certificate from a
Responsible Officer of the US Borrower to the effect that all representations
and warranties of the Credit Parties contained in this Agreement and the other
Loan Documents are true, correct and complete in all material respects as of
the Closing Date, except for any representation and warranty made as of an
earlier date, which representation and warranty shall remain true and correct
as of such earlier date; provided that any representation and warranty that is
qualified by materiality or by reference to Material Adverse Effect shall be
true, correct and complete in all respects as of the Closing Date; that none of
the Credit Parties are in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that each of the Credit Parties, as applicable,
has satisfied each of the conditions set forth in Section 5.2 and Section 5.3.



          (ii) Certificate of Responsible Officer of each Credit Party. A
certificate of a Responsible Officer of each Credit Party certifying as to the
incumbency and genuineness of the signature of each officer of such Credit
Party executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the articles of
incorporation (or equivalent documentation) of such Credit Party and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation or formation, (B)
the bylaws (or equivalent documentation) of such Credit Party as in effect on
the Closing Date, (C) resolutions duly adopted by the board of directors (or



52









 




equivalent governing body) of such Credit Party authorizing the transactions
contemplated hereunder and the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, and (D) each
certificate required to be delivered pursuant to Section 5.2(b)(iii).




          (iii) Certificates of Good Standing. Certificates as of a recent date of
the good standing or status of each Credit Party under the laws of its
jurisdiction of organization and, to the extent requested by the Administrative
Agent, each other jurisdiction where such Credit Party is qualified to do
business and, to the extent available, a certificate of the relevant taxing
authorities of such jurisdictions certifying that such Credit Party has filed
required tax returns and owes no delinquent taxes.



          (iv) Opinions of Counsel. Favorable opinions of counsel to the Credit
Parties addressed to the Administrative Agent and the Lenders with respect to
the Credit Parties, the Loan Documents and such other matters as the Lenders
shall request, each in form and substance satisfactory to the Administrative
Agent (including, without limitation, favorable opinions of foreign counsel to
the Credit Parties).



          (v) Tax Forms. Copies of the United States Internal Revenue Service forms
required by Section 4.11(e).



          (vi) Liability Insurance. The Administrative Agent shall have received
certificates of and liability insurance, evidence of payment of all insurance
premiums for the current policy year of each (naming the Administrative Agent
as additional insured on all certificates for liability insurance), and, if
requested by the Administrative Agent, copies (certified by a Responsible
Officer) of insurance policies in form and substance reasonably satisfactory to
the Administrative Agent.



     (c) Consents; Defaults.



          (i) Governmental and Third Party Approvals. The Credit Parties shall have
received all material governmental, shareholder and third party consents and
approvals necessary (or any other material consents as determined in the
reasonable discretion of the Administrative Agent) in connection with the
transactions contemplated by this Agreement and the other Loan Documents and
the other transactions contemplated hereby and all applicable waiting periods
shall have expired without any action being taken by any Person that could
reasonably be expected to restrain, prevent or impose any material adverse
conditions on any of the Credit Parties or such other transactions or that
could seek or threaten any of the foregoing, and no law or regulation shall be
applicable which in the reasonable judgment of the Administrative Agent could
reasonably be expected to have such effect.



          (ii) No Injunction, Etc. No action, proceeding, investigation, regulation
or legislation shall have been instituted, threatened or proposed before any
Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent’s sole



53









 




discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or the other Loan Documents or the consummation
of the transactions contemplated hereby or thereby.




     (d) Financial Matters.



          (i) Financial Statements. The Administrative Agent and the Lenders shall
have received the following financial statements of the US Borrower and its
Subsidiaries, all in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders and
prepared in accordance with GAAP (and, with respect to all audited financial
statements, to be audited by an independent certified public accounting firm
reasonably satisfactory to the Administrative Agent):




          (A) the audited consolidated financial statements of the US Borrower
and its Subsidiaries for the Fiscal Years ended December 31, 2001,
December 31, 2002 and December 31, 2003; and




          (B) the unaudited consolidated financial statements of the US
Borrower and its Subsidiaries for each interim quarterly period ended at
least forty-five (45) days prior to the Closing Date.



          (ii) Financial Projections. The Administrative Agent shall have received
financial projections with respect to the US Borrower and its Subsidiaries
prepared by a Responsible Officer of the US Borrower, in form reasonably
satisfactory to the Administrative Agent, of balance sheets, income statements
and cash flow statements on a quarterly basis for the first year following the
Closing Date and an annual basis for the next five (5) years thereafter.



          (iii) Financial Condition Certificate. The US Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer of the US Borrower, that (A) the US Borrower and each of
its Subsidiaries are each Solvent, (B) the US Borrower’s and each of its
Subsidiaries’ payables are current and not past due (except to the extent
consistent with the past practice of the US Borrower and its Subsidiaries), (C)
attached thereto are calculations evidencing compliance on a pro forma basis
with the covenants contained in Article IX hereof, (D) the financial
projections previously delivered to the Administrative Agent represent the good
faith estimates (utilizing reasonable assumptions) of the financial condition
and operations of the US Borrower and its Subsidiaries; (E) attached thereto is
a calculation of the Applicable Margin; and (F) attached thereto is a
calculation of EBITDA of the US Borrower and its Subsidiaries, determined on a
pro forma basis for the twelve (12) consecutive calendar month period ending
September 30, 2004, demonstrating to the reasonable satisfaction of the
Administrative Agent that EBITDA (as determined in such manner) is greater than
$115,000,000.



          (iv) Payment at Closing; Fee Letters. The Borrowers shall have paid to the
Administrative Agent and the Lenders the fees set forth or referenced in
Section 4.3 and any other accrued and unpaid fees or commissions due hereunder
(including, without limitation, legal fees and expenses) and to any other
Person such amount as may be due thereto in connection



54









 




with the transactions
contemplated hereby, including all taxes, fees and other charges in connection
with the execution, delivery, recording, filing and registration of any of the
Loan Documents.




     (e) Miscellaneous.



          (i) Notice of Borrowing. The Administrative Agent shall have received a
Notice of Borrowing from the applicable Borrower in accordance with Section
2.4(a) and a
Notice of Account Designation from the US Borrower specifying the account or
accounts to which the proceeds of any Loans made after the Closing Date are to
be disbursed.



          (ii) Due Diligence. The Administrative Agent shall have completed, to its
satisfaction, all legal and other due diligence with respect to the business,
assets, liabilities, operations and condition (financial or otherwise) of the
US Borrower and its Subsidiaries in scope and determination satisfactory to the
Administrative Agent in its sole discretion. In connection therewith, the
Administrative Agent may request the results of a Lien search (including a
search as to judgments, pending litigation and tax matters), in form and
substance reasonably satisfactory thereto, made against the Credit Parties
under the Uniform Commercial Code (or applicable judicial docket) as in effect
in any state or comparable legislation in other jurisdictions in which any of
the assets of such Credit Party are located, indicating among other things that
its assets are free and clear of any Lien except for Permitted Liens.



          (iii) Existing Facility. The Existing Facility (other than the Existing
Letters of Credit) shall be repaid in full and terminated and all collateral
security therefor shall be released, and the Administrative Agent shall have
received a pay-off letter in form and substance satisfactory to it evidencing
such repayment, termination, reconveyance and release.



          (iv) Other Documents. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Administrative
Agent. The Administrative Agent shall have received copies of all other
documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.



     SECTION 5.3 Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension
of Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:




     (a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VI shall be true and correct on and as of
such borrowing, continuation, conversion, issuance or extension date with the
same effect as if made on and as of such date, except for any representation
and warranty made as of an earlier date, which representation and warranty
shall remain true and correct as of such earlier date.



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     (b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, continuation or conversion
date with respect to such Loan or after giving effect to the Loans to be made,
continued or converted on such date or (ii) on the issuance or extension date
with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.



     (c) Notices. The Administrative Agent shall have received a Notice of
Borrowing or Notice of Conversion/Continuation, as applicable, from the
applicable Borrower in accordance with Section 2.4(a) and Section 4.2.



     (d) Additional Documents. The Administrative Agent shall have received
each additional document, instrument, legal opinion or other item reasonably
requested by it.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES OF THE BORROWERS




     SECTION 6.1 Representations and Warranties. To induce the Administrative
Agent and Lenders to enter into this Agreement and to induce the Lenders to
make Extensions of Credit, each Borrower hereby represents and warrants to the
Administrative Agent and Lenders both before and after giving effect to the
transactions contemplated hereunder that:



     (a) Organization; Power; Qualification. Each of the US Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization, except
where the failure to be qualified or authorized, individually or in the
aggregate could not reasonably be excepted to have a Material Adverse Effect.
The jurisdictions in which the US Borrower and its Subsidiaries are organized
and qualified to do business as of the Closing Date are described on Schedule
6.1(a).



     (b) Ownership. Each Subsidiary of the US Borrower as of the Closing Date
is listed on Schedule 6.1(b). As of the Closing Date, the capitalization of
the US Borrower and its Subsidiaries consists of the number of shares,
authorized, issued and outstanding, of such classes and series, with or without
par value, described on Schedule 6.1(b). All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable, with no
personal liability attaching to the ownership thereof, and not subject to any
preemptive or similar rights. The shareholders of the Subsidiaries of the US
Borrower and the number of shares owned by each as of the Closing Date are
described on Schedule 6.1(b). As of the Closing Date, there are no outstanding
stock purchase warrants, subscriptions, options, securities, instruments or
other rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of Capital
Stock of the US Borrower or its Subsidiaries, except as described on Schedule
6.1(b).



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     (c) Authorization of Agreement, Loan Documents and Borrowing. Each of the
US Borrower and its Subsidiaries has the right, power and authority and has
taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents have been duly executed and
delivered by the duly authorized officers of the US Borrower and each of its
Subsidiaries party thereto, and each such document constitutes the legal, valid
and binding
obligation of the US Borrower or its Subsidiary party thereto, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the enforcement of
creditors’ rights in general and the availability of equitable remedies.



     (d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.
The execution, delivery and performance by the US Borrower and its Subsidiaries
of the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the Extensions of Credit hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the US Borrower or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation, bylaws or other organizational documents of the US Borrower
or any of its Subsidiaries or any indenture, agreement or other instrument to
which such Person is a party or by which any of its properties may be bound or
any Governmental Approval relating to such Person, (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents or (iv) require any consent or authorization of, filing with, or
other act in respect of, an arbitrator or Governmental Authority and no consent
of any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.



     (e) Compliance with Law; Governmental Approvals. Each of the US Borrower
and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect (ii) is in compliance with each Governmental Approval applicable to it
and in compliance with all other Applicable Laws relating to it or any of its
respective properties, except where the failure to comply, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect and (iii) has timely filed all material reports, documents and other
materials required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all material records and documents
required to be retained by it under Applicable Law, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.



     (f) Tax Returns and Payments. Each of the US Borrower and its
Subsidiaries has duly filed or caused to be filed all federal, state,
provincial, local and other material tax returns



57









 




required by Applicable Law to
be filed, and has paid, or made adequate provision for the payment of, all
federal, state, provincial, local and other material taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable (other than any amount the validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which adequate reserves in conformity with GAAP have been provided
for on the books of the US Borrower and its Subsidiaries and no Lien exists).
Such returns accurately reflect in all material respects all liability for
taxes of the US Borrower and its Subsidiaries for the periods covered thereby.
There is no ongoing audit or
examination or other investigation by any Governmental Authority of the tax
liability of the US Borrower and its Subsidiaries in each case, except as could
not reasonably be expected to have a liability in excess of $5,000,000. No
Governmental Authority has asserted any Lien or other claim against the US
Borrower or any Subsidiary thereof with respect to unpaid taxes which has not
been discharged, resolved or adequately reserved for on the books of the US
Borrower and its Subsidiaries. The charges, accruals and reserves on the books
of the US Borrower and any of its Subsidiaries in respect of federal, state,
provincial, local and other taxes for all Fiscal Years and portions thereof
since the organization of the US Borrower and any of its Subsidiaries are in
the judgment of the Borrowers adequate, and the Borrowers do not anticipate any
additional taxes or assessments for any of such years beyond those for which
such reserves have been made.




     (g) Intellectual Property Matters. Each of the US Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service mark, service mark rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business, except as could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. No event has occurred which permits, or after notice or lapse
of time or both would permit, the revocation or termination of any such rights,
and neither the US Borrower nor any Subsidiary thereof is liable to any Person
for infringement under Applicable Law with respect to any such rights as a
result of its business operations, except any such revocation, termination or
liability as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.



     (h) Environmental Matters.



               (i) The properties owned, leased or operated by the US Borrower and its
Subsidiaries now or in the past do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations
which (A) constitute or constituted a violation of applicable Environmental
Laws or (B) could give rise to liability under applicable Environmental Laws,
except where such violation or liability could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;



               (ii) The US Borrower, each Subsidiary and such properties and all
operations conducted in connection therewith are in compliance, and have been
in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof, except for any such noncompliance or



58









 




contamination,
that could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;




               (iii) Neither the US Borrower nor any Subsidiary thereof has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters, Hazardous Materials, or compliance
with Environmental Laws, nor does the US Borrower or any Subsidiary thereof
have knowledge or reason to believe that any such notice will be received or is
being threatened, except where such violation, alleged
violation, noncompliance, liability or potential liability which is the subject
of such notice could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;



               (iv) Hazardous Materials have not been transported or disposed of to or
from the properties owned, leased or operated by the US Borrower and its
Subsidiaries in violation of, or in a manner or to a location which could give
rise to liability under, Environmental Laws, nor have any Hazardous Materials
been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Laws, except where such violation or
liability could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect;



               (v) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which the US Borrower or any Subsidiary thereof is or will
be named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to US Borrower, any Subsidiary or such
properties or such operations; except where such proceeding, action, degree,
order or other requirement could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; and



               (vi) There has been no release, or to the best of the Borrowers’
knowledge, threat of release, of Hazardous Materials at or from properties
owned, leased or operated by the US Borrower or any Subsidiary, now or in the
past, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws, except where such violation or liability
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.



     (i) ERISA.



               (i) As of the Closing Date, neither the US Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any
Employee Benefit Plans other than those identified on Schedule 6.1(i);



               (ii) The US Borrower and each ERISA Affiliate is in material compliance
with all applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans except
for any required



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amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired and except where a failure to
so comply could not reasonably be expected to have a Material Adverse Effect.
Each Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to be exempt
under Section 501(a) of the Code except for such plans that have not yet
received determination letters but for which the remedial amendment period for
submitting a determination letter has not yet expired. No liability has been
incurred by the US Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit
Plan or any Multiemployer Plan except for a liability that could not reasonably
be expected to have a Material Adverse Effect;




               (iii) As of the Closing Date, no Pension Plan has been terminated, nor has
any accumulated funding deficiency (as defined in Section 412 of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested with respect to any Pension Plan, nor has the US Borrower or any
ERISA Affiliate failed to make any contributions or to pay any amounts due and
owing as required by Section 412 of the Code, Section 302 of ERISA or the terms
of any Pension Plan prior to the due dates of such contributions under Section
412 of the Code or Section 302 of ERISA, nor has there been any event requiring
any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to
any Pension Plan;



               (iv) Except where the failure of any of the following representations to
be correct in all material respects could not reasonably be expected to have a
Material Adverse Effect, neither the US Borrower nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in Section 406 of
the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;



               (v) No Termination Event has occurred or is reasonably expected to occur;
and



               (vi) Except where the failure of any of the following representations to
be correct in all material respects could not reasonably be expected to have a
Material Adverse Effect, no proceeding, claim (other than a benefits claim in
the ordinary course of business), lawsuit and/or investigation is existing or,
to the best knowledge of the Borrowers after due inquiry, threatened concerning
or involving any (A) employee welfare benefit plan (as defined in Section 3(1)
of ERISA) currently maintained or contributed to by the US Borrower or any
ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.



     (j) Margin Stock. Neither the US Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of “purchasing” or “carrying” any “margin stock” (as
each such term is defined or used, directly or indirectly, in Regulation U of
the Board of Governors of the Federal Reserve System). No part



60









 




of the proceeds
of any of the Loans or Letters of Credit will be used for purchasing or
carrying margin stock or for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of such Board of
Governors.




     (k) Government Regulation. Neither the US Borrower nor any Subsidiary
thereof is an “investment company” or a company “controlled” by an “investment
company” (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the US Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be,
subject to regulation under the Public Utility Holding Company Act of 1935 or
the Interstate Commerce Act, each as amended, or any other Applicable Law which
limits its ability to incur or consummate the transactions contemplated hereby.



     (l) Material Contracts. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Contracts of the US Borrower and its Subsidiaries
in effect as of the Closing Date not listed on any other Schedule hereto; other
than as set forth in Schedule 6.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. The US Borrower and its Subsidiaries have delivered to the
Administrative Agent a true and complete copy of each Material Contract
required to be listed on Schedule 6.1(l) or any other Schedule hereto. Neither
the US Borrower nor any Subsidiary (nor, to the knowledge of the Borrowers, any
other party thereto) is in breach of or in default under any Material Contract
in any material respect.



     (m) Employee Relations. Each of the US Borrower and its Subsidiaries has a
stable work force in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees except as set forth on Schedule 6.1(m). The
Borrowers know of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of its
Subsidiaries.



     (n) Burdensome Provisions. Neither the US Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The US
Borrower and its Subsidiaries do not presently anticipate that future
expenditures needed to meet the provisions of any statutes, orders, rules or
regulations of a Governmental Authority will be so burdensome as to have a
Material Adverse Effect. No Subsidiary is party to any agreement or instrument
or otherwise subject to any restriction or encumbrance that restricts or limits
its ability to make dividend payments or other distributions in respect of its
Capital Stock to the US Borrower or any Subsidiary or to transfer any of its
assets or properties to the US Borrower or any other Subsidiary in each case
other than existing under or by reason of the Loan Documents or Applicable Law.



     (o) Financial Statements. The (i) audited Consolidated balance sheet of
the US Borrower and its Subsidiaries as of December 31, 2003 and the related
audited statements of income and retained earnings and cash flows for the
Fiscal Year then ended and (ii) unaudited



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Consolidated balance sheet of the US
Borrower and its Subsidiaries as of June 30, 2004 and related unaudited interim
statements of income and retained earnings, copies of which have been furnished
to the Administrative Agent and each Lender, are complete and correct and
fairly present on a Consolidated basis the assets, liabilities and financial
position of the US Borrower and its Subsidiaries as at such dates, and the
results of the operations and changes of financial position for the periods
then ended (other than customary year-end adjustments for unaudited financial
statements). All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP. The US Borrower
and its Subsidiaries
have no Indebtedness, obligation or other unusual forward or long-term
commitment which is not fairly reflected in the foregoing financial statements
or in the notes thereto.




     (p) No Material Adverse Change. Since December 31, 2003, there has been
no material adverse change in the properties, business, operations, prospects,
or condition (financial or otherwise) of the US Borrower and its Subsidiaries
and no event has occurred or condition arisen that could reasonably be expected
to have a Material Adverse Effect.



     (q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the US Borrower and each of its
Subsidiaries will be Solvent.



     (r) Titles to Properties. Each of the US Borrower and its Subsidiaries
has such title to the real property owned or leased by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of
its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the US Borrower and its Subsidiaries
delivered pursuant to Section 6.1(o), except those which have been disposed of
by the US Borrower or its Subsidiaries subsequent to the date of such balance
sheets pursuant to dispositions in the ordinary course of business or as
otherwise expressly permitted hereunder.



     (s) Liens. None of the properties and assets of the US Borrower or any
Subsidiary thereof is subject to any Lien, except Permitted Liens. No
financing statement under the Uniform Commercial Code of any state or
comparable legislation in other jurisdictions which names the US Borrower or
any Subsidiary thereof or any of their respective trade names or divisions as
debtor and which has not been terminated, has been filed in any state or other
jurisdiction and neither the US Borrower nor any Subsidiary thereof has signed
any such financing statement or any security agreement authorizing any secured
party thereunder to file any such financing statement, except to perfect those
Permitted Liens.



     (t) Indebtedness and Guaranty Obligations. Schedule 6.1(t) is a complete
and correct listing of all Indebtedness and Guaranty Obligations of the US
Borrower and its Subsidiaries as of the Closing Date in excess of $5,000,000.
The US Borrower and its Subsidiaries have performed and are in compliance with
all of the terms of such Indebtedness and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of the US Borrower or
any of its Subsidiaries exists with respect to any such Indebtedness or
Guaranty Obligation.



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     (u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 6.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrowers, threatened against or in any other way
relating adversely to or affecting the US Borrower or any Subsidiary thereof or
any of their respective properties in any court or before any arbitrator of any
kind or before or by any Governmental Authority that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the
transactions provided for herein or therein, or (b) either individually or in
the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.



     (v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a
default or event of default by the US Borrower or any Subsidiary thereof under
any Material Contract or judgment, decree or order to which the US Borrower or
its Subsidiaries is a party or by which the US Borrower or its Subsidiaries or
any of their respective properties may be bound or which would require the US
Borrower or its Subsidiaries to make any payment thereunder prior to the
scheduled maturity date therefor.



     (w) Senior Indebtedness Status. The Obligations of the US Borrower and
each of its Subsidiaries under this Agreement and each of the other Loan
Documents ranks and shall continue to rank at least senior in priority of
payment to all Subordinated Indebtedness and at least equal to all senior
unsecured Indebtedness of each such Person and is designated as “Senior
Indebtedness” (or the equivalent term) under all instruments and documents, now
or in the future, relating to all Subordinated Indebtedness and all senior
unsecured Indebtedness of such Person.



     (x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the US Borrower
or any Subsidiary thereof (other than financial projections, which shall be
subject to the standard set forth in Section 7.1(c)) and furnished to the
Lenders were, at the time the same were so furnished, complete and correct in
all respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter.



     (y) Disclosure. The Borrowers have disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which any of the Credit Parties are subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No financial statement, material report,
material certificate or other material information furnished (whether in
writing or orally) by or on behalf of any of the Credit Parties to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, pro forma financial information, estimated
financial information and other projected or estimated information, the
Borrowers represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.



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     SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the
Closing Date and shall not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.



ARTICLE VII




FINANCIAL INFORMATION AND NOTICES




     Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.2, the Borrowers will furnish or cause to be furnished to
the Administrative Agent at the Administrative Agent’s Office at the address
set forth in Section 14.1 and to the Lenders at their respective addresses as
set forth on the Register, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:



     SECTION 7.1 Financial Statements and Projections.



     (a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days (or, if earlier, on the date of any required
public filing thereof) after the end of each fiscal quarter of each Fiscal
Year, an unaudited Consolidated balance sheet of the US Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
statements of income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the corresponding period in the
preceding Fiscal Year and prepared by the US Borrower in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of
accounting principles and practices during the period, and certified by the
chief financial officer of the US Borrower to present fairly in all material
respects the financial condition of the US Borrower and its Subsidiaries on a
Consolidated basis as of their respective dates and the results of operations
of the US Borrower and its Subsidiaries for the respective periods then ended,
subject to normal year end adjustments. Delivery by the Borrowers to the
Administrative Agent and the Lenders of the US Borrower’s quarterly report to
the SEC on Form 10-Q with respect to any fiscal quarter, or the availability of
such report on EDGAR Online, within the period specified above shall be deemed
to be compliance by the Borrowers with this Section 7.1(a).



     (b) Annual Financial Statements. As soon as practicable and in any event
within ninety (90) days (or, if earlier, on the date of any required public
filing thereof) after the end of each Fiscal Year, an audited Consolidated
balance sheet of the US Borrower and its Subsidiaries



64









 




as of the close of such
Fiscal Year and audited Consolidated statements of income, retained earnings
and cash flows for the Fiscal Year then ended, including the notes thereto, all
in reasonable detail setting forth in comparative form the corresponding
figures as of the end of and for the preceding Fiscal Year and prepared in
accordance with GAAP and, if applicable, containing disclosure of the effect on
the financial position or results of operations of any change in the
application of accounting principles and practices during the year. Such
annual financial statements shall be audited by an independent certified public
accounting firm acceptable to the
Administrative Agent, and accompanied by a report thereon by such certified
public accountants that is not qualified with respect to scope limitations
imposed by the US Borrower or any of its Subsidiaries or with respect to
accounting principles followed by the US Borrower or any of its Subsidiaries
not in accordance with GAAP. Delivery by the US Borrower to the Administrative
Agent and the Lenders of the US Borrower’s annual report to the SEC on Form
10-K with respect to any fiscal year, or the availability of such report on
EDGAR Online, within the period specified above shall be deemed to be
compliance by the US Borrower with this Section 7.1(b).




     (c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within forty-five (45) days prior to the beginning
of each Fiscal Year, a business plan of the US Borrower and its Subsidiaries
for the ensuing four (4) fiscal quarters, such plan to be prepared in
accordance with GAAP and to include, on a quarterly basis, the following: a
quarterly operating and capital budget, a projected income statement, statement
of cash flows and balance sheet and a report containing management’s discussion
and analysis of such projections, accompanied by a certificate from the chief
financial officer of the US Borrower to the effect that, to the best of such
officer’s knowledge, such projections are good faith estimates (utilizing
reasonable assumptions) of the financial condition and operations of the US
Borrower and its Subsidiaries for such four (4) quarter period.



     SECTION 7.2 Officer’s Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 7.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, an Officer’s
Compliance Certificate.



     SECTION 7.3 Accountants’ Certificate. At each time financial statements
are delivered pursuant to Section 7.1(b), a certificate of the independent
public accountants certifying such financial statements that in connection with
their audit, nothing came to their attention that caused them to believe that
the Borrowers failed to comply with the terms, covenants, provisions or
conditions of Article IX and X, insofar as they relate to financial and
accounting matters or, if such is not the case, specifying such non-compliance
and its nature and period of existence.



     SECTION 7.4 Other Reports.



     (a) Promptly after becoming available, copies of each annual report, proxy
or financial statement or other report or communication sent to the
stockholders of the US Borrower generally, and copies of all annual, regular,
periodic and special reports and registration statements which the US Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to
the Administrative Agent pursuant hereto; provided that, delivery of the
foregoing shall be



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deemed to have been made if made available on Edgar Online
or the website of the US Borrower and the US Borrower shall have given notice
thereof to Administrative Agent;




     (b) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the US Borrower or its Board of Directors by its independent
public accountants in connection with their
auditing function, including, without limitation, any management report and any
management responses thereto; and



     (c) Such other information regarding the operations, business affairs and
financial condition of the US Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.



     SECTION 7.5 Notice of Litigation and Other Matters. Prompt telephonic and
written notice of:



     (a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the US Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect;



     (b) any notice of any violation received by the US Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which in any such
case could reasonably be expected to have a Material Adverse Effect;



     (c) any labor controversy that (i) has resulted in a strike or other work
stoppage or slow down against the US Borrower or any Subsidiary thereof, or
(ii) threatens to result in, a strike or other work stoppage or slow down
against the US Borrower or any Subsidiary thereof which could reasonably be
expected to, individually or in the aggregate with any other labor controversy,
work stoppage or slow down, have a Material Adverse Effect;



     (d) any attachment, judgment, lien, levy or order exceeding $1,000,000 (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) that may be assessed against or threatened
against the US Borrower or any Subsidiary thereof;



     (e) (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
the US Borrower or any of its Subsidiaries is a party or by which the US
Borrower or any Subsidiary thereof or any of their respective properties may be
bound;



     (f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by
the US Borrower or any ERISA Affiliate of the



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PBGC’s intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by the US Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA and (iv) the Borrowers obtaining
knowledge or reason to know that the US Borrower or any ERISA Affiliate has
filed or intends to file a notice of intent
to terminate any Pension Plan under a distress termination within the meaning
of Section 4041(c) of ERISA; and




     (g) any event which makes any of the representations set forth in Section
6.1 inaccurate in any respect.



     Each notice pursuant to this Section 7.5 shall be accompanied by a statement of
a Responsible Officer of the US Borrower setting forth details of the
occurrence referred to therein and stating what action the US Borrower or any
Subsidiary thereof, as applicable, has taken and proposes to take with respect
thereto. Each notice pursuant to Section 7.5(e)(i) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached; provided that, delivery of the foregoing
notices shall be deemed to have been made if made available on Edgar Online or
the website of the US Borrower and the US Borrower shall have given notice
thereof to Administrative Agent.



     SECTION 7.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrowers
to the Administrative Agent or any Lender whether pursuant to this Article VII
or any other provision of this Agreement, shall, at the time the same is so
furnished, comply with the representations and warranties set forth in Section
6.1(x).



ARTICLE VIII




AFFIRMATIVE COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner provided
for in Section 14.2, the Borrowers will, and will cause each of their
Subsidiaries to:



     SECTION 8.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 10.4, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a Material
Adverse Effect.



     SECTION 8.2 Maintenance of Property. Protect and preserve all properties
useful in and material to its business, including copyrights, patents, trade
names, service marks and trademarks; maintain in good working order and
condition, ordinary wear and tear excepted, all buildings, equipment and other
tangible real and personal property; and from time to time



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make or cause to be
made all repairs, renewals and replacements thereof and additions to such
property necessary for the conduct of its business, so that the business
carried on in connection therewith may be conducted in a commercially
reasonable manner.




     SECTION 8.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law (including, without limitation, hazard and business interruption
insurance), and on the Closing Date and from time to time thereafter deliver to
the Administrative Agent upon its request a detailed list of the insurance then
in effect, stating the names of the insurance companies, the amounts and rates
of the insurance, the dates of the expiration thereof and the properties and
risks covered thereby.



     SECTION 8.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP and in compliance with the regulations of any Governmental Authority
having jurisdiction over it or any of its properties.



     SECTION 8.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the US Borrower or such Subsidiary may contest any
item described in clauses (a) or (b) of this Section in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.



     SECTION 8.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to
the conduct of its business, except where the failure to so comply or maintain
such Governmental Approval could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.



     SECTION 8.7 Environmental Laws. In addition to and without limiting the
generality of Section 8.6, (a) comply with, and ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants, if any,
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except where the failure to do so could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (b)
conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, except where the failure to conduct or
complete such actions, or comply with such orders or directions, could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, and (c) defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any



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claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out
of, or in any way relating to the presence of Hazardous Materials, or the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the US Borrower or any such Subsidiary, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney’s and consultant’s fees,
investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing directly result from
the gross negligence or willful misconduct of the party seeking indemnification
therefor.




     SECTION 8.8 Compliance with ERISA. In addition to and without limiting the
generality of Section 8.6, (a) except where the failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative
Agent upon the Administrative Agent’s request such additional information about
any Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.



     SECTION 8.9 Compliance With Agreements. Comply in all respects with each
term, condition and provision of all leases, agreements and other instruments
entered into in the conduct of its business including, without limitation, any
Material Contract; provided, that the Borrowers or any Subsidiary thereof may
contest any such lease, agreement or other instrument in good faith through
applicable proceedings so long as adequate reserves are maintained in
accordance with GAAP.



     SECTION 8.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects; provided that so long as no Default or Event
of Default has occurred and is continuing, the Administrative Agent or
applicable Lender shall give reasonable prior to notice to the US Borrower of
its intention to visit and inspect the properties and records pursuant to this
Section.



     SECTION 8.11 Additional Subsidiaries. Notify the Administrative Agent of
the creation or acquisition of any Domestic Subsidiary and promptly thereafter
(and in any event within thirty (30) days), cause such Person to (i) become a
Subsidiary Guarantor by delivering to the Administrative Agent a duly executed
supplement to the Subsidiary Guaranty Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, (ii) deliver to
the Administrative Agent such documents and certificates referred to in Section
5.2 as




69









 





may be reasonably requested by the Administrative Agent, (iii) deliver to the
Administrative Agent such updated Schedules to the Loan Documents as requested
by the Administrative Agent with respect to such Person, and (iv) deliver to
the Administrative Agent such other documents as may be reasonably requested by
the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.



     SECTION 8.12 Use of Proceeds. The Borrowers shall use the proceeds of the
Extensions of Credit (a) to finance the acquisition of Capital Assets in the
ordinary course of business, (b) to refinance the Existing Facility, and (c)
for working capital and general corporate requirements of the US Borrower and
its Subsidiaries, including Permitted Acquisitions, dividends, stock
repurchases and the payment of certain fees and expenses incurred in connection
with the transactions.



     SECTION 8.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the
Administrative Agent or the Required Lenders (through the Administrative Agent)
may reasonably require to document and consummate the transactions contemplated
hereby and to vest completely in and insure the Administrative Agent and the
Lenders their respective rights under this Agreement, the Letters of Credit and
the other Loan Documents.



ARTICLE IX




FINANCIAL COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.2, the US Borrower and its Subsidiaries on a Consolidated
basis will not:



     SECTION 9.1 Average Total Leverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) the sum of (i) the Average Total Funded Indebtedness
for the period of twelve (12) consecutive months ending on or immediately prior
to such date plus (ii) the Average Accounts Securitization Proceeds for the
period of twelve (12) consecutive months ending on or immediately prior to such
date to (b) EBITDA for the period of twelve (12) consecutive months ending on
or immediately prior to such date to be greater than or equal to 3.0 to 1.0.



     SECTION 9.2 Fixed Charge Coverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) EBITR for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date to (b) the sum of (i)
Interest Expense paid or payable in cash for the period of four (4) consecutive
fiscal quarters ending on or immediately prior to such date plus (ii) Rental
Expense for the period of four (4) consecutive fiscal quarters ending on or
immediately prior to such date to be less than 3.0 to 1.0.



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ARTICLE X




NEGATIVE COVENANTS




     Until all of the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.2, the Borrowers have not and will not and will not permit
any of their Subsidiaries to:



     SECTION 10.1 Limitations on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness except:



     (a) the Obligations (excluding Hedging Obligations permitted pursuant to
Section 10.1(b));



     (b) Indebtedness incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; provided, that any counterparty that
is a Lender or an Affiliate of a Lender shall be deemed satisfactory to the
Administrative Agent;



     (c) Indebtedness existing on the Closing Date and not otherwise permitted
under this Section, as set forth on Schedule 6.1(t), and the renewal,
refinancing, extension and replacement (but not the increase in the aggregate
principal amount) thereof;



     (d) Indebtedness of the US Borrower and its Subsidiaries incurred in
connection with Capital Leases in an aggregate amount not to exceed $5,000,000
on any date of determination;



     (e) purchase money Indebtedness of the US Borrower and its Subsidiaries in
an aggregate amount not to exceed $5,000,000 on any date of determination;



     (f) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;



     (g) Guaranty Obligations with respect to Indebtedness permitted pursuant
to subsections (a) through (e) of this Section;



     (h) Indebtedness owed (i) by the US Borrower to any Subsidiary Guarantor,
(ii) by any Subsidiary Guarantor to the US Borrower, (iii) by any Subsidiary
Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is
not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary
Guarantor;



     (i) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, Indebtedness owed by the US Borrower and
any Subsidiary Guarantor to any Foreign Subsidiary or Indebtedness owed by any
Foreign Subsidiary to the US Borrower and any Subsidiary Guarantor which,
together with the Permitted Acquisition Consideration payable in connection
with all Permitted Foreign Acquisitions and the total amount of any
transactions



71









 







permitted under Sections 10.3(i) and 10.5(f), does not exceed $60,000,000 in
the aggregate during the term of this Agreement;



     (j) Subordinated Indebtedness; provided that in the case of each issuance
of Subordinated Indebtedness, (i) no Default or Event of Default shall have
occurred and be continuing or would be caused by the issuance of such
Subordinated Indebtedness and (ii) the Administrative Agent shall have received
satisfactory written evidence that the Borrowers would be in compliance with
all covenants contained in this Agreement on a pro forma basis after giving
effect to the issuance of any such Subordinated Indebtedness;



     (k) additional Indebtedness of the US Borrower and the Subsidiary
Guarantors not otherwise permitted pursuant to this Section in an aggregate
amount outstanding not to exceed $5,000,000;



     (l) so long as no Default or Event of Default has occurred and is
continuing or would occur as a result therefrom, Indebtedness arising in
connection with an Accounts Securitization;



     (m) endorsements of negotiable instruments for deposit or collection in
the ordinary course of business;



     (n) unsecured Indebtedness in respect of performance bonds, worker’s
compensation claims, surety or appeal bonds and payment obligations in
connection with self insurance or similar obligations, in each case to the
extent incurred in the ordinary course of business; and



     (o) Indebtedness consisting of all obligations, contingent or otherwise,
of the US Borrower or any of its Subsidiaries relative to the face amount of
the Independent Letters of Credit, whether drawn or undrawn, including, without
limitation, any reimbursement obligations in connection with the Independent
Letters of Credit.



provided, that no agreement or instrument with respect to Indebtedness
permitted to be incurred by this Section shall restrict, limit or otherwise
encumber (by covenant or otherwise) the ability of any Subsidiary of any
Borrower to make any payment to such Borrower or any of its Subsidiaries (in
the form of dividends, intercompany advances or otherwise) for the purpose of
enabling such Borrower to pay the Obligations.



     SECTION 10.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of Capital Stock), real or personal,
whether now owned or hereafter acquired, except:



     (a) Liens for taxes, assessments and other governmental charges or levies
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;



72









 





     (b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;



     (c) Liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under
workers’ compensation, unemployment insurance or similar legislation;



     (d) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property as
are of a nature generally existing with respect to properties of a similar
character, which in the aggregate are not substantial in amount and which do
not, in any case, materially detract from the value of such property or
materially impair the use thereof in the ordinary conduct of business;



     (e) Liens securing the Obligations;



     (f) Liens not otherwise permitted hereunder securing obligations not at
any time exceeding in the aggregate $5,000,000;



     (g) Liens not otherwise permitted by this Section and in existence on the
Closing Date and described on Schedule 10.2;



     (h) Liens securing Indebtedness permitted under Sections 10.1(d) and (e);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased
and (iv) the principal amount of Indebtedness secured by any such Lien shall at
no time exceed one hundred percent (100%) of the original purchase price or
lease payment amount of such property at the time it was acquired;



     (i) Liens incurred in connection with any Accounts Securitization (which
Liens shall attach solely to the Transferred Assets sold or transferred in
connection with such Accounts Securitization); and



     (j) Liens securing Indebtedness permitted under Section 10.1(k).



     SECTION 10.3 Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any
Capital Stock, interests in any partnership or joint venture (including,
without limitation, the creation or capitalization of any Subsidiary), evidence
of Indebtedness or other obligation or security, substantially all or a portion
of the business or assets of any other Person or any other investment or
interest whatsoever in any other Person, or make or permit to exist, directly
or indirectly, any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any Person except:



73









 





     (a) (i) investments existing on the Closing Date in Subsidiaries, and (ii)
the other loans, advances and investments existing on the Closing Date which
are described on Schedule 10.3;



     (b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States or any agency thereof maturing
within one hundred twenty (120) days from the date of acquisition thereof, (ii)
commercial paper maturing no more than one hundred twenty (120) days from the
date of creation thereof and currently having the highest rating obtainable
from either Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. or Moody’s Investors Service, Inc., (iii) certificates of
deposit maturing no more than one hundred twenty (120) days from the date of
creation thereof issued by commercial banks incorporated under the laws of the
United States, each having combined capital, surplus and undivided profits of
not less than $500,000,000 and having a rating of “A” or better by a nationally
recognized rating agency; provided, that the aggregate amount invested in such
certificates of deposit shall not at any time exceed $5,000,000 for any one
such certificate of deposit and $10,000,000 for any one such bank, (iv) time
deposits maturing no more than thirty (30) days from the date of creation
thereof with commercial banks or savings banks or savings and loan associations
each having membership either in the FDIC or the deposits of which are insured
by the FDIC and in amounts not exceeding the maximum amounts of insurance
thereunder or (v) demand deposit accounts maintained in the ordinary course of
business;



     (c) investments by the US Borrower or any Subsidiary thereof in the form
of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of Capital Stock, assets or any
combination thereof) of any other Person if each such acquisition meets all of
the following requirements (such acquisition being referred to herein as a
“Permitted Domestic Acquisition”):




     (i) the Person to be acquired shall be organized under the laws of
the United States of America, or the assets to be acquired shall be
located in the continental United States of America, and such Person
shall be engaged in a business, or such assets shall be used in a
business, permitted pursuant to Section 10.12;




     (ii) the US Borrower or any Subsidiary (including any entity being
acquired that becomes a Subsidiary) shall be the surviving Person and no
Change of Control shall have been effected thereby;




     (iii) the Person to be acquired shall not be subject to any material
pending litigation which could reasonably be expected to have a Material
Adverse Effect;




     (iv) prior to the closing of such acquisition, the acquisition is
approved by the board of directors (or a majority of the holders of the
Capital Stock of such Person) of the Person whose assets or Capital Stock
are being acquired pursuant to such acquisition;




     (v) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed
acquisition;



74









 






     (vi) if the aggregate amount of Permitted Acquisition Consideration
payable in cash with respect to such proposed acquisition or series of
related acquisitions exceeds $50,000,000, the US Borrower shall have (A)
demonstrated to the Administrative Agent pro forma compliance (as of the
date of the proposed acquisition and after giving effect thereto and any
Extensions of Credit made or to be made in connection therewith) with
each covenant contained in, and in the manner set forth in, Article IX,
(B) delivered to the Administrative Agent evidence of the approval
referred to in clause (iv) above, and (C) delivered written notice of
such proposed acquisition to the Administrative Agent and the Lenders,
which notice shall include the proposed closing date of such proposed
acquisition and a description of the acquisition in the form customarily
prepared by the US Borrower, not less than five (5) Business Days prior
to such proposed closing date; and




     (vii) the US Borrower shall have delivered to the Administrative
Agent such documents reasonably requested by the Administrative Agent or
the Required Lenders (through the Administrative Agent) pursuant to
Section 8.11 to be delivered at the time required pursuant to Section
8.11.



     (d) investments by the US Borrower or any Subsidiary thereof in the form
of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of Capital Stock, assets or any
combination thereof) of any other Person if each such acquisition meets all of
the following requirements (such acquisition being referred to herein as a
“Permitted Foreign Acquisition”):




     (i) the Person to be acquired shall be organized under the laws of a
jurisdiction other than the United States of America, or the assets to be
acquired shall be located outside of the continental United States of
America, and such Person shall be engaged in a business, or such assets
shall be used in a business, permitted pursuant to Section 10.12;




     (ii) the US Borrower or any Subsidiary (including any entity being
acquired that becomes a Subsidiary) shall be the surviving Person and no
Change of Control shall have been effected thereby;




     (iii) the Person to be acquired shall not be subject to any material
pending litigation which could reasonably be expected to have a Material
Adverse Effect;




     (iv) prior to the closing of such acquisition, the acquisition is
approved by the board of directors (or a majority of the holders of the
Capital Stock of such Person) of the Person whose assets or Capital Stock
are being acquired pursuant to such acquisition;




     (v) no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such proposed
acquisition;




     (vi) the aggregate amount of Permitted Acquisition Consideration
payable (A) with respect to any Permitted Foreign Acquisition or series
of related Permitted Foreign



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Acquisitions does not exceed $20,000,000 in cash and (B) with respect to
all Permitted Foreign Acquisitions and the total amount of any
transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does
not exceed $60,000,000 in the aggregate during the term of this
Agreement; and




     (vii) if the aggregate amount of Permitted Acquisition Consideration
payable in cash with respect to such proposed acquisition or series of
related acquisitions exceeds $20,000,000, the US Borrower shall have (A)
demonstrated to the Administrative Agent pro forma compliance (as of the
date of the proposed acquisition and after giving effect thereto and any
Extensions of Credit made or to be made in connection therewith) with
each covenant contained in, and in the manner set forth in, Article IX,
(B) delivered to the Administrative Agent evidence of the approval
referred to in clause (iv) above, and (C) delivered written notice of
such proposed acquisition to the Administrative Agent and the Lenders,
which notice shall include the proposed closing date of such proposed
acquisition and a description of the acquisition in the form customarily
prepared by the US Borrower, not less than five (5) Business Days prior
to such proposed closing date.



     (e) Hedging Agreements permitted pursuant to Section 10.1;



     (f) purchases of assets in the ordinary course of business;



     (g) investments in the form of loans and advances to employees in the
ordinary course of business, which, in the aggregate, do not exceed at any time
$500,000;



     (h) intercompany Indebtedness permitted pursuant to Section 10.1(h);



     (i) the creation of new Foreign Subsidiaries, the investment in which,
together with the Permitted Acquisition Consideration payable in connection
with all Permitted Foreign Acquisitions and the total amount of any
transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed
$60,000,000 in the aggregate during the term of this Agreement;



     (j) the creation of Domestic Subsidiaries after the Closing Date so long
as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii)
the creation of such Domestic Subsidiary is otherwise made in accordance with
the terms and conditions of this Agreement (including, without limitation, this
Section 10.3);



     (k) equity investments (i) by the US Borrower in any Subsidiary Guarantor,
(ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any
Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary
Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;



     (l) so long as no Default or Event of Default has occurred or would result
therefrom, the initial investment by the US Borrower and its Subsidiaries in a
proposed joint venture previously described to the Administrative Agent in an
aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the
aggregate amount reasonably determined by the US Borrower and its Subsidiaries
as necessary to initially capitalize such joint venture; and



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     (m) other additional domestic investments not otherwise permitted pursuant
to this Section not exceeding $5,000,000 in the aggregate in any Fiscal Year.



     SECTION 10.4 Limitations on Mergers and Liquidation. Merge, consolidate,
amalgamate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:



     (a) any Wholly-Owned Subsidiary of the US Borrower may be merged or
consolidated with or into the US Borrower (provided that the US Borrower shall
be the continuing or surviving Person) or with or into any Subsidiary Guarantor
(provided that the Subsidiary Guarantor shall be the continuing or surviving
Person);



     (b) any Wholly Owned Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the US Borrower or any other Wholly-Owned Subsidiary; provided that if the
transferor in such a transaction is a Subsidiary Guarantor, then the transferee
must either be the US Borrower or a Subsidiary Guarantor;



     (c) any Wholly-Owned Subsidiary of the US Borrower may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection with a
Permitted Acquisition; and



     (d) any Subsidiary of the US Borrower may wind-up into a Borrower or any
Subsidiary Guarantor.



     SECTION 10.5 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:



     (a) the sale of inventory in the ordinary course of business;



     (b) the sale of obsolete assets no longer used or usable in the business
of the US Borrower or any of its Subsidiaries;



     (c) the transfer of assets to a Borrower or any Subsidiary Guarantor
pursuant to Section 10.4;



     (d) the sale or discount without recourse of accounts receivable arising
in the ordinary course of business in connection with the compromise or
collection thereof;



     (e) the disposition of any Hedging Agreement;



     (f) sales of assets to Foreign Subsidiaries the fair market value with
respect to which, together with the Permitted Acquisition Consideration payable
in connection with all Permitted



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Foreign Acquisitions and the total amount of any transactions permitted under
Sections 10.1(i) and 10.3(i), does not exceed $60,000,000 in the aggregate
during the term of this Agreement;



     (g) so long as no Default or Event of Default has occurred and is
continuing or would occur as a result therefrom, transfers of an interest in
the Transferred Assets in connection with an Account Securitization;



     (h) so long as no Default or Event of Default has occurred and is
continuing or would occur as a result therefrom, transfers of assets from the
US Borrower and its Subsidiaries to the joint venture permitted pursuant to
Section 10.3(l); and



     (i) additional dispositions of assets not otherwise permitted pursuant to
this Section the fair market value with respect to which does not exceed
$5,000,000 in the aggregate in any Fiscal Year.



     SECTION 10.6 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its Capital Stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its Capital Stock, or
make any distribution of cash, property or assets among the holders of shares
of its Capital Stock, or make any change in its capital structure which such
change in its capital structure could reasonably be expected to have a Material
Adverse Effect; provided that:



     (a) the US Borrower or any Subsidiary may pay dividends in shares of its
own Capital Stock;



     (b) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, the US Borrower may declare and pay
dividends in a manner consistent with the past practice of the US Borrower in
an amount reasonably determined by the board of directors of the US Borrower;
provided that such amount shall not exceed fifty percent (50%) of Net Income
for the preceding Fiscal Year;



     (c) any Subsidiary may pay cash dividends to the Borrowers; and



     (d) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, the US Borrower may repurchase shares of
its Capital Stock.



     SECTION 10.7 Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of Capital Stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would
be, (a) convertible or exchangeable into Indebtedness or (b) required to be
redeemed or repurchased, including at the option of the holder, in whole or in
part, or has, or upon the happening of an event or passage of time would have,
a redemption or similar payment due.



     SECTION 10.8 Transactions with Affiliates. Except for transactions
permitted by Sections 10.3, 10.6 and 10.7, directly or indirectly (a) make any
loan or advance to, or purchase



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or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the
immediate family of any of its officers, directors, shareholders or other
Affiliates, or subcontract any operations to any of its Affiliates or (b) enter
into, or be a party to, any other transaction not described in clause (a) above
with any of its Affiliates, except pursuant to the reasonable requirements of
its business and upon fair and reasonable terms that are no less favorable to
it than it would obtain in a comparable arm’s length transaction with a Person
not its Affiliate.



     SECTION 10.9 Certain Accounting Changes; Organizational Documents. (a)
Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP or (b) amend, modify or change
its articles of incorporation (or corporate charter or other similar
organizational documents) or amend, modify or change its bylaws (or other
similar documents) in any manner adverse in any respect to the rights or
interests of the Lenders.



     SECTION 10.10 Amendments; Payments and Prepayments of Subordinated
Indebtedness.



     (a) Amend or modify (or permit the modification or amendment of) any of
the terms or provisions of any Subordinated Indebtedness.



     (b) Cancel, forgive, make any payment or prepayment on, or redeem or
acquire for value (including, without limitation, (i) by way of depositing with
any trustee with respect thereto money or securities before due for the purpose
of paying when due and (ii) at the maturity thereof) any Subordinated
Indebtedness, except refinancings, refundings, renewals, extensions or exchange
of any Subordinated Indebtedness permitted by Section 10.1(j).



     SECTION 10.11 Restrictive Agreements.



     (a) Enter into any Indebtedness which contains any negative pledge on
assets or any covenants more restrictive than the provisions of Articles VIII,
IX and X hereof, or which restricts, limits or otherwise encumbers its ability
to incur Liens on or with respect to any of its assets or properties other than
the assets or properties securing such Indebtedness (other than Superior
Commerce solely in connection with an Accounts Securitization).



     (b) Enter into or permit to exist any agreement which impairs or limits
the ability of any Subsidiary of a Borrower (other than Superior Commerce
solely in connection with an Accounts Securitization) to pay dividends to such
Borrower.



     SECTION 10.12 Nature of Business. Substantively alter in any material
respect the character or conduct of the business conducted by the US Borrower
and its Subsidiaries as of the Closing Date.



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ARTICLE XI




UNCONDITIONAL US BORROWER GUARANTY




     SECTION 11.1 Guaranty of Obligations. The US Borrower hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment of all Obligations of
the Canadian Borrower, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter arising, whether
or not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether or not recovery may be or hereafter
become barred by the statute of limitations, whether enforceable or
unenforceable as against the Canadian Borrower, whether or not discharged,
stayed or otherwise affected by any bankruptcy, insolvency or other similar law
or proceeding, whether created directly with the Administrative Agent or any
Lender or acquired by the Administrative Agent or any Lender through
assignment, endorsement or otherwise, whether matured or unmatured, whether
joint or several, as and when the same become due and payable (whether at
maturity or earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any such instruments evidencing any
such obligations, including all renewals, extensions or modifications thereof
(all Obligations of the Canadian Borrower to the Administrative Agent and the
Lenders, including all of the foregoing, being hereinafter collectively
referred to as the “US Borrower Guaranteed Obligations”).



     SECTION 11.2 Nature of Guaranty. The US Borrower agrees that this US
Borrower Guaranty is a continuing, unconditional guaranty of payment and not of
collection, and that its obligations under this US Borrower Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by (a) the
genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement or any other Loan Document or any other agreement,
document or instrument to which the Canadian Borrower is or may become a party,
(b) the absence of any action to enforce this US Borrower Guaranty, this
Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any Lender with respect to any of the provisions of
this US Borrower Guaranty, this Agreement or any other Loan Document, (c) the
existence, value or condition of, or failure to perfect a Lien, if any,
against, any security for or other guaranty of the US Borrower Guaranteed
Obligations or any action, or the absence of any action, by the Administrative
Agent or any Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty), (d) any structural
change in, restructuring of or other similar change of the Canadian Borrower or
any of its Subsidiaries or (e) any other action or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor; it being agreed by the US Borrower that its obligations under this
US Borrower Guaranty shall not be discharged until the final and indefeasible
payment, in full, of the US Borrower Guaranteed Obligations and the termination
of the Commitments. To the extent permitted by law, the US Borrower expressly
waives all rights it may now or in the future have under any statute
(including, without limitation, North Carolina General Statutes Section 26-7,
et seq. or similar law), or at law or in equity, or otherwise, to compel the
Administrative Agent or any Lender to proceed in respect of the US Borrower
Guaranteed Obligations against the Canadian Borrower,



80









 







any other guarantor or any other party or against any security for or other
guaranty of the payment of the US Borrower Guaranteed Obligations before
proceeding against, or as a condition to proceeding against, the US Borrower.
To the extent permitted by law, the US Borrower further expressly waives and
agrees not to assert or take advantage of any defense based upon the failure of
the Administrative Agent or any Lender to commence an action in respect of the
US Borrower Guaranteed Obligations against the Canadian Borrower, the US
Borrower, any other guarantor or any other party or any security for the
payment of the US Borrower Guaranteed Obligations. The US Borrower agrees that
any notice or directive given at any time to the Administrative Agent or any
Lender which is inconsistent with the waivers in the preceding two sentences
shall be null and void and may be ignored by the Administrative Agent or such
Lender, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this US Borrower Guaranty for the reason that such
pleading or introduction would be at variance with the written terms of this US
Borrower Guaranty, unless the Administrative Agent and the Required Lenders
have specifically agreed otherwise in writing. The foregoing waivers are of
the essence of the transaction contemplated by the Loan Documents and, but for
this US Borrower Guaranty and such waivers, the Administrative Agent and the
Lenders would decline to enter into this Agreement.



     SECTION 11.3 Demand by the Administrative Agent. In addition to the terms
set forth in Section 11.2, and in no manner imposing any limitation on such
terms, if all or any portion of the then outstanding US Borrower Guaranteed
Obligations under this Agreement are declared to be immediately due and payable
in accordance with the terms of this Agreement, then the US Borrower shall,
upon demand in writing therefor by the Administrative Agent to the US Borrower,
pay all or such portion of the outstanding US Borrower Guaranteed Obligations
then declared due and payable. Payment by the US Borrower shall be made to the
Administrative Agent, to be credited and applied upon the US Borrower
Guaranteed Obligations, in immediately available funds to an account designated
by the Administrative Agent or at the Administrative Agent’s Office or at any
other address that may be specified in writing from time to time by the
Administrative Agent.



     SECTION 11.4 Waivers. In addition to the waivers contained in Section
11.2, the US Borrower waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage
of, any appraisal, valuation, stay, extension, marshalling of assets or
redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by the US Borrower
of its obligations under, or the enforcement by the Administrative Agent or the
Lenders of, this US Borrower Guaranty. The US Borrower further hereby waives
diligence, presentment, demand, protest and notice of whatever kind or nature
with respect to any of the US Borrower Guaranteed Obligations and waives the
benefit of all provisions of law which are or might be in conflict with the
terms of this US Borrower Guaranty. The US Borrower represents, warrants and
agrees that its obligations under this US Borrower Guaranty are not and shall
not be subject to any counterclaims, offsets or defenses of any kind against
the Administrative Agent, the Lenders or the Canadian Borrower whether now
existing or which may arise in the future.



     SECTION 11.5 Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without
the consent of, or notice to,



81









 







the US Borrower (a) change or extend the manner, place or terms of payment of,
or renew or alter all or any portion of, the US Borrower Guaranteed
Obligations, (b) take any action under or in respect of the Loan Documents in
the exercise of any remedy, power or privilege contained therein or available
to it at law, in equity or otherwise, or waive or refrain from exercising any
such remedies, powers or privileges, (c) amend or modify, in any manner
whatsoever, the Loan Documents, (d) extend or waive the time for performance by
the US Borrower, any other guarantor, the Canadian Borrower or any other Person
of, or compliance with, any term, covenant or agreement on its part to be
performed or observed under a Loan Document (other than this US Borrower
Guaranty), or waive such performance or compliance or consent to a failure of,
or departure from, such performance or compliance, (e) take and hold security
or collateral for the payment of the US Borrower Guaranteed Obligations or
sell, exchange, release, dispose of, or otherwise deal with, any property
pledged, mortgaged or conveyed, or in which the Administrative Agent or any
Lender has been granted a Lien, to secure any Indebtedness of the US Borrower,
any other guarantor or the Canadian Borrower to the Administrative Agent or any
Lender, (f) release anyone who may be liable in any manner for the payment of
any amounts owed by the US Borrower, any other guarantor or the Canadian
Borrower to the Administrative Agent or any Lender, (g) modify or terminate the
terms of any intercreditor or subordination agreement pursuant to which claims
of other creditors of the US Borrower, any other guarantor or the Canadian
Borrower are subordinated to the claims of the Administrative Agent or any
Lender or (h) apply any sums by whomever paid or however realized to any US
Borrower Guaranteed Obligations owing by the US Borrower, any other guarantor
or the Canadian Borrower to the Administrative Agent or any Lender in such
manner as the Administrative Agent or any Lender shall determine in its
reasonable discretion; then neither the Administrative Agent nor any Lender
shall incur any liability to the US Borrower as a result thereof, and no such
action shall impair or release the obligations of the US Borrower under this US
Borrower Guaranty.



     SECTION 11.6 Reinstatement. The US Borrower agrees that, if any payment
made by the Canadian Borrower or any other Person applied to the Obligations is
at any time annulled, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid, or
the proceeds of any collateral are required to be returned by the
Administrative Agent or any Lender to the Canadian Borrower, its estate,
trustee, receiver, liquidator, administrator or any other party, including,
without limitation, the US Borrower, under any Applicable Law or equitable
cause, then, to the extent of such payment or repayment, the US Borrower’s
liability hereunder shall be and remain in full force and effect, as fully as
if such payment had never been made, and, if prior thereto, this US Borrower
Guaranty shall have been canceled or surrendered, this US Borrower Guaranty
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 the US Borrower in respect of the amount of such payment.



     SECTION 11.7 No Subrogation. Notwithstanding any payment or payments by
the US Borrower hereunder, or any set-off or application of funds of the US
Borrower by the Administrative Agent or any Lender, or the receipt of any
amounts by the Administrative Agent or any Lender with respect to any of the US
Borrower Guaranteed Obligations, the US Borrower shall not be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Canadian Borrower or any other guarantor or against any collateral
security



82









 







held by the Administrative Agent or any Lender for the payment of the US
Borrower Guaranteed Obligations nor shall the US Borrower seek any
reimbursement from the Canadian Borrower or any of the other guarantors in
respect of payments made by the US Borrower in connection with the US Borrower
Guaranteed Obligations, until all amounts owing to the Administrative Agent and
the Lenders on account of the US Borrower Guaranteed Obligations are paid in
full and the Aggregate Commitment is terminated. If any amount shall be paid
to the US Borrower on account of such subrogation rights at any time when all
of the US Borrower Guaranteed Obligations shall not have been paid in full,
such amount shall be held by the US Borrower in trust for the Administrative
Agent, segregated from other funds of the US Borrower, and shall, forthwith
upon receipt by the US Borrower, be turned over to the Administrative Agent in
the exact form received by the US Borrower (duly endorsed by the US Borrower to
the Administrative Agent, if required) to be applied against the US Borrower
Guaranteed Obligations, whether matured or unmatured, in such order as set
forth herein.



ARTICLE XII




DEFAULT AND REMEDIES




     SECTION 12.1 Events of Default.Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:



     (a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrowers shall default in any payment of principal of any
Loan when due or in any payment of a Reimbursement Obligation (whether at
maturity, by reason of acceleration or otherwise).



     (b) Other Payment Default. The Borrowers or any other Credit Party shall
default in the payment when and as due (whether at maturity, by reason of
acceleration or otherwise) of interest on any Loan or Reimbursement Obligation
or the payment of any other Obligation, and such default shall continue for a
period of five (5) days.



     (c) Misrepresentation. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of any Borrower or any
other Credit Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith that is subject to materiality or
Material Adverse Effect qualifications, shall be incorrect or misleading in any
respect when made or deemed made or any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of any Borrower or any
other Credit Party herein, any other Loan Document, or in any document
delivered in connection herewith or therewith that is not subject to
materiality or Material Adverse Effect qualifications, shall be incorrect or
misleading in any material respect when made or deemed made.



     (d) Default in Performance of Certain Covenants. The US Borrower or any
other Credit Party shall (i) default in the performance or observance of any
covenant or agreement contained in Sections 7.1(a), 7.1(b), or 7.5(e)(i) or
Articles IX or X of this Agreement or (ii)



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default in the performance or observance of any covenant or agreement contained
in Section 7.2 and such default shall continue for a period of five (5) days.



     (e) Default in Performance of Other Covenants and Conditions. The US
Borrower or any other Credit Party shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section)
or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the US Borrower
by the Administrative Agent.



     (f) Hedging Agreement. The US Borrower or any other Credit Party shall
default in the performance or observance of any terms, covenant, condition or
agreement (after giving effect to any applicable grace or cure period) under
any Hedging Agreement and such default causes the termination of such Hedging
Agreement and the Termination Value owned by such Credit Party as a result
thereof exceeds $5,000,000.



     (g) Indebtedness Cross-Default. The US Borrower or any other Credit Party
shall (i) default in the payment of any Indebtedness (other than the Loans or
any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $5,000,000 beyond the period of grace if any,
provided in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than the Loans or
any Reimbursement Obligation) the aggregate outstanding amount of which
Indebtedness is in excess of $5,000,000 or contained in any instrument or
agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Indebtedness to become due prior to its
stated maturity (any applicable grace period having expired).



     (h) Other Cross-Defaults. The US Borrower or any other Credit Party shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by the US Borrower or any
such Subsidiary in good faith by appropriate proceedings and adequate reserves
in respect thereof have been established on the books of the US Borrower or
such Credit Party to the extent required by GAAP.



     (i) Change in Control. A Change in Control shall occur.



     (j) Voluntary Bankruptcy Proceeding. The US Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii)
consent to or fail to contest in a timely and appropriate manner any petition
filed against it in an involuntary case under such bankruptcy laws or other
laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its



84









 







property, domestic or foreign, (v) admit in writing its inability to pay its
debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing
any of the foregoing.



     (k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the US Borrower or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the US Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case
or proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.



     (l) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the US Borrower or any Subsidiary thereof party thereto or any such
Person shall so state in writing.



     (m) Termination Event. The occurrence of any of the following events:
(i) the US Borrower or any ERISA Affiliate fails to make full payment when due
of all amounts which, under the provisions of any Pension Plan or Section 412
of the Code, the US Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$5,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) the US Borrower or any ERISA Affiliate
as employers under one or more Multiemployer Plans makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$5,000,000 in the aggregate or $2,000,000 per annum.



     (n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal
Year (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), shall be entered against the US
Borrower or any Subsidiary thereof by any court and such judgment or order
shall continue without having been discharged, vacated or stayed for a period
of thirty (30) days after the entry thereof.



     (o) Environmental. Any one or more Environmental Claims shall have been
asserted against the US Borrower or any Subsidiary thereof; the US Borrower and
any Subsidiary thereof would be reasonable likely to incur liability as a
result thereof; and such liability would be reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect.



     SECTION 12.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the US Borrower:



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     (a) Acceleration; Termination of Facilities. Terminate the Commitments
and declare the principal of and interest on the Loans and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the Lenders
and to the Administrative Agent under this Agreement or any of the other Loan
Documents (including, without limitation, all L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented or shall be entitled to present the documents required thereunder)
and all other Obligations (other than Hedging Obligations), to be forthwith due
and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived by each Credit Party, anything in this Agreement or the
other Loan Documents to the contrary notwithstanding, and terminate the Credit
Facility and any right of the Borrowers to request borrowings or Letters of
Credit thereunder; provided, that upon the occurrence of an Event of Default
specified in Section 12.1(j) or (k), the Credit Facility shall be automatically
terminated and all Obligations (other than Hedging Obligations) shall
automatically become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by each Credit
Party, anything in this Agreement or in any other Loan Document to the contrary
notwithstanding.



     (b) Letters of Credit. With respect to all Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to the preceding subsection, the Borrowers shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations on a pro rata basis. After all such Letters of Credit shall
have expired or been fully drawn upon, the Reimbursement Obligation shall have
been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrowers.



     (c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers’ Obligations.



     SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 14.1), delay, indulgence, omission or otherwise
be deemed to have waived any right or remedy hereunder or to have acquiesced in
any Default or Event of Default. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power
or privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege or
shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrowers, the Administrative Agent and the Lenders or
their respective agents or employees shall be effective to change, modify or
discharge any provision of this Agreement or any of the other Loan Documents or
to constitute a waiver of any Event of Default. The enumeration of the rights
and remedies of the Administrative Agent and the Lenders set forth in this
Agreement is not intended to be exhaustive and the exercise by



86









 







the Administrative Agent and the Lenders of any right or remedy shall not
preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise.



     SECTION 12.4 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 12.2, all payments received by the
Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:



     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts, including attorney fees, payable to
the Administrative Agent in its capacity as such and the Issuing Lender in its
capacity as such (ratably among the Administrative Agent and the Issuing Lender
in proportion to the respective amounts described in this clause First payable
to them);



     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to
the Lenders, including attorney fees (ratably among the Lenders in proportion
to the respective amounts described in this clause Second payable to them);



     Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and Reimbursement Obligations and any Hedging
Obligations (including any termination payments and any accrued and unpaid
interest thereon) (ratably among the Lenders in proportion to the respective
amounts described in this clause Third payable to them);



     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and Reimbursement Obligations (ratably among the Lenders
in proportion to the respective amounts described in this clause Fourth held by
them);



     Fifth, to the Administrative Agent for the account of the Issuing Lender,
to cash collateralize any L/C Obligations then outstanding; and



     Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required by Law.



     SECTION 12.5 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrowers)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:



     (a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and



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unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 3.3, 4.3 and 14.3) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 4.3 and 14.3.



Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.



     SECTION 12.6 Judgment Currency.



     (a) The obligation of the Borrowers to make payments of the principal of
and interest on the Notes and the obligation of any such Person to make
payments of any other amounts payable hereunder or pursuant to any other Loan
Document in the currency specified for such payment shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the extent that
such tender or recovery shall result in the actual receipt by each of the
Administrative Agent and Lenders of the full amount of the particular currency
expressed to be payable pursuant to the applicable Loan Document. The
Administrative Agent shall, using all amounts obtained or received from the
Borrowers pursuant to any such tender or recovery in payment of principal of
and interest on the Obligations, promptly purchase the applicable currency at
the most favorable spot exchange rate determined by the Administrative Agent to
be available to it. The obligation of the Borrowers to make payments in the
applicable currency shall be enforceable as an alternative or additional cause
of action solely for the purpose of recovering in the applicable currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the currency expressed to be payable pursuant to the applicable Loan
Document.



     (b) Without limiting Section 12.6(a), the Borrowers shall indemnify and
hold harmless the Administrative Agent, the Lenders and the Issuing Lender, as
applicable, against any loss incurred by the Administrative Agent, any Lender
or the Issuing Lender as a result of any payment or recovery described in
Section 12.6(a) and as a result of any variation having occurred in rates of
exchange between the date of any such amount becoming due under this Agreement
or any other Loan Document and the date of actual payment thereof. The
foregoing



88









 







indemnity shall constitute a separate and independent obligation of the
Borrowers and shall continue in full force and effect notwithstanding any such
payment or recovery.



ARTICLE XIII




THE ADMINISTRATIVE AGENT




     SECTION 13.1 Appointment and Authority. Each of the Lenders hereby
irrevocably designates and appoints Wachovia to act on its behalf as the
Administrative Agent of such Lender under this Agreement and the other Loan
Documents for the term hereof and each such Lender irrevocably authorizes
Wachovia, as Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and such other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise
exist against the Administrative Agent. Any reference to the Administrative
Agent in this Article XIII shall be deemed to refer to the Administrative Agent
solely in its capacity as Administrative Agent and not in its capacity as a
Lender.



     SECTION 13.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by the Administrative Agent with reasonable care.



     SECTION 13.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person’s own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrowers or any of the Credit
Parties or any officer thereof contained in this Agreement or the other Loan
Documents or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or the other Loan Documents or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents or for any failure of the Borrowers or
any of the Credit Parties to perform their respective obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect
the properties, books or records of the Borrowers or any of the Credit Parties.



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     SECTION 13.4 Reliance by the Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement and the other Loan Documents unless it shall
first receive such advice or concurrence of the Required Lenders (or, when
expressly required hereby or by the relevant other Loan Documents, all the
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
except for its own gross negligence or willful misconduct. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required
Lenders (or, when expressly required hereby, all the Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders.



     (b) For purposes of determining compliance with the conditions specified
in Section 5.2, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.



     SECTION 13.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless it has received notice from a Lender or the Borrowers referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default”. In the event that the Administrative
Agent receives such a notice, it shall promptly give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, when expressly required hereby, all the Lenders); provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders, except
to the extent that other provisions of this Agreement expressly require that
any such action be taken or not be taken only with the consent and
authorization or the request of the Lenders or Required Lenders, as applicable.



     SECTION 13.6 Non-Reliance on the Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor
any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent



90









 







hereafter taken, including any review of the affairs of the Borrowers or any
Credit Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and its Subsidiaries and made
its own decision to make its Loans and issue or participate in Letters of
Credit hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrowers or any Credit Party.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder or by the other
Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrowers or any of the Credit Parties which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.



     SECTION 13.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do
so), ratably according to the respective amounts of their Commitment
Percentages from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or
any documents, reports or other information provided to the Administrative
Agent or any Lender or contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent’s bad faith, gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Obligations and the
termination of this Agreement.



     SECTION 13.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business
with the Borrowers as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Loans made or renewed by
it and with respect to any Letter of Credit issued by it or participated in by
it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not the



91









 







Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.



     SECTION 13.9 Resignation of the Administrative Agent; Successor
Administrative Agent.



     (a) Subject to the appointment and acceptance of a successor as provided
below, Wachovia may resign as the Administrative Agent at any time by giving
notice thereof to the Lenders and the US Borrower. Upon any such resignation,
the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent
shall be consented to by the Borrowers at all times other than during the
existence of an Event of Default (which consent of the Borrowers shall not be
unreasonably withheld or delayed). If no successor administrative agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the Administrative Agent’s giving of
notice of resignation, then the Administrative Agent may, on behalf of the
Lenders, appoint a successor administrative agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor administrative
agent, such successor administrative agent shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder without any other or further act or
deed on the part of such retiring Administrative Agent or any other Lender.
After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Article XIII and Section 14.3
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above.



     (b) Notwithstanding anything to the contrary contained herein, Wachovia
may, (i) upon thirty (30) days’ notice to the US Borrower and the Lenders,
resign as Issuing Lender and/or (ii) upon thirty (30) days’ notice to the US
Borrower, resign as Swingline Lender. In the event of any such resignation as
Issuing Lender or Swingline Lender, the US Borrower shall be entitled to
appoint from among the Lenders a successor Issuing Lender or Swingline Lender
hereunder; provided that no failure by the US Borrower to appoint any such
successor shall affect the resignation of Wachovia as Issuing Lender or
Swingline Lender, as the case may be. If Wachovia resigns as Issuing Lender,
it shall retain all the rights and obligations of the Issuing Lender hereunder
with respect to all Letters of Credit outstanding as of the effective date of
its resignation as Issuing Lender and all L/C Obligations with respect thereto,
including the right to require the Lenders to make Revolving Credit Loans or
fund risk participations for unreimbursed amounts of Letters of Credit pursuant
to Section 3.4. If Wachovia resigns as Swingline Lender, it shall retain all
the rights of the Swingline Lender provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Revolving
Credit Loans or fund risk participations in outstanding Swingline Loans
pursuant to Section 2.3(b).



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     SECTION 13.10 Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
Agreement if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.



Upon request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty
Agreement pursuant to this Section.



     SECTION 13.11 Other Agents, Arrangers and Managers. None of the Lenders
or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book
manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger” shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders or other Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.



ARTICLE XIV




MISCELLANEOUS




     SECTION 14.1 Notices.



     (a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term “writing” shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered
by hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return
receipt requested, and shall be presumed to be received by a party hereto (i)
on the date of delivery if delivered by hand or sent by electronic mail,
posting on an internet web page, telecopy, (ii) on the next Business Day if
sent by recognized overnight courier service and (iii) on the
third (3rd)
Business Day following the date sent by certified mail, return receipt
requested. A telephonic notice to the Administrative Agent as understood by
the Administrative Agent will be deemed to be the controlling and proper notice
in the event of a discrepancy with or failure to receive a confirming written
notice.



     (b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.



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	If to the Borrowers:

	 	SCP Pool Corporation
	

	 	109 Northpark Boulevard
	

	 	Covington, Louisiana 70433
	

	 	Attention: Mark Joslin, Chief Financial Officer
	

	 	Telephone No.: (985) 801-5702
	

	 	Telecopy No.: (985) 801-8302
	 
	 	 
	With copies to:

	 	SCP Pool Corporation
	

	 	109 Northpark Blvd
	

	 	Covington, Louisiana 70433
	

	 	Attention: Jennifer Neil, General Counsel
	

	 	Telephone No.: 985-801-5269
	

	 	Telecopy No.: 985-801-8269
	 
	 	 
	If to Wachovia as

	 	Wachovia Bank, National Association
	Administrative Agent:

	 	Charlotte Plaza, CP-8
	

	 	201 South College Street
	

	 	Charlotte, North Carolina 28288-0680
	

	 	Attention: Syndication Agency Services
	

	 	Telephone No.: (704) 374-2698
	

	 	Telecopy No.: (704) 383-0288
	 
	 	 
	With copies to:

	 	Wachovia Bank, National Association
	

	 	One Wachovia Center
	

	 	Charlotte, North Carolina 28288
	

	 	Attention: David Hauglid
	

	 	Telephone No.: (704) 383-3544
	

	 	Telecopy No.: (704) 383-6647
	 
	 	 
	If to any Lender:

	 	To the address set forth on the Register







     (c) Administrative Agent’s Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to
the Borrowers and Lenders, as the Administrative Agent’s Office referred to
herein, to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit requested.



     SECTION 14.2 Amendments, Waivers and Consents. Except as set forth below
or as specifically provided in any Loan Document, any term, covenant, agreement
or condition of this Agreement or any of the other Loan Documents may be
amended or waived by the Lenders, and any consent given by the Lenders, if, but
only if, such amendment, waiver or consent is in writing signed by the Required
Lenders (or by the Administrative Agent with the consent of the Required
Lenders) and delivered to the Administrative Agent and, in the case of an
amendment, signed by the Borrowers; provided, that no amendment, waiver or
consent shall:



94









 





     (a) waive any condition set forth in Section 5.2 without the written
consent of each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 12.2) or the amount of Loans of any
Lender without the written consent of each Lender directly affected thereby;



     (c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory repayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on,
any Loan or Reimbursement Obligation, or (subject to clause (v) of the second
proviso to this Section) any fees or other amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby; provided that only the consent of the Required Lenders shall
be necessary (i) to waive any obligation of the Borrowers to pay interest at
the rate set forth in Section 4.1(c) during the continuance of an Event of
Default, or (ii) to amend any financial covenant hereunder (or any defined term
used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;



     (e) change Section 4.4 or Section 12.4 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender directly affected thereby;



     (f) change any provision of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; or



     (g) release all of the Subsidiary Guarantors or release Subsidiary
Guarantors comprising substantially all of the credit support for the
Obligations, in either case, from the Subsidiary Guaranty Agreement (other than
as authorized in Section 13.10), without the written consent of each Lender;



provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement
or any Letter of Credit Application relating to any Letter of Credit issued or
to be issued by it; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Swingline Lender in addition to the Lenders required
above, affect the rights or duties of the Swingline Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Canadian Dollar Lender in addition to the Lenders required above,
affect the rights or duties of the Canadian Dollar Lender under this Agreement;
(iv) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative


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Agent under this Agreement or any other Loan Document; and (v) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.



     SECTION 14.3 Expenses; Indemnity. The Borrowers will (a) pay all
out-of-pocket expenses (including, without limitation, all costs of electronic
or internet distribution of any information hereunder) of the Administrative
Agent in connection with (i) the preparation, execution and delivery of this
Agreement and each other Loan Document, whenever the same shall be executed and
delivered, including, without limitation, all out-of-pocket syndication and due
diligence expenses and reasonable fees, disbursements and other charges of
counsel for the Administrative Agent and (ii) the preparation, execution and
delivery of any waiver, amendment or consent by the Administrative Agent or the
Lenders relating to this Agreement or any other Loan Document, including,
without limitation, reasonable fees and disbursements of counsel for the
Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent and each Lender actually incurred in connection with the
administration and enforcement of any rights and remedies of the Administrative
Agent and Lenders under the Credit Facility, including, without limitation, in
connection with any workout, restructuring, bankruptcy or other similar
proceeding, creating and perfecting Liens in favor of Administrative Agent on
behalf of Lenders, enforcing any Obligations of, or collecting any payments due
from, the Borrowers or any Subsidiary Guarantor by reason of an Event of
Default (including in connection with the sale of, collection from, or other
realization upon any collateral or the enforcement of the Subsidiary Guaranty
Agreement); consulting with appraisers, accountants, engineers, attorneys and
other Persons concerning the nature, scope or value of any right or remedy of
the Administrative Agent or any Lender hereunder or under any other Loan
Document or any factual matters in connection therewith, which expenses shall
include without limitation the reasonable fees and disbursements of such
Persons, and (c) defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective parents, Subsidiaries, Affiliates,
partners, employees, agents, officers, advisors and directors, from and against
any losses, penalties, fines, liabilities, settlements, damages, costs and
expenses, suffered by any such Person in connection with any claim (including,
without limitation, any Environmental Claims), investigation, litigation or
other proceeding (whether or not the Administrative Agent or any Lender is a
party thereto) and the prosecution and defense thereof, arising out of or in
any way connected with the Loans, this Agreement, any other Loan Document, or
any documents, reports or other information provided to the Administrative
Agent or any Lender or contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby, including, without limitation,
reasonable attorney’s and consultant’s fees, except to the extent that any of
the foregoing (a) are determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted directly from the gross
negligence or willful misconduct of the party seeking indemnification therefor
or (b) result from a claim brought by any Credit Party against an indemnitee
for breach in bad faith of the obligations under this Agreement or the other
Loan Documents of the party seeking indemnification if such Credit Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.



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     SECTION 14.4 Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, the Canadian Dollar Lender, the
Swingline Lender and each of their respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender,
the Issuing Lender, the Canadian Dollar Lender, the Swingline Lender or any
such Affiliate to or for the credit or the account of the Borrowers or any
other Credit Party against any and all of the obligations of the Borrowers or
such Credit Party now or hereafter existing under this Agreement or any other
Loan Document to such Lender, the Issuing Lender, the Canadian Dollar Lender or
the Swingline Lender, irrespective of whether or not such Lender, the Issuing
Lender, the Canadian Dollar Lender or the Swingline Lender shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrowers or such Credit Party may be contingent or
unmatured or are owed to a branch or office of such Lender, the Issuing Lender,
the Canadian Dollar Lender or the Swingline Lender different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the Issuing Lender, the Canadian Dollar Lender, the Swingline
Lender and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender,
the Issuing Lender, the Canadian Dollar Lender, the Swingline Lender or their
respective Affiliates may have. Each Lender, the Issuing Lender, the Canadian
Dollar Lender and the Swingline Lender agrees to notify the Borrowers and the
Administrative Agent promptly after any such setoff and application; provided
that the failure to give such notice shall not affect the validity of such
setoff and application.



     SECTION 14.5 Governing Law. This Agreement and the other Loan Documents,
unless otherwise expressly set forth therein, shall be governed by, construed
and enforced in accordance with the laws of the State of North Carolina,
without reference to the conflicts or choice of law principles thereof.



     SECTION 14.6 Jurisdiction and Venue.



     (a) Jurisdiction. The Borrowers hereby irrevocably consent to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina (and any courts from which an appeal from any of such
courts must or may be taken), in any action, claim or other proceeding arising
out of any dispute in connection with this Agreement and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or any Lender
in connection with this Agreement or the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 14.1. Nothing in this Section shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against the Borrowers or their
respective properties in the courts of any other jurisdictions.



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     (b) Venue. The Borrowers hereby irrevocably waive any objection they may
have now or in the future to the laying of venue in the aforesaid jurisdiction
in any action, claim or other proceeding arising out of or in connection with
this Agreement, any other Loan Document or the rights and obligations of the
parties hereunder or thereunder. The Borrowers irrevocably waive, in
connection with such action, claim or proceeding, any plea or claim that the
action, claim or proceeding has been brought in an inconvenient forum.



     SECTION 14.7 Binding Arbitration; Waiver of Jury Trial.



     (a) Binding Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Agreement or any other Loan
Document (“Disputes”), between or among parties hereto and to the other Loan
Documents shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of
that party to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class actions, claims
arising from Loan Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the American
Arbitration Association (the “AAA”) and the Federal Arbitration Act. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitations shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding anything foregoing
to the contrary, any arbitration proceeding demanded hereunder shall begin
within ninety (90) days after such demand thereof and shall be concluded within
one hundred twenty (120) days after such demand. These time limitations may
not be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys selected
from the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding
the foregoing, this subsection shall not apply to any Hedging Agreement.



     (b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWERS
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.



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     (c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in
the Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.



     SECTION 14.8 Reversal of Payments. To the extent a Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state, provincial or federal law, common law or equitable
cause, then, to the extent of such payment or proceeds repaid, the Obligations
or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if such payment or proceeds had not been received by the
Administrative Agent.



     SECTION 14.9 Injunctive Relief; Punitive Damages.



     (a) The Borrowers recognize that, in the event the Borrowers fail to
perform, observe or discharge any of their obligations or liabilities under
this Agreement, any remedy of law may prove to be inadequate relief to the
Administrative and the Lenders. Therefore, the Borrowers agree that the
Administrative Agent and the Lenders, at the Administrative Agent’s or the
Required Lenders’ option, shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.



     (b) The Administrative Agent, the Lenders and the US Borrower (on behalf
of itself and the Credit Parties) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.



     SECTION 14.10 Accounting Matters. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrowers or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrowers shall
negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the
approval of



99









 







the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrowers shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.



     SECTION 14.11 Successors and Assigns; Participations.



     (a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower nor
any other Credit Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of subsection (b) of this Section, (ii) by way
of participation in accordance with the provisions of subsection (d) of this
Section or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that



          (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not be
less than $5,000,000, in the case of any assignment, unless such assignment is
made to an existing Lender, to an Affiliate thereof, or to an Approved Fund, in
which case no minimum amount shall apply, unless each of the Administrative
Agent and, so long as no Default or Event of Default has occurred and is
continuing, the US Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed); provided that the US Borrower shall be
deemed to have given its consent five (5) Business Days after the date written
notice thereof has been delivered by the assigning Lender (through the
Administrative Agent) unless such consent is expressly refused by the US
Borrower prior to such fifth (5th) Business Day;



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          (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned;



          (iii) any assignment of a Commitment must be approved by the
Administrative Agent, the Canadian Dollar Lender, the Swingline Lender and the
Issuing Lender unless the Person that is the proposed assignee is itself a
Lender with a Commitment (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee); and



          (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.



Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 4.8, 4.9, 4.10, 4.11 and
14.3 with respect to facts and circumstances occurring prior to the effective
date of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.



     (c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the US Borrower, shall maintain at one of its offices in Charlotte,
North Carolina, a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the US Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the US Borrower and any Lender, solely to the
extent of any entries applicable to such Lender, at any reasonable time and
from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrowers or the Administrative Agent, sell participations to
any Person (other than a natural person or a Borrower or any of the Borrowers’
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely



101









 







responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver or modification described in the
Section 14.2 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrowers agree that each Participant shall be entitled to
the benefits of Sections 4.8, 4.9, 4.10 and 4.11 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 14.4 as though it
were a Lender, provided such Participant agrees to be subject to Section 4.6 as
though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Sections 4.10 and 4.11 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the US Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 4.11 unless the US Borrower is notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the US Borrower, to comply with Section 4.11(e) as though it were a
Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.



     SECTION 14.12 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by, or required to be disclosed to, any rating agency, or
regulatory or similar authority (including any self-regulatory authority, such
as the National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of
any remedies under this Agreement or under any other Loan Document (or any
Hedging Agreement with a Lender or the Administrative Agent) or any action or
proceeding relating to this Agreement or any other Loan Document (or any
Hedging Agreement with a Lender or the Administrative Agent) or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing
provisions



102









 







substantially the same as those of this Section, to (i) any Purchasing Lender,
proposed Purchasing Lender, Participant or proposed Participant or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Borrower and its obligations, (g) with the consent
of the US Borrower, (h) to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other information
customarily found in such publications, or (i) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrowers. For purposes of
this Section, “Information” means all information received from any Credit
Party relating to any Credit Party or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by any Credit Party;
provided that, in the case of information received from a Credit Party after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.



     SECTION 14.13 Performance of Duties. Each of the Credit Party’s
obligations under this Agreement and each of the other Loan Documents shall be
performed by such Credit Party at its sole cost and expense.



     SECTION 14.14 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to
any provisions of this Agreement or any of the other Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Commitments remain in
effect or the Credit Facility has not been terminated.



     SECTION 14.15 Survival of Indemnities. Notwithstanding any termination of
this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIV and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.



     SECTION 14.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.



     SECTION 14.17 Severability of Provisions. Any provision of this Agreement
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.



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     SECTION 14.18 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.



     SECTION 14.19 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. In the event of any conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.



     SECTION 14.20 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied in full and all Commitments have been
terminated. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination or in
respect of any provision of this Agreement which survives such termination.



     SECTION 14.21 Advice of Counsel, No Strict Construction. Each of the
parties represents to each other party hereto that it has discussed this
Agreement with its counsel. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.



     SECTION 14.22 Inconsistencies with Other Documents; Independent Effect of
Covenants.



     (a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided that any provision of the Security Documents which imposes
additional burdens on any Borrower or its Subsidiaries or further restricts the
rights of any Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.



     (b) The Borrowers expressly acknowledge and agree that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrowers shall
or would be in breach of any other covenant contained in Articles VIII, IX, or
X.



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[Signature pages to follow]




105









 









     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.


	 	 	 	 	 
	 	SCP POOL CORPORATION, as US Borrower

 	 
	 	By:  	/s Manuel J. Perez de la Mesa
 	 
	 	 	Name:  	Manuel J. Perez de la Mesa 	 
	 	 	Title: President and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	SCP DISTRIBUTORS INC., as Canadian Borrower

 	 
	 	By:  	/s Manuel J. Perez de la Mesa
 	 
	 	 	Name:  	Manuel J. Perez de la Mesa 	 
	 	 	Title: President and Chief Executive Officer 	 




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	AGENTS AND LENDERS:





WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Swingline Lender,

Issuing Lender and Lender

 	 
	 	By:  	/s/ KIRA DETER

 	 
	 	 	Name:  	Kira Deter
 	 
	 	 	Title:  	Officer
 	 



 









 






	 	 	 	 	 
	 	CONGRESS FINANCIAL CORPORATION (CANADA), as
Canadian Dollar Lender 	 
	 	By:  	/s/ NIALL HAMILTON

 	 
	 	 	Name:  	Niall Hamilton
 	 
	 	 	Title:  	Senior Vice President
 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JP MORGAN CHASE BANK, as Syndication Agent and Lender
 	 
	 	By:  	/s/ H. DAVID JONES

 	 
	 	 	Name:  	H. David Jones
 	 
	 	 	Title:  	Vice President
 	 
	 




 










 



	 	 	 	 	 
	 	HIBERNIA NATIONAL BANK, as Documentation Agent and Lender
 	 
	 	By:  	/s/ KATHERINE G. KAY

 	 
	 	 	Name:  	Katherine G. Kay
 	 
	 	 	Title:  	Vice President
 	 
	 




 










 



	 	 	 	 	 
	 	WELLS FARGO BANK NATIONAL ASSOCIATION, as Documentation Agent and Lender
 	 
	 	By:  	/s/ LINDA MASERA

 	 
	 	 	Name:  	Linda Masera
 	 
	 	 	Title:  	Vice President
 	 
	 




 










 



	 	 	 	 	 
	 	REGIONS BANK, as Lender
 	 
	 	By:  	/s/ JORGE E. GORIS

 	 
	 	 	Name:  	Jorge E. Goris
 	 
	 	 	Title:  	Senior Vice President
 	 
	 




 










 



	 	 	 	 	 
	 	BANK ONE, NA, as Issuing Lender
 	 
	 	By:  	/s/ H. DAVID JONES

 	 
	 	 	Name:  	H. David Jones
 	 
	 	 	Title:  	Vice President