2013.12.31 - 10K EX 10.47




EXECUTION VERSION








AMENDED AND RESTATED CREDIT AGREEMENT Dated as of November 1, 2013,
among


PLY GEM HOLDINGS, INC., PLY GEM INDUSTRIES, INC.,
as the Specified U.S. Borrower,


PLY GEM CANADA, INC., GIENOW CANADA INC., MITTEN INC.
as the Canadian Borrowers,


The Other Borrowers Named Herein,


UBS AG, STAMFORD BRANCH,
as U.S. Administrative Agent, U.S. Collateral Agent, U.S. Swing Line Lender and a U.S. L/C Issuer,


WELLS FARGO CAPITAL FINANCE, LLC
as Co-Collateral Agent,


WELLS FARGO BANK, NATIONAL ASSOCIATION, as a U.S. L/C Issuer,


UBS AG CANADA BRANCH
as Canadian Administrative Agent, Canadian Collateral Agent, Canadian Swing Line Lender and a Canadian L/C Issuer,


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a U.S. L/C Issuer


CREDIT SUISSE AG, TORONTO BRANCH, as a Canadian L/C Issuer,


The Lenders Party Hereto,


UBS SECURITIES LLC,
as Joint Lead Arranger and Joint Bookrunner,


WELLS FARGO CAPITAL FINANCE, LLC
as Syndication Agent, Joint Lead Arranger and Joint Bookrunner
































TABLE OF CONTENTS
 






ARTICLE I Definitions and Accounting Terms    1


SECTION 1.01. Defined Terms...........................................................................................1
SECTION 1.02. Other Interpretive Provisions ..................................................................60
SECTION 1.03. Accounting Terms...................................................................................62
SECTION 1.04. Rounding .................................................................................................62
SECTION 1.05. Times of Day...........................................................................................62
SECTION 1.06. Letter of Credit Amounts ........................................................................62
SECTION 1.07. Currency Equivalents Generally .............................................................62


ARTICLE II The Commitments and Credit Extensions    63


SECTION 2.01. The Loans................................................................................................63
SECTION 2.02. Borrowings, Conversions and Continuations of Loans. .........................70
SECTION 2.03. Letters of Credit Procedures for Issuance and Amendment of Letters of
Credit; Auto-Extension Letters of Credit..........................................72
SECTION 2.04. Swing Line Loans. ..................................................................................79
SECTION 2.05. Prepayments. ...........................................................................................86
SECTION 2.06. Termination or Reduction of Commitments. ..........................................87
SECTION 2.07. Repayment of Loans. ..............................................................................88
SECTION 2.08. Interest.....................................................................................................89
SECTION 2.09. Fees .........................................................................................................90
SECTION 2.10. Computation of Interest and Fees; Retroactive Adjustments of
Applicable Rate.................................................................................91
SECTION 2.11. Evidence of Debt.....................................................................................91
SECTION 2.12. Payments Generally; Administrative Agent’s Clawback........................92
SECTION 2.13. Sharing of Payments by Lenders ............................................................94
SECTION 2.14. Nature of Obligations..............................................................................95
SECTION 2.15. Borrower Agent.......................................................................................97
SECTION 2.16. Incremental Revolving Credit Commitments. ........................................97


ARTICLE III Taxes, Yield Protection and Illegality    99


SECTION 3.01. Taxes. ......................................................................................................99
SECTION 3.02. Illegality. ...............................................................................................102
SECTION 3.03. Inability to Determine Rates .................................................................103
SECTION 3.04. Increased Costs; Reserves on Eurodollar Rate Loans...........................103
SECTION 3.05. Compensation for Losses. .....................................................................105
SECTION 3.06. Mitigation Obligations; Replacement of Lenders. ................................106
SECTION 3.07. Survival .................................................................................................106


ARTICLE IV Conditions Precedent to Credit Extensions    106


SECTION 4.01. Conditions to Effective Date.................................................................106
SECTION 4.02. Conditions to all Credit Extensions ......................................................110




i





ARTICLE V Representations and Warranties    111


SECTION 5.01. Existence, Qualification and Power; Compliance with Laws ...............111
SECTION 5.02. Authorization; No Contravention..........................................................112
SECTION 5.03. Governmental Authorization; Other Consents......................................112
SECTION 5.04. Binding Effect. ......................................................................................112
SECTION 5.05. Financial Statements; No Material Adverse Effect...............................112
SECTION 5.06. Litigation. ..............................................................................................113
SECTION 5.07. No Default.............................................................................................113
SECTION 5.08. Ownership of Property; Liens. ..............................................................113
SECTION 5.09. Environmental Compliance...................................................................114
SECTION 5.10. Insurance ...............................................................................................115
SECTION 5.11. Taxes .....................................................................................................115
SECTION 5.12. ERISA Compliance...............................................................................115
SECTION 5.13. Subsidiaries; Equity Interests; Loan Parties..........................................116
SECTION 5.14. Margin Regulations; Investment Company Act....................................116
SECTION 5.15. Disclosure..............................................................................................117
SECTION 5.16. Compliance with Laws..........................................................................117
SECTION 5.17. Intellectual Property; Licenses, Etc ......................................................117
SECTION 5.18. Solvency................................................................................................117
SECTION 5.19. Casualty, Etc. ........................................................................................117
SECTION 5.20. Perfection, Etc .......................................................................................117
SECTION 5.21. Senior Debt ...........................................................................................118
SECTION 5.22. Tax Shelter Regulations ........................................................................118
SECTION 5.23. Anti-Terrorism Law. .............................................................................118
SECTION 5.24. Accounts................................................................................................119
SECTION 5.25. Canadian Pension Plans ........................................................................120


ARTICLE VI Affirmative Covenants    120


SECTION 6.01. Financial Statements; Borrowing Base .................................................120
SECTION 6.02. Certificates; Other Information .............................................................122
SECTION 6.03. Notices ..................................................................................................124
SECTION 6.04. Payment of Obligations.........................................................................124
SECTION 6.05. Preservation of Existence, Etc ..............................................................125
SECTION 6.06. Maintenance of Properties ....................................................................125
SECTION 6.07. Maintenance of Insurance .....................................................................125
SECTION 6.08. Compliance with Laws..........................................................................125
SECTION 6.09. Books and Records................................................................................125
SECTION 6.10. Inspections; Appraisals. ........................................................................126
SECTION 6.11. Use of Proceeds.....................................................................................126
SECTION 6.12. Covenant to Guarantee Obligations and Give Security. .......................126
SECTION 6.13. Compliance with Environmental Laws.................................................130
SECTION 6.14. Further Assurances................................................................................130
SECTION 6.15. Compliance with Terms of Leaseholds.................................................131
SECTION 6.16. Designation as Senior Debt ...................................................................131







SECTION 6.17. Collateral Administration......................................................................131


SECTION 6.18. Maintenance of Cash Management System. .........................................133
SECTION 6.19. Post-Closing Deliveries.........................................................................134


ARTICLE VII Negative Covenants    134


SECTION 7.01. Liens......................................................................................................134
SECTION 7.02. Investments ...........................................................................................138
SECTION 7.03. Indebtedness..........................................................................................141
SECTION 7.04. Fundamental Changes ...........................................................................144
SECTION 7.05. Dispositions...........................................................................................145
SECTION 7.06. Restricted Payments ..............................................................................147
SECTION 7.07. Change in Nature of Business. ..............................................................149
SECTION 7.08. Transactions with Affiliates ..................................................................149
SECTION 7.09. Burdensome Agreements ......................................................................150
SECTION 7.10. Use of Proceeds.....................................................................................150
SECTION 7.11. Consolidated Fixed Charge Coverage Ratio .........................................150
SECTION 7.12. Amendments of Material Documents ...................................................150
SECTION 7.13. Fiscal Year ............................................................................................151
SECTION 7.14. Prepayments, Etc. of Indebtedness. ......................................................151
SECTION 7.15. Equity Interests of Holdings and Subsidiaries. .....................................151
SECTION 7.16. Designation of Senior Debt ...................................................................152


ARTICLE VIII Events of Default and Remedies    152


SECTION 8.01. Events of Default ..................................................................................152
SECTION 8.02. Remedies upon Event of Default ..........................................................155
SECTION 8.03. Application of Funds.............................................................................155
SECTION 8.04. Collection Allocation Mechanism. .......................................................157
SECTION 8.05. Certain Cure Rights...............................................................................159


ARTICLE IX The Agents    160


SECTION 9.01. Appointment and Authority. .................................................................160
SECTION 9.02. Rights as a Lender.................................................................................161
SECTION 9.03. Exculpatory Provisions .........................................................................161
SECTION 9.04. Reliance by Administrative Agent ........................................................162
SECTION 9.05. Delegation of Duties. ............................................................................162
SECTION 9.06. Resignation of Administrative Agent ...................................................163
SECTION 9.07. Non-Reliance on  Administrative Agent and Other Lenders ................164
SECTION 9.08. No Other Duties, Etc. ............................................................................164
SECTION 9.09. Administrative Agent May File Proofs of Claim..................................164
SECTION 9.10. Collateral and Guaranty Matters ...........................................................165
SECTION 9.11. Secured Cash Management Agreements and Secured Hedge Agreements165









ARTICLE X Miscellaneous    166


SECTION 10.01. Amendments, Etc. ...............................................................................166
SECTION 10.02. Notices; Effectiveness; Electronic Communications. .........................169
SECTION 10.03. No Waiver; Cumulative Remedies .....................................................171









SECTION 10.04. Expenses; Indemnity; Damage Waiver. ..............................................172
SECTION 10.05. Payments Set Aside.............................................................................174
SECTION 10.06. Successors and Assigns.......................................................................174
SECTION 10.07. Treatment of Certain Information; Confidentiality.............................179
SECTION 10.08. Right of Setoff.....................................................................................180
SECTION 10.09. Interest Rate Limitation ......................................................................180
SECTION 10.10. Counterparts; Integration; Effectiveness.............................................181
SECTION 10.11. Survival of Representations and Warranties .......................................181
SECTION 10.12. Severability .........................................................................................182
SECTION 10.13. Replacement of Lenders......................................................................182
SECTION 10.14. Governing Law; Jurisdiction; Etc. ......................................................182
SECTION 10.15. Waiver of Jury Trial ............................................................................183
SECTION 10.16. No Advisory or Fiduciary Responsibility ...........................................184
SECTION 10.17. Electronic Execution of Assignments and Certain Other Documents. 184
SECTION 10.18. USA Patriot Act Notice.......................................................................185
SECTION 10.19. Judgment Currency .............................................................................185
SECTION 10.20. Language .............................................................................................185
SECTION 10.21. Intercreditor Agreement ......................................................................185
SECTION 10.22. Amendment and Restatement .............................................................186
















SCHEDULES
Schedule 1.01(a)    Sale-Leaseback Properties
Schedule 1.01(b)    Existing Letters of Credit
Schedule 2.01    Commitments and Applicable Percentages
Schedule 5.06    Litigation
Schedule 5.08(b)    Owned Real Property Schedule 5.08(c)    Leased Real Property Schedule 5.09    Environmental Matters
Schedule 5.13    Subsidiaries and Other Equity Investments; Loan Parties
Schedule 6.12    Guarantors
Schedule 6.19    Mortgaged Properties Schedule 7.01    Existing Liens Schedule 7.02    Existing Investments Schedule 7.03(e)    Existing Indebtedness Schedule 7.05    Dispositions
Schedule 7.08(j)    Transactions with Affiliates
Schedule 10.02    Administrative Agent’s Office, Certain Addresses for Notices


EXHIBITS







Exhibit A    Form of Committed Loan Notice
Exhibit B    Form of Swing Line Loan Notice









Exhibit C-1    Form of U.S. Revolving Credit Note Exhibit C-2    Form of Canadian Revolving Credit Note Exhibit D    Form of Compliance Certificate
Exhibit E-1     Form of Assignment and Assumption Exhibit E-2    Form of Administrative Questionnaire Exhibit F-1     Form of U.S. Guaranty
Exhibit F-2     Form of Canadian Guaranty Exhibit G-1     Form of U.S. Security Agreement Exhibit G-2     Form of Canadian Security Agreement Exhibit H    [Reserved]
Exhibit I    Form of Intercompany Note
Exhibit J-1     Form of Opinion - U.S. Counsel to Loan Parties Exhibit J-2     Form of Opinion -  Canadian Counsel to Loan Parties Exhibit J-3     Form of Opinion - Local Counsel to U.S. Loan Parties Exhibit K    Form of Borrowing Base Certificate
Exhibit L    Form of Perfection Certificate









This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of November 1, 2013, among PLY GEM HOLDINGS, INC., a Delaware corporation  (“Holdings”);  PLY GEM  INDUSTRIES,  INC.,  a  Delaware  corporation  (the “Specified U.S. Borrower” and, in its capacity as the representative of the other Borrowers pursuant  to  Section  2.15  hereof,  the  “Borrower  Agent”);  PLY  GEM  CANADA,  INC.,  a Canadian corporation (“Ply Gem Canada”), GIENOW CANADA INC., an Alberta (Canada) corporation (“Gienow”), MITTEN INC., an Ontario (Canada) corporation (“Mitten”) (Ply Gem Canada, Gienow and Mitten, collectively, the “Canadian Borrowers”); the Subsidiaries of Holdings from time to time party hereto as Borrowers; each Lender from time to time party hereto; UBS AG, STAMFORD BRANCH, as U.S. Administrative Agent, as U.S. Collateral Agent,  as  U.S.  Swing  Line  Lender  and  a  U.S.  L/C  Issuer;  WELLS  FARGO  CAPITAL FINANCE, LLC, as Co-Collateral Agent; WELLS FARGO BANK, NATIONAL ASSOCIATION, as a U.S. L/C Issuer; UBS AG CANADA BRANCH (“UBS Canada”), as Canadian Administrative Agent, as Canadian Collateral Agent, as Canadian Swing Line Lender, and as a Canadian L/C Issuer; CREDIT SUISSE AG CAYMAN ISLANDS BRANCH, as a U.S. L/C Issuer; CREDIT SUISSE AG, TORONTO BRANCH, as a Canadian L/C Issuer; UBS SECURITIES LLC, as Joint Lead Arranger and Joint Bookrunner; and WELLS FARGO CAPITAL FINANCE, LLC, as Syndication Agent, Joint Lead Arranger and Joint Bookrunner.


Preliminary Statements:


Holdings, the Specified U.S. Borrower, Ply Gem Canada, the Lenders party thereto, the Administrative Agent and the other Agents party thereto are parties to the Existing Credit Agreement (as defined herein).


The parties hereto wish to amend and restate the Existing Credit Agreement in its entirety, as and to the extent set forth herein.


The Lenders are willing to extend credit to Borrowers and the L/C Issuers are willing to issue Letters of Credit for the account of Borrowers on the terms and subject to the conditions set forth herein.


In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:


ARTICLE I


Definitions and Accounting Terms


SECTION 1.01.  Defined  Terms.     As  used  in  this  Agreement  (including  the
Preliminary Statements), the following terms shall have the meanings set forth below:


“2017 Senior Notes” means all outstanding 9 3/8% unsecured senior notes due
2017 issued by the Specified U.S. Borrower pursuant to the 2017 Senior Notes Indenture.


“2017 Senior Notes Indenture” means the Indenture dated as of September 27,
2012 among Wells Fargo Bank, National Association, the Specified U.S. Borrower and certain of the Guarantors, together with all instruments and other agreements in connection therewith or otherwise setting forth the terms of the 2017 Senior Notes, as may be amended, supplemented or 







otherwise modified from time to time in accordance with the terms thereof, but only to the extent permitted under the terms of the Loan Documents.


“ABL   Payment  Conditions”  shall   mean,  with   respect  to   any   applicable transaction, (a) no Default or Event of Default shall exist immediately before and after giving effect to such transaction, (b) Average Excess Availability (calculated on a pro forma basis to include (x) any Borrowing or the issuance of any Letter of Credit in connection with such transaction and (y) the Eligible Receivables and Eligible Inventory of (or attributable to) the person (or assets) acquired in any such transaction that is an acquisition) for the 30-day period prior to such transaction shall be greater than or equal to the greater of (i) $25,000,000 and (ii)
15.0% of the lesser of (x) the Aggregate Commitments and (y) the Total Borrowing Base, (c) Excess Availability (calculated as set forth above) on the date of such proposed transaction shall be greater than or equal to the greater of (i) $25,000,000 and (ii) 15.0% of the lesser of (x) the Aggregate Commitments and (y) the Total Borrowing Base, (d) the Consolidated Fixed Charge Coverage Ratio (calculated on a pro forma basis after giving effect to such transaction) shall be at least 1.0:1.0; provided, that the foregoing condition in this clause (d) shall not apply if the Average Excess Availability amount calculated pursuant to clause (b) above and the Excess Availability amount calculated pursuant to clause (c) above are greater than or equal to 25.0% of the Aggregate Commitments, and (e) the Borrowers shall have delivered a certificate of a Responsible Officer of the Specified U.S. Borrower to the Administrative Agent certifying compliance with the requirements of clauses (a) through (d) above.


“ABL Priority Collateral” means the “Revolving Facility First Lien Collateral” (as defined in the Intercreditor Agreement).


“Account” has the meaning specified in the UCC (or, with respect to a Canadian Loan Party, the PPSA), and shall include any and all rights of a Loan Party to payment for goods sold or leased or for services rendered that are not evidenced by an Instrument or Chattel Paper, whether or not they have been earned by performance.


“Account Debtor” means a Person who is obligated under an Account, Chattel
Paper or General Intangible.


“Additional Canadian Revolving Credit Outstandings” means that portion (if any) of  the  Total  Canadian  Revolving  Credit  Outstandings  that  is  in  excess  of  the  Canadian Borrowing Base calculated, for this purpose, without giving effect to the inclusion of U.S. Excess Availability in the calculation of Canadian Borrowing Base.


“Administrative Agent” means, with respect to matters relating to the U.S. Revolving Credit Facility and the U.S. Loan Documents, the U.S. Administrative Agent and, with respect to matters relating to the Canadian Revolving Credit Facility and the Canadian Loan Documents, the Canadian Administrative Agent.


“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrowers and the Lenders.









“Administrative  Questionnaire”  means  an   Administrative  Questionnaire  in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.


“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.


“Agents” means the Administrative Agent, the Collateral Agent and the Co- Collateral Agent.
“Aggregate Commitments” means the Commitments of all the Lenders. “Agreement” means this Amended and Restated Credit Agreement as modified,
amended, supplemented or restated, and in effect from time to time.


“Anti-Terrorism Laws” has the meaning specified in Section 5.23(a).


“Applicable Commitment Fee Rate” means, (a) until the fiscal quarter ending on or around December 31, 2013, 0.375% and (b) for each fiscal quarter thereafter, the applicable percentage per annum set forth below determined by reference to Average Excess Availability for the immediately preceding fiscal quarter:


	
		
	Average Excess
Availability
	Applicable Commitment
Fee Rate

	> $100,000,000
	0.00375%

	≤ $100,000,000
	0.250%








Any increase or decrease in the Applicable Commitment Fee Rate resulting from a change in the Average Excess Availability shall become effective as of the first calendar day of each fiscal quarter.  Average Excess Availability shall be calculated by the Administrative Agent based on the 







Administrative Agent’s records.  If the Borrowing Base Certificates (including any required financial information in support thereof) of the Borrowers are not received by the Agents by the date required pursuant to Section 6.01(f) of this Agreement, then, upon the request of the Required Lenders, the Applicable Commitment Fee Rate shall be deemed to be 0.375% until such time as such Borrowing Base Certificates and supporting information are received.


“Applicable Percentage” means, (a) with respect to any U.S. Appropriate Lender at any time, the percentage (carried out to the ninth decimal place) of the U.S. Revolving Credit Facility represented by such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment at such time and (b) with respect to any Canadian Appropriate Lender at any time, the percentage (carried out to the ninth decimal place) of the Canadian Revolving Credit Facility represented by such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment at such time. If the commitment of each Appropriate Lender to make Revolving Credit Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Appropriate Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such Appropriate Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. The Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.


“Applicable Rate” means, for each fiscal quarter, the applicable percentage per annum set forth below determined by reference to Average Excess Availability for the immediately preceding fiscal quarter:


	
				
	Applicable Rate

	

Pricing
Level
	

Average Excess
Availability
	

Eurodollar Rate, BA Rate and Letter of Credit Fees
	Base Rate, Canadian Base
Rate and Canadian Prime
Rate

	1
	> $100,000,000
	1.50%
	0.50%

	2
	≤ $100,000,000 but >$50,000,000
	1.75%
	0.75%

	3
	≤ $50,000,000
	2.00%
	1.00%








Notwithstanding the foregoing, during the fiscal quarter in which the Effective Date occurs and until the fiscal quarter ending on or around December 31, 2013, Level 2 shall be deemed to apply.  Any increase or decrease in the Applicable Rate resulting from a change in the Average Excess  







Availability shall become effective as of the first calendar day of each fiscal quarter. Average Excess Availability shall be calculated by the Administrative Agent based on the Administrative Agent’s records.  If the Borrowing Base Certificates (including any required financial information in support thereof) of the Borrowers are not received by the Agents by the date required pursuant to Section 6.01(f) of this Agreement, then, upon the request of the Required Lenders, the Applicable Rate shall be determined as if the Average Excess Availability for the immediately preceding fiscal quarter is at Level 3 until such time as such Borrowing Base Certificates and supporting information are received.


Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).


“Appropriate  Lender”  means,  at  any  time,  (a) (i)  with  respect  to  the  U.S. Revolving Credit Facility, a Lender that has a Commitment with respect to the U.S. Revolving Credit Facility or holds a U.S. Revolving Credit Loan at such time (each, a “U.S. Appropriate Lender”), (ii) with respect to the U.S. Letter of Credit Sublimit, (A) the U.S. L/C Issuer and (B) if  any  U.S.  Letters  of  Credit  have  been  issued  pursuant  to  Section  2.01(c),  the  U.S. Revolving Credit Lenders and (iii) with respect to the U.S. Swing Line Sublimit, (A) the U.S. Swing  Line  Lender  and  (B) if  any  U.S.  Swing  Line  Loans  are  outstanding  pursuant  to Section 2.04(A)(a), the U.S. Revolving Credit Lenders and (b) (i) with respect to the Canadian Revolving Credit Facility, a Lender that has a Commitment with respect to the Canadian Revolving Credit Facility or holds a Canadian Revolving Credit Loan at such time (each, a “Canadian Appropriate Lender”), (ii) with respect to the Canadian Letter of Credit Sublimit, (A) the Canadian L/C Issuer and (B) if any Canadian Letters of Credit have been issued pursuant to Section 2.01(d), the Canadian Revolving Credit Lenders and (iii) with respect to the Canadian Swing Line Sublimit, (A) the Canadian Swing Line Lender and (B) if any Canadian Swing Line Loans are outstanding pursuant to Section 2.04(B)(a), the Canadian Revolving Credit Lenders.


“Approved Fund” means any Fund that is administered or managed 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.


“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.


“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 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form approved by the Administrative Agent.


“Attributable Indebtedness” means, on any date, in respect of any Capitalized 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.









“Audited Financial Statements” means the audited consolidated balance sheet of Holdings and its Subsidiaries for the fiscal year ended December 31, 2012 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Holdings and its Subsidiaries, including the notes thereto.


“Availability Period” means, with respect to each Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the applicable Revolving Credit Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each applicable Appropriate Lender to make Revolving Credit Loans and of the obligation of the applicable L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


“Availability Reserve” means, on any date of determination and with respect to the U.S. Borrowing Base or the Canadian Borrowing Base, as the case may be, the sum (without duplication) of (a) reserves for deterioration in the salability of inventory; (b) the Rent and Charges Reserve; (c) the Bank Product Reserve; (d) all accrued Royalties, whether or not then due and payable by, in the case of the U.S. Borrowing Base, a U.S. Loan Party or, in the case of the Canadian Borrowing Base, a Canadian Loan Party; (e) the aggregate amount of liabilities secured by Liens upon Eligible Collateral that are senior to the Collateral Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (f) the Canadian Priority Payables Reserve; (g) reserves for excess dilution; (h) reserves for inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party; and (i) such additional reserves, in such amounts and with respect to such matters, as the Agents in their Credit Judgment may elect to impose from time to time; provided that, after the Effective Date, the Agents may adjust the apportionment of the Availability Reserve between the U.S. Revolving Credit Facility and the Canadian Revolving Credit Facility in their Credit Judgment at such time; and provided further that such Availability Reserve shall not be established or changed except upon not less than five (5) Business Days’ notice to the Borrowers (unless an Event of Default exists in which event no notice shall be required). The Agents will be available during such period to discuss any such proposed Availability Reserve or change with the Borrowers and without limiting the right of the Agents to establish or change such Reserves in the Agents’ Credit Judgment, the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such Availability Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the Agents. The amount of any Availability Reserve established by the Agents shall have a reasonable relationship as determined by the Agents in their Credit Judgment to the event, condition or other matter that is the basis for the Availability Reserve. Notwithstanding anything herein to the contrary, an Availability Reserve shall not be established to the extent that it would be duplicative of any specific item excluded as ineligible in the definitions of Eligible Collateral, but the Agents shall retain the right, subject to the requirements of this paragraph, to establish an Availability Reserve with respect to prospective changes in Eligible Collateral that may reasonably be anticipated.


“Average Excess Availability” means, on any date of determination, the amount of Excess Availability during a stipulated consecutive Business Day period, calendar day period or fiscal quarter period divided by the number of Business Days or calendar days, as the case may be, in such period.









“Average Revolving Credit Facility Balance” means, for any period for any Facility, the amount obtained by adding the Outstanding Amount of Loans outstanding under such Facility (less the Outstanding Amount of any Swing Line Loans under such Facility on such date) and L/C Obligations under such Facility at the end of each day for the period in question and by dividing such sum by the number of days in such period.


“BA Rate” means, for the Interest Period of each BA Rate Loan, the rate of interest per annum equal to the average annual rate applicable to Canadian Dollar bankers’ acceptances having an identical or comparable term as the proposed BA Rate Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:00 a.m. Toronto time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business Day), plus five (5) basis points; provided that if such rate does not appear on the CDOR Page at such time on such date, the rate for such date will be the rate of interest per annum equivalent to the annual discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Toronto time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by the Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term), plus ten (10) basis points.


“BA Rate Loan” means any Canadian Revolving Credit Loan denominated in
Canadian Dollars bearing interest at a rate determined by reference to the BA Rate.


“Bank Product” means any of the following products, services or facilities extended to any Loan Party: (a) cash management services provided by Cash Management Banks under Cash Management Agreements and (b) products provided by Hedge Banks under Secured Hedge Agreements; provided, however, that for any of the foregoing (other than Excess Bank Product Debt) to be included as an “Obligation” for purposes of a distribution under Section 8.03, the applicable Secured Party and the Loan Party must have previously provided written notice to the Agents of (i) the existence of such Bank Product, (ii) the maximum dollar amount of obligations arising thereunder to be included as a Bank Product Reserve (the “Bank Product Amount”), and (iii) the methodology to be used by such parties in determining the Bank Product Debt owing from time to time. The Bank Product Amount may be changed from time to time upon written notice to the Agents by the applicable Secured Party and Loan Party. No Bank Product Amount may be established or increased at any time that a Default or Event of Default exists and is continuing, or if a reserve in such amount would cause an Overadvance.
 
“Bank Product Amount” has the meaning specified in the definition of “Bank Product".


“Bank Product Debt” means Debt and other obligations of a Loan Party relating to Bank Products.









“Bank Product Reserve” means, with respect to the U.S. Borrowing Base or the Canadian Borrowing Base, the aggregate amount of reserves established by the Agents from time to time in their Credit Judgment in respect of Bank Product Debt of the U.S. Loan Parties or the Canadian Loan Parties, as the case may be, which shall not exceed the sum of all Bank Product Amounts.


“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, and (b) the rate of interest in effect for such day as determined from time to time by UBS AG, Stamford Branch as its “corporate base rate” in effect at its principal office in Stamford, Connecticut.  The “corporate base rate” is a rate set by UBS AG, Stamford Branch based upon various factors including UBS AG, Stamford Branch’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “corporate base rate” so determined by UBS AG, Stamford Branch shall take effect at the opening of business on the day specified by UBS AG, Stamford Branch.


 
“Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base Rate.
“BIA” means the Bankruptcy and Insolvency Act (Canada).


“Bookrunner” means UBS  Securities LLC and Wells Fargo  Capital Finance, LLC, collectively, in their capacities as joint lead arrangers and joint bookrunners.


“Borrower Agent” has the meaning specified in the introductory paragraph hereto.


“Borrower Materials” has the meaning specified in Section 6.02.


“Borrowers” mean the Canadian Borrowers and the U.S. Borrowers.








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


“Borrowing Base” means any of the U.S. Borrowing Base, the Canadian Borrowing Base and/or the Total Borrowing Base, as the context may require.  In connection with the consummation of any acquisition of a business or other assets, the Borrowers may submit a calculation of the Borrowing Base on a pro forma basis with adjustments to reflect such acquisition and the inclusion of the Eligible Receivables and Eligible Inventory so acquired in the Borrowing Base, and the Borrowing Base and Excess Availability shall be increased accordingly, provided that, the Administrative Agent shall have completed and be reasonably satisfied with its review of such acquired assets, including receipt of new (or, if agreed to by the Administrative Agent, recently 







completed) collateral audits, appraisals or updates of appraisals from one or more appraisers as the Administrative Agent shall require in its Credit Judgment with respect to any such acquired assets prior to the inclusion of such assets in the Borrowing Base; it being understood that (i) the Administrative Agent agrees to use its commercially reasonable efforts to complete its review of such acquired assets prior to consummation of such acquisition so long as the Administrative Agent has been given the opportunity for a reasonable period (which shall not be required to be longer than twenty-one (21) days) to complete such review (and in any event the Administrative Agent agrees to use its commercially reasonable efforts to complete such review as soon as reasonably possible), (ii) net orderly liquidation value with respect to any Eligible Inventory so acquired shall be based on new appraisals or updates thereof from one or more appraisers reasonably acceptable to the Administrative Agent, if required by the Administrative Agent or if not required, the appraisals or updates thereof then existing with respect to such Eligible Inventory, (iii) the Borrowers shall, for the avoidance of doubt, be allowed to utilize any increase in the Borrowing Base resulting from any such adjustment for the purpose of funding the purchase of any such acquired assets, and (iv) subject to the provisions of Section 6.12, the Administrative Agent shall have received in form ready for filing all applicable UCC and PPSA financing statements to ensure that, upon such filing, the Collateral Agent will have a perfected security interest in such acquired assets that will meet the requirements  therefor  set  forth  in  the  definition  of  “Eligible  Receivables”  or  “Eligible Inventory”, as applicable.
 
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit K.


“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, relative to matters with respect to the U.S. Revolving Credit Facility, the state where the Administrative Agent’s Office is located, or relative to matters with respect to the Canadian Revolving Credit Facility, the jurisdiction where the Administrative Agent’s principal Canadian lending Affiliate or branch is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.


“CAM” means the mechanism for the allocation and exchange of interests in the Loans, participations in Letters of Credit and collections thereunder established pursuant to Section 8.04.


“CAM Exchange Date” means the first date after the Effective Date on which there shall occur (a) any Event of Default under clause (f) or (g) of Section 8.01 with respect to a Borrower or (b) an acceleration of Loans pursuant to Section 8.02(b).


“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the sum, without duplication, of (i) the Canadian Revolving Credit Exposure, if any, of such Lender, (ii) the U.S. Revolving Credit Exposure, if any, of such Lender and (iii) the aggregate amount of any other Obligations otherwise owed to such Lender pursuant to the Loan Documents, in each case immediately prior to the CAM Exchange Date, and (b) the denominator shall be the sum of (i) the aggregate U.S. Revolving Credit Exposure of all the Lenders, 







(ii) the aggregate Canadian Revolving Exposure of all Lenders and (iii) the aggregate amount of any other Obligations otherwise owed to any of the Lenders pursuant to the Loan Documents, in each case immediately prior to the CAM Exchange Date.


“Canadian  Account  Control  Agreements”  means,  collectively,  the  Deposit Account Control Agreements entered into by the Canadian Loan Parties in favor of the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent.


“Canadian  Administrative  Agent”  means  UBS  Canada,  in  its  capacity  as Canadian administrative agent under any of the Loan Documents, or any successor Canadian administrative agent.


“Canadian Base Rate” means, for any day, a rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as determined from time to time by UBS Canada as its “corporate base rate” for loans in Dollars in Canada.  The “Canadian Base Rate” is a rate set by UBS Canada based upon various factors including UBS Canada’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in the “Canadian Base Rate” so determined by UBS Canada shall take effect at the opening of business on the day specified by UBS Canada.


“Canadian Base Rate Loan” means any Canadian Revolving Credit Loan denominated in Dollars bearing interest computed by reference to the Canadian Base Rate.


“Canadian Benefit Plans” means all employee benefit plans, programs or arrangements of any nature or kind whatsoever that are not Canadian Pension Plans and are maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or its Subsidiaries in respect of its employees or former employees in Canada.
 
“Canadian Borrowers” has the meaning specified in the introductory paragraph hereto.
“Canadian Borrowing Base” means, on any date of determination, an amount (calculated based on the most recent Borrowing Base Certificate delivered to the Agents in accordance with this Agreement) equal to


(a)    the sum of


(i)    90%  of  the  value  of  Eligible  Credit  Card  Receivables  of  the
Canadian Loan Parties,
 
(ii)    85% of the value of the Eligible Receivables of the Canadian Loan Parties,


(iii)    85%  of  the  NOLV  Percentage  of  the  value  of  the  Eligible
Inventory of the Canadian Loan Parties, and









(iv)    the U.S. Excess Availability


minus


(b)       the Availability Reserve to the extent attributable to the Canadian Loan Parties in the Agents’ Credit Judgment on such date, provided that, after the Effective Date, the Agents may adjust the apportionment of the Availability Reserve between the U.S. Revolving Credit Facility and the Canadian Revolving Credit Facility in their Credit Judgment.


“Canadian Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is an Agent or a Canadian Lender or an Affiliate of an Agent or a Canadian Lender, in its capacity as a party to such Cash Management Agreement, in each  case  in  respect  of  services  provided  under  such  Cash  Management  Agreement  to  a Canadian Loan Party.


“Canadian Collateral” means all of the “Collateral” and “Mortgaged Property” referred to in the Canadian Collateral Documents and all of the other property that is or is intended under the terms of the Canadian Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Canadian Secured Parties, but excluding any personal or real property located in the Province of Quebec except to the extent that the applicable Loan Parties request that any such property be included as Canadian Collateral and as to which the applicable Loan Parties shall have executed and delivered such documents as shall be necessary or reasonably requested by the Collateral Agent to create a valid, perfected Lien thereon in accordance with the Civil Code of Quebec.


“Canadian Collateral Agent” means UBS AG Canada Branch, in its capacity as Canadian  collateral  agent  under  any  of  the  Loan  Documents,  or  any  successor  Canadian collateral agent.


“Canadian Collateral Documents” means, collectively, the Canadian Security Agreement, the Canadian Intellectual Property Security Agreement, Canadian Mortgages, the Canadian Account Control Agreements, each of the collateral assignments, Security Agreement Supplements, IP Security Agreement Supplements, security agreements, deeds of hypothec, hypothecs, pledge agreements or other similar agreements delivered to the Collateral Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien securing the Canadian Obligations in favor of the Canadian Collateral Agent for the benefit of the Canadian Secured Parties.
 
“Canadian Dollar” or “Cdn. $” means Canadian dollars, the lawful currency of Canada.


“Canadian Excess Availability” means, at any time, the difference between (a) the lesser of (i) the Canadian Revolving Credit Facility and (ii) the Canadian Borrowing Base at such time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Agent to the Agents pursuant to Section 6.01(f) hereof minus (b) the Total Canadian Revolving Credit Outstandings.









“Canadian Guarantee” means, collectively, the Guarantees made by the Canadian Subsidiary Guarantors in favor of the Canadian Secured Parties, each in form and substance reasonably satisfactory to the Administrative Agent, together with each other guarantee and guarantee supplement delivered pursuant to Section 6.12.


“Canadian Guaranty” means, collectively, the Guarantees made by the Canadian Borrowers in favor of the Canadian Secured Parties, substantially in the form of Exhibit F-2, together   with   each   other   guaranty   and   guaranty   supplement   delivered   pursuant   to Section 6.12(b).


“Canadian Intellectual Property Security Agreement” has the meaning specified in Section 4.01(a)(vii).


“Canadian L/C Advance” means, with respect to each Canadian Revolving Credit Lender, such Lender’s funding of its participation in any Canadian L/C Borrowing in accordance with its Applicable Percentage.


“Canadian L/C Borrowing” means an extension of credit resulting from a drawing under any Canadian Letter of Credit which has not been reimbursed on the date when made or refinanced as a Canadian Revolving Credit Borrowing.


“Canadian L/C Credit Extension” means, with respect to any Canadian Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.


“Canadian L/C Issuer” means UBS Canada and/or Credit Suisse AG, Toronto Branch, each in its capacity as issuer of Canadian Letters of Credit hereunder, any Lender acceptable to the Canadian Borrowers and the Canadian Administrative Agent or any successor issuer of Canadian Letters of Credit hereunder.


“Canadian L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Canadian Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of Canadian Letters of Credit, including all Canadian L/C Borrowings.   For purposes of computing the amount available to be drawn under any Canadian Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.   For all purposes of this Agreement, if on any date of determination a Canadian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.


“Canadian Lender” means each financial institution listed on Schedule 2.01 as a “Canadian  Revolving  Credit  Lender”,  as  well  as  any  Person  that  becomes  a  “Canadian Revolving Credit Lender” hereunder pursuant to Section 2.16 or 10.06 and, as the context requires, includes the Canadian Swing Line Lender.









“Canadian Letter of Credit” means any standby letter of credit or commercial letter of credit issued hereunder.


“Canadian Letter of Credit Sublimit” means an amount equal to $5,000,000.  The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Revolving Credit Facility.


“Canadian Loan” means an extension of credit by a Lender to any Canadian Borrower under Article II in the form of a Canadian Revolving Credit Loan or a Canadian Swing Line Loan.


“Canadian Loan Documents” means,  collectively, (a) this Agreement, (b)  the Canadian Revolving Credit Notes, (c) the Canadian Guarantee, (d) the Canadian Guaranty, (e) the Canadian Collateral Documents, (f) the Fee Letters and (g) each Issuer Document with respect to a Canadian Letter of Credit.


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


“Canadian Obligations” means all advances to, and debts, liabilities, obligations, covenants  and  duties  of,  any  Canadian  Loan  Party  arising  under  any  Loan  Document  or otherwise with respect to any Canadian Loan, Canadian Letter of Credit, Canadian Secured Cash Management Agreement or Canadian Secured Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Canadian Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, that the Canadian Obligations shall exclude any Excluded Swap Obligations.


“Canadian Overadvance” has the meaning specified in Section 2.01(g).


“Canadian Overadvance Loan” means a Canadian Revolving Credit Loan made when an Overadvance exists or is caused by the funding thereof.






“Canadian Payment Account” means the Canadian Dollar account and the U.S. Dollar account of the Collateral Agent to which all monies constituting proceeds of Canadian Collateral shall be transferred from time to time.


“Canadian Pension Plans” means each plan, program or arrangement which is required to be registered as a pension plan under any applicable pension benefits standards or tax statute or regulation in Canada (or any province or territory thereof) maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or its Subsidiaries in respect of its Canadian employees or former employees.









“Canadian Prime Rate” means, for any day, a fluctuating rate of interest per annum equal to the greater of (a) the rate of interest in effect for such day as determined from time to time by UBS Canada as its “corporate base rate” for loans in Canadian Dollars in Canada and (b) the interest rate per annum equal to the sum of (i) the BA Rate applicable to bankers’ acceptances with a term of 30 days on such day and (ii) 0.50% per annum. The “Canadian Prime Rate” is a rate set by UBS Canada based upon various factors including UBS Canada’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “Canadian Prime Rate” so determined by UBS Canada shall take effect at the opening of business on the day specified by UBS Canada.


“Canadian Prime Rate Loan” means any Canadian Revolving Credit Loan denominated in Canadian Dollars bearing interest computed by reference to the Canadian Prime Rate.


“Canadian Priority Payables” means, at any time, with respect to the Canadian
Borrowing Base:


(a)       the amount past due and owing by any Canadian Borrower and/or any other Canadian Loan Party, or the accrued amount for which any Canadian Borrower and/or any other Canadian Loan Party has an obligation to remit to a Governmental Authority or other Person pursuant to any applicable Law, rule or regulation, in respect of (i) pension fund obligations; (ii) employment insurance; (iii) goods and services or harmonized taxes, sales taxes, employee income taxes and other taxes payable or to be remitted or withheld; (iv) workers’ compensation; (v) wages, salaries, commissions or compensation, including vacation pay; and (vi) other like charges and demands; in each case, in respect of which any Governmental Authority or other Person may claim a security interest, hypothec, prior claim, lien, trust, deemed trust or other claim or Lien ranking or capable of ranking in priority to or pari passu with one or more of the Liens granted in the Collateral Documents; and


(b)       the aggregate amount of any other liabilities of any Canadian Borrower and any other Canadian Loan Parties (i) in respect of which a trust or deemed trust has been or may be imposed on any Collateral to provide for payment or (ii) which are secured by a security interest, hypothec, prior claim, pledge, lien, charge, right, or claim or other Lien on any Collateral, in each case, pursuant to any applicable law, rule or regulation and which trust, or deemed trust, security interest, hypothec, prior claim, pledge, lien, charge, right, claim or Lien ranks or is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Collateral Documents.


“Canadian Priority Payables Reserve” means, on any date of determination for the Canadian Borrowing Base, a reserve established from time to time by the Agents in their Credit Judgment in  such  amount as  the  Agents  may  determine reflects the  unpaid or  unremitted Canadian Priority Payables by the Canadian Loan Parties, which would give rise to a Lien with 







priority under applicable Laws over the Lien of the Collateral Agent for the benefit of the Canadian Secured Parties.


“Canadian Revolving Credit Borrowing” means a borrowing consisting of simultaneous Canadian Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans and BA Rate Loans, having the same Interest Period made by each of the Canadian Revolving Credit Lenders pursuant to Section 2.01(b) and shall be deemed to include any Canadian Overadvance Loan and, to the extent attributed to the Canadian Collateral in the Agents’ Credit Judgment, Protective Advance made hereunder.


“Canadian  Revolving  Credit   Commitment”  means,   as   to   each   Canadian Revolving Credit Lender, its obligation to (a) make Canadian Revolving Credit Loans to the Canadian Borrowers pursuant to Section 2.01(b), (b) purchase participations in Canadian L/C Obligations, and (c) purchase participations in Canadian Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Canadian Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement, including pursuant to Section 2.16.


“Canadian Revolving Credit Exposure” means, with respect to any Appropriate Lender at any time, the Outstanding Amount of Canadian Revolving Credit Loans of such Lender plus such Lender’s Applicable Percentage of the Outstanding Amount of Canadian L/C Obligations with respect to Canadian Letters of Credit plus such Lender’s Applicable Percentage of the Outstanding Amount of Canadian Swing Line Loans.


“Canadian Revolving Credit Facility” means, at any time, the aggregate amount of the Canadian Revolving Credit Lenders’ Canadian Revolving Credit Commitments at such time.


“Canadian Revolving Credit Lender” means, at any time, any Lender that has a
Canadian Revolving Credit Commitment at such time.


“Canadian Revolving Credit Loan” has the meaning specified in Section 2.01(b) and shall be deemed to include any Canadian Overadvance Loan and, to the extent attributed to the Canadian Collateral in the Agents’ Credit Judgment, Protective Advance made hereunder.


“Canadian  Revolving  Credit  Note”  means  a  promissory  note  made  by  the
Canadian Borrowers in favor of a Canadian Appropriate Lender evidencing Canadian Revolving Credit Loans or Canadian Swing Line Loans, as the case may be, made by such Canadian
Revolving Credit Lender, substantially in the form of Exhibit C-2.


“Canadian Secured Cash Management Agreement” means any Cash Management Agreement  that  is  entered  into  by  and  between  a  Canadian  Loan  Party  and  any  Cash Management Bank.









“Canadian Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into by and between any Canadian Loan Party and any Hedge Bank.


“Canadian Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Canadian Revolving Credit Lenders, the Canadian L/C Issuer, the Canadian Hedge Banks, the Canadian Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent  or the Collateral Agent from time to time pursuant to Section 9.05, and the other Persons the Canadian Obligations owing to which are or are purported to be secured by the Canadian Collateral under the terms of the Collateral Documents.


“Canadian Security Agreement” means, collectively, the Security Agreements and the deeds of hypothec delivered pursuant to Section 6.12, in each case in respect of the Canadian Collateral, in each case in form and substance reasonably satisfactory to the Administrative Agent and as amended.


“Canadian Subsidiary” means any direct or indirect Subsidiary which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.


“Canadian Subsidiary Guarantor” means each Canadian Subsidiary (other than a Canadian Borrower or any Excluded Subsidiary) and each Person that shall, at any time after the date hereof, become a Canadian Subsidiary and execute and deliver a Canadian Guarantee pursuant to Section 6.12; it being understood that none of the Canadian Borrowers or Canadian Subsidiary Guarantors shall guarantee any of the U.S. Obligations.


“Canadian Swing Line Borrowing” means a borrowing of a Canadian Swing Line
Loan pursuant to Section 2.04.


“Canadian Swing Line Lender” means UBS Canada in its capacity as provider of
Canadian Swing Line Loans, or any successor swing line lender hereunder.


“Canadian Swing Line Loan” has the meaning specified in Section 2.04(B)(a).


“Canadian Swing Line Sublimit” means an amount equal to $5,000,000.  The Canadian Swing Line Sublimit is part of, and not in addition to, the Canadian Revolving Credit Facility.


“Canadian Unfunded Advances/Participations” shall mean (a) with respect to the Administrative  Agent,  the  aggregate  amount,  if  any  (i) made  available  to  the  Canadian Borrowers on the assumption that each Canadian Lender has made its portion of the applicable Borrowing  available  to  the  Administrative  Agent  as  contemplated  by  Section 2.12(b)  and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the Canadian Borrowers or made available to the Administrative Agent by  any  such  Canadian  Lender,  (b)  with  respect  to  the  Canadian  Swing  Line  Lender,  the aggregate amount, if any, of participations in respect of any outstanding Canadian Swing Line Loan that shall not have been funded by the Canadian Revolving Credit Facility Lenders in accordance with Section 2.04(c) and (c) with respect to the Canadian L/C Issuer, the aggregate amount, if any, of participations 







in respect of any outstanding Canadian L/C Borrowing that shall not have been funded by the Canadian Revolving Credit Facility Lenders in accordance with Sections 2.03(c).


“Capital Expenditures” means, with respect to any Person for any period, any expenditure  in  respect  of  the  purchase  or  other  acquisition  of  any  fixed  or  capital  asset (excluding normal replacements and maintenance which are properly charged to current operations);  provided,  however,  that   Capital  Expenditures  shall  not   include  any   such expenditures which constitute (a) a Permitted Acquisition, (b) capital expenditures relating to the construction or acquisition of any property which has been transferred to a Person that is not a Borrower pursuant to a sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent permitted by this Agreement, a reinvestment of the net cash proceeds of any Disposition (other than any  Dispositions under Sections 7.05(b),  (f),  (h),  (i)  and  (j)) or  any  insurance proceeds paid on account of the loss of or damage to the assets being replaced, substituted, restored or repaired and the reinvestment of the net cash proceeds of any such Disposition or such insurance proceeds, (d) the purchase price of equipment purchased substantially contemporaneously with the trade-in or sale of used or surplus existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted to the seller of such equipment (or for the net proceeds of such sale) for the equipment being traded in or sold at such time, (f) capitalized interest relating to the construction of any fixed assets, (g) expenditures to the extent they are made with proceeds of the issuance of Equity Interests of Holdings after the Effective Date, (h) expenditures that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding Holdings or any Subsidiary thereof) and for which neither Holdings nor any Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether  before,  during  or  after  such  period),  or  (i)  non-ordinary  course  expenditures  to purchase, construct, design, or redesign property, plant or equipment to meet the requirements of new and existing customers; provided, that no more than $5,000,000 of expenditures may be excluded from Capital Expenditures pursuant to this clause in any fiscal year.


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


“Capitalized Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP; provided that obligations that are recharacterized as Capitalized Lease Obligations due to a change in GAAP after the Closing Date shall not be treated as Capitalized Lease Obligations for any purposes under this Agreement. Notwithstanding the foregoing, any obligations under any sale-leaseback transaction (including the Sale-Leaseback Transaction) in existence on the Effective Date shall not constitute
Capitalized Lease Obligations hereunder.


“Cash Collateralize” has the meaning specified in Section 2.03(f).


“Cash Dominion Event” means either (a) the occurrence and continuance of an Event of Default or (b) the failure of the Loan Parties to maintain Excess Availability of at least the greater of (i) 12.5% of the lesser of (A) the Total Borrowing Base and (B) the Aggregate Commitments and (ii) $22,500,000 (or, for the months of January through April, $20,000,000), and such failure 







continues for a period of five (5) consecutive days.   For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (a) so long as such Event of Default is continuing and has not been cured or waived, and/or (b) if the Cash Dominion Event arises under clause (b) above, until Excess Availability is equal to or greater than the greater of (i) 12.5% of the lesser of (A) the Total Borrowing Base and (B) the Aggregate Commitments and (ii) $22,500,000 (or, for the months of January through April, $20,000,000), in each case, for thirty (30) consecutive days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement.


“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrowers or any of their Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder):


(a)       readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America (or Canada) or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America (or Canada, as the case may be) is pledged in support thereof;


(b)       time  deposits  with,  or   insured  certificates  of   deposit  or   bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia (or Canada, as the case may be) or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia (or Canada, as the case may be), and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $500,000,000, in each case with maturities of not more than 365 days from the date of acquisition thereof;


(c)       commercial paper issued by any Person organized under the laws of any state of the United States of America (or Canada, as the case may be) and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof;


(d)    Investments, classified in accordance with GAAP as current assets of the under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios  of  which  are  limited  solely  to  Investments  of  the  character,  quality  and maturity described in clauses (a), (b) and (c) of this definition;


(e)       repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to 







no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations; and


(f)        readily marketable direct obligations issued by any state of the United States or any political subdivision thereof having one of the two highest rating categories obtainable from either S&P or Moody’s with maturities of not more than twelve (12) months from the date of acquisition thereof;


provided that instruments equivalent to those referred to in clauses (a) through (f) above denominated in Canadian Dollars which are comparable in credit quality and tenor to those referred  to  above  and  customarily  used  by  corporations  for  short  term  cash  management purposes in Canada shall be permitted to the extent reasonably required in connection with any business conducted by any Subsidiary organized in Canada.


“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.


“Cash  Management  Bank”  means  a  U.S.  Cash  Management  Bank  and/or  a
Canadian Cash Management Bank, as the context may require.


“CCAA”  means  the  Companies’  Creditors  Arrangement  Act  (Canada),  as amended or otherwise modified from time to time and any rule or regulation issued thereunder.


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


“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency. 
 
“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.


“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 of this definition, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all rules, regulations, orders, requests, guidelines or directives in connection therewith, and (y) all requests, rules, guidelines, regulations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, are deemed to have been adopted and gone into effect after the date of this Agreement.


A “Change of Control”  shall be deemed to have occurred if:









(a)    Holdings at any time ceases to own 100% of the Equity Interests of the
Specified U.S. Borrower;


(b)       at any time a change of control (as defined in the documentation for any Indebtedness in an outstanding aggregate principal amount in excess of the Threshold Amount) shall occur;


(c)    any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than one or more
Equity Investors, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-
5 under the Securities Exchange Act of 1934, as amended, except for purposes of this clause such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of voting Equity Interests of Holdings representing the greater of (x) 35% or (y) the voting power of the voting Equity Interests of Holdings owned by the Equity Investors; or


(d)       during  any  period  of  two  consecutive  years,  individuals  who  at  the beginning of such period constituted the Board of Directors of Holdings (together with any new directors whose election to such Board of Directors or whose nomination for election was approved by a vote of a majority of the members of the Board of Directors of Holdings or such parent, which members comprising such majority are then still in office and were either directors at the beginning of such period of whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of Holdings or such parent.


For purpose of this definition, a person shall not be deemed to have beneficial ownership of Equity Interests subject to a stock purchase agreement, merger agreement or similar agreement until consummation of the transactions contemplated by such agreement.


“Closing Date” means January 26, 2011.


“Code” means the Internal Revenue Code of 1986 as amended from time to time.


“Collateral” means the U.S. Collateral and the Canadian Collateral.


“Collateral Agent” means, with respect to matters relating to the U.S. Revolving
Credit Facility and the U.S. Loan Documents, the U.S. Collateral Agent and, with respect to matters relating to the Canadian Revolving Credit Facility and the Canadian Loan Documents, the Canadian Collateral Agent.


“Co-Collateral Agent” means Wells Fargo Capital Finance, LLC, in its capacity as Co-Collateral Agent hereunder, or any successor Co-Collateral Agent in such capacity.


“Collateral Documents” means the U.S. Collateral Documents and the Canadian







Collateral Documents.


“Commitment” means a Revolving Credit Commitment.


“Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.


“Commodities Account Control Agreements” has the meaning specified in the
U.S. Security Agreement and/or the Canadian Security Agreement, as the context may require.


“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.


“Competitor” shall mean any person that competes in any material respect with the business of the Loan Parties and their respective Subsidiaries (or any of them) from time to time, in each case as specifically identified by the Specified U.S. Borrower to the Administrative Agent from time to time in writing.
“Consolidated Amortization Expense” for any period means, with respect to any specified Person for such period, the amortization expense of such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.


“Consolidated Depreciation Expense” for any period means, with respect to any specified Person for such period, the depreciation expense of such Person and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.


“Consolidated EBITDA” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period and, without duplication, plus:   (1) Consolidated Income Tax Expense and expenses pursuant to the Tax Receivable Agreement; plus (2) Consolidated Amortization Expense (but only to the extent not included in Consolidated Interest Expense); plus (3) Consolidated Depreciation Expense; plus (4) Consolidated Interest Expense; plus (5) Restructuring Expenses; plus (6) fees and expenses of the Board of Directors of Holdings and its Subsidiaries; plus (7) Pro Forma Cost Savings; plus (8) net out-of-pocket costs and expenses related to acquiring the inventory of a prior supplier of a company in connection with becoming a provider to such company not to exceed $25,000,000 for any Measurement Period; plus (9) fees and expenses (i) payable in connection with this Agreement, and costs payable in connection with the establishment of any incremental facilities permitted hereunder and any other amendment or waiver hereto, (ii) incurred in connection with any public offering and (iii) paid to, or on behalf of, the Administrative Agent or the Lenders pursuant to the terms of any Loan Document, and any professional advisor fees and expenses (including legal fees and expenses) incurred by the Loan Parties in connection with the Loan Documents; plus (10) customary costs, fees and expenses (including prepayment premiums) incurred in connection with any equity offering, Permitted Acquisition, Investment, permitted disposition, recapitalization, financing or refinancing transaction after the date hereof, in each case whether or not successful, and any actual or proposed amendment or modification to the terms of any such transactions in an aggregate amount not to exceed $10,000,000 in any fiscal year; plus (11) expenses incurred in connection with any plant shutdown 







in an aggregate amount for all plant shutdowns combined not to exceed $20,000,000 during the term of this Agreement; plus (12) all other non-cash items reducing the Consolidated Net Income (excluding any non- cash charge that results in an accrual of a reserve for cash charges in any future period and excluding write-down or write-off of current assets) for such period, in each case for items (1) to (12) above, determined on a consolidated basis in accordance with GAAP; minus (13) the aggregate amount of all non-cash items, determined on a consolidated basis, to the extent such items increased Consolidated Net Income for such period; provided that the sum of the Restructuring Expenses and Pro Forma Costs Savings added to the Consolidated Net Income to compute Consolidated EBITDA in any Measurement Period shall not exceed 15% of such Consolidated EBITDA for such Measurement Period.


Notwithstanding the preceding, the provision for items (2) to (9) above of a Subsidiary which is not a Guarantor of the Specified U.S. Borrower shall be added to Consolidated Net Income to compute Consolidated EBITDA of the Specified U.S. Borrower only to the extent (and in the same proportion) deducted in determining Consolidated Net Income  and  with  respect  to  the  portion  of  Consolidated  Net  Income  attributable  to  any Subsidiary of the Specified U.S. Borrower (other than any Loan Party) only if a corresponding amount would be permitted at the date of determination to be distributed to the Specified U.S. Borrower by such Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to such Subsidiary or its stockholders.


“Consolidated Fixed Charge Coverage Ratio” means, for any period, the ratio of (a) (i) Consolidated EBITDA of the Specified U.S. Borrower and its Subsidiaries, less (ii) the aggregate amount of all non-financed Capital Expenditures of or by the Specified U.S. Borrower and its Subsidiaries paid in cash during such period, less (iii) income taxes paid in cash by the Specified U.S. Borrower and its Subsidiaries with respect to such period (net of cash refunds received) but excluding payments made pursuant to the Tax Receivable Agreement to (b) the sum of (i) the Consolidated Interest Expense of the Specified U.S. Borrower and its Subsidiaries for such period paid in cash, plus (ii) the aggregate principal amount of all Mandatory Principal Payments made during such period but excluding any such payments to the extent financed through the incurrence of additional Indebtedness (other than Loans hereunder) otherwise expressly permitted under Section 7.02, and (iii) the aggregate principal amount of all Restricted Payments paid in cash during such period pursuant to Section 7.06(e), for the most recently complete Measurement Period.




“Consolidated Income Tax Expense” for any period means, with respect to any specified Person for any period, the provision for taxes of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.


“Consolidated Interest Expense” for any period means, with respect to any specified Person for any period, the sum, without duplication, of the total interest expense (less interest  income)  of  such  Person  and  its  Subsidiaries  for  such  period,  determined  on  a consolidated basis in accordance with GAAP and including without duplication,









(a)    imputed interest on Capitalized Lease Obligations,


(b)       commissions, discounts and other fees and charges owed with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings,


(c)    the net costs associated with Hedging Obligations,


(d)    the interest portion of any deferred payment obligations, (e)    all other non-cash interest expense,
(f)    capitalized interest,


(g)       the product of (i) all dividend payments on any series of Disqualified Equity Interests of such Person or any Preferred Stock of any Subsidiary thereof (other than any such Disqualified Equity Interests or any Preferred Stock held by such Person or a wholly-owned Subsidiary thereof or to the extent paid in Qualified Equity Interests), multiplied by (ii) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person and its Subsidiaries, expressed as a decimal,


(h)    all interest payable with respect to discontinued operations, and


(i)        all interest on  any Indebtedness described in clause (e) or  (h)  of  the definition   of   “Indebtedness”;  provided   that   such   interest   shall   be   included   in Consolidated Interest Expense only to the extent that the amount of the related Indebtedness is reflected on the balance sheet of the Specified U.S. Borrower or any of its Subsidiaries,


less, to the extent included in such total interest expense, (A) the amortization during such period of capitalized financing costs associated with the Transactions and (B) the amortization during such period of other capitalized financing costs.


Consolidated Interest Expense shall be calculated excluding unrealized gains and losses with respect to Hedging Obligations.


“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (or loss) of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded from such net income (or loss) (to the extent otherwise included therein), without duplication:


(a)       net income (or loss) of any Person  (other than a Subsidiary) in which such specified Person other than the Specified U.S. Borrower and its Subsidiaries has an ownership interest; provided that, to the extent not previously included, Consolidated Net Income shall be increased by the amount of dividends or distributions paid in cash to the specified Person or a Subsidiary thereof;









(b)       except to the extent includible in Consolidated Net Income of the specified Person pursuant to the foregoing clause (a), the net income (or loss) of any Person that accrued prior to the date that (i) such Person becomes a Subsidiary or is merged into or consolidated with the specified Person or a Subsidiary thereof or (ii) the assets of such Person are acquired by the specified Person or a Subsidiary thereof;


(c)       the net income of any Subsidiary (other than any Loan Party) during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is not permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary during such period, except that the specified Person’s equity in a net loss of any such Subsidiary for such period, other than any non- cash loss that does not result in an accrual or reserve for cash charges in any future period, shall be included in determining Consolidated Net Income;


(d)       any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by such specified Person or any of its Subsidiaries upon (i) the acquisition of any securities, or the repayment, cancellation or extinguishment of any Indebtedness, of the specified Person and any Subsidiary thereof or (ii) any Disposition by the specified Person or any Subsidiary thereof;


(e)       gains and losses due solely to fluctuations in currency values and the related tax effects according to GAAP;


(f)    unrealized gains and losses with respect to Hedging Obligations; (g)    the cumulative effect of any change in accounting principles;


(h)       any amortization or write-offs of debt issuance or deferred financing costs, premiums,  discounts  and  prepayment  penalties  or  premiums,  and  other  costs  and expenses, in each case, paid or charged during such period to the extent attributable to the Transactions;


(i)        gains and losses realized upon the refinancing of any Indebtedness of the specified Person or any Subsidiary thereof; (j)        any extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss), together with any related provision for taxes on any such extraordinary or nonrecurring gain (or the tax effect of any such extraordinary or nonrecurring loss), recorded or recognized by the specified Person or any Subsidiary during such period thereof;


(k)       non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance or repricing of Equity Interests or other equity-based awards or any amendment or substitution of any such Equity Interests or other equity- based awards;









(l)        any non-cash goodwill or non-cash asset impairment charges subsequent to the Closing Date;


(m)      any expenses or reserves for liabilities to the extent that the specified Person or any Subsidiary thereof is entitled to indemnification therefor under binding agreements;  provided  that  any  liabilities  for  which  the  specified  Person  or  such Subsidiary is not actually indemnified shall reduce Consolidated Net Income in the period in which it is determined that the specified Person or such Subsidiary will not be indemnified; and


(n)       so long as the specified Person or any Subsidiary file a consolidated tax return, or are part of a consolidated group for tax purposes, with Holdings or any other holding company, the excess of (i) the Consolidated Income Tax Expense for such period over (ii) all tax payments payable for such period by the specified Person and the Subsidiaries thereof to Holdings or such other holding company under a tax sharing agreement or arrangement.


For purposes of this definition of “Consolidated Net Income,” “nonrecurring” means, with respect to any cash gain or loss, any gain or loss as of any date that is not reasonably likely to recur within the two years following such date unless such gain or loss relates to an event or series of events and is recognized in more than one period; provided that if there was a gain or loss similar to such gain or loss within the two years preceding such date, such gain or loss shall not be deemed nonrecurring.


“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.


“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.


“Covenant Trigger Event” means, at any time, either (a) the occurrence and continuance of an Event of Default or (b) the failure of the Loan Parties to maintain Excess Availability of at least the greater of (i) 10% of the lesser of (A) the Total Borrowing Base and (B) the Aggregate Commitments and (ii) $17,500,000.   For purposes of this Agreement, the occurrence of a Covenant Trigger Event shall be deemed continuing (a) so long as such Event of Default is continuing and has not been cured or waived and/or (b) if the Covenant Trigger Event arises under clause (b) above, until Excess Availability is equal to or greater than the greater of (i) 10% of the lesser of (A) the Total Borrowing Base and (B) the Aggregate Commitments and (ii) $17,500,000 for thirty (30) consecutive days, in which case a Covenant Trigger Event shall no longer be deemed to be continuing for purposes of this Agreement.   For purposes of determining whether a Covenant Trigger Event shall have occurred and is continuing, no greater than 35% of Excess Availability shall be composed of Canadian Excess Availability and no greater than 35% of the Aggregate Commitments shall be composed of Commitments of Canadian Lenders.









“Credit Card Processor” means a Person that provides credit card processing services for any merchant.


“Credit Card Receivables” means any Accounts due to any Loan Party on a non- recourse basis (it being understood, for the avoidance of doubt, that normal return policies of any Loan Party shall not be deemed to be with recourse) in connection with purchases from and other goods and services provided by such Loan Party from: Visa, MasterCard, American Express and such other Credit Card Processor acceptable to the Agents in their Credit Judgment, in each case which have been earned by performance by such Loan Party but not yet paid to such Loan Party by the Credit Card Processor; provided, that Credit Card Receivables shall be calculated net of fees and chargebacks owed to credit card processors and deposits, holdbacks or escrows held by credit card processors.


“Credit Extension” means each of the following:  (a) a Borrowing and (b) an L/C Credit Extension.


“Credit Judgment” means the Agents’ commercially reasonable judgment exercised in good faith based upon their consideration of any factor that they reasonably believe (a) could materially adversely affect the quantity, quality, mix or value of Collateral (including any Applicable Law that may inhibit collection of an Account), the enforceability or priority of the Collateral Agent’s Liens, or the amount that the Agents and the Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Loan Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving a Loan Party; or (d) creates or could result in an Event of Default.  In exercising such judgment, the Agents may consider any factors that could materially increase the credit risk of lending to the Borrowers on the security of the Collateral.


“Cure Amount” has the meaning specified in Section 8.05(a).


“Cure Right” has the meaning specified in Section 8.05(a).


“Debtor Relief Laws” means the Bankruptcy Code of the United States, the BIA, the CCAA and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.


“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.


“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate, Canadian Base Rate or Canadian Prime Rate, as applicable plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as the case may be, under the Revolving Credit Facility plus (iii) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan or a BA 







Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.


“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two Business Days of the date required to be funded by it hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, (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 two Business Days of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.


“Deposit Account Control Agreements” has the meaning specified in the U.S. Security Agreement and/or the Canadian Security Agreement, as the context may require.


“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Loan Parties or any of their Subsidiaries in connection with an Disposition pursuant to Section 7.05(k) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a financial officer of the Specified U.S. Borrower, setting forth the basis of such valuation (which amount will be deemed to be no longer outstanding as Designated Non-Cash Consideration for purposes of Section 7.05(k) in an amount equal to the fair market value of the portion of the non-cash consideration converted to cash or Cash Equivalents within
180 days following the consummation of the applicable Disposition).


“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.


“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Equity Interests (other than Disqualified Equity Interests)), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety one (91) days after the Maturity Date; provided that if such Equity Interest is issued to any employee or to any plan for the benefit of employees of Holdings, the Specified U.S. Borrower or  any  Subsidiary or  by  any  such  plan  to  such  employees, such  Equity Interest shall  not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by Holdings, the Specified U.S. 







Borrower or such Subsidiary in order to satisfy applicable statutory or regulatory obligations; and provided further that any Equity Interest that would constitute a Disqualified Equity Interest solely because the holders thereof have the right to require Holdings or the Specified U.S. Borrower to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute a Disqualified Equity Interest if the terms of such Equity Interest provide that Holdings or the Specified U.S. Borrower may not repurchase or redeem any such Equity Interest pursuant to such provisions prior to the repayment in full of the Obligations.


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


“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuers, as the case may be, at such time on the basis of the Spot Rate in accordance with Section 1.07.


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


“Dominion  Account”  means  any  Deposit  Account  of  a  Loan  Party  at  the Collateral Agent or its Affiliates or branches or another bank reasonably acceptable to the Collateral Agent, in each case which is subject to a Deposit Account Control Agreement and a lockbox or other similar arrangement in accordance with Section 6.17(a)(iv).


“Effective Date” means November 1, 2013.


“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).


“Eligible     Collateral”     means,    collectively,    Eligible    Inventory,    Eligible
Receivables, and Eligible Credit Card Receivables.


“Eligible Credit Card Receivables” means any Credit Card Receivable that (i) has been earned and represents the bona fide amounts due to a Loan Party from a Credit Card Processor, and in each case originated in the ordinary course of business of the applicable Loan Party and (ii) is not excluded as an Eligible Credit Card Receivable pursuant to any of clauses (a) through (l) below. Without limiting the foregoing, to qualify as an Eligible Credit Card Receivable, a Credit Card Receivable shall indicate no person other than a Loan Party as payee or remittance party. Eligible Credit Card Receivables shall not include any Credit Card Receivable if:


(a)    such Credit Card Receivable is not owned by a Loan Party and such Loan
Party does not have good or marketable title to such Credit Card Receivable;


(b)       such Credit Card Receivable is payable other than in Dollars or, in the case of Canadian Loan Parties, Dollars or Canadian Dollars;









(c)       such Credit Card Receivable does not constitute an “Account” (as defined in the UCC or , with respect to a Canadian Loan Party, the PPSA) or such Credit Card Receivable has been outstanding more than five (5) Business Days;


(d)    the Credit Card Processor of the applicable credit card with respect to such
Credit Card Receivable is the subject of any bankruptcy or insolvency proceedings;


(e)       such Credit Card Receivable is not a valid, legally enforceable obligation of the applicable credit card issuer with respect thereto;


(f)        such Credit Card Receivable is not subject to a properly perfected security interest in favor of the Collateral Agent, or is subject to any Lien whatsoever other than Liens permitted by this Agreement contemplated by the processor agreements and for which appropriate reserves (as determined by the Agents in their Credit Judgment) have been established or maintained by the Loan Parties;


(g)       such Credit Card Receivable does not conform in all material respects to all representations, warranties or other provisions in the Loan Documents or in the credit card agreements relating to such Credit Card Receivable;


(h)       such Credit Card Receivable is subject to risk of set-off, non-collection or not being processed due to unpaid or overdue Credit Card Processor fee balances;


(i)      such Credit Card Receivable is evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Collateral Agent, and to the extent necessary or appropriate, endorsed to the Collateral Agent;


(j)        such Credit Card Receivable has been disputed, or with respect to which a claim, counterclaim, offset or chargeback has been asserted, by the related Credit Card Processor;


(k)       such Credit Card Receivable is due from a Credit Card Processor which the Agents determine in their Credit Judgment to be unlikely to be collected; (l)        such Credit Card Receivable is due from a Credit Card Processor with respect to which a Processor Control Agreement has not been obtained; or


(m)     it is not either (i) otherwise acceptable to or (ii) subject to a reserve acceptable to, the Agents, in their Credit Judgment.


In determining the amount to be so included in the calculation of the value of an Eligible  Credit  Card  Receivable,  the  face  amount  thereof  shall  be  reduced  by,  without duplication, to the extent not reflected in such face amount, (i) the amount of all customary fees and expenses in connection with any credit card arrangements and (ii) the aggregate amount of all cash received in respect thereof but not yet applied by the applicable Loan Party to reduce the amount of such Eligible Credit Card Receivable.









“Eligible In-Transit Inventory” means, at any time, without duplication of other
Eligible Inventory, Inventory:


(a)       which has been shipped for receipt by any Loan Party within forty-five (45) days of the date of shipment, but which has not yet been delivered to or on behalf of such Loan Party;


(b)       for which the purchase order is in the name of a Loan Party and title has passed to such Loan Party;


(c)    which is insured in accordance with the terms of this Agreement; and


(d)    which otherwise would constitute Eligible Inventory.


“Eligible Inventory”  means Inventory of the Loan Parties subject to the Lien of the Collateral Documents, the value of which shall be determined by taking into consideration, among other factors, the lowest of its cost and its book value determined in accordance with GAAP and excluding any portion of cost attributable to intercompany profit among the Loan Parties and their Affiliates; provided, however, that, subject to the ability of the Agents to establish other criteria of ineligibility in their Credit Judgment or modify the criteria established below, unless otherwise approved by the Agents in their Credit Judgment, none of the following classes of Inventory shall be deemed to be Eligible Inventory:


(a)    Inventory that is obsolete, unusable or otherwise unavailable for sale;


(b)      Inventory consisting of promotional, marketing, packaging or shipping materials and supplies;


(c)    Inventory that fails to meet all standards imposed by any Governmental
Authority having regulatory authority over such Inventory or its use or sale;


(d)       Inventory (i) with respect to the U.S. Borrowing Base,  located outside the United States and (ii) with respect to the Canadian Borrowing Base, located outside of Canada; (e)       Inventory that is located on premises owned, leased or rented by a Person that is not a Loan Party, or is placed on consignment; provided that Inventory placed on consignment with an aggregate book value of up to $25,000,000 shall consist of Eligible Inventory if such Inventory is clearly segregated from all Inventory of such Person, all UCC and PPSA filings deemed necessary or desirable by the Agents have been made, notice has been given to any secured lender of such Person, and a reasonably satisfactory Lien Waiver has been delivered to the Agents by such Person;


(f)        Inventory with respect to which the representations and warranties set forth in this Agreement, in the U.S. Security Agreement or in the Canadian Security Agreement applicable to Inventory are not correct;









(g)       Inventory  in  respect  of  which  the  U.S.  Security  Agreement  or  the Canadian Security Agreement, as applicable, after giving effect to the related filings of financing statements that have then been made, if any, does not or has ceased to create a valid and perfected first priority Lien or security interest in favor of the Collateral Agent, on behalf of the applicable Secured Parties, securing the applicable Obligations;


(h)       it is not either (i) otherwise acceptable to or (ii) subject to a reserve acceptable to, the Agents, in their Credit Judgment; and


(i)        in-transit  Inventory  other  than  Eligible  In-Transit  Inventory  with  an aggregate book value of up to $5,000,000.


If the Agents deem Inventory ineligible in their Credit Judgment (and not based upon the criteria set forth above), then the Agents shall give the Borrower Agent two (2) Business Days’ prior notice thereof (unless an Event of Default exists, in which event no notice shall be required).


“Eligible Receivables” means Accounts (other than Credit Card Receivables) of the Loan Parties subject to the Lien of the Collateral Documents, the value of which shall be determined by taking into consideration, among other factors, their book value determined in accordance with GAAP, net of any returns, rebates, discounts (calculated on the shortest terms based on historical rates), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person; provided, however, that, subject to the ability of the Agents to establish other criteria of ineligibility in their Credit Judgment or modify the criteria established below, unless otherwise approved by the Agents in their Credit Judgment, none of the following classes of Accounts shall be deemed to be Eligible Receivables:


(a)       Accounts that (i) do not arise out of sales of goods or rendering of services in the ordinary course of the Borrowers’ or the relevant Subsidiaries’ business, (ii) are not evidenced by  an invoice or  other documentation satisfactory to the Agents,  (iii) are contingent upon any Loan Party’s completion of any further performance or (iv) relate to payments of interest; 
(b)       Accounts other than in Dollars or, in the case of Canadian Loan Parties, Dollars or Canadian Dollars, or that are otherwise on terms other than those normal or customary in the Borrowers’ or the relevant Subsidiaries’ business;


(c)       Accounts arising out of a sale made or services rendered by any Borrower to a Subsidiary of any Borrower or an Affiliate of any Borrower or to a Person controlled by an Affiliate of any Borrower (including any employees, officers, directors or stockholders of such Borrower);


(d)       Accounts (i) more than 90 days past the original invoice date, (ii) more than 60 days past the original due date (other than up to $10,000,000 of Accounts not more than 75 days past the original due date) or (iii) which has been written off the books of such Loan Party or otherwise designated as uncollectible;









(e)       Accounts owing from any Person from which an aggregate amount of more than 50% of the Accounts owing therefrom is more than 90 days past original invoice date or more than 60 days past the date due;


(f)        Accounts owing from any Person that exceed 20% of the net amount of all Eligible Receivables, but only to the extent of such excess; provided, that, with respect to not more than one Account Debtor (which Account Debtor shall have at such time a corporate credit rating from S&P and Moody’s that is not less than investment-grade and which shall be specified in the applicable Borrowing Base calculation), such maximum percentage may be increased to 25%;


(g)       Accounts owing from any Person that (i) has disputed liability for any Account owing from such Person or has been placed on credit hold due to past due balances (but only to the extent of the amount in dispute or placed on credit hold) or (ii) has otherwise asserted any claim, demand or liability against a Borrower or any of its Subsidiaries, whether by action, suit, counterclaim or otherwise;


(h)       Accounts owing from any Person that shall take or be the subject of any action or proceeding of a type described in Section 8.01(f);


(i)        Accounts (i) owing from any Person that is also a supplier to or creditor of a Borrower or any of its Subsidiaries unless such Person has waived any right of setoff in a manner acceptable to the Agents, (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Borrower or any of its Subsidiaries to discounts on future purchase therefrom, (iii) in respect of which the related invoice(s) has been reversed;


(j)        Accounts arising out of sales to account debtors outside the United States and Canada, unless (i) such Accounts are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, acceptable to the Agents and such irrevocable letter of credit is in the possession of the Collateral Agent or (ii)   such account debtor is an Affiliate of an account debtor located in the United States or Canada (a “North American Affiliate”) and the North American Affiliate initiated the purchase order on behalf of such account debtor;


(k)       Accounts arising out of sales on a bill-and-hold, cash in advance or cash on delivery payment terms, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return, setoff or charge back or Accounts representing any unapplied cash;


(l)        Accounts owing from an account debtor that is an agency, department or instrumentality of the United States or any state thereof or Canada or any province or territory thereof unless the applicable Borrower or its relevant Subsidiary shall have satisfied the requirements of the Assignment of Claims Act of 1940, or the Financial Administration Act (Canada) and any similar state, provincial or territorial legislation and the Agents are satisfied as to the absence of setoffs, counterclaims and other defenses on the part of such account debtor;









(m)      Accounts with respect to which the representations and warranties set forth in this Agreement or in the Security Agreement applicable to Accounts are not correct;


(n)       Accounts in respect of which the applicable Security Agreement, after giving effect to the related filings of financing statements that have then been made, if any, does not or has ceased to create a valid and perfected first priority lien or security interest in favor of the Collateral Agent, on behalf of the Secured Parties, securing the Obligations;


(o)    Accounts that fail to meet all standards imposed by any Governmental
Authority having regulatory authority over such Account;


(p)       Accounts (i) for which goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed or if such Account was invoiced more than once (but in such case only with respect to any duplicate invoices) and (ii) with respect to which any check or other instrument of payment has been uncollected for any reason; and


(q)       it is not either (i) otherwise acceptable to or (ii) subject to a reserve acceptable to, the Agents, in their Credit Judgment.


If the Agents deem Accounts ineligible in their Credit Judgment (and not based upon the criteria set forth above), then the Agents shall give the Borrower Agent two (2) Business Days’ prior notice thereof (unless an Event of Default exists, in which event no notice shall be required).


“Environmental Laws” means any and all federal, state, provincial, territorial, municipal, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, and the common law relating to pollution or the protection of the environment (including ambient air, indoor air, surface wastes, groundwater, land and subsurface strata), human health and safety and natural resources including those related to Release or threat of Release, or exposure to, or generation, storage, treatment, transport, handling, distribution or disposal of Hazardous Materials.


“Environmental Liability” means any liability or costs, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Specified U.S. Borrower, any other Loan Party or any of their respective Subsidiaries  directly   or   indirectly  resulting  from   or   based   upon   (a) violation   of   any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.


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









“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.


“Equity Investors” means the Sponsor, the Management Shareholders, the other equityholders of Ply Gem Holdings, Inc. and their respective Affiliates and Related Parties as of the Effective Date.


“ERISA” means the Employee Retirement Income Security Act of 1974.


“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrowers within the meaning of Section 414(b) or (c) of the Code  (and  Sections  414(m)  and  (o)  of  the  Code  for  purposes  of  provisions  relating  to Section 412 of the Code).


“ERISA Event” means (a) (i) the occurrence of a Reportable Event with respect to a  Pension Plan or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Pension Plan, and an event described in  paragraph (9),  (10),  (11),  (12)  or  (13)  of  Section 4043(c) of  ERISA  is reasonably expected to occur with respect to such Pension Plan within the following 30 days; (b) a  withdrawal  by  the  Borrowers  or  any  ERISA  Affiliate  from  a  Pension  Plan  subject  to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrowers or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrowers or any ERISA Affiliate; (g) the withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan that is a multiple employer or other plan described in  Section 4064(a) of  ERISA during a  plan year for  which it  was  a  substantial employer, as defined in Section 4001(a)(2) of ERISA; (h) the conditions for imposition of a lien under Section 303(k) of ERISA or other applicable Laws shall have been met with respect to any Pension Plan or Canadian Pension Plan; or (i) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 of ERISA).









“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan, an interest rate per annum equal to the product of (a) the rate per annum determined by UBS AG, Stamford Branch, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of such Interest Period (as specified in the applicable Committed Loan Notice) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by any service which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period, provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provision of this definition, the “Eurodollar Rate” shall be the interest rate per annum, determined by UBS AG, Stamford Branch to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by UBS AG, Stamford Branch at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of such Interest Period and (b) Statutory Reserves.


“Eurodollar Rate Loan” means a Revolving Credit Loan that bears interest at a rate based on the Eurodollar Rate.


“Event of Default” has the meaning specified in Section 8.01.


“Excess Availability” means the sum of U.S. Excess Availability and Canadian Excess Availability calculated, for this purpose, without double counting the inclusion of U.S. Excess Availability in the calculation of Canadian Borrowing Base.


“Excess Bank Product Debt” means Bank Product Debt in excess of the Bank
Product Reserve.


“Excluded Accounts” has the meaning specified in the U.S. Security Agreement and/or the Canadian Security Agreement, as the context may require.


“Excluded Subsidiary” means, on any date, any Subsidiary of Holdings that has less than $1,000,000 in total assets; and (ii) which does not have any Indebtedness (including by way of Guarantee) in respect of money borrowed (it being understood, without limitation to the foregoing, that in no event shall any Subsidiary that provides a Guarantee of the Senior Secured Notes be an Excluded Subsidiary).


“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order  of   the  Commodity  Futures   Trading  Commission  (or   the  application  or   official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Borrower and the Administrative 







Agent.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.


“Excluded Taxes” means, with respect to any Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of a Borrower hereunder, (a) taxes imposed on or measured by its overall net income or capital (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 described in clause (a) above, (c) any backup withholding tax that is required by the Code to be withheld from any amounts payable under this Agreement, and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower Agent under Section 10.13 and other than an assignee Lender pursuant to a CAM Exchange under Section 8.04), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), 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 Borrowers with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (iii), and (e) any United States withholding tax imposed as a result of FATCA.


“Executive Order” has the meaning specified in Section 5.23(a).


“Existing Credit Agreement” means that certain Credit Agreement, entered into as of January 26, 2011, and amended as of August 11, 2011, September 21, 2012 and April 3, 2013, as amended, among the Borrowers, Holdings, UBS AG, Stamford Branch, as U.S. administrative agent, U.S. collateral agent and a U.S. letter of credit issuer, Wells Fargo Capital Finance, LLC, as co-collateral agent, UBS Loan Finance LLC, as U.S. swing line lender, Wells Fargo Bank, National Association, as a U.S. letter of credit issuer, UBS Canada, as Canadian administrative agent, Canadian collateral agent, Canadian swing line lender, and a Canadian letter of credit issuer, Credit Suisse AG, Cayman Islands Branch, as a U.S. letter of credit issuer, Credit Suisse AG, Toronto Branch, as a Canadian letter of credit issuer, the lenders party thereto, UBS Securities LLC, as joint lead arranger and joint bookrunner and Wells Fargo Capital Finance, LLC, as syndication agent, joint lead arranger and joint bookrunner.


“Existing Letters of Credit” means the letters of credit listed on Schedule 1.01(b)
hereto and outstanding on the Effective Date.


“Facility”  means  the  U.S.  Revolving  Credit  Facility  and/or  the  Canadian
Revolving Credit Facility, as the context may require.









“FATCA” means Sections 1471 through 1474 of the Code and any applicable Treasury regulation promulgated thereunder or published administrative guidance implementing such Sections.


“Federal Funds  Rate”  means,  for  any  day,  the  rate  per  annum equal  to  the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to UBS AG, Stamford Branch on such day on such transactions as determined by the Administrative Agent.


“Fee Letters” means (i) the letter agreement, dated as of the date hereof, among the Specified U.S. Borrower, the Administrative Agent, the Collateral Agent and UBS Securities LLC and (ii) the letter agreement, dated as of the date hereof, between the Specified U.S. Borrower  and the Co-Collateral Agent.


“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which a Borrower is resident for tax purposes (including such a Lender when acting in the capacity of an L/C Issuer).  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 Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by, or entered into with, the Specified U.S. Borrower or any Subsidiary with respect to employees employed outside the United States.


“Foreign Subsidiary” means any direct or indirect Subsidiary of Holdings that is not a Domestic Subsidiary.


“FRB” means the Board of Governors of the Federal Reserve System of the United States.


“Fund” means any Person (other than a natural person) 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 activities.


“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment  of  the  accounting  profession  in  the  United  States,  that  are  applicable  to  the circumstances as of the date of determination, consistently applied.









“Governmental Authority” means the government of the United States, Canada or any other nation, or of any political subdivision thereof, whether state, provincial, territorial, municipal 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).


“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services  for  the  purpose  of  assuring  the  obligee in  respect  of  such  Indebtedness or  other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include customary and reasonable indemnity obligations in effect on the Effective Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.


“Guarantors” means, collectively, Holdings, the Specified U.S. Borrower, the Subsidiaries of Holdings listed on Schedule 6.12 and each other Subsidiary of Holdings that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12.
“Guaranties” means the U.S. Guaranty and the Canadian Guarantee.


“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,  mold,  infectious or  medical wastes  and  all  other  substances or  wastes  of  any  nature regulated pursuant to any Environmental Law.









“Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII, is an Agent or a Lender or an Affiliate of an Agent or a Lender, in its capacity as a party to such Swap Contract.


“Hedging  Obligations”  means,  with  respect  to  any  specified  Person,  the obligations of such Person under:


(a)       interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and other agreements or arrangements designed for the purpose of fixing, hedging or swapping interest rate risk;


(b)      commodity swap agreements, commodity option agreements, forward contracts and other agreements or arrangements designed for the purpose of fixing, hedging or swapping commodity price risk; and


(c)       foreign   exchange   contracts,   currency   swap   agreements   and   other agreements or arrangements designed for the purpose of fixing, hedging or swapping foreign currency exchange rate risk.


“Holdings” means Ply Gem Holdings, Inc.


“Incremental Assumption Agreement” means an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the  Borrowers,  the  Administrative  Agent  and  one  or  more  Incremental  Revolving  Credit Lenders.


“Incremental Revolving Credit Commitment” means any increased or incremental
Revolving Credit Commitment provided pursuant to Section 2.16.


“Incremental Revolving Credit Lender” means a Revolving Credit Lender with a Revolving Credit Commitment or an outstanding Revolving Credit Loan as a result of an Incremental Revolving Credit Commitment.


“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:


(a)       all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)       the  maximum  amount  of  all  direct  or  contingent  obligations  of  such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;


(c)    net obligations of such Person under any Swap Contract;


(d)       all  obligations  of  such  Person  to  pay  the  deferred  purchase  price  of property or services (other than trade accounts payable in the ordinary course of business 







and not past due for more than 90 days after the date on which such trade account was created);


(e)      indebtedness (excluding prepaid interest thereon) secured by a Lien on property 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;


(f)    all Attributable Indebtedness in respect of Capitalized Leases;


(g)       all  obligations of  such  Person  to  purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of  a  redeemable  preferred  interest,  at  the  greater  of  its  voluntary  or  involuntary liquidation preference plus accrued and unpaid dividends; and


(h)    all Guarantees of such Person in respect of any of the foregoing;


provided that, “Indebtedness” shall not include any post-closing payment adjustments or earn- out, non-competition or consulting obligations existing on the Effective Date or incurred in connection with Investments permitted under Section 7.02(h) or (n) (i) if such obligations are not required to be reflected as a liability on the balance sheet of the applicable Person or (ii) if at the time of such Investment, the Specified U.S. Borrower was able to satisfy the tests in Section
7.02(h) or (n), as applicable, after giving pro forma effect to the maximum possible payment that could result from such adjustment, earn-out or other obligation as if paid on the date of consummation of such Investment (as certified to the Administrative Agent in reasonable detail by a Responsible Officer of the Borrower).


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 Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.


“Indemnified Taxes” means Taxes other than Excluded Taxes.


“Indemnitees” has the meaning specified in Section 10.04(b).


“Information” has the meaning specified in Section 10.07.


“Information Memorandum” means the information memorandum intended to be used by the Bookrunner in connection with the syndication of the Commitments.


“Intellectual Property Security Agreements” means the U.S. Intellectual Property







Security Agreement and the Canadian Intellectual Property Security Agreement.


“Intercompany Note” means an intercompany note, substantially in the form of Exhibit I, executed by the Specified U.S. Borrower and each of its Subsidiaries and endorsed in blank by each of the U.S. Loan Parties.


“Intercreditor Agreement” has the meaning specified in Section 10.21.


“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan or BA Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurodollar Rate Loan or a BA Rate Loan exceeds 3 months, the respective dates that fall every 3 months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, Canadian Base Rate Loan, Canadian Prime Rate Loan or Swing Line Loan, the first Business Day of each April, July, October and January and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition).


“Interest Period” means, as to each Eurodollar Rate Loan and BA Rate Loan, the period commencing on the date such Eurodollar Rate Loan or BA Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan or BA Rate Loan, and ending on the date 1,
2, 3 or 6 months (or 9 or 12 months, if agreed to by all the Appropriate Lenders) thereafter, as selected by a Borrower in its Committed Loan Notice or such other period that is 365 days or less requested by a Borrower and consented to by all the Appropriate Lenders; provided that:


(a)       any  Interest Period that  would  otherwise end  on  a  day  that  is  not  a Business  Day  shall  be  extended  to  the  next  succeeding  Business  Day  unless  such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;


(b)       any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and


(c)       no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.


“Inventory” has the meaning specified in the UCC or the PPSA, as applicable, and shall include all goods intended for sale or lease by a Loan Party, or for display or demonstration; all work in process, all raw materials, and other materials and supplies of every nature and description used or which might be used in connection with the manufacture, printing,


packing, shipping, advertising, selling, leasing or furnishing such goods or otherwise used or consumed in such Loan Party’s business (but excluding Equipment).









“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or a substantial part of the business of, such Person.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.


“IP Rights” has the meaning specified in Section 5.17.


“IP   Security   Agreement   Supplement”   means   a   supplement   delivered   in connection  with  any  Intellectual  Property  Security  Agreement,  in  each  case  in  form  and substance reasonably satisfactory to the Collateral Agent.


“IRS” means the United States Internal Revenue Service.


“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).


“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an L/C Issuer and a Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.


“Junior Financing” has the meaning specified in Section 7.14.


“Junior Financing Documentation” means the 2017 Senior Notes, the 2017 Senior
Notes Indenture and any documentation governing any other Junior Financing.


“Laws” means, collectively, all international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case having the force of law.


“L/C Advance” a U.S. L/C Advance and/or a Canadian L/C Advance, as the context may require.


“L/C  Borrowing”  means  a  U.S.  L/C  Borrowing  and/or  a  Canadian  L/C Borrowing, as the context may require.









“L/C Credit Extension” means a U.S. L/C Credit Extension and/or a Canadian
L/C Credit Extension, as the context may require.


“L/C Issuer” means the U.S. L/C Issuer and/or the Canadian L/C Issuer, as the context may require.


“L/C Obligations” means the U.S.  L/C Obligations and/or the Canadian L/C Obligations, as the context may require.




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


“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.


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


“Letter  of  Credit  Application”  means  an  application  and  agreement  for  the issuance or amendment of a Letter of Credit in the form from time to time in use by an L/C Issuer.


“Letter of Credit Expiration Date” means the day that is five Business Days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).


“Letter of Credit Fee” has the meaning specified in Section 2.03(h).


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


“License” means any license or agreement under which a Loan Party is authorized to use IP Rights in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of property or any other conduct of its business.


“Licensor” means any Person from whom a Loan Party obtains the right to use any IP Rights.


“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, trust, deemed trust or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).


“Lien   Waiver”   means   an   agreement,  in   form   and   substance  reasonably satisfactory to the Collateral Agent, by which (a) for any personal property Collateral located on 







leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the Collateral Agent to enter upon the premises and remove the Collateral or to use the premises for an agreed upon period of time to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any documents in its possession relating to the Collateral as agent for the Collateral Agent, and agrees to deliver the Collateral to the Collateral Agent upon request; and (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Collateral Agent’s Lien, waives or  subordinates any  Lien it  may  have on  the  Collateral, and  agrees to  deliver the Collateral to the Collateral Agent upon request.


“Loan” means a U.S. Loan and/or a Canadian Loan.




Documents.
 
“Loan Documents” means the U.S. Loan Documents and the Canadian Loan


“Loan Parties” means, collectively, each Borrower and each Guarantor.


“Management Shareholders” means the members of management of the Specified U.S. Borrower or its Subsidiaries who were investors in Ply Gem Holdings, Inc. on the Effective Date.


“Mandatory  Principal   Payments”  means   all   regularly   scheduled  principal payments or redemptions or similar acquisitions for value of outstanding Indebtedness for borrowed money of any Borrower or Guarantor.


“Material Adverse Effect” means (A) a material adverse change in, or a material adverse effect on, the business, assets, liabilities, operations, condition (financial or otherwise) operating results of the Specified U.S. Borrower and its Subsidiaries, taken as a whole; (B) a material impairment of the rights and remedies of or benefits available to the Administrative Agent, the Collateral Agent or any Lender under any Loan Document, or of the ability of the Loan Parties to perform their obligations under any Loan Document; or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower or any Guarantor of any Loan Document to which it is a party.


“Material Foreign Subsidiary” has the meaning specified in Section 6.12(d).


“Material Real Estate” means any parcel of real property that is fee owned by a U.S. Loan Party or Canadian Loan Party, other than any parcel of real property (i) for which the greater of the cost and the book value is less than $2,000,000, or (ii) which property is subject to a Lien permitted by Section 7.01(q) which prohibits the granting of a Lien to the Collateral Agent.


“Maturity Date” means, with respect to each of the U.S. Revolving Credit Facility and the Canadian Revolving Credit Facility, the earliest of (i) the Stated Maturity Date, (ii) the date which is three months prior to the maturity date of the Senior Secured Notes unless, on or prior to 







such date, the Senior Secured Notes have been repaid, refinanced or the maturity date thereof extended, in each case, to a date that is at least six months later than the Stated Maturity Date and (iii) the date which is three months prior to the maturity date of the 2017 Senior Notes unless, on or prior to such date, the 2017 Senior Notes have been repaid, refinanced or the maturity date thereof extended, in each case, to a date that is at least six months later than the Stated Maturity Date; provided, further, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.


“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Specified U.S. Borrower.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto. “Mortgage” means the deeds of  trust, trust deeds, deeds to secure debt, and
mortgages  executed  and  delivered  in  connection  with  the  Existing  Credit  Agreement  and covering the properties listed on Schedule 6.19, together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12 or Section
6.19, in each case as amended.


“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.


“NOLV Percentage” means the net orderly liquidation value of Inventory, expressed as a percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of the Loan Parties’ Inventory performed by an appraiser and on terms satisfactory to the Agents.


“North  American  Affiliate”  has  the  meaning  specified  in  clause  (j)  of  the definition of “Eligible Receivables”.


“Noteholder Priority Collateral” means the “Noteholder Collateral” (as defined in the Intercreditor Agreement).


“Note” means a Revolving Credit Note.


“NPL” means the National Priorities List under CERCLA.


“Obligations” means the U.S. Obligations and the Canadian Obligations.


“OFAC” has the meaning specified in Section 5.23(b)(v).


“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with 







respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with  respect  to  any  partnership,  joint  venture,  trust  or  other  form  of  business  entity,  the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.


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


“Outstanding Amount” means (a) with respect to Revolving Credit Loans and Swing Line Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by a Borrower of Unreimbursed Amounts.  Notwithstanding the  foregoing, at  the  time  of  any  Canadian Revolving Credit  Borrowing,  any  issuance  of Canadian Letters of Credit, any Canadian L/C Borrowing or any conversion or continuation of a Canadian Loan if (a) such Borrowing, issuance, conversion or continuation is for a Loan or Letter of Credit denominated in Canadian dollars or (b) there are any outstanding Canadian Loans or Canadian Letters of Credit denominated in Canadian dollars, the Administrative Agent shall calculate the Outstanding Amount based on the Dollar Equivalent on the date of such Borrowing, conversion or continuation to determine whether such Borrowing complies with the proviso to the first sentences of Sections 2.01(a), (b), (c) or (d) or Sections 2.04(A)(a) or (B)(a).


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


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


“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the applicable L/C Issuer or the applicable Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in Canadian Dollars, the rate of interest per annum at which overnight deposits in Canadian Dollars, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by UBS Canada in the Canadian interbank market for Canadian Dollars to major banks in such interbank market.


“Participant” has the meaning specified in Section 10.06(d).









“Payment Item” means each check, draft or other item of payment payable to a
Loan Party, including those constituting proceeds of any Collateral.


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


“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Borrower or any ERISA Affiliate or to which any Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a  multiple  employer  or  other  plan  described  in  Section  4064(a)  of  ERISA,  has  made contributions  at  any  time  during  the  immediately  preceding  five  plan  years.    For  greater certainty, “Pension Plan” does not include any Canadian Pension Plan.


“Perfection Certificate” shall mean certificates in the form of Exhibit L or any other form approved by the Administrative Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.


“Perfection  Certificate  Supplement”  shall  mean  a  perfection  certificate supplement in form and substance reasonably satisfactory to the Administrative Agent.


“Permitted Acquired Debt” has the meaning specified in Section 7.03(r).


“Permitted Acquisition” has the meaning specified in Section 7.02(h).


“Permitted Encumbrances” has the meaning specified in the Mortgages.


“Permitted Equity Issuance” means any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) of the Specified U.S. Borrower (or capital contributions in respect thereof).


“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing,  refunding,  renewal  or  extension  and  by  an  amount  equal  to  any  existing commitments unutilized thereunder (to the extent such commitments could be drawn at the time of such refinancing in compliance with this Agreement) or as otherwise permitted pursuant to Section 7.03, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, re-financed, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, 







renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained  in  the  documentation  governing  the  Indebtedness  being  modified,  refinanced, refunded, renewed or extended, (d) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed or extended Indebtedness (i) are not materially, taken as a whole, less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended or (ii) are on market terms for similar issuances at the time of such modification, refinancing, refunding, renewal or extension, in each case as determined in good faith by such Person, (e) such modification, refinancing, refunding, renewal or extension is incurred and/or guaranteed by only the Persons who are the obligors on the Indebtedness being modified, refinanced, refunded, renewed or extended, and (f) at the time thereof, no Default shall have occurred and be continuing.


“Permitted Seller Notes” has the meaning specified in Section 7.03(r).


“Permitted Senior Unsecured Refinancing Indebtedness” means any refinancing of the 2017 Senior Notes that complies with each of the conditions set forth in the definition of “Permitted Refinancing” other than clause (c) thereof.


“Permitted Subordinated Indebtedness” means any unsecured Indebtedness of the Specified U.S. Borrower that (a) is expressly subordinated to the prior payment in full in cash of the Obligations, (b) will not mature prior to the date that is six months after the Maturity Date, (c) has no scheduled amortization or payments of principal prior to the Maturity Date and (d) has covenant, default and remedy provisions no more restrictive, or mandatory prepayment, repurchase or redemption provisions no more onerous or expansive in scope than those contained in the 2017 Senior Notes Indenture as in effect on the Effective Date, taken as a whole; provided any such Indebtedness shall constitute Permitted Subordinated Indebtedness only if both before and after giving effect to the issuance or incurrence thereof, no Default or Event of Default shall have occurred and be continuing.


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


“Plan”  means  any  “employee  benefit  plan”  (as  such  term  is  defined  in Section 3(3) of ERISA) established by any Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.   For greater certainty, “Plan” does not include any Canadian Benefit Plan or Canadian Pension Plan.


“Platform” has the meaning specified in Section 6.02.


“Pledged Debt” means any pledged “Pledged Debt” defined in any Security Agreement and all other indebtedness from time to time owed to the Loan Parties (including, without limitation, all promissory notes or instruments, if any, evidencing such indebtedness) and required to be pledged by the Loan Parties pursuant to the Loan Documents.


“Pledged Equity” means any pledged “Pledged Stock” defined in any Security Agreement and all other Equity Interests from time to time acquired, owned or held by the Loan 







Parties (including, without limitation, the certificates, if any, representing such Equity Interests) and required to be pledged by the Loan Parties pursuant to the Loan Documents.


“PPSA” means the Personal Property Security Act of Alberta; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Personal Property Security Act as in effect in a Canadian jurisdiction other than Alberta, or  the Civil Code of  Quebec, “PPSA”  means the  Personal Property Security Act as in effect from time to time in such other jurisdiction or the Civil Code of Quebec, as applicable, for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.


“Processor Control Agreement” shall mean an agreement among the Administrative  Agent,  the  applicable  Borrower  and  a  Credit  Card  Processor  in  form  and substance reasonably satisfactory to the Administrative Agent.


“Preferred Stock” means, with respect to any Person, any and all preferred or preference stock or other equity interests (however designated) of such Person whether now outstanding or issued after the Effective Date.


“Pro Forma Cost Savings” means, with respect to any Measurement Period, the synergies and the reductions in costs that occurred during such Measurement Period that are (a) directly attributable to an asset acquisition and calculated on a basis that is consistent with Article 11 of Regulation S-X under the Securities Act of 1933, as amended, or (b) implemented, committed to be implemented or the commencement of implementation of which has begun in good faith by the business that was the subject of any such asset acquisition within twelve months of the date of the asset acquisition and that are supportable and quantifiable by the underlying records of such business, as if, in the case of each of clauses (a) and (b), all such reductions in costs had been effected as of the beginning of such period, decreased by any incremental expenses incurred or to be incurred during the Measurement Period in order to achieve such reduction in costs.


“Protective Advance” has the meaning specified in Section 2.01(h).


“Public Lender” has the meaning specified in Section 6.02.


“Qualified Equity Interests” means any Equity Interests other than Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified Equity Interests to the extent sold or owed to a Subsidiary of the Specified U.S. Borrower or financed, directly or indirectly, using funds (a) borrowed from the Specified U.S. Borrower   or any Subsidiary of the Specified U.S. Borrower until and to the extent such borrowing is repaid or (b) contributed, extended, guaranteed or advanced by the Specified U.S. Borrower or any Subsidiary of the Specified U.S. Borrower (including, without limitation, in respect of any employee stock ownership or benefit plan).


“Register” has the meaning specified in Section 10.06(c).









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


“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, emitting, escaping, seeping, or placing into the environment.


“Rent and Charges Reserve” means (a) with respect to the U.S. Borrowing Base, the aggregate of (i) all past due rent and other amounts owing by a U.S. Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Inventory or could assert a Lien on any Eligible Inventory and (ii) a reserve equal to two months rent that could be payable to any such Person, unless it has executed a Lien Waiver and (b) with respect to the Canadian Borrowing Base, the aggregate of (i) all past due rent and other amounts owing by a Canadian Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other Person who possesses any Eligible Inventory or could assert a Lien on any Eligible Inventory and (ii) a reserve equal to two months rent that could be payable to any such Person, unless it has executed a Lien Waiver.


“Reportable Event” means any of  the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.


“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.


“Required Canadian Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Canadian Outstandings (with the aggregate amount of each Canadian Revolving Credit Lender’s risk participation and funded participation in Canadian L/C Obligations and Canadian Swing Line Loans being deemed “held” by such Appropriate  Lender  for  purposes  of  this  definition)  and  (b) aggregate  unused  Canadian Revolving Credit Commitments; provided that the unused Canadian Revolving Credit Commitment of, and the portion of the Total Canadian Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Canadian Lenders.


“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Appropriate Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.


“Required U.S. Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total U.S. Outstandings (with the aggregate amount of each 







U.S. Revolving Credit Lender’s risk participation and funded participation in U.S. L/C Obligations and U.S. Swing Line Loans being deemed “held” by such Appropriate Lender for purposes of this definition) and (b) aggregate unused U.S. Revolving Credit Commitments; provided that the unused U.S. Revolving Credit Commitment of, and the portion of the Total U.S. Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required U.S. Lenders.


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


“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including  any  sinking  fund  or  similar  deposit,  on  account  of  the  purchase,  redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.


“Restructuring Expenses” means expenses and charges incurred in connection with restructuring within the Specified U.S. Borrower and/or one or more of its Subsidiaries, including in connection with integration of acquired businesses or Persons, disposition of one or more Subsidiaries or businesses, exiting of one or more lines of businesses and relocation or consolidation of facilities, including severance, signing, retention or completion bonuses, lease termination and other non-ordinary-course, non-operating costs and expenses (including any consulting fees and expenses) in connection therewith.


“Revolving Credit Borrowing” means a U.S. Revolving Credit Borrowing and/or a Canadian Revolving Credit Borrowing, as the context may require.


“Revolving Credit Commitment” means a U.S. Revolving Credit Commitment and/or a Canadian Revolving Credit Commitment, as the context may require.


“Revolving Credit Facility” means the U.S. Revolving Credit Facility and/or the
Canadian Revolving Credit Facility, as the context may require.


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


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









“Revolving Credit Note” means a U.S. Revolving Credit Note and/or a Canadian
Revolving Credit Note, as the context may require.


“Royalties” means all royalties, fees, expense reimbursement and other amounts payable by a Loan Party under a License.


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


“Sale-Leaseback Documents” shall mean the Deed of Lease Agreement, by and among GP (MULTI) L.P., a Delaware limited partnership as Landlord, and Ply Gem Industries, Inc.,  MWM  Holding,  Inc.,  Great  Lakes  Window,  Inc.,  MWM  Manufacturers  Inc.,  Napco Window  Systems,  Inc.,  Kroy  Building  Products,  Inc.,  Napco,  Inc.,  Thermal-Gard, Inc.,  as Tenant, dated as of August 27, 2004 and the Lease Agreement by and between PG-NOM (ALBERTA) INC., an Alberta corporation, as nominee for PG-TRUST (DE), a trust formed under the laws of the State of Delaware, as Landlord and Ply Gem Canada, Inc. (f/k/a CWD Windows and Doors, Inc.), as Tenant, dated as of August 27, 2004.


“Sale-Leaseback  Properties”  shall  mean  the  owned  real  properties  listed  on
Schedule 1.01(a).


“Sale-Leaseback Transaction” shall mean the Sale and Leaseback of the Sale- Leaseback Properties pursuant to the Sale-Leaseback Documents.


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


“Secured   Cash   Management   Agreement”     means    any    Cash    Management
Agreement that is entered into by and between a Loan Party and any Cash Management Bank.


“Secured Hedge Agreement” means any Swap Contract permitted under Article
VI or VII that is entered into by and between any Loan Party and any Hedge Bank.






Parties.
 
“Secured Parties” means the U.S.  Secured Parties and the Canadian Secured


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


“Security Agreement Supplement” means a supplement delivered in connection with any Security Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent.









“Securities Account Control Agreements” has the meaning specified in the U.S. Security Agreement and/or the Canadian Security Agreement, as the context may require.


“Senior Secured Notes” means the 8.25% senior secured notes due 2018 of the Specified U.S. Borrower issued and sold on or after February 11, 2011 pursuant to the Senior Secured Notes Documents, as the same may be modified or otherwise supplemented from time to time in accordance with the terms hereof, and any exchange notes issued in exchange therefor, in each case, pursuant to the Senior Secured Notes Indenture, as the same may be modified or otherwise supplemented from time to time in accordance with the terms hereof.


“Senior Secured Notes Documents” means the Senior Secured Notes Indenture, the Purchase Agreement dated as of February 9, 2011 among the Specified U.S. Borrower, the Initial Purchasers (as defined therein) and the guarantors party thereto, the Senior Secured Notes and all other agreements, instruments and other documents pursuant to which the Senior Secured Notes have been or will be issued or otherwise setting forth the terms of the Senior Secured Notes.


“Senior Secured Notes Indenture” means the Indenture, dated as of February 11,
2011, among the Specified U.S. Borrower, as “Issuer”, the guarantors party thereto, and Wells
Fargo Bank National Association, as Trustee.


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


“Specified  U.S.  Borrower”  has  the  meaning  specified  in  the  introductory paragraph hereto.


“Sponsor” means CI Capital Partners LLC and its Controlled Affiliates.


“Stated Maturity Date” means, with respect to each of the U.S. Revolving Credit
Facility and the Canadian Revolving Credit Facility, the fifth anniversary of the Effective Date.


“Statutory Reserves” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve 







System of the United States (the “Board”) and any other banking authority, domestic or foreign, to which UBS AG, Stamford Branch or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board).  Eurodollar Rate Loans shall be deemed to constitute Eurocurrency Liabilities  (as  defined  in  Regulation D  of  the  Board)  and  to  be  subject  to  such  reserve requirements without benefit of  or  credit for  proration, exemptions or  offsets  that may  be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.


“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.


“Supermajority Lenders” means, as of any date of determination, Lenders holding more than 66 2/3% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Appropriate Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.


“Supplemental Collateral Agent” has the meaning specified in Section 9.05(a).


“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative  transactions,  forward  rate  transactions,  commodity  swaps,  commodity  options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,  currency  options,  spot  contracts,  or  any  other  similar  transactions  or  any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a   “Master  Agreement”),  including  any  such  obligations  or  liabilities  under  any  Master Agreement.


“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any  agreement, contract or  transaction that  constitutes a  “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.









“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been 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 Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include an Agent or a Lender or any Affiliate of an Agent or a Lender).


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


“Swing Line Lender” means the U.S. Swing Line Lender and/or the Canadian
Swing Line Lender, as the context may require.


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


“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(A)(b) or 2.04(B)(b), which, if in writing, shall be substantially in the form of Exhibit B.


“Swing Line Sublimit” means the U.S. Swing Line Sublimit and/or the Canadian
Swing Line Sublimit, as the context may require.


“Tax Receivable Agreement” means the Tax Receivable Agreement between Ply
Gem Holdings, Inc. and PG ITR Holdco, L.P., dated as of May 22, 2013, as amended.


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


“Threshold Amount” means $22,500,000.


“Total Borrowing Base” means the sum of the U.S. Borrowing Base and the Canadian Borrowing Base calculated, for this purpose, without double counting the inclusion of U.S. Excess Availability in the calculation of Canadian Borrowing Base.


“Total Canadian Outstandings” means the aggregate Outstanding Amount of all
Canadian Loans and all Canadian L/C Obligations.


“Total  Canadian  Revolving  Credit  Outstandings”  means  the  aggregate Outstanding Amount of all Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Obligations.









“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans, Swing Line Loans and L/C Obligations.


“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.


“Total U.S. Outstandings” means the aggregate Outstanding Amount of all U.S. Loans and all U.S. L/C Obligations.


“Total U.S. Revolving Credit Outstandings” means the aggregate Outstanding
Amount of all U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Obligations.


“Transaction” means, collectively, (a) the entering into and performance by the U.S. Loan Parties and their applicable Subsidiaries of the Loan Documents to which they are or are intended to be a party, (b) the refinancing of certain outstanding Indebtedness of the Borrowers and their Subsidiaries and the termination of all commitments with respect thereto and (c) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.


“Trustee” means Wells Fargo Bank National Association, in its capacity as trustee under the Senior Secured Notes Indenture.


“Tuck-in Acquisitions” means one or more acquisitions made pursuant to Section
7.02(h) with aggregate consideration for all such acquisitions not to exceed $50,000,000.


“Type”  means,  with  respect  to  a  Loan,  its  character  as  a  Base  Rate  Loan, Canadian Base Rate Loan, Canadian Prime Rate Loan, BA Rate Loan or a Eurodollar Rate Loan.


“UBS Canada” has the meaning specified in the introductory paragraph hereto.


“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.


“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,  determined in  accordance with  the  assumptions used  for  funding  the  Pension  Plan pursuant to Section 412 of the Code for the applicable plan year.


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


“Unreimbursed Amount” has the meaning specified in Section 2.03(b).









“U.S. Administrative Agent” means UBS AG, Stamford Branch in its capacity as U.S.  administrative  agent  under  any  of  the  Loan  Documents,  or  any  successor  U.S. administrative agent.


“U.S.  Borrowers”  means  the  Specified  U.S.  Borrower  and  each  Domestic
Subsidiary that becomes a “Borrower” hereunder after the Effective Date.


“U.S. Borrowing Base” means, on any date of determination, an amount (calculated based on the most recent Borrowing Base Certificate delivered to the Agents in accordance with this Agreement) equal to


(a)    the sum of


(i)    90% of the value of the Eligible Credit Card Receivables of the
U.S. Loan Parties,


(ii)    85% of the value of the Eligible Receivables of the U.S. Loan
Parties, and


(iii)    85%  of  the  NOLV  Percentage  of  the  value  of  the  Eligible
Inventory of the U.S. Loan Parties,


minus


(b)       the Availability Reserve to the extent attributable to the U.S. Loan Parties in the Agents’ Credit Judgment on such date, provided that, after the Effective Date, the Agents may adjust the apportionment of the Availability Reserve between the U.S. Revolving Credit Facility and the Canadian Revolving Credit Facility in their Credit Judgment.


“U.S. Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is an Agent, a U.S. Lender or an Affiliate of an Agent or a U.S. Lender, in its capacity as a party to such Cash Management Agreement, in each case in respect of services provided under such Cash Management Agreement to a U.S. Loan Party.


“U.S. Collateral” means all of the “Collateral” and “Mortgaged Property” referred to in the U.S. Collateral Documents and all of the other property that is or is intended under the terms of the U.S. Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the U.S. Secured Parties.


“U.S. Collateral Agent” means UBS AG, Stamford Branch in its capacity as U.S. collateral agent under any of the Loan Documents, or any successor U.S. collateral agent.


“U.S. Collateral Documents” means, collectively, the U.S. Security Agreement, the U.S. Intellectual Property Security Agreement, the U.S. Mortgages, the U.S. Account Control Agreements, each of the mortgages, collateral assignments, Security Agreement Supplements, IP 







Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the U.S. Secured Parties.


“U.S. Excess Availability” means, at any time, the difference between (a) the lesser of (i) (A) the U.S. Revolving Credit Facility and (ii) the U.S. Borrowing Base at such time, as determined from the most recent Borrowing Base Certificate delivered by the Borrower Agent to the Agents pursuant to Section 6.01(f) hereof minus (b) the Total U.S. Revolving Credit
Outstandings.


“U.S. Guaranty” means, collectively, the Guarantees made by Holdings, the Specified U.S. Borrower, and the U.S. Subsidiary Guarantors in favor of the U.S. Secured Parties, substantially in the form of Exhibit F-1, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12(a).


“U.S. Intellectual Property Security Agreement” has the meaning specified in
Section 4.01(a)(vii).


“U.S. L/C Advance” means, with respect to each U.S. Revolving Credit Lender, such Lender’s funding of its participation in any U.S. L/C Borrowing in accordance with its Applicable Percentage.


“U.S. L/C Borrowing” means an extension of credit resulting from a drawing under any U.S. Letter of Credit which has not been reimbursed on the date when made or refinanced as a U.S. Revolving Credit Borrowing.


“U.S. L/C Credit Extension” means, with respect to any U.S. Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.


“U.S. L/C Issuer” means UBS AG, Stamford Branch, Wells Fargo Bank, National Association, and/or Credit Suisse AG, Cayman Islands Branch, each in its capacity as issuer of U.S. Letters of Credit hereunder, any Lender acceptable to the U.S. Borrower and the U.S. Administrative Agent or any successor issuer of U.S. Letters of Credit hereunder.


“U.S. L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all U.S. L/C Borrowings.  For purposes of computing the amount available to be drawn under any U.S. Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination a U.S. Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.


“U.S. Lender” means each financial institution listed on Schedule 2.01 as a “U.S. Revolving Credit Lender”, as well as any Person that becomes a “U.S. Revolving Credit Lender” 







hereunder pursuant to Section 2.16 or 10.06 and, as the context requires, includes the U.S. Swing Line Lender.


“U.S. Letter of Credit” means any standby letter of credit issued hereunder.  A U.S. Letter of Credit may be a commercial letter of credit or a standby letter of credit.


“U.S. Letter of Credit Sublimit” means an amount equal to $20,000,000.   The U.S. Letter of Credit Sublimit is part of, and not in addition to, the U.S. Revolving Credit Facility.


“U.S. Loan” means an extension of credit by a Lender to the Specified U.S. Borrower under Article II in the form of a U.S. Revolving Credit Loan or a U.S. Swing Line Loan.


“U.S. Loan Documents” means, collectively, (a) this Agreement, (b) the U.S. Revolving Credit Notes, (c) the U.S. Guaranty, (d) the U.S. Collateral Documents, (e) the Intercreditor Agreement, (f) the Fee Letters and (g) each Issuer Document with respect to a U.S. Letter of Credit.


“U.S. Loan Party” means any Loan Party that is organized under the laws of one of the states of the United States of America and that is not a CFC.


“U.S. Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any U.S. Loan Party arising under any Loan Document or otherwise with respect to any U.S. Loan, U.S. Letter of Credit, U.S. Secured Cash Management Agreement or U.S. Secured Hedge Agreement, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any U.S. Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, that the U.S. Obligations shall exclude any Excluded Swap Obligations.


“U.S. Overadvance” has the meaning specified in Section 2.01(f).


“U.S. Overadvance Loan” means a U.S. Revolving Credit Loan made when an
Overadvance exists or is caused by the funding thereof.


“U.S. Payment Account” means the account of the Collateral Agent to which all monies constituting proceeds of U.S. Collateral shall be transferred from time to time.


“U.S.  Revolving Credit  Borrowing”  means  a  borrowing  consisting of simultaneous U.S. Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the U.S. Revolving Credit Lenders pursuant to Section 2.01(a) and shall be deemed to include any U.S. Overadvance Loan and U.S. Protective Advance made hereunder.









“U.S. Revolving Credit Commitment” means, as to each U.S. Revolving Credit Lender, its obligation to (a) make U.S. Revolving Credit Loans to the Specified U.S. Borrower pursuant to Section 2.01(a), (b) purchase participations in U.S. L/C Obligations, and (c) purchase participations in U.S. Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “U.S. Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable,  as  such  amount  may  be  adjusted  from  time  to  time  in  accordance  with  this Agreement,  including  Section  2.16;  provided,  that  at  any  time  that  that  Total  Canadian Revolving Credit Outstandings exceed 100% of the Canadian Revolving Credit Commitments, the U.S. Revolving Credit Commitments shall be temporarily reduced by the amount of such excess until such excess is reduced to zero.


“U.S. Revolving Credit Exposure” means, with respect to any U.S. Appropriate Lender at any time, the Outstanding Amount of such Lender’s U.S. Revolving Credit Loans plus such Lender’s Applicable Percentage of the Outstanding Amount of U.S. L/C Obligations with respect to U.S. Letters of Credit plus such Lender’s Applicable Percentage of the Outstanding Amount of U.S. Swing Line Loans.


“U.S. Revolving Credit Facility” means, at any time, the aggregate amount of the
U.S. Revolving Credit Lenders’ U.S. Revolving Credit Commitments at such time.


“U.S. Revolving Credit Lender” means, at any time, any Lender that has a U.S. Revolving Credit Commitment at such time.


“U.S. Revolving Credit Loan” has the meaning specified in Section 2.01(a) and shall be deemed to include any U.S. Overadvance Loan and U.S. Protective Advance made hereunder.


“U.S. Revolving Credit Note” means a promissory note made by the Specified U.S. Borrower in favor of a U.S. Appropriate Lender evidencing U.S. Revolving Credit Loans or U.S. Swing Line Loans, as the case may be, made by such U.S. Revolving Credit Lender, substantially in the form of Exhibit C-1.


“U.S. Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between a U.S. Loan Party and any Cash Management Bank.


“U.S. Secured Hedge Agreement” means any Secured Hedge Agreement that is entered into by and between any U.S. Loan Party and any Hedge Bank.


“U.S. Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the U.S. Revolving Credit Lenders, the U.S. L/C Issuer, the U.S. Hedge Banks, the U.S. Cash Management Banks, each co-agent or sub-agent appointed by any Agent from time to time pursuant to Section 9.05, the Canadian Secured Parties and the other Persons the U.S. Obligations owing to which are or are purported to be secured by the U.S. Collateral under the terms of the Collateral Documents.









“U.S. Security Agreement” means the U.S. Security Agreement dated as of the Closing Date and attached as Exhibit G-1 (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12 in respect of the U.S. Collateral, in each case as amended).


“U.S. Subsidiary Guarantor” means each Domestic Subsidiary (other than the Specified U.S. Borrower and any Excluded Subsidiary) and each Person that shall, at any time after the date hereof, become a Domestic Subsidiary.


“U.S. Swing Line Borrowing” means a borrowing of a U.S. Swing Line Loan pursuant to Section 2.04.


“U.S. Swing Line Lender” means UBS AG, Stamford Branch in its capacity as provider of U.S. Swing Line Loans, or any successor swing line lender hereunder.


“U.S. Swing Line Loan” has the meaning specified in Section 2.04(a).


“U.S.   Swing   Line   Sublimit”   means   an   amount   equal   to   the   lesser   of (a) $20,000,000 and (b) the U.S. Revolving Credit Facility.  The U.S. Swing Line Sublimit is part of, and not in addition to, the U.S. Revolving Credit Facility.


“U.S.  Unfunded  Advances/Participations” shall  mean  (a) with  respect  to  the Administrative Agent, the aggregate amount, if any (i) made available to the U.S. Borrowers on the assumption that each U.S. Appropriate Lender has made its portion of the applicable Borrowing  available  to  the  Administrative  Agent  as  contemplated  by  Section 2.12(b)  and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the U.S. Borrowers or made available to the Administrative Agent by any such U.S. Appropriate Lender, (b) with respect to the U.S. Swing Line Lender, the aggregate amount, if any, of participations in respect of any outstanding U.S. Swing Line Loan that shall not have been funded by the U.S. Revolving Credit Lenders in accordance with Section 2.04(c) and (c) with respect to any U.S. L/C Issuer, the aggregate amount, if any, of participations in respect of any outstanding U.S. L/C Borrowing that shall not have been funded by the U.S. Revolving Credit Lenders in accordance with Sections 2.03(c).


“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:  (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and  the  making  of  such  payment;  by  (ii) the  then  outstanding  principal  amount  of  such Indebtedness.






































SECTION 1.02.  Other Interpretive 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.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference  to  any  law  or  regulation  shall,  unless  otherwise  specified,  refer  to  such  law  or regulation as amended, modified or supplemented from time to time, (vi) 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 and (vii) any references herein to “ordinary course of business” or “ordinary course” shall mean the ordinary course of business of the Loan Parties and their respective Subsidiaries, and undertaken in good faith.


(b)       All other terms contained in this Agreement shall have, when the context so indicates, the meanings provided for by the UCC or the PPSA to the extent the same are used or defined therein.  For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Collateral Document) and for all other purposes pursuant to which the interpretation or construction of a Collateral Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include “movable property,” (ii) “real property” shall be deemed to include “immovable property” and an “easement” shall be deemed to  include  a  “servitude,”  (iii) “tangible  property”  shall  be  deemed  to  include  “corporeal property,” (iv) “intangible property” shall be deemed to include “incorporeal property,” (v) “security interest” and “mortgage” shall be deemed to include a “hypothec,” (vi) all references to filing, registering or recording financing statements or other required documents under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, and all references to releasing any Lien shall be deemed to include a release, discharge and mainlevee of a hypothec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of offset,” “right of setoff” or similar expression shall 







be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (x) an “agent” shall be deemed to include a “mandatary.”


(c)       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.”


(d)       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.


SECTION 1.03.  Accounting Terms.


(a)       Generally.   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, except as otherwise specifically prescribed herein.


(b)       Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document or any covenant in Article VII hereof or any related definition, and either the Borrowers or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower Agent shall negotiate in good faith to amend such ratio, requirement, covenant or definition to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio, requirement, covenant or definition 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, requirement, covenant or definition made before and after giving effect to such change in GAAP.




SECTION 1.04.  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 1.05.  Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable).


SECTION 1.06.  Letter of Credit Amounts.   Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.


SECTION 1.07.  Currency Equivalents Generally.  Any amount specified in this Agreement (other than in Articles II and IX) or any of the other Loan Documents to be in Dollars 







shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars (including for calculations of Excess Availability).  For purposes of this Section 1.07, the “Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such determination; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.









ARTICLE II


The Commitments and Credit Extensions


SECTION 2.01.  The Loans.


(a)       U.S. Revolving Credit Borrowings.   Subject to the terms and conditions set forth herein, each U.S. Appropriate Lender severally agrees to make loans (each such loan, a “U.S. Revolving Credit Loan”) in Dollars to the Specified U.S. Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s U.S. Revolving Credit Commitment; provided, however,  that  after  giving  effect  to  any  U.S.  Revolving  Credit  Borrowing,  (i) the  Total Revolving Credit Outstandings shall not exceed the lesser of (x) the Revolving Credit Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of the U.S.  Revolving  Credit  Loans  of  any  Lender,  plus  such  U.S.  Revolving  Credit  Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment  and  (iii) the  Total  U.S.  Revolving  Credit  Outstandings,  plus  any  Additional Canadian Revolving Credit Outstandings, shall not exceed the lesser of (x) the U.S. Revolving Credit Facility and (y) the U.S. Borrowing Base.   Within the limits of each U.S. Revolving Credit  Lender’s  U.S.  Revolving  Credit  Commitment,  and  subject  to  the  other  terms  and conditions hereof, the Specified U.S. Borrower may borrow under this Section 2.01(a), prepay under Section 2.05, and reborrow under this Section 2.01(a).  U.S. Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.


(b)       Canadian  Revolving  Credit  Borrowings.     Subject  to  the  terms  and conditions set forth herein, each Canadian Appropriate Lender severally agrees to make loans (each such loan, a “Canadian Revolving Credit Loan”) in Dollars and Canadian Dollars to the Canadian Borrowers from time to time, on any Business Day during the Availability Period, in an  aggregate amount not  to  exceed at  any  time  outstanding the  amount of  such  Lender’s Canadian Revolving Credit Commitment; provided, however, that after giving effect to any Canadian Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the lesser of (x) the Revolving Credit Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Lender, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment and (iii) the Total Canadian Revolving Credit Outstandings shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the Canadian Borrowing Base. Within the limits of each Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Canadian Borrowers may borrow under this Section 2.01(b), prepay under Section 2.05, and reborrow under this Section







2.01(b).  Canadian Revolving Credit Loans denominated in Dollars may be Canadian Base Rate Loans or Eurodollar Rate Loans, as further provided herein.  Canadian Revolving Credit Loans denominated in Canadian Dollars may be Canadian Prime Rate Loans or BA Rate Loans, as further provided herein.


(c)       U.S.  Letter  of  Credit  Commitment.    (i)    Subject  to  the  terms  and conditions set forth herein, (A) the U.S. L/C Issuer agrees, in reliance upon the agreements of the U.S. Revolving Credit Lenders set forth in this Section 2.01(c) and Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue U.S. Letters of Credit for the account of the Specified U.S. Borrower or any U.S. Loan Party, and to amend or extend U.S. Letters of Credit previously issued by it, in accordance with Section 2.03(a), and (2) to honor drawings under the U.S. Letters of Credit; and (B) the U.S. Revolving Credit Lenders severally agree to participate in U.S. Letters of Credit issued for the account of the Specified U.S. Borrower or any U.S. Loan Party and any drawings thereunder; provided that after giving effect to any U.S. L/C Credit Extension with respect to any U.S. Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the lesser of (I)  the Revolving Credit Facility and (II) the Total Borrowing Base at such time, (x) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any Lender, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans shall not exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment, (y) the Total U.S. Revolving Credit Outstandings, plus any Additional Canadian Revolving Credit Outstandings, shall not exceed the lesser of (I) the U.S. Revolving Credit Facility and (II) the U.S. Borrowing Base and (z) the Outstanding Amount of the U.S. L/C Obligations shall not exceed the U.S. Letter of Credit Sublimit.  Each request by the Specified U.S. Borrower for the issuance or amendment of a U.S. Letter of Credit shall be deemed to be a representation by the Specified U.S. Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Specified U.S. Borrower’s ability to obtain U.S. Letters of Credit shall be fully revolving, and accordingly the Specified U.S. Borrower may, during the foregoing period, obtain U.S. Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.   The U.S. L/C Issuer’s Commitment to issue U.S. Letters of Credit shall automatically terminate on the earlier to occur of (x)   the date of termination of the U.S. Revolving Credit Commitments pursuant to Section 2.06, and (y) the date 30 days prior to the Maturity Date.


(ii)    The U.S. L/C Issuer shall not issue any U.S. Letter of Credit if:


(A)    subject to Section 2.03(a)(i) and 2.03(a)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the  date of  issuance or  last extension, unless  the  Required U.S. Lenders have approved such expiry date; or


(B)      the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date.









(iii)    The U.S. L/C Issuer shall not be under any obligation to issue any
U.S. Letter of Credit if:


(A)      any  order,  judgment  or  decree  of  any  Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the U.S. L/C Issuer from issuing such Letter of Credit, or any Law applicable to the U.S. L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the U.S. L/C Issuer shall prohibit, or request that the U.S. L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the U.S. L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the U.S. L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the U.S. L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the U.S. L/C Issuer in good faith deems material to it;


(B)      the issuance of such Letter of Credit would violate one or more  policies  of  the  U.S.  L/C  Issuer  applicable  to  letters  of  credit generally;


(C)      such Letter of Credit is to be denominated in a currency other than Dollars; or


(D)      a default of any U.S. Revolving Credit Lender’s obligations to fund under Section 2.03(b) exists or any U.S. Appropriate Lender is at such time a Defaulting Lender hereunder, unless the U.S. L/C Issuer has entered into reasonably satisfactory arrangements with the Specified U.S. Borrower or such Lender to eliminate the U.S. L/C Issuer’s risk with respect to such Lender.


(iv)      The U.S. L/C Issuer shall not amend any Letter of Credit if the U.S. L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.


(v)       The U.S. L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the U.S. L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.


(vi)      The U.S. L/C Issuer shall act on behalf of the U.S. Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the U.S. L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the U.S. L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it  and  Issuer  Documents  pertaining  to  such  Letters  of  Credit  as  fully  as  if  the  term “Administrative Agent” 







as used in Article IX included the U.S. L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the U.S. L/C Issuer.


(d)      Canadian Letter of Credit Commitment.  (i)  Subject to the terms and conditions set forth herein, (A) the Canadian L/C Issuer agrees, in reliance upon the agreements of the Canadian Revolving Credit Lenders set forth in this Section 2.01(d) and Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Canadian Letters of Credit for the account of any Canadian Borrower or any of their Canadian Subsidiaries, and to amend or extend Canadian Letters of Credit previously issued by it, in accordance with Section 2.03(a), and (2) to honor drawings under the Canadian Letters of Credit; and (B) the Canadian Revolving Credit Lenders severally agree to participate in Canadian Letters of Credit issued for the account of any Canadian Borrower or any of their Canadian Subsidiaries and any drawings thereunder; provided that after giving effect to any Canadian L/C Credit Extension with respect to any Canadian Letter of Credit, (w) the Total Revolving Credit Outstandings shall not exceed the lesser of (I) the Revolving Credit Facility and (II) the Total Borrowing Base at such time, (x) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender,  plus   such   Canadian  Revolving  Credit  Lender’s  Applicable  Percentage  of   the Outstanding Amount of all Canadian L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment, (y) the Total Canadian Revolving Credit Outstandings shall not exceed the lesser of (I) the Canadian Revolving Credit Facility and (II) the Canadian Borrowing Base, and (z) the Outstanding Amount of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit.   Each request by a Canadian Borrower for the issuance or amendment of a Canadian Letter of Credit shall be deemed to be a representation by such Canadian Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Canadian Borrowers’ ability to obtain Canadian Letters of Credit shall be fully revolving, and accordingly each Canadian Borrower may, during the foregoing period, obtain Canadian Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  The Canadian L/C Issuer’s Commitment to issue Canadian Letters of Credit shall automatically terminate on the earlier to occur of (x)  the date of termination of the Canadian Revolving Credit Commitments pursuant to Section 2.06, and (y) the date 30 days prior to the Maturity Date.


Credit if:
 
(ii)    The Canadian L/C Issuer shall not issue any Canadian Letter of


(A)      subject  to  Section  2.03(a)(i),  the  expiry  date  of  such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Canadian Lenders have approved such expiry date; or


(B)      the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date.









(iii)     The Canadian L/C Issuer shall not be under any obligation to issue any Canadian Letter of Credit if:


(A)      any  order,  judgment  or  decree  of  any  Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Canadian L/C Issuer from issuing such Letter of Credit, or any Law applicable to the Canadian L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Canadian L/C Issuer shall prohibit, or request that the Canadian  L/C  Issuer  refrain  from,  the  issuance  of  letters  of  credit generally or such Letter of Credit in particular or shall impose upon the Canadian L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Canadian L/C Issuer is not otherwise compensated hereunder) not in effect on the Effective Date and which the Canadian L/C Issuer in good faith deems applicable to it, or shall impose upon the Canadian L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Canadian L/C Issuer in good faith deems material to it;


(B)      the issuance of such Letter of Credit would violate one or more policies of the Canadian L/C Issuer applicable to letters of credit generally;


(C)      such Letter of Credit is to be denominated in a currency other than Dollars or Canadian Dollars; or


(D)     a default of any Canadian Revolving Credit Lender’s obligations to fund under Section 2.03(b) exists or any Canadian Appropriate Lender is at such time a Defaulting Lender hereunder, unless the Canadian L/C Issuer has entered into reasonably satisfactory arrangements with the Canadian Borrowers or such Lender to eliminate the Canadian L/C Issuer’s risk with respect to such Lender.


(iv)      The Canadian L/C Issuer shall not amend any Letter of Credit if the Canadian L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.


(v)       The Canadian L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the Canadian L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.


(e)       The Canadian L/C Issuer shall act on behalf of the Canadian Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,  and  the  Canadian  L/C  Issuer  shall  have  all  of  the  benefits  and  immunities (A) provided to  the  Administrative Agent  in  Article IX  with  respect to  any  acts  taken  or omissions suffered by 







the Canadian L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the Canadian L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Canadian L/C Issuer.


(f)       U.S. Overadvances.   If the aggregate Outstanding Amount of the U.S. Revolving Credit Loans exceed the U.S. Borrowing Base (“U.S. Overadvance”) at any time, the excess amount shall be payable by the U.S. Borrowers on demand by the Administrative Agent, but all such excess U.S. Revolving Credit Loans shall nevertheless constitute U.S. Obligations secured by the U.S. Collateral and entitled to all benefits of the Loan Documents.  Unless its authority has been revoked in writing by the Required U.S. Lenders, the Administrative Agent may require the U.S. Revolving Credit Lenders to honor requests for U.S. Overadvance Loans and to forbear from requiring the U.S. Borrowers to cure a U.S. Overadvance, when no other Event of Default is known to the Administrative Agent, as long as (i) the U.S. Overadvance does not continue for more than 45 consecutive days (and no U.S. Overadvance may exist for at least five consecutive days thereafter before further U.S. Overadvance Loans are required), and (ii) the U.S. Overadvance is not known by the Administrative Agent to exceed, when taken together with all Canadian Overadvances and all Protective Advances, the lesser of (x) $15,000,000 and (y) an amount equal to 10% of the Total Borrowing Base.  In no event shall U.S. Overadvance Loans be required that would cause the (A) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any Lender, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans to exceed such U.S. Revolving Credit Lender’s U.S. Revolving Credit Commitment or (B) the Total U.S. Revolving Credit Outstandings to exceed (x) the U.S. Revolving Credit Facility minus (y) the Availability Reserve to the extent attributable to the U.S. Loan Parties in the Agents’ Credit Judgment at such time.  Any funding of a U.S. Overadvance Loan or sufferance of a U.S. Overadvance shall not constitute a waiver by the Administrative Agent or the Lenders of the Event of Default caused thereby.  In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section nor authorized to enforce any of its terms.  At the Administrative Agent’s discretion, U.S. Overadvance Loans made under this Section 2.01(f) may be made in the form of U.S. Swing Line Loans in accordance with Section 2.04(A).


(g)      Canadian Overadvances.   If the aggregate Outstanding Amount of the Canadian Revolving Credit Loans exceed the Canadian Borrowing Base (“Canadian Overadvance”) at any time, the excess amount shall be payable by the Canadian Borrowers on demand by the Administrative Agent, but all such excess Canadian Revolving Credit Loans shall nevertheless constitute Canadian Obligations secured by the Collateral and entitled to all benefits of the Loan Documents.  Unless its authority has been revoked in writing by the Required Canadian  Lenders,  the  Administrative  Agent  may  require  the  Canadian  Revolving  Credit Lenders to honor requests for Canadian Overadvance Loans and to forbear from requiring the Canadian Borrowers to cure a Canadian Overadvance, when no other Event of Default is known to the Administrative Agent, as long as (i) the Canadian Overadvance does not continue for more than 45 consecutive days (and no Canadian Overadvance may exist for at least five consecutive days thereafter before further Canadian Overadvance Loans are required), and (ii) the Canadian Overadvance is not known by the Administrative Agent to exceed $2,500,000 or, when taken together with all U.S. Overadvances and all Protective Advances, the lesser of (x) $15,000,000 and (y) 10% of the Total Borrowing Base.  In 







no event shall Canadian Overadvance Loans be required that would cause the (A) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations, plus  such  Canadian  Revolving  Credit  Lender’s  Applicable  Percentage  of  the  Outstanding Amount of all Canadian Swing Line Loans to exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment or (B) the Total Canadian Revolving Credit Outstandings to exceed (x) the Canadian Revolving Credit Facility minus (y) the Availability Reserve to the extent attributable to the Canadian Loan Parties in the Agents’ Credit Judgment at such time.   Any funding of a Canadian Overadvance Loan or sufferance of a Canadian Overadvance shall not constitute a waiver by the Administrative Agent or the Lenders of the Event of Default caused thereby.  In no event shall any Borrower or other Loan Party be deemed a beneficiary of this Section nor authorized to enforce any of its terms.  At the Administrative Agent’s discretion, Canadian Overadvance Loans made under this Section 2.01(g) may be made in the form of Canadian Swing Line Loans in accordance with Section 2.04(B).


(h)       Protective Advances.  The Agents shall be authorized, in their discretion, at any time that any conditions in Section 4.02 are not satisfied, to make U.S. Revolving Credit Loans (any such U.S. Revolving Credit Loans made pursuant to this Section 2.01(h), “U.S. Protective Advances”) or to cause to be made through UBS Canada as its sub-agent Canadian Revolving Credit Loans (any such Canadian Revolving Credit Loans made pursuant to this Section 2.01(h), “Canadian Protective Advances” and, together with the U.S. Protective Advances, the “Protective Advances”) (a) up to an aggregate amount, when taken together with all U.S. Overadvances and all Canadian Overadvances, the lesser of (x) $15,000,000 and (y) 10% of the Total Borrowing Base outstanding at any time, if the Agents reasonably deem such Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectibility or repayment of Obligations; or (b) to pay any other amounts chargeable to Loan Parties under any Loan Documents, including costs, fees and expenses.   Protective Advances shall constitute Obligations secured by the Collateral and shall be entitled to all of the benefits of the Loan Documents. Immediately upon the making of a Protective Advance, each applicable Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Agents a risk participation in such Protective Advance in an amount equal to the product of such applicable Revolving Credit Lender’s Applicable Percentage times the amount of such Protective Advance.   The Agents’ determination that funding of a Protective Advance is appropriate shall be conclusive.  In no event shall Protective Advances cause the aggregate Outstanding  Amount  of  the  Revolving  Credit  Loans  of  any  Lender,  plus  such  Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans to exceed such Lender's Commitment.









SECTION 2.02.  Borrowings, Conversions and Continuations of Loans.


(a)       Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans or BA Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.   Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or BA Rate Loans or of any conversion of Eurodollar Rate Loans or BA Rate Loans to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as the case may be, (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans that is in excess of $10,000,000, and (iii) on the requested date of any Borrowing of Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans for an amount up to $10,000,000; provided, however, that if the applicable Borrower wishes to request Eurodollar Rate Loans or BA Rate Loans having an Interest Period other than 1, 2, 3 or 6 months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the applicable Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the applicable Lenders.  Each telephonic notice by a Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans or BA Rate Loans shall be in a principal amount of $1,000,000 or Cdn. $1,000,000, as applicable, or a whole multiple of $200,000 or Cdn. $200,000, as applicable, in excess thereof.   Except as provided in Sections 2.03(a) and 2.04(c), each Borrowing of or conversion to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans shall be in a principal amount of $500,000 or Cdn. $500,000, as applicable, or a whole multiple of $100,000 or Cdn. $100,000, as applicable, in excess thereof.  Each Committed Loan Notice  (whether telephonic or written) shall specify (i) whether a Borrower is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans or BA Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) if applicable, the currency of the Borrowing, continuation or conversion.  If a Borrower fails to specify a Type of Loan in a Committed Loan Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans (in the case of U.S. Revolving Credit Loans), Canadian Base Rate Loans (in the case of Canadian Revolving Credit Loans denominated in Dollars) or Canadian Prime Rate Loans (in the case of Canadian Revolving Credit Loans denominated in  Canadian  Dollars).    Any  such  automatic  conversion  to  Base  Rate  







Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans or BA Rate Loans.  If a Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans or BA Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of 1 month.  Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan or a BA Rate Loan.


(b)       Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each applicable Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, described in Section 2.02(a).  In the case of a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds  at  the  Administrative Agent’s  Office not  later  than  1:00  p.m.  on  the  Business  Day specified in the applicable Committed Loan Notice.   Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the applicable Borrower by wire transfer of such funds in accordance with instructions provided (and reasonably acceptable) to the Administrative Agent by the applicable Borrower.


(c)       Any Eurodollar Rate Loan and a BA Rate Loan continued or converted other than on the last day of an Interest Period for such Eurodollar Rate Loan or BA Rate Loan and any continuation or conversion shall be subject to Section 3.05.  During the existence of an Event of Default, (i) upon notice to the Borrower Agent from the Administrative Agent given at the request of the Required U.S. Lenders, no outstanding Loans to the U.S. Borrowers may be converted into, or continued as Eurodollar Rate Loans and (ii) upon notice to the Borrower Agent from the Administrative Agent given at the request of the Required Canadian Lenders, no outstanding Loans to the Canadian Borrowers may be converted into, or continued as Eurodollar Rate Loans or BA Rate Loans.


(d)       The Administrative Agent shall promptly notify the applicable Borrower and the applicable Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans and BA Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans are outstanding, the Administrative Agent shall notify the applicable Borrower and the applicable Lenders of any change in UBS AG, Stamford Branch’s or UBS Canada’s, as applicable, base rate or prime rate used in determining the Base Rate, Canadian Base Rate or Canadian Prime Rate, as applicable, promptly following the announcement of such change.


(e)    After giving effect to all Revolving Credit Borrowings, all conversions of







Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than ten Interest Periods in effect in respect of the Revolving Credit Facility.


SECTION 2.03.  Letters of Credit   Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension Letters of Credit.


(a)       (i)  Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower.   Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 2:00 p.m. at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the applicable L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may require. Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.


(ii)      Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the applicable L/C Issuer has received written notice from any Appropriate Lender under the applicable Facility, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each U.S. Letter of Credit, each 
U.S. Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the U.S. L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage times the amount of such Letter of Credit.  Immediately upon the issuance of each Canadian Letter of Credit, each Canadian Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Canadian L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage times the Outstanding Amount of such Letter of Credit.


(iii)    If a Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the applicable L/C Issuer, a Borrower shall not be required to make a specific request to such L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders under the applicable Facility shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required U.S. Lenders (in the case of the U.S. Letters of Credit) or the Required Canadian Lenders (in the case of Canadian Letters of Credit) have elected not to permit such extension or (2) from the Administrative Agent, any Appropriate Lender under the applicable Facility or a Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the applicable L/C Issuer not to permit such extension.


(iv)      Promptly  after  its  delivery  of  any  Letter  of  Credit  or  any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.


(b)       Drawings  and  Reimbursements; Funding  of  Participations.   (i)   Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the applicable Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the applicable Borrower fails to so reimburse such L/C Issuer by such time, the Administrative Agent 







shall promptly notify each Appropriate Lender under the applicable Facility of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable Percentage thereof. In such event, the applicable Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans (in the case of U.S. Letters of Credit) or Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable (in the case of Canadian Letters of Credit) to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments under the applicable Facility and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.  In the case of a Letter of Credit denominated in a currency other than Dollars, the applicable Borrower shall reimburse the applicable L/C Issuer in such currency, unless (A) such L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, such Borrower shall have notified such L/C Issuer promptly following receipt of the notice of drawing that such Borrower will reimburse such L/C Issuer in Dollars.  In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in a currency other than Dollars, the applicable L/C Issuer shall notify the applicable Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof.


(ii)       Each Appropriate Lender under the applicable Facility shall upon any notice pursuant to Section 2.03(b)(i) make funds available to the Administrative Agent for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(b)(iii), each Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, to the applicable Borrower in such amount.  The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.


(iii)     With  respect  to  any  Unreimbursed  Amount  that  is  not  fully refinanced by a Revolving Credit Borrowing of Base Rate Loans (or Canadian Base Rate Loans or  Canadian  Prime  Rate  Loans,  as  the  case  may  be)  because  the  conditions  set  forth  in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each  Appropriate  Lender’s  payment  to  the  Administrative  Agent  for  the  account  of  the applicable L/C Issuer pursuant to Section 2.03(b)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.









(iv)      Until  each  applicable  Appropriate  Lender  funds  its  Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(b) to reimburse the applicable L/C Issuer for any amount drawn under any applicable Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.


(v)       Each Revolving Credit Lender’s obligation to  make Revolving Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(b), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(b) is subject to the conditions set forth in Section 4.02 (other than delivery by the applicable Borrower of a Committed Loan Notice ).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of a Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.


(vi)    If any Appropriate Lender fails to make available to the Administrative Agent for the account of an L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(b) by the time specified in Section 2.03(b)(ii), the applicable L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of an L/C Issuer submitted to any Appropriate Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(b)(vi) shall be conclusive absent manifest error.


(c)       Repayment of Participations.  (i)   At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Appropriate Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(b), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related  Unreimbursed  Amount  or  interest  thereon  (whether  directly  from  a  Borrower  or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.


(ii)       If  any  payment  received  by  the  Administrative  Agent  for  the account of an L/C Issuer pursuant to Section 2.03(b)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by an L/C Issuer in its discretion), each Appropriate Lender under the applicable Facility shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand 







of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Overnight Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.


(d)       Obligations Absolute.  The obligation of the Borrowers to reimburse the applicable L/C Issuers for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:


(i)    any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other Loan Document;


(ii)       the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;


(iii)     any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;


(iv)      any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the applicable L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, interim receiver, monitor or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or


(v)       any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its Subsidiaries.


The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will immediately notify the applicable L/C Issuer.  Each Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.


(e)       Role of L/C Issuer.  Each Lender and each Borrower agrees that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of 







Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders under the  applicable  Facility  or  the  Required  U.S.  Lenders  or  Required  Canadian  Lenders,  as applicable;  (ii) any  action  taken  or  omitted  in  the  absence  of  gross  negligence  or  willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or  instrument related to any Letter of  Credit or  Issuer  Document.   Each Borrower  hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude such Borrowers’ pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.   None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(d); provided, however, that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuers may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuers shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.


(f)        Cash Collateral.  Upon the request of the Administrative Agent, (i) if an L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the applicable Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all applicable L/C Obligations.  Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.  For purposes of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver or hypothecate to the Collateral Agent, for the benefit of the applicable L/C Issuers and the Appropriate Lenders, as collateral for the L/C Obligations, cash or deposit account balances in an amount of cash equal to 102% of the amount of the aggregate Outstanding Amount of all L/C Obligations pursuant to documentation in form and substance reasonably satisfactory to the Collateral Agent and the applicable L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. Each Borrower hereby grants to the Collateral Agent, for the benefit of the applicable L/C Issuer and the Appropriate Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts under the exclusive control of the Collateral Agent.  If at any time the Collateral 







Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Collateral Agent or that the total amount of such funds is less than 102% of the amount of the aggregate Outstanding Amount of all applicable L/C Obligations, the applicable Borrower will, forthwith upon demand by the Collateral Agent, pay to the Collateral Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Collateral Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds  are  on  deposit as  Cash  Collateral, such  funds  shall be  applied, to  the  extent permitted under applicable Laws, to reimburse the applicable L/C Issuer.


(g)       Applicability of ISP and UCP.  Unless otherwise expressly agreed by an L/C Issuer and the applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.


(h)       Letter of Credit Fees.  The U.S. Borrowers shall pay to the Administrative Agent for the account of each U.S. Appropriate Lender in accordance with its Applicable Percentage, and the Canadian Borrowers shall pay to the Administrative Agent for the account of each Canadian Appropriate Lender in accordance with its Applicable Percentage, a Letter of Credit fee (the “Letter of Credit Fee”) for each U.S. Letter of Credit or Canadian Letter of Credit, as applicable, equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due and payable on the first Business Day of each April, July, October and January, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any  quarter, the  daily  amount available to  be  drawn  under each Letter of  Credit  shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.   Notwithstanding anything to the contrary contained herein, any past-due Letter of Credit Fees shall accrue at the Default Rate.


(i)        Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The applicable Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate of 0.125% per annum, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the first Business Day of each April, July, October and January in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the applicable Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, 







presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect.   Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.


(j)        Conflict with Issuer Documents.  In the event of any conflict between the terms of any of the Loan Documents and the terms of any Issuer Document, the terms of the Loan Documents shall control.


(k)       Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary of a Borrower, each applicable Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit.   Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.


SECTION 2.04.  Swing Line Loans.


(A)      (a)  The U.S. Swing Line.  Subject to the terms and conditions set forth herein, the U.S. Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04(A), to make loans (each such loan, a “U.S. Swing Line Loan”) in Dollars to the Specified U.S. Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the U.S. Swing Line Sublimit, notwithstanding the fact that such U.S. Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of U.S. Revolving Credit Loans and U.S. L/C Obligations of the Lender acting as U.S. Swing Line Lender, may exceed the amount of such Lender’s U.S. Revolving Credit Commitment; provided, however, that after giving effect to any U.S. Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the lesser of (x) the Revolving Credit Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of any Lender, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such U.S. Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all U.S. Swing Line Loans shall not exceed such U.S. Revolving Credit Lender’s  U.S.  Revolving  Credit  Commitment  and  (iii) the  Total  U.S.  Revolving  Credit Outstandings, plus any Additional Canadian Revolving Credit Outstandings, shall not exceed the lesser of (x) the U.S. Revolving Credit Facility and (y) the U.S. Borrowing Base; and provided that the Specified U.S. Borrower shall not use the proceeds of any U.S. Swing Line Loan to refinance any outstanding U.S. Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Specified U.S. Borrower may borrow under this Section 2.04(A), prepay under Section 2.05, and reborrow under this Section 2.04(A).  Each U.S. Swing Line Loan shall bear interest only at a rate based on the Base Rate.   Immediately upon the making of a U.S. Swing Line Loan, each U.S. Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the U.S. Swing Line Lender a risk participation in such U.S. Swing Line Loan in an amount equal to the product of such U.S. Revolving Credit Lender’s Applicable Percentage times the amount of such U.S. Swing Line Loan.









(b)       Borrowing Procedures.  Each U.S. Swing Line Borrowing shall be made upon the Specified U.S. Borrower’s irrevocable notice to the U.S. Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the U.S. Swing Line Lender and the Administrative Agent not later than 12:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the U.S. Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Specified  U.S.  Borrower.    Promptly  after  receipt  by  the  U.S.  Swing  Line  Lender  of  any telephonic Swing Line Loan Notice, the U.S. Swing Line Lender will confirm with the Administrative Agent  (by  telephone or  in  writing)  that  the  Administrative Agent  has  also received such Swing Line Loan Notice and, if not, the U.S. Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the U.S. Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any U.S. Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed U.S. Swing Line Borrowing (A) directing the U.S. Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(A)(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the U.S. Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Specified U.S. Borrower. If a U.S. Swing Line Loan is requested at any time when any U.S. Appropriate Lender is a Defaulting Lender hereunder, so long as no Default or Event of Default shall have occurred and be continuing, such Defaulting Lender’s Applicable Percentage of such requested U.S. Swing Line Loan shall be automatically reallocated among the U.S. Appropriate Lenders that are not Defaulting Lenders in accordance with their respective Applicable Percentages but in any event not in excess of any non-Defaulting Lender’s U.S. Revolving Credit Commitment. To the extent that all or any portion of any Defaulting Lender’s Applicable Percentage of any U.S. Swing Line Loan requested hereunder cannot be reallocated to the non-Defaulting Lenders pursuant to the immediately preceding sentence, the U.S. Swing Line Lender shall not be obligated to fund such amount of any U.S. Swing Line Loan requested hereunder.


(c)       Refinancing of U.S. Swing Line Loans.  (i)  The U.S. Swing Line Lender at any time in its sole and absolute discretion (but at least once per week) may request, on behalf of  the Specified U.S.  Borrower  (which hereby irrevocably authorizes the U.S.  Swing  Line Lender to so request on its behalf), that each U.S. Appropriate Lender make a Base Rate Loan in an amount equal to the sum of such Lender’s Applicable Percentage of the amount of U.S. Swing Line Loans then outstanding and any Defaulting Lender’s Applicable Percentage of such U.S. Swing Line Loans that has been reallocated to such Lender pursuant to Section 2.04(A)(b).  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the U.S. Revolving Credit Facility and the conditions set forth in Section 4.02.   The U.S. Swing Line Lender shall furnish the Specified U.S. Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each U.S. Appropriate Lender shall make an amount equal to the sum of such Lender’s Applicable 







Percentage of the amount specified in such Committed Loan Notice and any Defaulting Lender’s Applicable Percentage of such amount that has  been  reallocated  to  such  Lender  pursuant  to  Section  2.04(A)(b)  available  to  the Administrative Agent in immediately available funds for the account of the U.S. Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(A)(c)(ii), each U.S. Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Specified U.S. Borrower in such amount.  The Administrative Agent shall remit the funds so received to the U.S. Swing Line Lender.


(ii)       If for any reason any U.S. Swing Line Loan cannot be refinanced by such a U.S. Revolving Credit Borrowing in accordance with Section 2.04(A)(c)(i), the request for Base Rate Loans submitted by the U.S. Swing Line Lender as set forth herein shall be deemed to be a request by the U.S. Swing Line Lender that each of the U.S. Revolving Credit Lenders fund its risk participation in the relevant U.S. Swing Line Loan and each U.S. Revolving Credit Lender’s payment to the Administrative Agent for the account of the U.S. Swing Line Lender  pursuant  to  Section 2.04(A)(c)(i)  shall  be  deemed  payment  in  respect  of  such participation.


(iii)     If any U.S. Appropriate Lender fails to make available to the Administrative Agent for the account of the U.S. Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(A)(c) by the time specified in Section 2.04(A)(c)(i), the U.S. Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the U.S. Swing Line Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the U.S. Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the U.S. Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.


(iv)     If any U.S. Appropriate Lender fails to make available to the Administrative Agent for the account of the U.S. Swing Line Lender any amount required to be paid by it pursuant to Section 2.04(A)(c)(iii), the U.S. Swing Line Lender shall be entitled, at its sole and absolute discretion, to recover from the Borrowers (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the U.S. Swing Line Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar  fees  customarily  charged  by  the  U.S.  Swing  Line  Lender  in  connection  with  the foregoing.


(v)      Each U.S. Revolving Credit Lender’s obligation to make U.S. Revolving Credit Loans or to purchase and fund risk participations in U.S. Swing Line Loans pursuant to this Section 2.04(A)(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the U.S. Swing Line Lender, any Borrower or any other Person for any reason 







whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each U.S. Revolving Credit Lender’s obligation to make U.S. Revolving Credit Loans pursuant to this Section 2.04(A)(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Loans, together with interest as provided herein.


(d)       Repayment of Participations.  (i) At any time after any U.S. Appropriate Lender has purchased and funded a risk participation in a U.S. Swing Line Loan, if the U.S. Swing Line Lender receives any payment on account of such Swing Line Loan, the U.S. Swing Line Lender will distribute to such Appropriate Lender its Applicable Percentage thereof in the same funds as those received by the U.S. Swing Line Lender.


(ii)       If any payment received by the U.S. Swing Line Lender in respect of principal or interest on any U.S. Swing Line Loan is required to be returned by the U.S. Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the U.S. Swing Line Lender in its discretion), each U.S. Appropriate Lender shall pay to the U.S. Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Overnight Rate.   The Administrative Agent will make such demand upon the request of the U.S. Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the U.S. Obligations and the termination of this Agreement.


(e)       Interest for Account of U.S. Swing Line Lender.  The U.S. Swing Line Lender shall be responsible for invoicing the Specified U.S. Borrower for interest on the U.S. Swing Line Loans.   Until each U.S. Appropriate Lender funds its Base Rate Loan or risk participation pursuant to  this  Section 2.04(A)  to  refinance  such  Revolving Credit  Lender’s Applicable Percentage of any U.S. Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the U.S. Swing Line Lender.


(f)        Payments  Directly  to  U.S.  Swing  Line  Lender.    The  Specified  U.S. Borrower shall make all payments of principal and interest in respect of the U.S. Swing Line Loans directly to the U.S. Swing Line Lender.


(B)      (a)       The Canadian Swing Line.  Subject to the terms and conditions set forth herein, the Canadian Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04(B), to make loans (each such loan, a “Canadian Swing Line Loan”) in Dollars and Canadian Dollars to the Canadian Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Canadian Swing Line Sublimit, notwithstanding the fact that such Canadian Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Canadian Revolving Credit Loans and Canadian L/C Obligations of the Lender acting as Canadian Swing Line Lender, may exceed the amount of such Lender’s Canadian Revolving Credit Commitment; provided, however, that after giving effect to any Canadian Swing Line Loan, (i) the 







Total Revolving Credit Outstandings shall not exceed the lesser of (x) the Revolving Credit Facility and (y) the Total Borrowing Base at such time, (ii) the aggregate Outstanding Amount of the Canadian Revolving Credit Loans of any Canadian Revolving Credit Lender, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations, plus such Canadian Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Canadian Swing Line Loans shall not exceed such Canadian Revolving Credit Lender’s Canadian Revolving Credit Commitment and (iii) the Total Canadian Revolving Credit Outstandings shall not exceed the lesser of (x) the Canadian Revolving Credit Facility and (y) the Canadian Borrowing Base; and provided that the Canadian Borrowers shall not use the proceeds of any Canadian Swing Line Loan to refinance any outstanding Canadian Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Canadian Borrowers may borrow under this Section 2.04(B), prepay under Section 2.05, and reborrow under this Section 2.04(B).   Each Canadian Swing Line Loan denominated in Dollars shall bear interest only at a rate based on the Canadian Base Rate.  Each Canadian Swing Line Loan denominated in Canadian Dollars shall bear interest only at a rate based on the Canadian Prime Rate. Immediately upon the making of a Canadian Swing Line Loan, each Canadian Appropriate Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Canadian Swing Line Lender a risk participation in such Canadian Swing Line Loan in an amount equal to the product of such Canadian Revolving Credit Lender’s Applicable Percentage times the amount of such Canadian Swing Line Loan.


(b)       Borrowing Procedures.   Each Canadian Swing Line Borrowing shall be made upon any Canadian Borrower’s irrevocable notice to the Canadian Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Canadian Swing Line Lender and the Administrative Agent not later than 12:00 p.m. on the requested borrowing date, and shall specify (i) the amount and currency to be borrowed and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Canadian Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the applicable Canadian Borrower.   Promptly after receipt by the Canadian Swing Line Lender of any telephonic Swing Line Loan Notice, the Canadian Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Canadian Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Canadian Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Canadian Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Canadian Swing Line Borrowing (A) directing the Canadian Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(B)(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Canadian Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the applicable Canadian Borrower.  If a Canadian Swing Line Loan is requested at any time when any Canadian Appropriate Lender is a Defaulting Lender hereunder, such Defaulting Lender’s Applicable Percentage of such requested Canadian Swing Line Loan shall be automatically reallocated among the Canadian Appropriate 







Lenders that are not Defaulting Lenders in accordance with their respective Applicable Percentages but in any event not in excess of any non-Defaulting Lender’s Canadian Revolving Credit Commitment.  To the extent that all or any portion of any Defaulting Lender’s Applicable Percentage of any Canadian Swing Line Loan requested hereunder cannot be reallocated to the non-Defaulting Lenders pursuant to the immediately preceding sentence, the Canadian Swing Line Lender shall not be obligated to fund such amount of any Canadian Swing Line Loan requested hereunder.


(c)       Refinancing of Canadian Swing Line Loans.  (i)  The Canadian Swing Line Lender at any time in its sole and absolute discretion (but at least once per week) may request, on behalf of the Canadian Borrowers (which hereby irrevocably authorize the Canadian Swing Line Lender to so request on their behalf), that each Canadian Appropriate Lender make a Canadian Base Rate Loan or Canadian Prime Rate Loan, as applicable, in an amount equal to the sum of such Lender’s Applicable Percentage of the amount of Canadian Swing Line Loans then outstanding and any Defaulting Lender’s Applicable Percentage of such Canadian Swing Line Loans that has been reallocated to such Lender pursuant to Section 2.04(B)(b).   Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Canadian Base Rate Loans and Canadian Prime Rate Loans, but subject to the unutilized portion of the Canadian Revolving Credit Facility and the conditions set forth in Section 4.02.  The Canadian Swing Line Lender shall furnish the Canadian Borrowers with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.   Each Canadian Appropriate Lender shall make an amount equal to the sum of such Lender’s Applicable Percentage of the amount specified in such Committed Loan Notice and any Defaulting Lender’s Applicable Percentage of such amount that has been reallocated to such Lender pursuant to Section 2.04(B)(b) available to the Administrative Agent in immediately available funds for the account of the Canadian Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section
2.04(B)(c)(ii), each Canadian Appropriate Lender that so makes funds available shall be deemed to have made a Base Rate Loan or Canadian Prime Rate Loan, as the case may be, to the applicable Canadian Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Canadian Swing Line Lender.


(ii)    If  for  any  reason  any  Canadian  Swing  Line  Loan  cannot  be refinanced  by  such  a  Canadian  Revolving  Credit  Borrowing  in  accordance  with  Section
2.04(B)(c)(i),  the  request  for  Canadian  Base  Rate  Loans  or  Canadian  Prime  Rate  Loans submitted by the Canadian Swing Line Lender as set forth herein shall be deemed to be a request by the Canadian Swing Line Lender that each of the Canadian Revolving Credit Lenders fund its risk participation in the relevant Canadian Swing Line Loan and each Canadian Revolving Credit Lender’s payment to the Administrative Agent for the account of the Canadian Swing Line Lender  pursuant  to  Section 2.04(B)(c)(i)  shall  be  deemed  payment  in  respect  of  such participation.


(iii)    If any Canadian Appropriate Lender fails to make available to the
Administrative Agent for the account of the Canadian Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(B)(c) by the time 







specified in Section 2.04(B)(c)(i), the Canadian Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Canadian Swing Line Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Canadian Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Canadian Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.


(iv)      If any Canadian Appropriate Lender fails to make available to the Administrative Agent for the account of the Canadian Swing Line Lender any amount required to be paid by it pursuant to Section 2.04(B)(c)(iii), the Canadian Swing Line Lender shall be entitled, at its sole and absolute discretion, to recover from the Borrowers (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Canadian Swing Line Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Canadian Swing Line Lender in connection with the foregoing.


(v)      Each Canadian Revolving Credit Lender’s obligation to make Canadian Revolving Credit Loans or to purchase and fund risk participations in Canadian Swing Line Loans pursuant to this Section 2.04(B)(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Canadian Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Canadian Revolving Credit Lender’s obligation to make Canadian Revolving Credit Loans pursuant to this Section 2.04(B)(c) is subject to the conditions set forth in Section 4.02.   No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Loans, together with interest as provided herein.


(d)       Repayment  of  Participations.    (i) At  any  time  after  any  Canadian Appropriate Lender has purchased and funded a risk participation in a Canadian Swing Line Loan, if the Canadian Swing Line Lender receives any payment on account of such Swing Line Loan, the Canadian Swing Line Lender will distribute to such Appropriate Lender its Applicable Percentage thereof in the same funds as those received by the Canadian Swing Line Lender.


(ii)       If any payment received by the Canadian Swing Line Lender in respect of principal or interest on any Canadian Swing Line Loan is required to be returned by the Canadian Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Canadian Swing Line Lender in its discretion), each Canadian Appropriate Lender shall pay to the Canadian Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Canadian Prime Rate.  The 







Administrative Agent will make such demand upon the request of the Canadian Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Canadian Obligations and the termination of this Agreement.


(e)       Interest for  Account of  Canadian Swing  Line Lender.   The Canadian Swing Line Lender shall be responsible for invoicing the Canadian Borrowers for interest on the Canadian Swing Line Loans.  Until each Canadian Appropriate Lender funds its Canadian Base Rate Loan or Canadian Prime Rate Loan, as the case may be, or risk participation pursuant to this Section 2.04(B) to refinance such Revolving Credit Lender’s Applicable Percentage of any Canadian Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Canadian Swing Line Lender.


(f)        Payments  Directly  to  Canadian  Swing  Line  Lender.    The  Canadian Borrowers shall make all payments of principal and interest in respect of the Canadian Swing Line Loans directly to the Canadian Swing Line Lender.


SECTION 2.05.  Prepayments.


(a)       Optional.  (i)  Subject to the last sentence of this Section 2.05(a)(i), the Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 12:00 p.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans or BA Rate Loans and (2) one Business Day prior to any date of prepayment of Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans; (B) any prepayment of Eurodollar Rate Loans or BA Rate Loans shall be in a principal amount of $1,000,000 or Cdn. $1,000,000, as applicable, or a whole multiple of $200,000 or Cdn. $200,000, as applicable, in excess thereof; and (C) any prepayment of Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Rate Loans shall be in a principal amount of $500,000 or Cdn. $500,000, as applicable, or a whole multiple of $100,000 or Cdn. $100,000, as applicable, in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans or BA Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility).  If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan or a BA Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.









(ii)       The applicable Borrower may, upon notice to the applicable Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that  (A)  such  notice  must  be  received  by  the  applicable  Swing  Line  Lender  and  the Administrative Agent not later than 12:00 p.m. on the date of the prepayment.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by a Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.


(b)       Mandatory. (i)  If for any reason the Total Revolving Credit Outstandings at any time exceed the lesser of (x) the Total Borrowing Base at such time (except as a result of Overadvance Loans or Protective Advances permitted under Sections 2.01(f), (g) or (h)) and (y) the Revolving Credit Facility at such time, the Borrowers shall immediately prepay their respective Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize their respective L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.  If for any reason the Total U.S. Revolving Credit Outstandings at any time exceed the lesser of (x) the U.S. Borrowing Base at such time (except to the extent constituting  U.S.  Overadvance  Loans  permitted  under  Section  2.01(f))  and  (y)  the  U.S. Revolving Credit Facility at such time, the U.S. Borrowers shall immediately prepay U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Borrowings and/or Cash Collateralize the U.S. L/C Obligations (other than the U.S. L/C Borrowings) in an aggregate amount equal to such excess.  If for any reason (other than negative fluctuations in Dollar Equivalents of Canadian Dollars) the Total Canadian Revolving Credit Outstandings at any time exceed the lesser of (x) the Canadian Borrowing Base at such time (except to the extent constituting Canadian Overadvance Loans permitted under Section 2.01(g)) and (y) the Canadian Revolving Credit Facility at such time, the Canadian Borrowers shall immediately prepay Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Borrowings and/or Cash Collateralize the Canadian L/C Obligations (other than the Canadian L/C Borrowings) in an aggregate amount equal to such excess.


(ii)       If, as a result of any negative fluctuations in the Dollar Equivalent of Canadian Dollars, the Total Canadian Revolving Credit Outstandings exceeds 110% of the aggregate  amount  of  the  Canadian  Revolving  Credit  Commitments  as  then  in  effect,  the Canadian Borrowers shall, if requested (through the Administrative Agent) by the Required Canadian Lenders prepay the Canadian Revolving Credit Loans (or Cash Collateralize the Canadian Letters of Credit) within three (3) Business Days following such Borrowers’ receipt of such request in such amounts as shall be necessary so that after giving effect thereto the Total Canadian Revolving Credit Outstandings does not exceed the Canadian Revolving Credit Commitments.


SECTION 2.06.  Termination or Reduction of Commitments.


(a)     Optional.   The Specified U.S. Borrower may, upon notice to the Administrative Agent, terminate the U.S. Revolving Credit Facility, the U.S. Letter of Credit Sublimit, the U.S. Swing Line Sublimit, or from time to time permanently reduce the U.S. Revolving Credit Facility, the U.S. Letter of Credit Sublimit, or the U.S. Swing Line Sublimit; and the Canadian Borrowers may, upon notice to the Administrative Agent, terminate the Canadian Revolving Credit Facility, the Canadian Letter of Credit Sublimit or the Canadian Swing Line Sublimit, or from time to time permanently reduce the Canadian Revolving Credit Facility, the Canadian Letter of Credit Sublimit or the Canadian Swing Line Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 2:00 p.m. two Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers shall not terminate or reduce (A) the U.S. Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total U.S. Revolving Credit Outstandings would exceed the U.S. Revolving Credit Facility, (B) the U.S. Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of U.S. L/C Obligations not fully Cash Collateralized hereunder would exceed the U.S. Letter of Credit Sublimit, (C) the U.S. Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of U.S. Swing Line Loans would exceed the U.S. Swing Line Sublimit, (D) the Canadian Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Canadian Revolving Credit Outstandings would exceed the Canadian Revolving Credit Facility, (E) the Canadian Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of Canadian L/C Obligations not fully Cash Collateralized hereunder would exceed the Canadian Letter of Credit Sublimit, (E) the Canadian Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Canadian Swing Line Loans would exceed the Canadian Swing Line Sublimit or (F) the U.S. Revolving Credit Facility while the Canadian Revolving Credit Facility remains in effect.


(b)       Mandatory.  (i)  If after giving effect to any reduction or termination of U.S. Revolving Credit Commitments under this Section 2.06, the U.S. Letter of Credit Sublimit or the U.S. Swing Line Sublimit exceeds the U.S. Revolving Credit Facility at such time, the U.S. Letter of Credit Sublimit and/or the U.S. Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.


(ii)       If after giving effect to any reduction or termination of Canadian Revolving Credit Commitments under this Section 2.06, the Canadian Letter of Credit Sublimit or the Canadian Swing Line Sublimit exceeds the Canadian Revolving Credit Facility at such time, the Canadian Letter of Credit Sublimit and/or the Canadian Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.









(c)     Application of Commitment Reductions; Payment of Fees.    The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of any Letter of Credit Sublimit, any Swing Line Sublimit or any Revolving Credit Commitment under this Section 2.06.    Upon any reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Appropriate Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount.  All fees in respect of the applicable Revolving Credit Facility accrued until the effective date of any termination of such Revolving Credit Facility shall be paid on the effective date of such termination.


SECTION 2.07.  Repayment of Loans.









(a)      Revolving Credit Loans.   The U.S. Borrowers shall repay to the U.S. Revolving Credit Lenders on the Maturity Date for the U.S. Revolving Credit Facility the aggregate principal amount of all U.S. Revolving Credit Loans outstanding on such date.  The Canadian Borrowers shall repay to the Canadian Revolving Credit Lenders on the Maturity Date for the Canadian Revolving Credit Facility the aggregate principal amount of all Canadian Revolving Credit Loans outstanding on such date.


(b)       Swing Line Loans.  The U.S. Borrowers shall repay each U.S. Swing Line Loan on the Maturity Date for the U.S. Revolving Credit Facility. The Canadian Borrowers shall repay each Canadian Swing Line Loan on the Maturity Date for the Canadian Revolving Credit Facility.




SECTION 2.08.  Interest.


(a)       Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each BA Rate Loan under the Canadian Revolving Credit Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the BA Rate for such Interest Period plus the Applicable Rate; (iii) each Base Rate Loan under  a  Facility  shall  bear  interest  on  the  outstanding  principal  amount  thereof  from  the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; (iv) each Canadian Base Rate Loan under the Canadian Revolving Credit Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Base Rate plus the Applicable Rate; (v) each Canadian Prime Rate Loan under the Canadian Revolving Credit Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Prime Rate plus the Applicable Rate; (vi) each U.S. Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for the Revolving Credit Facility; and (vii) each Canadian Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Canadian Base Rate (for Canadian Swing Line Loans denominated in Dollars) or the Canadian Prime Rate (for Canadian Swing Line Loans denominated in Canadian Dollars) plus the Applicable Rate for the Revolving Credit Facility.


(b)       (i)  If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then  unless  otherwise agreed  by  the  Required  Lenders,  the  interest  on  such  amount  shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.


(ii)      If any amount (other than principal of any Loan) payable by a Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.









(iii)     Accrued  and  unpaid  interest  on  past  due  amounts  (including interest on past due interest) shall be due and payable upon demand.


(c)       Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall  be  due  and  payable in  accordance with the  terms  hereof before and  after judgment, and before and after the commencement of any proceeding under any Debtor Relief
Law.


and (j):


SECTION 2.09.  Fees.    In addition to certain fees described in Sections 2.03(i)


(a)       Commitment Fee.   The U.S. Borrowers shall pay to the Administrative Agent for the account of each U.S. Appropriate Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Commitment Fee Rate divided by three hundred and sixty (360) days and multiplied by the number of days in the fiscal quarter and then multiplied by the amount, if any, by which the Average Revolving Credit Facility Balance with respect to the U.S. Revolving Credit Facility for such fiscal quarter (or portion thereof that the U.S. Revolving Credit Commitments are in effect) is less than the aggregate amount of the U.S. Revolving Credit Commitments; provided that, if the U.S. Revolving Credit Commitments are terminated on a day other than the first day of a fiscal quarter, then any such fee payable for the fiscal quarter in which termination shall occur shall be paid on the effective date of such termination and shall be based upon the number of days that have elapsed during such period. The Canadian Borrowers shall pay to the Administrative Agent for the account of each Canadian Appropriate Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Commitment Fee Rate divided by three hundred and sixty (360) days and multiplied by the number of days in the fiscal quarter and then multiplied by the amount, if any, by which the Average Revolving Credit Facility Balance with respect to the Canadian Revolving Credit Facility for such fiscal quarter (or portion thereof that the Canadian Revolving Credit Commitments are in effect) is less than the aggregate amount of the Canadian Revolving Credit Commitments; provided that, if the Canadian Revolving Credit Commitments are terminated on a day other than the first day of a fiscal quarter, then any such fee payable for the fiscal quarter in which termination shall occur shall be paid on the effective date of such termination and shall be based upon the number of days that have elapsed during such period. The commitment fees shall be due and payable quarterly in arrears on the first Business Day of each April, July, October and January, commencing with the first such date to occur after the Effective Date, on the last day of the Availability Period for the Revolving Credit Facility (and, if applicable, thereafter on demand).  The commitment fee shall be calculated quarterly in arrears and if there is any change in the Applicable Commitment Fee Rate during any quarter, the daily amount shall be computed and multiplied by the Applicable Commitment Fee Rate for each period during which such Applicable Commitment Fee Rate was in effect, with effect from the date of the change in such rate pursuant to the definition of Applicable Commitment Fee Rate.  The commitment fee shall accrue at all times, including at any time during which one or more of the conditions in Article IV is not met.


(b)      Other Fees.   (i)   The Borrowers shall pay to the Bookrunner, the Administrative Agent, the Collateral Agent and the Co-Collateral Agent for their own respective accounts fees in the amounts and at the times specified in the applicable Fee Letter.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


(ii)       The Borrowers shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


SECTION 2.10.  Computation of Interest and Fees; Retroactive Adjustments of
Applicable Rate.


(a)       All computations of interest for Base Rate Loans, Canadian Base Rate Loans  and  Canadian  Prime  Rate  Loans  when  the  Base  Rate,  Canadian  Base  Rate  and/or Canadian Prime Rate is determined by UBS AG, Stamford Branch’s or UBS Canada’s, as applicable, “prime rate” or “base rate”, and BA Rate Loans shall be made on the basis of a year of 365/366 days and actual days elapsed.  All other computations of interest and fees shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.  For the purposes of the Interest Act (Canada), (i) whenever any interest or fees under this Agreement or any other Loan Document is calculated using a rate based on a year of 360 days, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the calendar year commencing on the date such calculation is being made, and (z) divided by 360, (ii) the principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement, and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields.


(b)       If, as a result of any restatement of or other adjustment to the financial statements of the Specified U.S. Borrower or for any other reason, the Borrowers or the Lenders determine that (i) Average Availability as calculated by a Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Average Availability would have resulted in higher pricing  for  such  period,  the  applicable  Borrowers  shall  immediately  and  retroactively  be obligated to pay to the Administrative Agent for the account of the applicable Lenders or L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any such Borrower under any Debtor Relief Laws, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.03(b)(iii), 2.03(h) or 2.08(b) or under  Article  VIII.     The  Borrowers’  obligations  under  this  paragraph  shall  survive  the termination  of  the  Aggregate  Commitments  and  the  repayment  of  all  other  Obligations hereunder.


SECTION 2.11.  Evidence of Debt.









(a)       The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the 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 Credit Extensions 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 any Borrower hereunder to pay any amount owing with respect to any 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 applicable Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.


(b)       In addition to the accounts and records referred to in Section 2.11(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 Letters of Credit and Swing Line Loans.  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 2.12.  Payments Generally; Administrative Agent’s Clawback.


(a)       General.   All payments to  be  made by  the  Borrowers  shall be  made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the Appropriate Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars or Canadian Dollars, as the case may be, and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Appropriate Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall, in the Administrative Agent’s sole discretion, be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Except as otherwise provided, if any payment to be made by a Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.  Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.


(b)       (i)  Funding by Lenders; Presumption by Administrative Agent.   Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans or BA Rate Loans (or, in the case of any Borrowing of Base 







Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by a Borrower, the interest rate applicable to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable.  If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.


(ii)      Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from a Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the applicable L/C Issuer, as the case may be, the amount due.  In such event, if such Borrower has not in fact made such payment, then each of the Appropriate Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate.


A notice of the Administrative Agent to any Lender or a Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.


(c)       Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 







IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.


(d)       Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).


(e)       Funding Source.  Nothing herein shall be deemed to obligate any Lender to  obtain  the  funds  for  any  Loan  in  any  particular  place  or  manner  or  to  constitute  a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.


(f)        Insufficient Funds.  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (in each case with respect to the applicable Facility or Facilities) (i) first, toward payment of interest and fees then due hereunder (other than in respect of Bank Product Debt and Excess Bank Product Debt), ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (ii) second, toward payment of the principal amount of any Overadvance Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, (iii) third, toward payment of principal, L/C Borrowings and other obligations in respect of  Bank  Product  Debt  then  due  hereunder,  ratably  among  the  parties  entitled  thereto  in accordance with the amounts of principal, L/C Borrowings and Bank Product Debt then due to such parties and (iv) fourth, toward payment of obligations in respect of Excess Bank Product Debt then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of Excess Bank Product Debt then due to such parties; provided, however, that the proceeds from the foreclosure of any Collateral shall be applied as set forth in the Intercreditor Agreement.




SECTION 2.13.  Sharing  of  Payments  by  Lenders.    If  any  Lender  shall,  by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations in respect 







of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time 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 subparticipations in L/C Obligations and Swing Line Loans 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 Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be; provided that prior to the CAM Exchange Date, each Lender shall only purchase participations in Loans, L/C Obligations and Swing Line Loans under the Facility with respect to which they hold a Commitment; and provided further that:


(i)        if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations 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 (A) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to a Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).


Each Loan 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 such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.


SECTION 2.14.  Nature of Obligations.


(a)       The U.S. Borrowers agree that all U.S. Obligations of each U.S. Borrower under or in respect of this Agreement or any other Loan Document shall be joint and several obligations of all the U.S. Borrowers.


(b)       Each U.S. Borrower waives presentment to, demand of payment from and protest to the other U.S. Borrowers of any of the U.S. Obligations, and also waives notice of acceptance of its Obligations and notice of protest for nonpayment.  The Obligations of a U.S. Borrower hereunder shall not be affected by (i) the failure of any Lender or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against the other U.S. Borrowers under the provisions of this Agreement or any of the other Loan Documents or otherwise; (ii) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement, any of the other Loan Documents or any other agreement; or (iii) the failure of any Lender to exercise any right or remedy against any other U.S. Borrower.









(c)       Each   U.S.   Borrower   further   agrees   that   its   agreement   hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any Lender to any balance of any deposit account or credit on the books of any Lender in favor of any other U.S. Borrower or any other Person.


(d)       The Obligations of each U.S. Borrower hereunder shall not be subject to any  reduction,  limitation,  impairment  or  termination  for  any  reason,  including,  without limitation, compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations of the other U.S. Borrowers or otherwise.  Without limiting the generality of the foregoing, the Obligations of each U.S. Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce any remedy under this Agreement or under any other Loan Document or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations of the other U.S. Borrowers, or by any other act or omission which may or might in any manner or to any extent vary the risk of such Borrower or otherwise operate as a discharge of such Borrower as a matter of law or equity.


(e)      Each U.S. Borrower further agrees that its Obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Obligation of the other U.S. Borrowers is rescinded or must otherwise be restored by the Administrative Agent or any Lender upon the occurrence of any event described in Sections 8.01(f) or (g) in respect of such Borrower, any of the other U.S. Borrowers or otherwise.


(f)        In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Lender may have at law or in equity against any U.S. Borrower by virtue hereof, upon the failure of a U.S. Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each other U.S.  Borrower  hereby promises to  and will, upon  receipt of  written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid U.S. Obligations, and thereupon each U.S. Appropriate Lender shall, in a reasonable manner, assign the amount of the U.S. Obligations of the other U.S. Borrowers owed to it and paid by such Borrower pursuant to this guarantee to such Borrower, such assignment to be pro tanto to the extent to which the Obligations in question were discharged by such Borrower, or make such disposition thereof as such Borrower shall direct (all without recourse to any Lender and without any representation or warranty by any Lender).


(g)       Upon payment by a U.S. Borrower of any amount as provided above, all rights of such Borrower against another U.S. Borrower, as the case may be, arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full of all the U.S. Obligations to the U.S. Revolving Credit Lenders.


(h)       Each U.S. Borrower, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that the agreement and the Obligations 







of each U.S. Borrower hereunder not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the agreement and the Obligations of each U.S. Borrower hereunder.  To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the U.S. Borrowers hereby irrevocably agree that the Obligations of each U.S. Borrower hereunder shall be limited to the maximum amount as will result in the Obligations of such U.S. Borrower hereunder not constituting a fraudulent transfer or conveyance.  Each U.S. Borrower hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party, such U.S.  Borrower  will contribute, to the maximum extent permitted by  law, such amounts to each other U.S. Borrower so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents.


SECTION 2.15.  Borrower Agent.   Each Borrower hereby irrevocably appoints the  Specified  U.S.  Borrower,  and  the  Specified  U.S.  Borrower  agrees  to  act  under  this Agreement, as the agent and representative of itself and each other Borrower for all purposes under this Agreement, including requesting Borrowings, selecting whether any Loan or portion thereof is to bear interest as a Base Rate Loan, a Canadian Base Rate Loan, a Canadian Prime Rate Loan or a BA Rate Loan, and receiving account statements and other notices and communications to Borrowers (or any of them) from the Agents.  The Agents may rely, and shall be fully protected in relying, on any Committed Loan Notice, disbursement instructions, reports, information, Borrowing Base Certificate or any other notice or communication made or given by the Borrower Agent, whether in its own name, on behalf of any Borrower or on behalf of “the Borrowers,” and the Agents shall have no obligation to make any inquiry or request any confirmation from or on behalf of any other Borrower as to the binding effect on such Borrower of any such Committed Loan Notice, instruction, report, information, Borrowing Base Certificate or other notice or communication from the Borrower Agent, nor shall any joint and several character of the Borrowers’ liability for the Obligations be affected.









SECTION 2.16.  Incremental Revolving Credit Commitments.


(a)       The Specified U.S. Borrower may, by written notice to the Administrative Agent (signed by a Responsible Officer of the Specified U.S. Borrower) from time to time after the Effective Date, request Incremental Revolving Credit Commitments in an aggregate amount not to exceed $100,000,000 (or such higher amount as is approved by the Required Lenders) from one or  more Incremental Revolving Credit Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Credit Commitments in their own discretion; provided that each Incremental Revolving Credit Lender shall be subject to the approval of the Administrative Agent and the Issuing Bank (which approvals shall not be unreasonably  withheld)  unless  such  Incremental  Revolving  Credit  Lender  is  a  Lender,  an Affiliate of a Lender or an Approved Fund.   Such notice shall set forth (i) the amount of the Incremental Revolving Credit Commitments being requested, (ii) whether the request is for U.S. Revolving Credit Commitments or Canadian Revolving Commitments and (iii) the date on which such Incremental Revolving Credit Commitments are requested to become effective.


(b)       The  Borrowers  and  each  Incremental  Revolving  Credit  Lender  shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Revolving Credit Commitment shall be on the same terms as the U.S. Revolving
Credit Commitments or the Canadian Revolving Credit Commitments, as applicable.


(c)       Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit  Commitments  evidenced  thereby  as  provided  for  in  Section 10.01,  including,  if applicable, by increasing the Applicable Rate and the Applicable Commitment Fee Rate if, and to the extent, designated in the applicable Incremental Assumption Agreement and agreed upon by the Specified U.S. Borrower (it being agreed that any such increase in the Applicable Rate or the Applicable Commitment Fee Rate shall apply equally to the Incremental Revolving Credit Commitments and to all other Revolving Credit Commitments hereunder (and to all Revolving Credit Loans made on Letter of Credit participations acquired pursuant thereto)).   Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.


(d)     Notwithstanding the  foregoing,  no  Incremental  Revolving  Credit Commitment shall become effective under this Section 2.16 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02(a) and (b) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Specified U.S. Borrower and (ii)  the Administrative Agent shall have  received  customary  legal  opinions,  board  resolutions  and  other  customary  closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent or the Required Lenders, consistent with those delivered on the Effective Date under Section 4.01 and such additional customary documents and filings (including amendments to the Mortgages and other Collateral Documents and title endorsement bringdowns) as the Agents 







may reasonably require to assure that the Revolving Credit Loans in respect of Incremental Revolving Credit Commitments are secured by the Collateral ratably with the existing Revolving Credit Loans.


(e)       Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that, after giving effect to any increase pursuant to this Section 2.16, the outstanding Revolving Credit Loans (if any) are held by the Revolving Credit Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent, following consultation with the Specified U.S. Borrower, (i) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) by causing non-increasing Revolving Credit Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Revolving Credit Lenders or (iii) by a combination of the foregoing. Any prepayment or assignment described in this paragraph (e) shall be subject to Section 3.05, but shall otherwise be without premium or penalty.







ARTICLE III


Taxes, Yield Protection and Illegality




SECTION 3.01.  Taxes.
Taxes.
 
(a)    Payments Free of Taxes; Obligation to Withhold; Payments on Account of


(i)        Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes (other than Excluded Taxes).   If, however, applicable Laws require any Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by such Borrower or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.


(ii)       If any Borrower or the Administrative Agent shall be required by the Code or other applicable Law to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) such Borrower or the Administrative Agent shall withhold or make such deductions as are determined by such Borrower or the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such Borrower or the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code or other applicable Law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by such Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions attributable to an Indemnified Tax or Other Tax (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.


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


(c)    Tax Indemnifications.


(i)        Without limiting the provisions of subsection (a) or (b) above, each Borrower shall, and does hereby, jointly and severally, indemnify the Administrative Agent, each Lender and each L/C Issuer, and shall make payment in respect thereof within 10 Business 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 such L/C Issuer, 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 any such payment or liability delivered to the applicable Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent demonstrable manifest error.


(ii)       Without limiting the provisions of subsection (a) or (b) above, each Lender and each L/C Issuer shall, and does hereby, indemnify each Borrower and the Administrative Agent, and shall make payment in respect thereof within 10 Business Days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrowers or the Administrative Agent) incurred by or asserted against a Borrower or the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or such L/C Issuer, as the case may be, to such Borrower or the Administrative Agent pursuant to subsection (e).  Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent or any Borrower, as the case may be, under this clause (ii).  The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.


(d)       Evidence of Payments. Upon request by a Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by such Borrower or the Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Borrower or the Administrative Agent.


(e)    Status of Lenders; Tax Documentation.


(i)        Each Lender shall deliver to the applicable Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by such Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit such Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by such Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.


(ii)       Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes in the United States,









(A)      any  Lender that  is  a  “United States  person”  within the meaning of Section 7701(a)(30) of the Code shall deliver on or before the date such Lender becomes a party to this Agreement (or, in the case of a Participant, on or before the date such Participant purchases the related participation) to such Borrower and the Administrative Agent duly executed, properly completed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements;


(B)      each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver on or before the date such Lender becomes a party to this Agreement (or, in the case of a Participant, on or before the date such Participant purchases the related participation) and promptly upon the obsolescence, expiration or invalidity of any form previously delivered by such Foreign Lender to such 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 (other than as a result of a CAM Exchange) under this Agreement (and from time to time thereafter upon the request of such 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 executed, properly completed originals of Internal Revenue Service Form W-8BEN or any successor thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party,


(II)    duly  executed,  properly  completed  originals  of  Internal
Revenue Service Form W-8ECI or any successor thereto,


(III)    duly executed, properly completed originals of Internal Revenue Service Form W-8IMY or any successor thereto and all required supporting documentation,


(IV)     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 such 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  executed,  properly  completed originals of Internal Revenue Service Form W-8BEN, or


(V)      duly executed, properly completed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and









(C)    each Lender shall deliver to such Borrower and the Administrative Agent such other tax forms or other documents as shall be prescribed by applicable Law to demonstrate, to the extent applicable, that payments to such Lender under this Agreement and the other Loan Documents are exempt from any United States federal withholding tax imposed pursuant to FATCA.


(iii)    Each  Lender  (except  an  assignee  Lender  pursuant  to  a  CAM Exchange under Section 8.04 (in which case any such Lender shall comply with this Section 3.01(e)(iii) to the extent practicable)) shall promptly (A) notify the applicable Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) 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 jurisdiction that such Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.


(f)        Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be.   If the Administrative Agent, any Lender or any L/C Issuer determines, in its reasonable discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by a Borrower with respect to which a Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower 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 such L/C Issuer, 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 such Borrower, upon the request of the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such L/C Issuer if the Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.


SECTION 3.02.  Illegality.  If any Lender determines in good faith that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans or BA Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate or BA Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the applicable Borrowers through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or BA Rate Loans or to convert Base Rate Loans or Canadian Base Rate Loans to Eurodollar Rate Loans or Canadian Prime Rate Loans to BA Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the applicable Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the applicable Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans or BA Rate Loans of such Lender to Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans or BA Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans or BA Rate Loans. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted.


SECTION 3.03.  Inability to Determine Rates.  If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a BA Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate or the BA Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or BA Rate Loan, (c) the Reuters Screen CDOR Page is not available for the timely determination of the BA Rate, and the BA Rate cannot otherwise be determined in a timely manner in accordance with the definition of “BA Rate”, or (d) the Eurodollar Rate or BA Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or BA Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the applicable Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans or BA Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or BA Rate Loans or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, in the amount specified therein.


SECTION 3.04.  Increased Costs; Reserves on Eurodollar Rate Loans.


(a)    Increased  Costs  Generally.     Except  for  Taxes,  which  are  covered  in
Section 3.01, 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 credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e)) or any L/C Issuer; or


(ii)       impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or BA Rate Loans made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan or BA Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the applicable Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.


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


(c)       Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the applicable Borrower shall be conclusive absent manifest error.  Each applicable Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.   Notwithstanding anything to the contrary in this Section 3.04, the Borrowers shall only be required to compensate a Lender pursuant to this Section 3.04 to the extent a Lender is imposing applicable increased costs or costs in connection with capital adequacy or liquidity requirements similar to those described in clauses (a) and (b) of this Section 3.04 generally on other borrowers of loans under similar asset- based credit facilities









(d)       Delay in Requests.  Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that a Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies such Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’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); provided further that, a Borrower shall not be required to compensate a Lender or an L/C Issuer for increased costs or reductions suffered more than nine months after such Change in Law, except that in the case of any such change having retroactive effect, such period shall be extended until nine months after the Lender becomes aware of such change.


(e)       Reserves on Eurodollar Rate Loans.  Each applicable Borrower shall pay to each Appropriate Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided a Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.


SECTION 3.05.  Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:


(a)       any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


(b)       any failure by such Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan, Canadian Base Rate Loan or Canadian Prime Rate Loan on the date or in the amount notified by the applicable Borrower;


(c)       any assignment of a Eurodollar Rate Loan or BA Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by such Borrower pursuant to Section 10.13; or









(d)    the occurrence of a CAM Exchange pursuant to Section 8.04; but excluding any loss of anticipated profits or and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.  The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.


For purposes of calculating amounts payable by each Borrower to the Appropriate Lenders under this Section 3.05, each Appropriate Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.


SECTION 3.06.  Mitigation Obligations; Replacement of Lenders.


(a)      Designation of a Different Lending Office.   If any Lender requests compensation under Section 3.04, or a Borrower is required to pay any additional amount to any Lender, any L/C Issuer or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such  Lender or  such  L/C Issuer,  as  applicable, 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  or  such  L/C  Issuer,  such  designation  or  assignment  (i) would  eliminate  or  reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be.  Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Appropriate Lender in connection with any such designation or assignment.


(b)       Replacement of Lenders.   If any Lender requests compensation under Section 3.04, or if a Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, such Borrower may replace such Lender in accordance with Section 10.13.


SECTION 3.07.  Survival. All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.









ARTICLE IV


Conditions Precedent to Credit Extensions




SECTION 4.01.  Conditions  to  Effective  Date.     The  effectiveness  of   this
Agreement is subject to satisfaction or waiver of the following conditions precedent:


(a)       The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or in “pdf” or similar format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:


(i)    executed counterparts of this Agreement in sufficient number for distribution to the Administrative Agent, the Collateral Agent and each Borrower;


(ii)    a Note executed by each applicable Borrower in favor of each
Lender requesting a Note;


(iii)    [reserved];


(iv)    a reaffirmation of the U.S. Guaranty duly executed by Holdings, the Specified U.S. Borrower and each U.S. Subsidiary Guarantor;
(v)    the Canadian Guaranty duly executed by each Canadian Borrower; (vi)    (1) a reaffirmation of the U.S. Security Agreement duly executed
by the Administrative Agent, the Collateral Agent and each U.S. Loan Party and (2) a joinder to and reaffirmation of the Canadian Security Agreement duly executed by the Administrative Agent, the Collateral Agent and each Canadian Loan Party, in each case together with:


(A)      to   the   extent  not   previously  filed,  proper  Financing Statements in form appropriate for filing under the UCC and/or PPSA of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,


(B)      completed requests for information, dated on or before the date  of  the  initial  Credit  Extension,  listing  all  effective  financing statements filed in the jurisdictions referred to in clause (A) above that name any Loan Party as debtor, together with copies of such other financing statements, and such information shall reveal no material judgments and no Liens on the Collateral except Liens permitted under Section 7.01 hereunder,









(C)      evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Collateral Agent may deem necessary or reasonably desirable in order to perfect the Liens created thereby,


(D)      evidence that all other action that the Collateral Agent may deem necessary or  reasonably desirable in  order  to  perfect  the  Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements, to the extent applicable); and


(E)      the Perfection Certificate, along with completed Schedules thereto, duly executed by Holdings, the Specified U.S. Borrower and the Canadian Borrowers;


provided, that, notwithstanding anything in this Section 4.01(a)(vi) to the contrary, if the perfection of the Collateral Agent’s security interest in such Collateral may not be accomplished prior to the Effective Date without undue burden or expense and without the taking of any action that goes beyond commercial reasonableness, then the delivery of documents and instruments for perfection of such security interests shall not constitute a condition precedent to the availability of the Revolving Credit Facility, and the Loan Parties hereby agree to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions as may be required to perfect such security interests within 30 days after the Effective Date; provided further that in each case, the Administrative Agent may, in its sole discretion, grant extensions of such time period;


(vii)     to the extent not previously delivered, (1) an intellectual property security agreement, in substantially the form of Exhibit B to the U.S. Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “U.S. Intellectual Property Security Agreement”) and (2) an intellectual property security agreement, in substantially the form of Exhibit B to the Canadian Security Agreement (together with each other intellectual property security agreement and intellectual property security agreement  supplement  delivered  pursuant  to  Section  6.12,  in  each  case  as  amended,  the “Canadian Intellectual Property Security Agreement”), duly executed by each U.S. Loan Party and Canadian Loan Party, as applicable, together with evidence that all action that the Collateral Agent may deem necessary or reasonably desirable in order to perfect the Liens created under the  U.S.  Intellectual  Property  Security  Agreement  and  the  Canadian  Intellectual  Property Security Agreement has been taken;


(viii)  such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;









(ix)      such  documents and  certifications as  the  Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each  Loan  Party  is  validly  existing  and  in  good  standing  in  its  state  of  formation  or incorporation;


(x)       a favorable opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;


(xi)      a favorable opinion of Blake, Cassels & Graydon LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-2 and such other matters concerning the Canadian Loan Parties and the Canadian Loan Documents as the Administrative Agent may reasonably request;


(xii)     favorable opinions of  local counsel to  the  Loan Parties in  the United States addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;


(xiii)   a certificate signed by a Responsible Officer of the Specified U.S. Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (d) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;


(xiv)    the Administrative Agent shall have received certification as to the consolidated financial condition and solvency of Holdings and its Subsidiaries (after giving effect to the Transaction and the incurrence of indebtedness related thereto), from the chief financial officer of Holdings;


(xv)     evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with endorsements naming the Collateral Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan  Parties  that  constitutes  Collateral (and  the  Administrative Agent  shall  be  reasonably satisfied with the amount, types and terms and conditions of all insurance maintained by the Loan Parties and their Subsidiaries); and


(xvi)    such   other   assurances,   certificates,   documents,   consents   or opinions as the Administrative Agent, the Collateral Agent, the L/C Issuers, the Swing Line Lenders or any Lender reasonably may require.


(b)       (i)  All  fees  (to  the  extent  invoiced)  required  to  be  paid  to  the Administrative Agent (including the fees and expenses of counsel (including any local counsel) for the Administrative Agent) and the Bookrunner on or before the Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Effective Date shall have been paid.









(c)      Receipt of all governmental, shareholder and third party consents and approvals necessary in connection with the Transaction and the related financings and other transactions contemplated hereby.


(d)       There shall not have occurred since December 31, 2012 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect.


(e)       The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.


(f)      Excess Availability on the Effective Date (after giving effect to the Transaction and calculated utilizing the Borrowing Base Certificate as of September 2013 and reflecting the most recent field examination conducted by the Agents) shall not be less than
$100,000,000.


(g)       The Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.


(h)       After  giving  effect  to  the  Transactions  and  the  other  transactions contemplated hereby, Holdings and its Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) the loans and other extensions of credit under the Revolving Credit Facility, (b) the Senior Secured Notes, (c) the 2017 Senior Notes and (d) other Indebtedness permitted hereunder.


Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 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 reasonably satisfactory to a Lender unless the Administrative  Agent  shall  have  received  notice  from  such  Lender  prior  to  the  proposed Effective Date specifying its objection thereto.




SECTION 4.02.  Conditions to all Credit Extensions.   The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:


(a)       The representations and warranties of each Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (or in all respects in the case of any representations and warranties 







qualified by materiality) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects in the case of any representations and warranties qualified by materiality) as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.


(b)       No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.


(c)       The Administrative Agent and, if applicable, the applicable L/C Issuer or the applicable Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.


(d)       (i) The lesser of (A) the Total Borrowing Base and (B) the Revolving Credit Facility, exceeds the Outstanding Amount of the Revolving Credit Loans, Swing Line Loans and L/C Obligations at such time, after giving effect to such Credit Extension, (ii) the lesser of (A) the U.S. Borrowing Base and (B) the U.S. Revolving Credit Facility, exceeds the Outstanding Amount of the U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Obligations, plus any Additional Canadian Revolving Credit Outstandings, at such time, after giving effect to such Credit Extension and (iii) the lesser of (A) the Canadian Borrowing Base and  (B)  the  Canadian  Revolving  Credit  Facility,  exceeds  the  Outstanding  Amount  of  the Canadian Revolving Credit Loans, Canadian Swing Line Loans and Canadian L/C Obligations at such time, after giving effect to such Credit Extension.


(e)    If, after giving effect to any such Request for Credit Extension, the Total
Revolving Credit Outstandings would exceed the amount set forth in clause 1(a) of Section
4.10(b) of the Senior Secured Notes Indenture or any comparable provision of any Permitted Refinancing of the Senior Secured Notes, the making of such Credit Extension shall not cause the Borrower to be in default under the covenants (including the restrictions on liens and debt) contained in any document evidencing Junior Financing and each document evidencing Indebtedness incurred pursuant to Section 7.03(a), (b), (c) or (e).


Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by a Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), (b) and (d) have been satisfied on and as of the date of the applicable Credit Extension.









ARTICLE V


Representations and Warranties


Holdings and each Borrower represents and warrants to the Administrative Agent and the Lenders that:


SECTION 5.01.  Existence,  Qualification  and  Power;  Compliance  with  Laws. Each Loan Party and each of its Subsidiaries (a) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except in each case referred to in clause (c) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.









SECTION 5.02.  Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of  such  Person’s  Organization  Documents,  (b) conflict  with  or  result  in  any  breach  or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment  to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(i), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.


SECTION 5.03.  Governmental Authorization; Other  Consents.    No  approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution,  delivery  or  performance  by,  or  enforcement  against,  any  Loan  Party  of  this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by any Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by  the  Loan Parties in  favor  of  the Collateral Agent  (which filings are disclosed   in   the   Perfection   Certificate)   or   (ii)   the   approvals,   consents,   exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.


SECTION 5.04.  Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity.


SECTION 5.05.  Financial Statements; No Material Adverse Effect.


(a)       The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the financial condition of Holdings and its consolidated Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except 







as otherwise expressly noted therein; it being understood that such Audited Financial Statements do not include Gienow and Mitten.


(b)       The unaudited consolidated balance sheet of Holdings and its Subsidiaries dated June 29, 2013, and the related consolidated statements of income or operations, balance sheet and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied through the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of Holdings and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments; it being understood such unaudited financial statements only include Gienow and Mitten since their respective acquisition dates.


(c)       Since the Effective Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to result in a Material Adverse Effect.


(d)       The consolidated forecasted balance sheets, statements of income and cash flows of Holdings and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(e) were prepared  in  good  faith  by  Holdings  and  based  on  assumptions  believed  by  Holdings  to reasonable; it being understood that actual results may vary from such forecasts and that such variations may be material.




SECTION 5.06.  Litigation.  Except as set forth on Schedule 5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of any Borrower, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or (b) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.


SECTION 5.07.  No Default.  None of Holdings, the Specified U.S. Borrower or any Subsidiary is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


SECTION 5.08.  Ownership of Property; Liens.


(a)       Each  Loan  Party  and  each  of  its  Subsidiaries  has  good  record  and indefeasible title in fee simple to, or valid leasehold interests in, all real property, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 7.01.


(b)       Set forth on Schedule 5.08(b) is a complete and accurate list of all real property owned by any Loan Party or any of its Subsidiaries located in the United States or Canada, as of the Effective Date, showing as of the Effective Date the street address (to the extent available), county or other relevant jurisdiction, state and record owner.









(c)       Set forth on Schedule 5.08(c) is a complete and accurate list of all material leases of domestic and Canadian real property located in the U.S. or Canada under which any Loan Party or any of its Subsidiaries is the lessee as of the Effective Date, showing as of the Effective Date the street address, county or other relevant jurisdiction (to the extent available), state and lessee.  Each such lease is the legal, valid and binding obligation of the lessee thereof, enforceable in accordance with its terms.






Schedule 5.09:
 
SECTION 5.09.  Environmental Compliance.  Except as specifically disclosed on




(a)       Each Loan Party and each of its Subsidiaries, and each Subsidiary of their operations and properties is, and for the past three years, has been, in compliance with all applicable Environmental Laws except to the extent any non-compliance could not reasonably be expected to result in a material liability.


(b)       Except as could not reasonably be expected to result in a material liability, there are no pending actions, claims, notices of violation or potential responsibility, or proceedings alleging liability under or non-compliance with any Environmental Law on the part of any Loan Party or any of its Subsidiaries.


(c)       Except as could not reasonably be expected to have a Material Adverse Effect, (i) none of the properties currently or, to the knowledge of any Loan Party formerly, owned or operated by any Loan Party or any of its Subsidiaries is listed or to the knowledge of any Loan Party proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state, provincial, territorial, municipal or local list; (ii) there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries in each case, that would reasonably be expected to result in a material liability; (iii) there is no asbestos or asbestos-containing material in friable form or condition on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and (iv) Hazardous Materials have not been Released on, under or from any property currently or, to their knowledge, formerly owned or operated by any Loan Party or any of its Subsidiaries except for such releases, discharges or disposal that were in material compliance with Environmental Laws.


(d)       None  of  the  properties  of  the  Loan  Parties  contain  any  Hazardous Materials in amounts or concentrations which (i) constitute a violation of or (ii) could give rise to liability under, Environmental Laws, which violations and liabilities, in the aggregate, could reasonably be expected to result in a Material Adverse Effect.


(e)       Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or response or other corrective action relating to any actual or threatened Release of Hazardous Materials at, on, under or from any location, either voluntarily or  pursuant  to  the  order  of  any  Governmental  Authority  or  the  requirements  of  any Environmental Law except for any such investigations, assessments, responses or other actions that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.


(f)        Except as disclosed on Schedule 5.09, all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner which would not reasonably expected to result in a Material Adverse Effect.







SECTION 5.10.  Insurance.      The   properties   of   each   Loan   Party   and   its Subsidiaries are insured with financially sound and reputable insurance companies, in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Specified U.S. Borrower and its Subsidiaries) with such deductibles and covering such risks as are customarily carried by prudent companies engaged in similar businesses and owning similar properties in localities where each Loan Party or the applicable Subsidiary operates and as required by Sections 6.07 and 6.18.


SECTION 5.11.  Taxes.    Each  Loan  Party  and  its  Subsidiaries have  filed  all federal and material provincial and material state, territorial, foreign and other material tax returns and reports required to be filed, and have paid all federal and material provincial and material state, territorial and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a) which are not overdue by more than 45 days or (b) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.


SECTION 5.12.  ERISA Compliance.


(a)       Except as could not reasonably be expected to result in a material liability to  the  Borrowers,  each  Plan  is  in  compliance in  all  material  respects  with  the  applicable provisions of ERISA, the Code and other applicable Federal or state Laws.  Except as could not reasonably be expected to result in a material liability to the Borrowers, each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS, or has been established pursuant to a prototype plan that has received a favorable opinion letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of any Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification.   Except as could not reasonably be expected to result in a material liability to the Borrowers, each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.


(b)       There are no pending or, to the knowledge of any Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.   There has been no prohibited transaction 







or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.


(c)      (i) No ERISA Event has occurred within the prior 2 years or, to the knowledge of the Borrowers, is reasonably expected to occur; (ii) no Pension Plan has an “accumulated funding deficiency” (as  defined in Section 412  of  the Code), whether or  not waived, and no application for a waiver of the minimum funding standard has been filed with respect to any Pension Plan; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA; and (vi) the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $60,000,000 the fair market value of the assets of all such underfunded Pension Plans; except, with respect to each of the foregoing clauses of this Section 5.12(c), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.


(d)       Except where noncompliance would not reasonably be expected to result in a Material Adverse Effect, each Foreign Plan has been maintained in substantial compliance with  its  terms  and  with  the  requirements  of  any  and  all  applicable  laws,  statutes,  rules, regulations  and  orders  and  has  been  maintained,  where  required,  in  good  standing  with applicable  Governmental  Authorities,  and  neither  the  Specified  U.S.  Borrower  nor  any Subsidiary have incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan.


SECTION 5.13.  Subsidiaries; Equity Interests; Loan Parties.  As of the Effective Date, each Loan Party has no Subsidiaries other than those specifically disclosed in Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned free and clear of all Liens except (i) those created under the  Collateral Documents, (ii) Liens securing the  Senior Secured Notes  and  (iii) any nonconsensual Lien that is permitted under Section 7.01.   As of the Effective Date, no Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Schedule 5.13.


SECTION 5.14.  Margin Regulations; Investment Company Act.


(a)       The Borrowers are not engaged and will not engage, principally or as one of their important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock and no Credit Extension will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Holdings and the Borrowers do not own any margin stock.









(b)       None of Holdings, any Person Controlling Holdings, the Specified U.S. Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.


SECTION 5.15.  Disclosure.  No report, financial statement, certificate or other information (including, without limitation, the Information Memorandum) furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (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 materially misleading; provided that, with respect to projected financial information, Holdings and the Specified U.S. Borrower represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such projections may vary from actual results and that such variances may be material.


SECTION 5.16.  Compliance with Laws.   Except as set forth on Schedule 5.09 referred to above, each Loan Party and its Subsidiaries is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.


SECTION 5.17.  Intellectual Property; Licenses, Etc.   Each Loan Party and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are necessary for the operation of their respective businesses as currently conducted, without, to the knowledge of the Borrowers, conflict with the rights of any other Person, except to the extent such conflicts or failures to own or possess such rights, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.  Except as set forth on Schedule 5.06 referred to above, no claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrowers, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.


SECTION 5.18.  Solvency.     On   the   Effective  Date,  each  Loan  Party  is, individually and together with its Subsidiaries on a consolidated basis, Solvent.


SECTION 5.19.  Casualty, Etc.   Neither the business nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that could reasonably be expected to have a Material Adverse Effect.


SECTION 5.20.  Perfection,  Etc.    All  filings  and  other  actions  necessary  or desirable  to  perfect  and  protect  the  Liens  in  the  Collateral  created  under  the  Collateral 







Documents and to render such Liens opposable to third parties have been or will be, during the periods required by the Loan Documents, duly made or taken and are in full force and effect, and the Collateral Documents are effective to create in favor of (i) the Collateral Agent for the benefit of the Secured Parties and (ii) the Collateral Agent for the benefit of the Canadian Secured Parties, a valid and, together with such filings and other actions, perfected first priority Lien in the U.S. Collateral and the Canadian Collateral, respectively, securing the payment of the Obligations (in the case of the U.S. Collateral) and the Canadian Obligations (in the case of the Canadian Collateral), subject to Liens permitted by Section 7.01.  The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the Liens created under the Loan Documents and permitted by Section 7.01.


SECTION 5.21.  Senior Debt.   The Obligations constitute “Senior Debt” under and as defined in the 2017 Senior Notes Indenture.


SECTION 5.22.  Tax Shelter Regulations.  The Specified U.S. Borrower does not intend to treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).   In the event the Specified U.S. Borrower determines to take any action inconsistent with such intention, it will promptly notify the Administrative Agent thereof.  If the Specified U.S. Borrower so notifies the Administrative Agent, the  Specified U.S.  Borrower  acknowledges that one or  more of  the Lenders may treat its Loans and/or its interest in Swing Line Loans and/or Letters of Credit as part of a transaction that is subject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, may maintain the lists and other records required by such Treasury Regulation.


SECTION 5.23.  Anti-Terrorism Law.


(a)      No Loan Party and, to the knowledge of the Borrowers, none of their Affiliates is in violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001 (the “Executive Order”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 or the Proceeds of Crime (Money-Laundering) and Terrorist Financing Act (Canada).


(b)       No Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other agent of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of the following:


(i)        a person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;


(ii)       a person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;


(iii)     a person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;









(iv)      a  person  that  commits,  threatens  or  conspires  to  commit  or supports “terrorism” as defined in the Executive Order; or


(v)       a person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at its official website or any replacement website or other replacement official publication of such list or similarly named by any similar foreign Governmental Authority.


(c)       No Loan Party and, to the knowledge of the Borrowers, no broker or other agent of any Loan Party acting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above, (ii) deals in, or otherwise engages in any  transaction  relating  to,  any  property  or  interests  in  property  blocked  pursuant  to  the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.




SECTION 5.24.  Accounts. Without limiting the provisions of Section 5.15 or the statements contained in any Borrowing Base Certificate, each Borrower hereby represents and warrants that the statements in each Borrowing Base Certificate are or will be when such Borrowing Base Certificate is delivered true and correct in all material respects.  The Agents may rely, in determining which Accounts are Eligible Receivables, on all statements and representations made by the Borrowers with respect thereto.   Each Borrower warrants, with respect to each Account at the time it is shown as an Eligible Receivable in a Borrowing Base Certificate, that:


(a)       it is genuine and in all respects what it purports to be, and is not evidenced by a judgment;


(b)       it arises out of a completed, bona fide sale and delivery of goods in the ordinary course of business, and substantially in accordance with any purchase order, contract or other document relating thereto;


(c)       it is for a sum certain, maturing as stated in the invoice covering such sale, a copy of which has been furnished or is available to the Administrative Agent on request;


(d)       it is not subject to any offset, Lien (other than the Collateral Agent’s Lien and the Trustee’s Lien), deduction, defense, dispute, counterclaim or other adverse condition except as arising in the ordinary course of business and disclosed to the Administrative Agent; and it is absolutely owing by the Account Debtor, without contingency in any respect;


(e)      no purchase order, agreement, document or Applicable Law restricts assignment of the Account to the Administrative Agent (regardless of whether, under the UCC or the PPSA, the restriction is ineffective), and the applicable Borrower is the sole payee or remittance party shown on the invoice;









(f)        no extension, compromise, settlement, modification, credit, deduction or return has been authorized with respect to the Account, except discounts or allowances granted in the ordinary course of business for prompt payment that are reflected on the face of the invoice related thereto and in the reports submitted to the Administrative Agent hereunder; and


(g)      to the best of each Borrower’s knowledge, (i) there are no facts or circumstances that are reasonably likely to impair the enforceability or collectibility of such Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business; and (iii) there are no proceedings or actions threatened or pending against any Account Debtor that could reasonably be expected to have a Material Adverse Effect on the Account Debtor’s financial condition.


SECTION 5.25.  Canadian Pension Plans.   Except as could not reasonably be expected to result in a material liability to the Borrowers, the Canadian Pension Plans are duly registered under the Income Tax Act (Canada) and all other applicable laws which require registration and no event has occurred which is reasonably likely to cause the loss of such registered status.  All material obligations of each Loan Party (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and Canadian Benefit Plans and any funding agreements therefor have been performed in a timely fashion, except where (i) the failure to do so could not reasonably be expected to have a Material Adverse Effect and (ii) no Lien (other than Liens permitted pursuant to Section 7.01) is created thereby.  There have been no improper withdrawals or applications of the assets of the Canadian Pension Plans or the Canadian Benefit Plans by any Loan Party or its Affiliates except where such withdrawals or applications could not reasonably be expected to have a Material Adverse Effect.  There are no material outstanding disputes involving any Loan Party or its Affiliates concerning the assets of the Canadian Pension Plans or the Canadian Benefit Plans except where such disputes could not reasonably be expected to have a Material Adverse Effect. Except as could not reasonably be expected to result in a material liability to the Borrowers, each of the Canadian Pension Plans was fully funded on a solvency basis as of the date of the most recent actuarial valuations filed with Government Authorities.









ARTICLE VI Affirmative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder (other than any contingent indemnification obligation as to which no claim has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each of Holdings and the Specified U.S. Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each Subsidiary to:




SECTION 6.01.  Financial   Statements;   Borrowing   Base.     Deliver    to    the
Administrative Agent for further distribution to each Lender:


(a)       as soon as available, but in any event within ninety (90) days after the end of each fiscal year of Holdings (or, if earlier, the date on which Holdings’ Form 10-K would be required to be filed with the SEC (after giving effect to any extension)), a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in stockholder’s investment, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Ernst & Young LLP or any other independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; provided that a copy of Holdings’ Form 10-K for the applicable period shall be deemed to satisfy such requirement as long as the audit report and opinion accompanying such Form 10-K is not subject to any “going concern” or like qualification or exception or exception as to the scope of such audit;


(b)       as soon as available, but in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Holdings (or, if earlier, the date on which Holdings’ 10-Q would be required to be filed with the SEC (after giving effect to any extension)), a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in stockholders’ investment, and cash flows for such fiscal quarter and for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; provided that a copy of Holdings’ Form 10-Q for the applicable period shall be deemed to satisfy such requirement;


(c)    at the time of delivery of the financial statements provided for in Sections







6.01(a) and (b) above, a management’s discussion and analysis of the financial condition and results of operation for such fiscal quarter or fiscal year, as the case may be, as compared to the previous fiscal period; provided that a copy of Holdings’ Form 10-K or Form 10-Q for the applicable period shall be deemed to satisfy such requirement;


(d)    [reserved]


(e)       as soon as available, but in any event no later than 60 days after the end of each fiscal year, forecasts prepared by management of Holdings, of consolidated balance sheets, income statements and cash flow statements of Holdings and its Subsidiaries.  All forecasts delivered hereunder shall be prepared on an annual basis for the fiscal year following such fiscal year then ended); and


(f)        on or before the 15th Business Day after the end of each fiscal month of Holdings (which monthly Borrowing Base Certificate shall be furnished regardless of whether weekly  Borrowing  Base  Certificates  are  required  to  be  furnished  pursuant  to  the  fourth succeeding sentence), the Borrower Agent shall deliver to the Agents (and the Administrative Agent shall promptly deliver same to the Lenders) a Borrowing Base Certificate in respect of each of the U.S. Borrowing Base and the Canadian Borrowing Base, prepared as of the close of business of the previous month.  All calculations of Excess Availability in any Borrowing Base Certificate shall originally be made by the Borrowers and certified by a Responsible Officer of the Specified U.S. Borrower, provided that the Agents may from time to time review and adjust any such calculation in their Credit Judgment to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve.   The Borrowers may elect to submit an interim Borrowing Base Certificate prior to the submission of the monthly Borrowing Base Certificate, prepared as of the 15th day of the month, and any such interim Borrowing Base Certificate shall be the basis of calculating Excess Availability for funding requests.  In the event that an interim Borrowing Base Certificate is submitted, the Borrowers will also submit the normal monthly Borrowing Base Certificate as required above. Upon the occurrence and during the continuation of a Cash Dominion Event, the Borrowers shall deliver to Agents a weekly Borrowing Base Certificate within three (3) Business Days after the end of each calendar week (each calendar week deemed, for purposes hereof, to end on a Friday), updated as  of  the close of  business on  the last Business  Day  of  the  immediately preceding calendar week (it being understood that inventory amounts shown in such Borrowing Base Certificate will be based on the inventory amount for the most recently ended month) unless the Agents otherwise agree.   Borrowing Base Certificates shall be delivered with such supporting documentation and additional reports with respect to the U.S. Borrowing Base and the Canadian Borrowing Base as the Agents shall reasonably request.


SECTION 6.02.  Certificates; Other Information.   Deliver to the Administrative
Agent for further distribution to each Lender:


(a)       no later than five (5) days after the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying  such  financial  statements  and  stating  that  in  making  the  examination  necessary therefor no knowledge was obtained of any Event of Default under Section 7.11 or, if any such Event of Default shall exist, stating the nature and status of such event;


(b)       concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by a Responsible Officer of U.S. Borrower including, during each Covenant Trigger Event, in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, if necessary for the determination of compliance with Section 7.11, a statement of reconciliation conforming such financial statements to GAAP and (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.05(b);


(c)    [reserved];


(d)      promptly after the furnishing thereof, copies of any requests or notices received by any Loan Party (other than in the ordinary course of business) from, or statements or reports furnished to, any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any Junior Financing Documentation or the Senior Secured Notes in a principal amount greater than the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;


(e)       promptly  after  the  receipt  thereof  by  any  Loan  Party  or  any  of  its Subsidiaries,  copies  of  each  notice  or  other  correspondence  received  from  the  SEC  (or comparable   agency   in   any   applicable   non-U.S.   jurisdiction)   concerning   any   material investigation or other material inquiry by such agency regarding financial or other operational results of any Loan Party or any of its Subsidiaries;


(f)        promptly  after  the  assertion  or  occurrence  thereof,  notice  of  any occurrence, event or action that could result in a material Environmental Liability on the part of any Loan Party or any of its Subsidiaries or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit;


(g)       concurrently    with    any    delivery    of    financial    statements    under Section 6.01(a), a certificate of a Responsible Officer setting forth the information required pursuant to the Perfection Certificate Supplement or confirming that there has been no change in such information since the date of the Perfection Certificate or latest Perfection Certificate Supplement;









(h)       promptly after U.S. Borrower has notified the Administrative Agent of any intention by U.S. Borrower to treat the Loans and/or Letters of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;


(i)      promptly following the Administrative Agent’s request therefor, all documentation and other information that the Administrative Agent reasonably requests on its behalf or on behalf of any Lender in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; and


(j)        promptly,  such  additional  information  regarding  the  business,  legal, financial or corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.


Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Bookrunner will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.   Each Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” each Borrower shall be deemed to have authorized the Administrative Agent, the Bookrunner, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are  permitted to  be  made available through a  portion of  the Platform  designated  “Public  Side  Information;”  and  (z) the  Administrative  Agent  and  the Bookrunner shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”  Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by any Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.




SECTION 6.03.  Notices.  Promptly after obtaining knowledge thereof notify the Administrative Agent for further distribution to each Lender:


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


(b)       of any matter that has resulted or could reasonably be expected to result in a  Material  Adverse  Effect,  including  arising  out  of  or  resulting  from  (i) breach  or  non- performance of, or any default under, a Contractual Obligation of any Loan Party or any Subsidiary, (ii) any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary and any Governmental Authority, (iii) the commencement of, or any material development in, any litigation or proceeding materially affecting any Loan Party or any Subsidiary, including pursuant to  any applicable Environmental Laws  and or  in  respect of material IP Rights, or (iv) the occurrence of any ERISA Event or similar event with respect to a Foreign Plan.


Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of  the Specified U.S.  Borrower setting forth details of  the occurrence referred to therein and stating what action the Specified U.S. Borrower or other applicable Loan Party has taken and proposes to take with respect thereto.   Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.


SECTION 6.04.  Payment of Obligations.  Pay, discharge or otherwise satisfy as the same shall become due and payable, all its obligations and liabilities, including (a) all material Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless 







the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrowers or such Subsidiary; (b) all material lawful claims which, if unpaid, would by law become a Lien upon its property, unless such claims would not become a Lien on the Collateral and the same are being contested in good faith by appropriate proceedings diligently conducted and  adequate  reserves  in  accordance  with  GAAP  are  being  maintained  by  the  Specified Borrowers or such Subsidiary; and (c) all Indebtedness in excess of the Threshold Amount, as and when due and payable (after giving effect to any applicable grace periods), but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.


SECTION 6.05.  Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05, (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except, other than with respect to Holdings’ and the Specified U.S. Borrower’s existence, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, and (c) preserve or renew all of its registered patents, trademarks and service marks, the non-preservation of which individually could reasonably be expected to have a Material Adverse Effect.


SECTION 6.06.  Maintenance of Properties. (a)Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.


SECTION 6.07.  Maintenance of Insurance.  Maintain (a) with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable  and  customary  for  similarly  situated  Persons  engaged  in  the  same  or  similar businesses as the Specified U.S. Borrower and its Subsidiaries) as are customarily carried under similar circumstances by such other Persons and (b) without limitation to the foregoing, the insurance arrangements in respect of the Collateral required by the Security Agreements.  If any portion of any real property subject to any Mortgage is located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968 (or any amendment or successor act thereto), then the applicable Loan Party (or its relevant Subsidiary) shall maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance  in  an  amount  







sufficient  to  comply  with  all  applicable  rules  and  regulations promulgated pursuant to such Act.


SECTION 6.08.  Compliance with Laws.  Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.


SECTION 6.09.  Books  and  Records.    Maintain  proper  books  of  record  and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Specified U.S. Borrower or such Subsidiary, as the case may be.


SECTION 6.10.  Inspections; Appraisals.


(a)       Permit the Agents from time to time, subject (except when an Event of Default has occurred and is continuing) to reasonable notice and normal business hours, to visit and inspect the properties of any Borrower or Subsidiary, inspect, audit and make extracts from Holdings’, any Borrower’s or Subsidiary’s books and records, and discuss with its officers, employees, agents, advisors and independent accountants Holdings’ or such Borrower’s or Subsidiary’s business, financial condition, assets, prospects and results of operations.  Lenders may participate in any such visit or inspection, at their own expense. Neither the Agents nor any Lender shall have any duty to any Borrower to make any inspection, nor to share any results of any inspection, appraisal or report with any Borrower.   Borrowers acknowledge that all inspections, appraisals and reports are prepared by the Agents and Lenders for their purposes, and Borrowers shall not be entitled to rely upon them.


(b)       Reimburse the Agents for all reasonable and documented charges, costs and expenses of the Agents in connection with (i) field examinations, verifications and evaluations of any Loan Party’s books and records or any other financial or Collateral matters as the Agents reasonably deem appropriate, up to once per fiscal year; and (ii) appraisals of Inventory up to once per fiscal year (or, in each case with respect to clauses (i) and (ii) two times per fiscal year if the second audit and/or appraisal occurs during a period when Excess Availability is less than 20% of the Total Borrowing Base); provided, however, that if a field examination or appraisal is initiated while an Event of Default has occurred and is continuing, all charges, costs and expenses therefor shall be reimbursed by Borrowers without regard to such limits.  Subject to and without limiting the foregoing, Borrowers specifically agree to pay any Agent’s then standard charges for each day that an employee of such Agent or its branches or Affiliates is engaged in any examination activities, and shall pay the standard charges of such Agent’s internal appraisal group.  This Section shall not be construed to limit the Agents’ right to conduct examinations or to obtain appraisals at any time in its discretion, nor to use third parties for such purposes.


SECTION 6.11.  Use of Proceeds.  The Borrowers will use the proceeds of each Credit Extension (i) to pay any fees, commissions and expenses in connection with the amendment and restatement of the Existing Credit Agreement and (ii) for general corporate purposes not in contravention of any Law or of any Loan Document.


SECTION 6.12.  Covenant to Guarantee Obligations and Give Security.


(a)       Upon  the  formation  or  acquisition  of  any  new  direct  or  indirect Subsidiaries (other than Excluded Subsidiaries) by any U.S. Loan Party or upon any Domestic Subsidiary ceasing to meet the definition of an Excluded Subsidiary or upon the acquisition of any Material Real Estate, or, subject to the terms of the Intercreditor Agreement, upon the granting of any Lien to secure the Senior Secured Notes (in which case if the assets covered thereby do not constitute ABL Priority Collateral the provisions of this Section shall be deemed to refer to a second-priority security interest 







junior to the Lien securing the Senior Secured Notes on the terms set forth in the Intercreditor Agreement), the Borrower Agent shall promptly notify the Administrative Agent thereof and if such property, in the reasonable judgment of the Administrative  Agent,  shall  not  already  be  subject  to  a  perfected  Lien  in  favor  of  the Administrative Agent, for the benefit of the Secured Parties, then the applicable Loan Parties shall, in each case at the applicable Borrower’s expense:


(i)        in connection with the formation or acquisition of a Subsidiary or upon any Domestic Subsidiary which was an Excluded Subsidiary ceasing for any reason to meet the definition thereof, within thirty (30) days after such formation, acquisition, or change of status or  such  longer period as  the Administrative Agent may agree in its sole discretion, (A) cause each such Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a Foreign Subsidiary) to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents; provided, that, no Domestic Subsidiary shall become a Borrower hereunder unless the Administrative Agent shall have received at least five (5) Business Days prior written notice thereof and all vetting and “know-your customer” information reasonably requested by the Administrative Agent for such Domestic Subsidiary, and (B) subject to Section 6.12(c), deliver all certificates representing the Pledged Equity of each such Subsidiary owned by a U.S. Loan Party, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank, and all instruments evidencing the Pledged Debt of each such Subsidiary owned by a U.S. Loan Party, indorsed in blank to the Collateral Agent, together with, if requested by the Administrative Agent, supplements to the U.S. Security Agreement with respect to the pledge of any Equity Interests or Indebtedness; provided that only 65% of Equity Interests of any Foreign Subsidiary owned by a U.S. Loan Party shall be required to be pledged as Collateral if such Foreign Subsidiary is a “controlled foreign corporation” for U.S. federal income tax purposes,


(ii)      within ten (10) Business Days after such request, formation or acquisition, or such longer period as the Administrative Agent may agree in its sole discretion, furnish to the Administrative Agent a Perfection Certificate Supplement,


(iii)     within thirty (30) days (or, in the case of IP Security Agreement Supplements, 45 days) after such request, formation or acquisition or change of status, or such longer period as the Administrative Agent may agree in its sole discretion, duly execute and deliver, and cause each such Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a Foreign Subsidiary) to duly execute and deliver, to the Collateral Agent Mortgages encumbering Material Real Estate, Security Agreement Supplements, IP Security Agreement Supplements and other security agreements, as specified by and in form and substance reasonably satisfactory to the Collateral Agent (consistent with the U.S. Security Agreement, IP Security Agreement and Mortgages),  securing  payment  of  all  the  Obligations  and  constituting  Liens  on  all  such properties,


(iv)      within thirty (30) days (or, in the case of IP Security Agreement Supplements, 45 days) after such request, formation, acquisition or change of status, or such longer period as the Administrative Agent may agree in its sole discretion, take, and cause such Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a Foreign Subsidiary) to take, whatever action (including, without limitation, the recording of Mortgages on Material Real Estate,  the  filing  of  







UCC  or  PPSA  financing  statements,  the  giving  of  notices  and  the endorsement of notices on title documents and delivery of stock and membership interest certificates and the delivery of fully-executed Deposit Account Control Agreements, Securities Account Control Agreements and Commodity Account Control Agreements) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages on Material Real Estate, Security Agreement Supplements, IP Security Agreement Supplements and security agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms,


(v)       within  thirty  (30)  days  after  the  request  of  the  Administrative Agent, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Administrative Agent, signed copies of opinions, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters as the Administrative Agent may reasonably request,


(vi)      as promptly as practicable after the request of the Administrative Agent, to the Administrative Agent with respect to each parcel of real property on which Mortgages on Material Real Estate that is the subject of such request, title insurance in scope, form and substance reasonably satisfactory to the applicable Administrative Agent and, to the extent available, land surveys and environmental assessment reports, and


(b)       Upon  the  formation  or  acquisition  of  any  new  direct  or  indirect Subsidiaries that are Canadian Subsidiaries (other than Excluded Subsidiaries) or upon the acquisition of any Canadian Loan Party of any Material Real Estate, the Canadian Borrowers shall  promptly notify  the  Administrative Agent  thereof and  the  Canadian Borrowers  shall, subject to applicable laws, in each case, at the Canadian Borrowers’ expense:


(i)        in connection with the formation or acquisition of a Subsidiary that is not an Excluded Subsidiary, within thirty (30) days after such formation, acquisition or change of status or such longer period as the Administrative Agent may agree in its sole discretion, (A) cause each such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Canadian Loan Parties’ obligations under the Loan Documents; provided, that, no Foreign Subsidiary shall become a Borrower  hereunder unless  the  Administrative Agent  shall  have  received at  least  ten  (10) Business Days prior written notice thereof and all vetting and “know-your customer” information reasonably requested by the Administrative Agent for such Foreign Subsidiary, and (B) subject to Section 6.12(c), deliver all certificates representing the Pledged Interests of each such Subsidiary owned by a Loan Party, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank, and all instruments evidencing the Pledged Debt of each such Subsidiary owned by a Loan Party, indorsed in blank to the Collateral Agent, together with, if requested by the Collateral Agent, supplements to the Canadian Security Agreement with respect to the pledge of any Equity Interests or Indebtedness,









(ii)       within ten (10) days after such request, formation or acquisition, or such longer period as the Administrative Agent may agree in its sole discretion, furnish to each Administrative Agent a Perfection Certificate Supplement,


(iii)     within thirty (30) days (or, in the case of IP Security Agreement Supplements, 45 days) after such request, formation or acquisition or change of status, or such longer period as the Administrative Agent may agree in its sole discretion, duly execute and deliver (if it has not already done so), and cause each such Subsidiary that is a Canadian Subsidiary to duly execute and deliver, to the Collateral Agent Mortgages encumbering Material Real Estate, new Canadian Security Agreements and/or Canadian Security Agreement Supplements, IP Security Agreement Supplements and other security agreements charging a Lien in such Subsidiaries’ assets, as specified by and in form and substance reasonably satisfactory to the Collateral Agent (consistent with the Canadian Security Agreement, IP Security Agreement and Mortgages), securing payment of all the Canadian Obligations under the Loan Documents and constituting Liens on all such properties,


(iv)      within thirty (30) days (or, in the case of IP Security Agreement Supplements, 45 days) after such request, formation, acquisition or change of status, or such longer period as the Administrative Agent may agree in its sole discretion, take, and cause such Subsidiary that is a Canadian Subsidiary or such parent to take (if it has not already done so), whatever action (including, without limitation, the recording of Mortgages on Material Real Estate, the filing of PPSA or UCC financing statements and other similar filings in all applicable jurisdictions, the giving of  notices and the endorsement of  notices on  title documents and delivery of stock and membership interest certificates and the delivery of fully-executed Deposit Account Control Agreements, Securities Account Control Agreements and Commodity Account Control Agreements) may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and subsisting Liens on the assets purported to be subject to the Mortgages on Material Real Estate, the Canadian Security Agreement Supplements, IP Security Agreement Supplements and other security agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, and


(v)       within  thirty  (30)  days  after  the  request  of  the  Administrative Agent, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Administrative Agent signed copies of opinions, addressed to the Administrative Agent and the other Canadian Secured Parties, of counsel for the Loan Parties reasonably acceptable to the  Administrative Agent  as  to  such  matters as  the  Administrative Agent  may  reasonably request;


(c)       At any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent in their reasonable judgment may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Mortgages, Security Agreement Supplements, IP Security Agreement Supplements and other security and pledge agreements.









(d)       Notwithstanding the foregoing, (x) the Collateral Agent shall not perfect its Lien in any assets (other than (1) ABL Priority Collateral and (2) Noteholder Priority Collateral that secures the Senior Secured Notes) as to which the Administrative Agent and the Borrowers  agree  that  the  cost  of  perfecting  such  Lien  (including  any  mortgage,  stamp, intangibles or other tax) are excessive in relation to the benefit to the Secured Parties of the security afforded thereby and (y) the Loan Parties shall not be required to take any action to pledge any Equity Interests of a Foreign Subsidiary unless such Foreign Subsidiary (i) is pledged to secure the Senior Secured Notes or (ii) has either (A) gross revenues (on a consolidated basis with its Subsidiaries) for the most recently ended period of four consecutive fiscal quarters equal to or greater than 2.5% of the consolidated gross revenues of Holdings and its Subsidiaries for such period or (B) total assets (on a consolidated basis with its Subsidiaries) at the end of the most recently completed fiscal quarter equal to or greater than 2.5% of consolidated total assets of Holdings and its Subsidiaries as at such date (any such Subsidiary, a “Material Foreign Subsidiary”).




SECTION 6.13.  Compliance with Environmental Laws.


(a)      Except, in each case, to the extent that the failure to do so could not reasonably be expected to result in a material liability, comply, and take all commercially reasonable steps to cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to address Hazardous Materials at, on, under or emanating from any of its properties, in accordance with the requirements of all applicable Environmental Laws.


(b)       If   a   Default  caused  by   reason  of   a   breach  of   Section  5.09   or Section 6.13(a)  shall  have  occurred and  be  continuing for  more  than  20  days  without the Borrowers and their Subsidiaries commencing activities reasonably appropriate to cure such Default or contest, in good faith, the asserted basis for such Event of Default, at the written request of the Administrative Agent, provide to the Lenders within 45 days after such request, or within 90 days if soil and/or ground water sampling is appropriate, at the expense of the Loan Party, an environmental assessment report for any property owned or operated by any Borrower or any of its Subsidiaries, including, where appropriate, any soil and/or groundwater sampling, reasonably relating to any matters that are the subject of such Default, prepared by an environmental  consulting  firm  of  the  Borrowers’  reasonable  selection  and,  in  form  and substance, reasonably acceptable to the Administrative Agent, indicating as relevant the presence or absence of Hazardous Materials and the estimated cost to address any non-compliance with or conduct any response or other corrective action with respect to such Hazardous Material required under any Environmental Law.


SECTION 6.14.  Further    Assurances.        Promptly    upon    request    by    the Administrative Agent, or any Lender through the Administrative Agent, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document or other document or instrument relating to any Collateral, and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (A) carry 







out more effectively the purposes of the Loan Documents, (B) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder or (C) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document, and cause each of its Subsidiaries to do so.


SECTION 6.15.  Compliance with Terms of Leaseholds.  Make all payments and otherwise perform all obligations in respect of all leases of real property of the Loan Parties material to the business of the Loan Parties, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any receipt of any notice of material default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such material default, and cause each of its Subsidiaries to do so, except, in any case, (a) where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect or (b) for terminations, lapses and amendments in the ordinary course of business.


SECTION 6.16.  Designation  as  Senior  Debt.    Designate  all  Obligations  as “Designated Senior Debt” or the equivalent designation under, and as defined in, all Junior Financing Documentation (other than under documentation governing Permitted Senior Unsecured Refinancing Indebtedness).
SECTION 6.17.  Collateral Administration. (a)    Administration of Accounts.


(i)        Records and Schedules of Accounts.  Each Loan Party shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to the Agents sales, collection, reconciliation and other reports in form reasonably satisfactory to the Agents, on such periodic basis as the Agents may reasonably request.  The Borrower Agent shall also provide to the Agents, on or before the 15th Business Day of each month, a detailed aged trial balance of all Loan Party Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as the Agents may reasonably request.  If Accounts in an aggregate face amount of $7,500,000 or more cease to be Eligible Receivables, the Borrower Agent shall notify the Agents of such occurrence promptly (and in any event within three Business Days) after any Loan Party has knowledge thereof.


(ii)       Taxes.  If an Account of any Loan Party includes a charge for any Taxes, the Administrative Agent is authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the account of such Loan Party and to charge the Borrowers therefor; provided, however, that neither the Administrative Agent nor the Lenders shall be liable for any Taxes that may be due from the Loan Parties or with respect to any Collateral.









(iii)    Account Verification.   Upon the occurrence and during the continuation of any Default or Event of Default or a Cash Dominion Event exists, the Agents shall have the right at any time, in the name of such Agent, any designee of such Agent or any Loan Party, to verify the validity, amount or any other matter relating to any Accounts of the Loan Party by mail, telephone or otherwise.   The Loan Parties shall cooperate fully with the
Agents in an effort to facilitate and promptly conclude any such verification process.


(iv)      Maintenance of Accounts.  The Loan Parties shall maintain one or more Dominion Accounts, each pursuant to a lockbox or other arrangement acceptable to the Administrative Agent, with such banks as may be selected by applicable Loan Parties and be reasonably acceptable to Administrative Agent.   The Loan Parties shall enter into Deposit Account  Control  Agreements with  each  bank  at  which  a  Deposit  Account  (other  than  an Excluded Account) is maintained by which such bank shall, upon notice from the Collateral Agent of the occurrence and continuation of a Cash Dominion Event or an Event of Default, immediately transfer to the U.S. Payment Account all monies deposited to a Dominion Account constituting proceeds of U.S. Collateral and to the Canadian Payment Account all monies deposited to a Dominion Account constituting proceeds of Canadian Collateral.   All funds deposited in each Dominion Account shall be subject to the Collateral Agent’s Lien.  The Loan Parties shall obtain the agreement (in favor of and in form and content reasonably satisfactory to the Administrative Agent) by each bank at which a Dominion Account is maintained to waive any offset rights against the funds deposited into such Dominion Account, except offset rights in respect of charges incurred in the administration of such Dominion Account.   Neither the Administrative Agent nor the Lenders shall assume any responsibility, absent gross negligence and willful misconduct, to any Loan Party for such lockbox arrangement or, upon the occurrence and during the continuation of a Cash Dominion Event or Event of Default, any Dominion Account, including any claim of accord and satisfaction or release with respect to deposits accepted by any bank thereunder.


(v)       Collection of Accounts; Proceeds of Collateral. All Payment Items received by any Loan Party in respect of its Accounts, together with the proceeds of any other Collateral, shall be held by such Loan Party as trustee of an express trust for the Collateral Agent’s benefit; such Loan Party shall immediately deposit same in kind in a Dominion Account for application to the applicable Obligations in accordance with the terms of this Agreement and the applicable Security Agreement.  The Collateral Agent retains the right at all times that an Event of Default exists to notify Account Debtors of any Loan Party that Accounts have been assigned to the Collateral Agent and to collect Accounts directly in its own name and to charge to the Borrowers the collection costs and expenses incurred by the Collateral Agent or Lenders, including reasonable attorneys’ fees.  Upon the occurrence and during the continuation of a Cash Dominion Event or an Event of Default, all monies properly deposited in the U.S. Payment Account shall be deemed to be voluntary prepayments of U.S. Obligations and applied to reduce outstanding Obligations and all monies properly deposited in the Canadian Payment Account shall be deemed to be voluntary prepayments of Canadian Obligations and applied to reduce outstanding Canadian Obligations.


(vi)      Asset Sales Proceeds Accounts.  None of Holdings, the Specified U.S. Borrower or any Subsidiary shall deposit any funds or credit any amounts into any “Asset Sales 







Proceeds Account” (as defined in the Intercreditor Agreement), other than proceeds of Noteholder Priority Collateral.


(b)    Administration of Inventory.


(i)       Records and Reports of Inventory.  Each Loan Party shall keep accurate and complete records of its Inventory, including costs and withdrawals and additions, and  shall  submit  to  the  Agents  inventory  and  reconciliation  reports  in  form  reasonably satisfactory to the Agents, on such periodic basis as the Agents may reasonably request.  Each Loan Party shall conduct a physical inventory at least once per calendar year (and on a more frequent basis if requested by the Agents when an Event of Default exists) and/or periodic cycle counts consistent with historical practices, and shall provide to the Agents a report based on each such inventory and count promptly upon completion thereof, together with such supporting information as  the Agents  may request.   The Agents  may participate in and observe each physical count.


(ii)       Returns of Inventory.  No Loan Party shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is in the ordinary course of business; (b) no Event of Default or Overadvance exists or would result therefrom; and (c) the Agents are promptly notified if the aggregate value of all Inventory returned in any month exceeds $5,000,000.


(iii)     Acquisition, Sale and Maintenance.   The Loan Parties shall use, store and maintain all Inventory with reasonable care and caution, in accordance with applicable standards of any insurance and in conformity with all Applicable Law, and shall make current rent payments (within applicable grace periods provided for in leases) at all locations where any Collateral is located.




SECTION 6.18.  Maintenance of Cash Management System.


(a)       The applicable schedule to the Perfection Certificate sets forth all Deposit Accounts maintained by the Loan Parties, including all Dominion Accounts.  On or prior to the date that is sixty (60) days after the Closing Date, or up to one hundred twenty (120) days by way of up to two thirty (30) day extensions as may be agreed by the Administrative Agent in its discretion, each Loan Party shall take all actions necessary to establish the Collateral Agent’s control of and Lien on each such Deposit Account (other than an Excluded Account). Each Loan Party shall be the sole account holder of each Deposit Account (other than an Excluded Account) and shall not allow any other Person (other than the Administrative Agent) to have control over or a Lien on a Deposit Account (other than an Excluded Account) or any property deposited therein.


(b)       On or prior to the date that is sixty (60) days after the Closing Date, or up to one hundred twenty (120) days by way of up to two thirty (30) day extensions as may be agreed by the Administrative Agent in its discretion, the Loan Parties shall have delivered to the Collateral Agent Deposit Account Control Agreements, Securities Account Control Agreements and Commodities Account Control Agreements for all of the Deposit Accounts, Securities Accounts and Commodities Accounts, respectively, of the Loan Parties (other than Excluded Accounts), duly executed by each applicable Loan Party and the applicable depositary bank or securities intermediary.


(c)       Upon the occurrence and during the continuation of a Cash Dominion Event, the Loan Parties shall cause any and all funds and financial assets held in or credited to each deposit account and each securities account to be swept into the Payment Account on a daily basis (or at other frequencies as agreed by the Collateral Agent).




SECTION 6.19.  Post-Closing Deliveries.


(a)       Within one hundred twenty (120) days after the Effective Date, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Administrative Agent copies of amendments to the Mortgages to reflect the increased amount of the Aggregate Commitments, duly executed by the parties to each Mortgage, and title endorsement bringdowns, in each case to the extent necessary pursuant to the advice of local counsel reasonably satisfactory to the Administrative Agent.


(b)       Within one hundred twenty (120) days after the Effective Date, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Collateral Agent a Mortgage encumbering the owned real property of Mitten located in Paris, Ontario, Canada, securing payment of all the Canadian Obligations under the Loan Documents, together with title insurance and an opinion of Ontario counsel to Mitten, each in scope, form and substance reasonably satisfactory to the Collateral Agent.


(c)        Within ninety (90)  days after the Effective Date, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Collateral Agent a Deposit Account Control Agreement for each of the Deposit Accounts of Mitten and Gienow (other than Excluded Accounts), duly executed by Mitten or Gienow, as applicable, and the applicable depositary bank.


(d)       Within forty five (45)  days after the Effective Date, or such longer period as the Administrative Agent may agree in its sole discretion, deliver to the Collateral Agent discharges of the security interest registrations filed in the Canadian Intellectual Property Office in favor of Sankaty Advisors, LLC against trademarks of Gienow Windoor Ltd. with registration numbers: TMA697,771, TMA698,107, TMA701,041, TMA698,131 and TMA451,568.







ARTICLE VII Negative Covenants


So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than any contingent indemnification obligation as to which no claim has been asserted) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,  Holdings  and  each  Borrower  shall  not,  nor  shall  they  permit  any  of  their Subsidiaries to, directly or indirectly:




SECTION 7.01.  Liens.   Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or sign or file or authorize the filing under the UCC, the PPSA, the Civil Code of Quebec or similar law of any jurisdiction a financing statement or  similar filing or  registration that names Holdings, the Borrowers or any of their respective Subsidiaries as debtor, or sign any security agreement authorizing any secured party thereunder to file such financing statement or similar filing or registration, other than the following:


(a)    Liens pursuant to any Loan Document;


(b)       Liens securing the Senior Secured Notes and any Permitted Refinancing, or any other secured Indebtedness permitted to be incurred pursuant to the Senior Secured Notes and any such Permitted Refinancing, in each case, subject to the terms of the Intercreditor Agreement, including that such Liens shall be expressly junior in ranking with respect to the ABL Priority Collateral to the Liens securing the Obligations;


(c)       Liens existing on the Effective Date and listed on Schedule 7.01 and any modifications, replacements, renewals or extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof and (ii) the renewal, extension, refinancing or replacements of the obligations secured or benefited by such Liens is permitted by Section 7.03;


(d)       Liens  for  Taxes,  assessments  or  governmental charges  which  are  not required to be paid pursuant to Section 6.04;


(e)     statutory  Liens  of  landlords,  carriers,  warehousemen, mechanics, materialmen, repairmen, processors or other like Liens arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days overdue, are unfiled and no other action has been taken to enforce such Lien or which are being contested in good faith and by appropriate proceedings diligently conducted which proceedings have the effect of preventing the forfeiture or sale of the property subject to such Lien, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;









(f)        (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA or in respect of Canadian Pension Plans and (ii) pledges and deposits   in   the   ordinary   course   of   business   securing   liability   for   reimbursement   or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees  for  the  benefit  of)  insurance  carriers  providing  property,  casualty  or  liability insurance to Holdings, the Specified U.S. Borrower or any of its Subsidiaries;


(g)       deposits to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds,  performance bonds  and other obligations of  a like nature incurred in the ordinary course of business and not in connection with Indebtedness for money borrowed;


(h)       easements,  rights-of-way,  restrictions,  encroachments,  protrusions  and other  similar  encumbrances  and  minor  title  defects  affecting  real  property  which,  in  the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the applicable Person;


(i)    Liens securing judgments for the payment of money not constituting an
Event of Default under Section 8.01(h) and not yet required to be paid pursuant to Section 6.04;


(j)        Liens securing Indebtedness permitted under Section 7.03(h); provided that (i) such Liens attach concurrently with or within one hundred eighty (180) days after the acquisition, repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and the proceeds and the products thereof and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender on customary terms;


(k)       leases,  licenses,  subleases  or  sublicenses  in  respect  of  real  property granted to others in the ordinary course of business and not interfering in any material respect with the business of Holdings, the Specified U.S. Borrower or any of its Subsidiaries;


(l)        Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;


(m)      Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of Holdings, the Specified U.S. Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Holdings, the Specified U.S. Borrower or any Subsidiary or (iii) relating to purchase orders and 







other agreements entered into with customers of Holdings, the Specified U.S. Borrower or any Subsidiary in the ordinary course of business;


(n)       Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02(h) and (n) to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;


(o)      Liens on property of any Foreign Subsidiary (other than a Canadian Subsidiary) securing Indebtedness of such Foreign Subsidiary to the extent permitted under Section 7.03(i);


(p)       Liens in favor of Holdings, the Specified U.S. Borrower or a Subsidiary of the Specified U.S. Borrower securing Indebtedness permitted under Section 7.03(g); provided that if such Liens are on any property of a U.S. Loan Party, such Liens are in favor of a U.S. Loan Party and if such Liens are on any property of a Canadian Loan Party, such Liens are in favor of a Loan Party;


(q)       Liens existing on property at the time of its acquisition or existing on the property of any Person that becomes a Subsidiary after the Closing Date; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof), and (iii) the Indebtedness secured thereby is permitted under Section 7.03 (and is permitted to be secured);


(r)       Liens not extending to any ABL Priority Collateral or Canadian Collateral arising from precautionary UCC or PPSA financing statement (or the foreign equivalent thereof) filings regarding operating leases entered into by a U.S. Borrower or any of its Subsidiaries as lessees in the ordinary course of business;


(s)       any interest or title of a lessor, sublessor, licensee, sublicensee, licensor or sublicensor under any lease or license agreement in the ordinary course of business permitted by this Agreement;


(t)        Liens not extending to any ABL Priority Collateral or Canadian Collateral arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Specified U.S. Borrower or any of its Subsidiaries in the ordinary course of business permitted by this Agreement;


(u)       Liens not extending to any ABL Priority Collateral or Canadian Collateral encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;


(v)    Permitted Encumbrances;









(w)      other Liens securing Indebtedness and other obligations outstanding in an aggregate principal amount not to exceed $25,000,000 (none of which Liens shall be on the ABL Priority Collateral or the Canadian Collateral);


(x)      Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.02;


(y)       Liens  securing  Indebtedness  permitted  under  Section  7.03(t)  that  are subject to the Intercreditor Agreement or another intercreditor agreement substantially consistent with and no less favorable to the Lenders than the Intercreditor Agreement and that are expressly junior  in  ranking  with  respect  to  the  ABL  Priority  Collateral  to  the  Liens  securing  the Obligations;


(z)       Any Liens in an aggregate amount not to exceed $25,000,000 that are subject to an intercreditor agreement reasonably acceptable to Administrative Agent and that are expressly junior to the Liens securing the Obligations;


(aa)    Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Specified U.S. Borrower or a Subsidiary relating to such property or assets; and


(bb)     Liens solely on any cash earnest money deposits made by the Specified U.S. Borrower or a Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder.




SECTION 7.02.  Investments. Make or hold any Investments, except:


(a)    Investments  held  by  Holdings,  the  Specified  U.S.  Borrower  or  any
Subsidiary in Cash Equivalents;


(b)       loans or advances to officers, directors and employees of Holdings, the Specified U.S. Borrower and any Subsidiaries in an aggregate amount not to exceed $7,500,000 at any time outstanding;


(c)       Investments (i) by the Specified U.S. Borrower or any of its Subsidiaries in any U.S. Loan Party, (ii) by any Canadian Loan Party (x) in any other Canadian Loan Party and (y) in any Foreign Subsidiary that is a Subsidiary but not a Loan Party in an amount not to exceed $5,000,000 at any time outstanding or solely for the purpose of making Tuck-in Acquisitions pursuant to Section 7.02(h), (iii) by any Subsidiary that is not a Loan Party in any other such Subsidiary, (iv) by the Specified U.S. Borrower or any Subsidiary that is a Loan Party in  any  Subsidiary  that  is  not  a  U.S.  Loan  Party  in  an  aggregate  amount  not  to  exceed
$10,000,000 at any time outstanding or solely for the purpose of making Tuck-in Acquisitions pursuant to Section 7.02(h) and (v) by the Specified U.S. Borrower or any Subsidiary in any Foreign Subsidiary consisting of (A) the contribution of Equity Interests of any other Foreign Subsidiary held directly by the Specified U.S. Borrower or such Subsidiary in exchange for Indebtedness, Equity Interests or a combination thereof of the Foreign Subsidiary to which such contribution is made, provided that if such Equity Interests are of a Canadian Loan Party, such contribution is to a Canadian Loan Party; or (B) the exchange of Equity Interests in any Foreign Subsidiary for Indebtedness of such Foreign Subsidiary;


(d)       Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors;


(e)       Investments  by  Holdings  in  Equity  Interests  of  the  Specified  U.S. Borrower in connection with a Permitted Equity Issuance;









(f)        Investments existing on the Effective Date and set forth on Schedule 7.02 and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except as otherwise permitted by this Section 7.02;


(g)    Investments in Swap Contracts permitted under Section 7.03;


(h)       the purchase or other acquisition of all or substantially all of the property and assets or business of, any Person or of assets constituting a business unit, a line of business or division of such Person, or at least 75% of the Equity Interests in a Person that, upon the consummation thereof, will be owned directly by the Specified U.S. Borrower or one or more of its wholly owned Subsidiaries (including, without limitation, as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(h) (each, a “Permitted Acquisition”):


(A)      each applicable Loan Party and any such newly created or acquired Subsidiary shall comply with the applicable requirements of Section 6.12;


(B)      the board of directors of such acquired Person or its selling equity holders shall not have indicated publicly its opposition to the consummation of such purchase or acquisition (which opposition has not been publicly withdrawn);


(C)      immediately before and immediately after giving effect to any such purchase or other acquisition, the ABL Payment Conditions shall have been satisfied;


(D)     the Specified U.S. Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, at least one (1) Business Day prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, certifying that all of the requirements set forth in this clause (h) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and


(E)      except to the extent the purchase price therefor is paid by a Foreign Subsidiary, the fair market value of all property acquired in Permitted Acquisitions which is contributed to or owned by Subsidiaries that are not U.S. Loan Parties shall be deemed to be an Investment permitted only to the extent made pursuant to Section 7.02(c)(iv).


Notwithstanding anything to the contrary herein, the Borrowers may submit a calculation of the Borrowing Base on a pro forma basis with adjustments to reflect the inclusion of the Eligible Receivables and Eligible Inventory acquired in any Permitted Acquisition in the Borrowing Base, and upon the Administrative Agent having completed a customary field exam and inventory appraisal with which it is reasonably satisfied and the delivery of a Borrowing Base 







Certificate calculated on a pro forma basis, the Borrowing Base shall be increased accordingly; it being understood that, subject to the foregoing conditions, the Borrowers shall, for the avoidance of doubt, be allowed to utilize any increase in the Borrowing Base resulting from such adjustment for the purpose of funding the purchase of such acquired assets.


(i)    Investments that U.S. Borrower has elected to be treated as Restricted Payments that are permitted by Section 7.06;


(j)        Investments   in   the   ordinary   course    of    business    consisting   of (i) endorsements for collection or deposit and (ii) customary trade arrangements with customers consistent with past practices;


(k)       Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent  obligations  of,  and  other  disputes  with,  customers  and  suppliers  arising  in  the ordinary course of business and upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;


(l)        the licensing, sublicensing or contribution of IP Rights pursuant to joint marketing arrangements with Persons other than Holdings, the Specified U.S. Borrower and its Subsidiaries in the ordinary course of business;


(m)      loans and advances to Holdings in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted  Payments  to  the  extent  permitted  to  be  made  to  Holdings  in  accordance  with Section 7.06;


(n)       other Investments so long as immediately before and immediately after giving effect to any such Investment, the ABL Payment Conditions shall have been satisfied;


(o)      Investments acquired as a result of the acquisition of another Person, including by way of a merger, amalgamation or consolidation with or into the Specified U.S. Borrower or any of its Subsidiaries, in a transaction that is not prohibited by this Agreement to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;


(p)       Investments  made  by  the  Specified  U.S.  Borrower  or  any  of  its Subsidiaries for consideration consisting only of or in exchange for, or out of the net cash proceeds of, Qualified Equity Interests or a contribution to the common equity capital of the Specified U.S. Borrower;


(q)    Investments  in  joint  ventures  in  an  aggregate  amount  not  to  exceed
$10,000,000 during the term of this Agreement;


(r)       other  Investments in  an  aggregate amount not  to  exceed $10,000,000 during the term of this Agreement;









(s)       loans and advances to directors, employees and officers of Holdings or a Subsidiary for bona fide business purposes or to purchase Equity Interests of Holdings or a Subsidiary not in excess of $5,000,000 at any one time outstanding;


(t)        Investments made by the Specified U.S. Borrower or a Subsidiary as a result of consideration received in connection with a Disposition made in compliance with Section 7.05; and
(u)       loans and advances to suppliers, licensees, franchisees or customers of the Specified U.S. Borrower or a Subsidiary made in the ordinary course of business in an aggregate amount not to exceed $5,000,000 at any time outstanding.








SECTION 7.03.  Indebtedness.     Create,  incur,  assume  or  suffer  to  exist  any
Indebtedness, except:


(a)      in the case of the Specified U.S. Borrower and the U.S. Subsidiary Guarantors, (i) (x) the 2017 Senior Notes and (y) any Permitted Senior Unsecured Refinancing Indebtedness and (ii) any Permitted Refinancings thereof (including any Indebtedness resulting from capitalization or accrual of interest, payment of interest in kind, or accretion of discount), so  long  as  immediately  before  and  immediately  after  giving  effect  to  such  Permitted Refinancing,


(A)      Excess Availability shall be more than 25% of the lesser of the Total Borrowing Base and the Aggregate Commitments; and


(B)      subject to the proviso below, the amount of interest payable in cash (and not in kind or otherwise capitalized or accrued) with respect to the 2017 Senior Notes or Permitted Senior Unsecured Refinancing Indebtedness, as applicable, and such Permitted Refinancing Indebtedness in any twelve-month period shall not exceed, in the aggregate, taking into account all interest payable in cash with respect to the 2017 Senior Notes or Permitted Senior Unsecured Refinancing Indebtedness (but excluding any defaulted interest pursuant to the 2017 Senior Notes Indenture or documentation governing the Permitted Senior Unsecured Refinancing Indebtedness), as applicable, and any Permitted Refinancing Indebtedness (but excluding any defaulted interest at a rate not in excess of 2.0% per annum) permitted under this clause (ii), $48,600,000; provided that, if at any time (x) the Specified U.S. Borrower shall be in compliance with clause (A) above, calculated on an average basis for the thirty (30) days ended on the date of such payment and on a pro forma basis after giving effect to the making of such payment, (y) the Consolidated Fixed Charge Coverage Ratio as of the end of the most recently completed Measurement Period of Holdings for which financial statements have been delivered pursuant to Section 6.01, calculated on a pro forma basis after giving effect to the making of such payment, shall be equal to or greater than
1.0:1.0, and (z) no Default shall have occurred and be continuing or would result therefrom, this clause (B) shall not limit the payment of interest in cash with respect to any Permitted Refinancing Indebtedness to the extent that 







such interest would otherwise be payable in kind or otherwise capitalized or accrued and added to the principal balance thereof;


(b)    in  the  case  of  the  Specified  U.S.  Borrower  and  the  U.S.  Subsidiary
Guarantors, (i)  the  Senior  Secured  Notes  in  an  aggregate principal  amount  not  to  exceed
$900,000,000 and any Permitted Refinancings thereof and (ii) additional Indebtedness of the type outstanding under clause (i) of this subsection (b) (or that is expressly junior in ranking with respect to the ABL Priority Collateral to the Liens securing the Obligations and subject to an intercreditor agreement reasonably acceptable to Administrative Agent) in an aggregate principal amount not to exceed $160,000,000 and any Permitted Refinancings thereof;


(c)       in the case of the Loan Parties, Permitted Subordinated Indebtedness in an aggregate principal amount not to exceed $112,500,000 at any time outstanding; provided that the Loan Parties may incur additional Permitted Subordinated Indebtedness as long as immediately after giving effect thereto, (i) no Event of Default has occurred and is continuing, (ii) Excess Availability shall be more than 25% of the lesser of the Total Borrowing Base and the Aggregate Commitments and (iii) the Specified U.S. Borrower shall be in pro forma compliance with the covenant set forth in Section 7.11 (whether or not such covenant is otherwise applicable under this Agreement at such time) as if such Indebtedness were incurred on the first day of the relevant Measurement Period;


(d)    Indebtedness of the Loan Parties under the Loan Documents;


(e)       Indebtedness   outstanding   on   the   Effective   Date   and   listed   on Schedule 7.03(e) and any modifications, refinancings, refundings, renewals, replacements or extensions thereof; provided that (A) the amount of such Indebtedness is not increased at the time of such modification, refinancing, refunding, renewal or extension except by an amount equal  to  a  reasonable  premium  or  other  reasonable  amount  paid,  and  fees  and  expenses reasonably incurred, in connection with such refinancing or as otherwise permitted pursuant to this Section 7.03, and (B) the terms and conditions (including, if applicable, as to collateral and subordination) of any such modified, extending, refunding or refinancing Indebtedness are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, extended, refunded or refinanced;


(f)        Guarantees of the Specified U.S. Borrower and its Subsidiaries in respect of Indebtedness of the Specified U.S. Borrower or such Subsidiary otherwise permitted under this Section 7.03; provided that (i) if such Guarantee is a Guarantee of Indebtedness of a U.S. Loan Party by any Subsidiary, such Subsidiary is a U.S. Loan Party or such Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the U.S. Guaranty, (ii) if such Guarantee is a Guarantee of Indebtedness of a Canadian Loan Party by any Subsidiary, such Subsidiary is a Loan Party or such Subsidiary shall have also provided a Guarantee of the Canadian Obligations substantially on the terms set forth in the Canadian Guarantee, (iii) if such Guarantee is of Indebtedness of a Subsidiary that is not a U.S. Loan Party, such Guarantee shall be deemed to be an Investment under Section 7.02 and (iv) if such Indebtedness is subordinated to the Obligations, such Guarantee shall be also be subordinated to the Obligations on terms no less favorable to the Lenders;









(g)       Indebtedness of (A) any U.S. Loan Party owing to any other U.S. Loan Party, (B) any Canadian Loan Party owing to any other Loan Party, (C) any Subsidiary that is not a Loan Party owing to (1) any other Subsidiary that is not a Loan Party or (2) Holdings or a Loan Party in respect of an Investment permitted under Section 7.02, and (D) any Loan Party owing to any Subsidiary which is not a Loan Party; provided that all such Indebtedness of any Loan  Party in  this  clause (g)(D)  must  be  expressly  subordinated to  the  Obligations or  the Canadian Obligations on the terms set forth in the Guaranties, as applicable and be represented by the Intercompany Note;


(h)      Attributable Indebtedness and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond and similar financings) to finance the purchase, repair or improvement of fixed or capital assets within  the  limitations  set  forth  in  Section 7.01(i)  and  any  Permitted  Refinancing  thereof; provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $25,000,000;


(i)        Indebtedness of Foreign Subsidiaries (other than Canadian Subsidiaries) in an aggregate principal amount at any time outstanding for all such Persons taken together not exceeding $10,000,000;


(j)        Indebtedness in  respect of  Swap  Contracts designed to  hedge  against foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes or in respect of interest rates;


(k)       unsecured Indebtedness consisting of  promissory  notes  issued  by  any Loan Party to  current or  former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings permitted by Section 7.06;


(l)       unsecured Indebtedness incurred by the Specified U.S. Borrower or its Subsidiaries in a Permitted Acquisition or Disposition under agreements providing for customary adjustments of the purchase price, indemnification, earn-out or similar obligations;


(m)    Cash Management Obligations and other Indebtedness in respect of endorsements for collection or deposit, netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts provided that such Indebtedness is extinguished within ten Business Days after its incurrence;


(n)       unsecured   Indebtedness   of   the   Specified   U.S.   Borrower   and   its Subsidiaries in an aggregate principal amount not to exceed $160,000,000 at any time outstanding;


(o)       Indebtedness consisting of (A) the financing of insurance premiums, (B) take-or-pay obligations contained in supply arrangements and (C) customary indemnification obligations, in each case, incurred in the ordinary course of business and not in connection with debt for money borrowed;









(p)      Indebtedness incurred by the Specified U.S. Borrower or any of its Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims in the ordinary course of business; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;


(q)       obligations in respect of performance and surety bonds and performance and completion guarantees provided by the Specified U.S. Borrower or any of its Subsidiaries or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business consistent with past practice and not in connection with debt for money borrowed;


(r)       (A) Indebtedness of the Specified U.S. Borrower or a Subsidiary assumed in connection with any Permitted Acquisition (and not created in contemplation thereof) not to exceed $50,000,000 in the aggregate outstanding at any time (which shall not be secured by any ABL Priority Collateral or Canadian Collateral or any other property besides a single asset or group of related assets specifically identified in the documentation for such Indebtedness) (“Permitted Acquired Debt”) and (B) Indebtedness of the Specified U.S. Borrower owed to the seller of any property acquired in a Permitted Acquisition on an unsecured basis (on terms no less favorable to the Lenders than the terms of the 2017 Senior Notes) not to exceed $50,000,000 in the aggregate outstanding at any time (“Permitted Seller Notes”);


(s)       Indebtedness  of   Holdings  in   connection  with   the   Tax   Receivable Agreement in an aggregate principal amount not to exceed $100,000,000 outstanding at any time; provided that (i) such Indebtedness shall be expressly subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (ii) no payment by Holdings with respect to Indebtedness incurred under this clause (s) shall be made unless before and after giving effect thereto, the ABL Payment Conditions shall have been satisfied; and


(t)        Indebtedness in an aggregate principal amount or liquidation preference not greater than the aggregate amount of cash received from the issuance and sale of Qualified Equity Interests of the Specified U.S. Borrower or a capital contribution to the common equity of the Specified U.S. Borrower; provided that: (1) such Indebtedness is unsecured or secured by Liens that are expressly junior in ranking with respect to the ABL Priority Collateral to the Liens securing the Obligations and subject to an intercreditor agreement reasonably acceptable to Administrative Agent, and has a stated maturity later than three months after the Maturity Date; and  (2)  such  Indebtedness  is  incurred  within  180  days  after  the  making  of  such  cash contributions


SECTION 7.04.  Fundamental Changes.  Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:


(a)       any Subsidiary (other than the Specified U.S. Borrower) may merge or consolidate with (i)  the Specified U.S.  Borrower  (including a merger or  consolidation, the purpose of which is to reorganize the Specified U.S. Borrower into a new jurisdiction which is a State of the United States of America), provided that the Specified U.S. Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Specified U.S. Borrower pursuant to documents reasonably acceptable to the Administrative Agent, or (ii) any one or more other Subsidiaries, provided that when any U.S. Subsidiary Guarantor is merging or 
consolidating with another Subsidiary (which is not a U.S. Subsidiary Guarantor), the U.S. Subsidiary Guarantor shall be the continuing or surviving Person;


(b)       any Canadian Subsidiary (including a Canadian Borrower) may merge or amalgamate with (i) any Canadian Borrower (including a merger or amalgamation, the purpose of which is to reorganize such Canadian Borrower into a new jurisdiction which is a province or territory of Canada), provided that a Canadian Borrower shall be the continuing or surviving Person  or  the  surviving  Person  shall  expressly  assume  the  obligations  of  such  Canadian Borrower pursuant to documents reasonably acceptable to the Administrative Agent, or (ii) any one or more other Subsidiaries, provided that when any Canadian Subsidiary Guarantor is merging or amalgamating with another Subsidiary, a Guarantor shall be the continuing or surviving Person;


(c)       (i) any Subsidiary (other than the Specified U.S. Borrower) may Dispose of all or substantially all of its assets (upon voluntary dissolution, liquidation or otherwise) to the Specified U.S. Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must be a Loan Party and if the transferee is not the Specified U.S.  Borrower  or  a U.S.  Subsidiary Guarantor, such transfer must be in the ordinary course of business consistent with past practice, and (ii) any Subsidiary (other than the Specified U.S. Borrower) that is not a U.S. Subsidiary Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Canadian Borrower or another Subsidiary; provided that if the transferor in such transaction is a Canadian Loan Party, then the transferee must be a Loan Party;


(d)       any Subsidiary (other than the Specified U.S. Borrower) may merge or amalgamate with or Dispose of all or substantially all of its assets to any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that if the continuing or surviving Person shall be a Subsidiary, such Subsidiary and each of its Subsidiaries shall have complied with the applicable requirements of Section 6.12; and


(e)     a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than clause (e) thereof).


SECTION 7.05.  Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:


(a)      Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used in the conduct of the business of the Specified U.S. Borrower and its Subsidiaries;


(b)    Dispositions of Inventory in the ordinary course of business;









(c)       Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d)       Dispositions of property by any Subsidiary to the Specified U.S. Borrower or to a Subsidiary; provided that (A) if the transferor of such property is a U.S. Loan Party either (i) the transferee is a U.S. Loan Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02 and (B) if the transferor of such property is a Canadian Loan Party either (i) the transferee is a Loan Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 7.02;


(e)       Dispositions permitted by Sections 7.04 and 7.06 (solely with respect to reissuances of Equity Interests of treasury stock of the Specified U.S. Borrower);


(f)        Dispositions  by  the  Specified  U.S.  Borrower  and  its  Subsidiaries  of property pursuant to sale-leaseback transactions; provided that (i) the fair market value of all property so Disposed of shall not exceed $22,500,000 from and after the Effective Date and (ii) the purchase price for such property shall be paid to the Specified U.S. Borrower or such Subsidiary for not less than 75% cash consideration (for the avoidance of doubt, it being understood that cash used to prepay or escrow rent shall be cash consideration);


(g)    Dispositions of Cash Equivalents;


(h)       Dispositions of (i) defaulted Accounts of financially-troubled debtors in connection with the collection or compromise thereof and (ii) with 10 days prior notice to the Administrative Agent, other Accounts as to which the applicable Loan Party has reasonable concerns as to credit quality;


(i)    licensing or sublicensing of IP Rights in the ordinary course of business;


(j)        leases, subleases, licenses or sublicenses of property in the ordinary course of  business  and which do  not materially interfere with the  business  of  the  Specified U.S. Borrower and its Subsidiaries;


(k)      Dispositions by the Specified U.S. Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Event of Default shall exist or would result from such Disposition, (ii) the aggregate fair market value of all property Disposed of in reliance on this clause (k) shall not exceed $100,000,000 since the Effective Date (excluding any property Disposed of in a Disposition or series of related Dispositions involving property with an aggregate fair market value of less than $5,000,000), and (iii) the purchase price for such property shall be paid to the Specified U.S. Borrower or such Subsidiary for not less than 75% cash consideration; provided further that, (i) any Designated Non-Cash Consideration received by the Borrowers or any Subsidiary in such Disposition having an aggregate fair market value (as  determined in good  faith by  the U.S.  Borrower),  taken together with all other Designated Non-Cash Consideration received that is at that time outstanding, not to exceed $30,000,000 (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time 







received and without giving effect to subsequent changes in value) shall be deemed to be cash and (ii) notwithstanding the foregoing, with  respect to  a  one-time sale  of  non-core assets  in  an  aggregate amount not  to  exceed
$30,000,000 pursuant to this Section 7.05(k), the purchase price for such property shall be paid to the Specified U.S. Borrower or such Subsidiary for not less than 50% cash consideration; and


(l)    Dispositions of assets set forth on Schedule 7.05;


provided, however, that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Sections 7.05(d)(A)(i), (d)(B)(i), (e), (h) and (j)), shall be for no less than the fair market value of such property at the time of such Disposition.  To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 (other than to a Loan Party), such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.




SECTION 7.06.  Restricted Payments.   Declare or make, directly or indirectly, any Restricted Payment, except:


(a)      each Subsidiary may make Restricted Payments to the Specified U.S. Borrower and to its Subsidiaries (and, in the case of a Payment by a non-wholly-owned Subsidiary, to the Specified U.S. Borrower and any Subsidiary and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests);


(b)       Holdings, the Specified U.S. Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person;


(c)    to the extent constituting Restricted Payments, Holdings and the Specified
U.S. Borrower and its Subsidiaries may enter into transactions expressly permitted by Section
7.04, 7.08, or 7.14;


(d)    the Specified U.S. Borrower and any Subsidiary of the Specified U.S. Borrower may make Restricted Payments to Holdings:


(i)        the proceeds of which will be used to make payments pursuant to the Tax Receivable Agreement (as in effect on the Effective Date) or to pay the tax liability for the relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings attributable to the Specified U.S. Borrower and its Subsidiaries determined as if the U.S. Specified Borrower and its Subsidiaries filed separately;


(ii)       the proceeds of which shall be used by Holdings to pay its (or to make a Restricted Payment to any direct or indirect parent company of the Specified U.S. Borrower to enable it to pay) operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and 







similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $7,500,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings or any direct or indirect parent company of the Specified U.S. Borrower attributable to the ownership or operations of the Specified U.S. Borrower and its Subsidiaries;


(iii)     the proceeds of which shall be used by Holdings to pay (or to make a Restricted Payment to any direct or indirect parent company of the Specified U.S. Borrower to enable it to pay to enable it to pay) its franchise taxes;


(iv)      the  proceeds  of  which  will  be  used  to  repurchase  the  Equity Interests of Holdings from, or to make a Restricted Payment to any direct or indirect parent company of the Specified U.S. Borrower to enable it to repurchase its Equity Interests from, directors, employees or members of management of Holdings or any direct or indirect parent company of the Specified U.S. Borrower, the Specified U.S. Borrower or any Subsidiary (or their estate, family members, spouse and/or former spouse), in an aggregate amount not in excess of $7,500,000 in any calendar year plus the proceeds of any key-man life insurance maintained by Holdings, the Specified U.S. Borrower or any of its Subsidiaries; provided that the Specified U.S. Borrower may carry-over and make in any subsequent calendar year or years, in addition to the amount for such calendar year, the amount not utilized in the prior calendar year or years up to a maximum of $22,500,000; or


(v)       the proceeds of which shall be used by Holdings or any direct or indirect parent company of the Specified U.S. Borrower to pay fees and expenses (other than to Affiliates) certified to the Administrative Agent by an Officer of the Specified U.S. Borrower and related to any unsuccessful equity or debt offering.


(e)       in  addition  to  the  foregoing  Restricted  Payments,  the  Specified  U.S. Borrower may make additional Restricted Payments to Holdings the proceeds of which may be utilized by Holdings to make additional Restricted Payments so long as before and after giving effect thereto, the ABL Payment Conditions shall have been satisfied; provided, that if the proceeds of such Restricted Payment are to be and are promptly applied to make a payment of the type described in Section 7.14, the Restricted Payment to Holdings under this clause (e) to allow it to make those payments shall be subject only to the criteria for the applicable type of payment set forth in Section 7.14;


(f)        repurchases  of  Equity  Interests  of  the  Specified  U.S.  Borrower  or Holdings deemed to occur upon the non-cash exercise of stock options or the non-cash vesting of restricted stock, restricted stock units, deferred stock units or any similar securities if such Equity Interests represent a portion of the exercise price of such options (or withholding of Equity Interests to pay related withholding taxes with regard to the exercise of such stock options or the vesting of any such restricted stock, restricted stock units, deferred stock units or any similar securities),  and  payments  of  cash,  dividends,  distributions,  advances  or  other  Restricted Payments to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or warrants, (ii) the vesting or settlement of restricted stock, restricted stock units, deferred stock units or any similar securities or (iii) the conversion or exchange of Equity Interests of any such Person; and









(g)       so long as no Default shall have occurred and be continuing or would result therefrom, (i) the Specified U.S. Borrower may make Restricted Payments with the net cash proceeds from any Permitted Equity Issuance received since the Closing Date and (ii) Holdings may make Restricted Payments with the net cash proceeds from any sale or issuance of any  Equity  Interests  (other  than  Disqualified  Equity  Interests)  of  Holdings  (or  capital contributions in respect thereof), in either case, to the extent such proceeds were received within 90 days prior to the date of such Restricted Payment and held in segregated account pending application pursuant to this clause (g).




SECTION 7.07.  Change in Nature of Business.


(a)       In respect of Holdings, engage in any business activities or have any assets or liabilities other than its ownership of the Equity Interests of the Specified U.S. Borrower and liabilities incidental thereto, including its liabilities as a Guarantor pursuant to the U.S. Guaranty, the Senior Secured Notes Documents and the 2017 Senior Notes Indenture, any Permitted Senior Unsecured Refinancing Indebtedness and any other Permitted Indebtedness and incidental activities to being a public company.


(b)       In respect of the Specified U.S. Borrower and its Subsidiaries, engage in any material line of business substantially different from those lines of business conducted by the Specified U.S. Borrower and its Subsidiaries on the Effective Date or any business reasonably related or ancillary thereto.


SECTION 7.08.  Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of the Specified U.S. Borrower, whether or not in the ordinary course of business, other than (a) transactions (i) between or among Loan Parties, (ii) between or among Subsidiaries  that  are  not  Loan  Parties  and  (iii) between  or  among  the  Loan  Parties,  the Subsidiaries and/or any joint venture in which any of them owns an interest, in each case, in the ordinary course of business, (b) on fair and reasonable terms substantially as favorable to the applicable Borrower or such Subsidiary as would be obtainable by the applicable Borrower or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the payment of fees, expenses and other payments made in connection with the consummation of the Transactions, (d) [Intentionally Omitted], (e) equity issuances by Holdings or the Specified U.S. Borrower permitted under Section 7.06, (f) loans and other transactions by the Specified U.S. Borrower and its Subsidiaries to the extent permitted under Section 7.06 or clauses (b), (c) and (m) of Section 7.02, (g) customary fees may be paid to any directors of Holdings and the Specified U.S. Borrower and reimbursement of reasonable out-of-pocket costs of the directors of Holdings and the Specified U.S. Borrower, (h) Holdings and the Specified U.S. Borrower and its Subsidiaries may enter into employment and severance arrangements with officers and employees in the ordinary course of business, (i) the payment of customary fees and reasonable out-of-pocket cost to, and indemnities provided on behalf of, directors, officers, employees and consultants of Holdings and the Specified U.S. Borrower and the Subsidiaries in the ordinary course of business to the extent attributable to the ownership or operation of Holdings and the Specified U.S. Borrower and its Subsidiaries, as determined in good faith by the board of directors of Holdings and the Specified U.S. Borrower or senior management thereof, (j) transactions pursuant to permitted agreements in existence on the Effective Date and set forth on Schedule 7.08(j) or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (k) dividends, redemptions and repurchases permitted under Section 7.06, and (l) payments by the Specified U.S. Borrower and any 







of its Subsidiaries to the Sponsor made for any customary financial advisory, financing, underwriting or  placement  services  or  in  respect  of  other  investment  banking  activities,  including  in connection with acquisitions or divestitures, which payments are approved by the majority of the members of the board of directors or a majority of the disinterested members of the board of directors of the Specified U.S. Borrower, in each case, in good faith.


SECTION 7.09.  Burdensome Agreements.   Enter into  or  permit to  exist any Contractual Obligation (other than this Agreement or any other Loan Document) that limits the ability (a) of any Subsidiary of the Specified U.S. Borrower to make Restricted Payments to the Specified U.S. Borrower or any Guarantor or to otherwise transfer property to or invest in any Borrower or any Guarantor, except for any agreement in effect (i) (x) on the Effective Date and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand the scope of such Contractual Obligation, (ii) at the time any Person becomes a Subsidiary, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary, (iii) representing Indebtedness of a Subsidiary which is not a Loan Party which is permitted by Section 7.03, or (iv) in connection with any Disposition permitted by Section 7.05 relating solely to the assets to be disposed of, and (b) of the Specified U.S. Borrower or any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to the Revolving Credit Facility and the Obligations or under the Loan Documents except for (i) negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property subject to a Lien permitted by Section 7.01 or (ii) customary restrictions on leases, subleases, licenses or asset sale agreements otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto; provided, however, that  clauses  (a)  and  (b)  shall  not  prohibit  Contractual  Obligations  that  (i)  are  customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business, or (ii) apply only to the property or assets securing Indebtedness permitted to be secured by such property or assets by Section 7.01 and Section 7.03, (iii) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest, (iv) are customary provisions restricting assignment of any agreement entered into in the ordinary course of business and (v) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business.


SECTION 7.10.  Use of Proceeds.   Use the proceeds of any Credit Extension, whether directly or indirectly, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose.


SECTION 7.11.  Consolidated Fixed Charge Coverage Ratio. At any time when a Covenant Trigger Event shall have occurred and be continuing, permit the Consolidated Fixed Charge Coverage Ratio as of the end of the most recently completed Measurement Period of Holdings for which financial statements have been delivered by 







Holdings pursuant to Section 6.01 and for each Measurement Period thereafter until such Covenant Trigger Event shall cease to be continuing, to be less than 1.0:1.0.


SECTION 7.12.  Amendments of  Material Documents.     Amend  (a) any  of  its
Organization Documents, (b) the 2017 Senior Notes Indenture or any other agreement relating to Junior Financing or (c) the Senior Secured Notes Documents, in each case in a manner materially adverse to the Agents or the Lenders.


SECTION 7.13.  Fiscal  Year.     Make  any  change  in  the  periods  covered  by Holdings’ fiscal year.


SECTION 7.14.  Prepayments, Etc. of Indebtedness.


(a)       Prepay,  redeem,  purchase,  defease  or  otherwise  satisfy  prior  to  the scheduled maturity thereof in any manner any of the Senior Secured Notes, the 2017 Senior Notes, Permitted Senior Unsecured Refinancing Indebtedness, Permitted Seller Notes and any Permitted Subordinated Indebtedness (collectively, “Junior Financing”) or make any payment in violation of any subordination terms of any Junior Financing Documentation, except so long as no Default shall have occurred and is continuing or would result therefrom (i) the prepayment of any such Junior Financing in any fiscal year in an amount not to exceed fifty percent (50%) of “excess cash flow” (as such term is customarily defined as determined in good faith by the board of directors of Holdings and the Specified U.S. Borrower or senior management thereof) for the immediately preceding fiscal year, (ii) with respect to any Indebtedness that is permitted to be incurred under Section 7.03(a) or 7.03(b) that is in the form of a term loan, prepayments consisting of customary scheduled amortization (as determined in good faith by the board of directors of Holdings and the Specified U.S. Borrower or senior management thereof), (iii) with respect to any Indebtedness that is permitted to be incurred under Section 7.03(a) or 7.03(b), prepayments made with the proceeds of asset sales or dispositions, insurance proceeds or other customary “extraordinary receipts” (as determined in good faith by the board of directors of Holdings and the Specified U.S. Borrower or senior management thereof) that, in each case, do not constitute ABL Priority Collateral, (iv) the prepayment, redemption, purchase or defeasance of any such Junior Financing with the net cash proceeds of, or the exchange of such Junior Financing into, any Indebtedness permitted under Section 7.03 or a Permitted Equity Issuance (other than in connection with an exercise of the Cure Right) to the extent that such proceeds were received within 180 days prior to the date of such prepayment, redemption, purchase or defeasance and held in a segregated account pending application pursuant to this Section 7.14, (v) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) and (vi) the prepayment, redemption, purchase or defeasance of any such Junior Financing, so long as immediately before and immediately after giving effect thereto, the ABL Payment Conditions shall have been satisfied, provided that in each case such payment is also permitted under the Senior Secured Notes Indenture or (b) amend, modify or change in any manner materially adverse to the interests of the Administrative Agent or the Lenders any term or condition of any Junior Financing Documentation.


SECTION 7.15.  Equity Interests of Holdings and Subsidiaries.









(a)       (i) Permit Holdings or any of its Subsidiaries to own directly or indirectly less than 100% of the Equity Interests of any of the Domestic Subsidiaries and Canadian Subsidiaries except as a result of or in connection with a dissolution, merger, consolidation or Disposition of a Subsidiary permitted by Section 7.04 or 7.05 or an Investment in any Person permitted under Section 7.02; or
(b)       Permit Holdings or any of its Subsidiaries to own directly or indirectly less than 80% of the Equity Interests of any of the Foreign Subsidiaries (other than Canadian Subsidiaries) which are Subsidiaries except (A) to qualify directors where required by applicable Law or to satisfy other requirements of applicable Law with respect to the ownership of Equity Interests of Foreign Subsidiaries or (B) as a result of or in connection with a dissolution, merger, amalgamation, consolidation or disposition of a Subsidiary permitted by Section 7.04 and 7.05 or an Investment in any Person permitted under Section 7.02; or


(c)       Create, incur, assume or suffer to exist any Lien on any Equity Interests of any Borrower (other than Liens pursuant to the Loan Documents and non-consensual Liens arising solely by operation of law and customary restrictions in joint venture agreements).




SECTION 7.16.  Designation of Senior Debt.  Designate any other Indebtedness (other than the Senior Secured Notes) of the Specified U.S. Borrower or any 







of its Subsidiaries as “Senior Debt” (or any comparable term) under, and as defined in, the 2017 Senior Notes Indenture or any other applicable Junior Financing Documentation or any Permitted Refinancing.









ARTICLE VIII


Events of Default and Remedies






SECTION 8.01.  Events  of  Default.    The  occurrence  of  the  following  shall constitute an Event of Default:


(a)       Non-Payment.   Any Borrower or any other Loan Party fails to (i) pay when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within seven days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or


(b)       Specific Covenants.  (i)  Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.03(a), 6.05 (but only with respect to Holdings’, the Specified U.S. Borrower’s or a Canadian Borrower’s existence), 6.11, 6.17(a)(iv), (v) or (vi), or Article VII (after notice from any Agent), (ii) any of the Guarantors fails to perform or observe any term, covenant or agreement contained in Sections 1.05  and 1.06 of the respective Mortgages to which it is a party (after notice from any Agent); or


(c)       Other Defaults.  (i) Any Loan Party fails to perform or observe any term, covenant or agreement contained in Section 6.10 on its part to be performed or observed and such failure continues for two Business Days; (ii) any Loan Party fails to perform or observe any term, covenant, or agreement contained in any of Sections 6.01(f) and 6.17 (other than Sections
6.17(a)(iv), (v), (vi) or (b)(ii)); (iii) any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Sections 6.01(a), (b), (c), (d), or (e), 6.02(b), or 6.18, on its part to be performed or observed and such failure continues for five Business Days; (iv) any Loan Party fails to perform or observe any term, covenant or agreement contained in Section
6.04(a) or 6.07 on its part to be performed or observed and such failure continues for 10 Business Days; or (v) any Loan Party fails to perform or observe any other covenant or agreement (not specified  in  Section 8.01(a)  or  (b),  (c)(i),  (c)(ii)  or  (c)(iii)  above)  contained  in  any  Loan Document on its part to be performed or observed and such failure continues for 30 days after notice thereof by the Administrative Agent to the Specified U.S. Borrower; or


(d)     Representations  and  Warranties.      Any  representation,  warranty, certification or statement of fact made or deemed made by or on behalf of any Borrower or any other Loan Party herein, in any other Loan Document or any amendments or modification thereof or waiver thereunder, or in any report, Borrowing Base Certificate or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or









(e)       Cross-Default.  (i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment (after giving effect to any applicable grace periods) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or


(f)        Insolvency Proceedings, Etc.  Any Loan Party or any Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, interim receiver, monitor, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, interim receiver, monitor, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or


(g)       Inability to Pay Debts; Attachment.  (i) Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 45 days after its issue or levy; or


(h)       Judgments.   There is entered against any Loan Party or any Subsidiary thereof (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, 







has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have,  individually  or  in  the  aggregate,  a  Material  Adverse  Effect  and,  in  either  case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B)  there is a period of 45  consecutive days  during which a stay of  enforcement of  such judgment, by reason of a pending appeal or otherwise, is not in effect; or


(i)       ERISA.   (i) An ERISA Event occurs with respect to a Pension Plan, Multiemployer Plan or, to the extent applicable, a Canadian Pension Plan, which has resulted or could reasonably be expected to result in liability of the Borrowers under Title IV of ERISA to the Pension Plan, Multiemployer Plan, Canadian Pension Plan or the PBGC or other applicable Governmental Authority that could reasonably be expected to result in a Material Adverse Effect, (ii) any Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan that could reasonably be expected to result in a Material Adverse Effect or (iii) any Canadian Loan Party fails to make a required contribution in respect of a Canadian Pension Plan and such failure gives rise to a Lien that is not permitted under Section 7.01; or


(j)       Invalidity of Loan Documents.   Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any Affiliate thereof contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or


(k)    Change of Control. There occurs any Change of Control; or


(l)       Collateral Documents.  Any Collateral Document after delivery thereof pursuant to Section 4.01 or 6.12 or the terms of the Loan Documents shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01 and the Intercreditor Agreement) on the Collateral purported to be covered thereby; or


(m)    Subordination.   (i) The subordination provisions of the documents evidencing or governing any subordinated Indebtedness (the “Subordination Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness; or (ii) any Borrower or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative Agent, the Lenders and the L/C Issuers or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions.


SECTION 8.02.  Remedies upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:


(a)       declare the commitment of each Lender to make Loans and any obligation of  the  L/C  Issuers  to  make  L/C  Credit  Extensions  to  be  terminated,  whereupon  such commitments and obligation shall be terminated;


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


(c)       require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof).


If any Event of Default occurs and is continuing, the Collateral Agent may, and at the request of the Required Lenders shall, exercise on behalf of itself, the Administrative Agent, the Lenders and the L/C Issuers all rights and remedies available to it, the Administrative Agent, the Lenders and the L/C Issuers under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Specified U.S. Borrower or any Canadian Borrower under any Debtor Relief Laws, the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of any Agent or any Lender.


SECTION 8.03.  Application of  Funds.    After  the  occurrence and  during  the continuance of an Event of Default, at the election of the Administrative Agent or the Required Lenders (or after the Loans have become immediately due and payable and the L/C Obligations have been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied, subject to the Intercreditor Agreement, by the Administrative Agent in the following order:


(a)    With respect to amounts received from or on account of any U.S. Loan
Party, or in respect of any U.S. Collateral,


First, to payment of all costs and expenses incurred by the Administrative Agent and the Collateral Agent (in their respective capacities as such hereunder or under any other U.S. Loan Document) in connection with the collection, sale, foreclosure or realization upon any U.S. Collateral or otherwise in connection with this Agreement, any other U.S. Loan Document or any of the U.S. Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any other U.S. Loan Document on behalf of Holdings or any U.S. Subsidiary Guarantor and any other costs or expenses  incurred  in  connection  with  the  exercise  of  any  right  or  remedy hereunder or under any other U.S. Loan Document;


Second, to payment in full of U.S. Unfunded Advances/Participations (the amounts so applied to be distributed between or among the Administrative Agent, the U.S. Swing Line Lender and the U.S. L/C Issuer pro rata in accordance with the amounts of U.S. Unfunded Advances/Participations owed to them on the date of such distribution);


Third, to payment in full of all other U.S. Obligations other than Excess Bank Product Debt (the amounts so applied to be distributed among the U.S. Secured Parties pro rata in accordance with the amounts of the U.S. Obligations owed to them on the date of any such distribution);


Fourth,     to    the    Canadian    Obligations    in    the    order    set    forth    in
Section 8.03(b); Debt;
 
Fifth, to payment in full of obligations in respect of Excess Bank Product




Sixth, as provided for under the Intercreditor Agreement; 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.









(b)       With respect to amounts received from or on account of any Canadian Loan Party or in respect of any Canadian Collateral, or, after all of the U.S. Obligations set forth in clauses first through third above have been indefeasibly paid in full in accordance with Section 8.03(a), from or on account of any U.S. Loan Party, or in respect of any U.S. Collateral,


First, to payment of that of all costs and expenses incurred by the Administrative Agent and the Collateral Agent (in their respective capacities as such hereunder or under any other Canadian Loan Document) in connection with the collection, sale, foreclosure or realization upon any Canadian Collateral or otherwise in connection with this Agreement, any other Canadian Loan Document or any of the Canadian Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any other Canadian Loan Document on behalf of any Guarantor and any other costs or expenses  incurred  in  connection  with  the  exercise  of  any  right  or  remedy hereunder or under any other Canadian Loan Document;


Second, to payment in full of Canadian Unfunded Advances/Participations (the amounts so applied to be distributed between or among the Administrative Agent, the Canadian Swing Line Lender and the Canadian L/C Issuer pro rata in accordance with  the  amounts  of  Canadian Unfunded  Advances/Participations owed to them on the date of such distribution);


Third, to payment in full of all other Canadian Obligations other than Excess Bank Product Debt (the amounts so applied to be distributed among the Canadian  Secured  Parties  pro  rata  in  accordance  with  the  amounts  of  the Canadian Obligations owed to them on the date of any such distribution);


Fourth,  to  payment  in  full  of  obligations  in  respect  of  Excess  Bank
Product Debt; 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.


Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to Section 8.03(a) above, and Section 8.03(b) above, shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.


Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.   Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence 







shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent and the Collateral Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.


SECTION 8.04. Collection Allocation Mechanism.


(a)       On the CAM Exchange Date, (i) each U.S. Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make payment therefor to the Administrative Agent in accordance with Section 2.04(A)(c)(ii)) participations in the U.S. Swing 
Line Loans in an amount equal to such U.S. Revolving Lender’s Applicable Percentage of each U.S. Swing Line Loan outstanding on such date, (ii) each U.S. Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make payment therefor to the Administrative Agent in accordance with Section 2.03) participations in the Outstanding Amount of U.S. L/C Obligations with respect to each U.S. Letter of Credit in an amount equal to such U.S. Revolving Credit Lender’s Applicable Percentage of the aggregate amount available to be drawn under such U.S. Letter of Credit, (iii) each Canadian Revolving Credit Lender shall immediately be deemed to have acquired (and shall promptly make payment therefor to the Administrative Agent in accordance with Section 2.04(B)(c)(ii)) participations in the Canadian Swing Line Loans in an amount equal to such Canadian Lender’s Applicable Percentage of each Canadian Swing Line Loan outstanding on such date, (iv) each Canadian Revolving Credit Lender shall immediately be  deemed to  have acquired (and shall promptly make payment therefor to the Administrative Agent in accordance with Section 2.03) participations in the Outstanding Amount of Canadian L/C Obligations with respect to each Canadian Letter of Credit in an amount equal to such Canadian Revolving Credit Lender’s Applicable Percentage of the aggregate  amount  available  to   be   drawn   under  such   Canadian  Letter  of   Credit,  (v) simultaneously with the automatic conversions pursuant to clause (vi) below, the Lenders shall automatically and without further act (and without regard to the provisions of Section 10.04) be deemed to have exchanged interests in the Loans (other than the Swing Line Loans) and participations in the Swing Line Loans and Letters of Credit, such that in lieu of the interest of each Lender in each Loan, and L/C Obligations in which it shall participate as of such date (including such Lender’s interest in the Obligations, Guaranties and Collateral of each Loan Party in respect of each such Loan and L/C Obligations), such Lender shall hold an interest in every one of the Loans (other than the Swing Line Loans) and a participation in every one of the Swing Line Loans and all of the L/C Obligations (including the Obligations, Guaranties and Collateral of each Loan Party in respect of each such Loan), whether or not such Lender shall previously have  participated therein,  equal  to  such  Lender’s CAM  Percentage thereof  and (vi) simultaneously with the deemed exchange of interests pursuant to clause (v) above, the interest in the Loans denominated in Canadian Dollars to be received in such deemed exchange shall be converted into Obligations denominated in Dollars and on and after such date all amounts accruing and owed to Lenders in respect of such Obligations shall accrue and be payable in Dollars at the rates otherwise applicable hereunder. Each Lender and each Loan Party hereby consents and agrees to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be binding upon its successors and assigns and any person that acquires a participation in its interests in any Loan or any participation in any Swing Line Loan or Letter of Credit.  Each Loan Party agrees from time to time to execute and deliver to the Administrative Agent all such promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests of the Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent against delivery of any promissory notes evidencing its interests in the Loans so executed and delivered; provided, however, that the failure of any Loan Party to execute or deliver or of any Lender to accept any such promissory note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange.


(b)       As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment received by the Administrative Agent pursuant to any Loan Document in respect of any of the Obligations, and each distribution made by the Administrative Agent in respect of the 







Obligations, shall be distributed to the Lenders pro rata in accordance with their respective CAM Percentages.  Any direct payment received by a Lender upon or after the CAM Exchange Date, including by way of setoff, in respect of an Obligation shall be paid over to the Administrative Agent for distribution to the Lenders in accordance herewith.


SECTION 8.05.  Certain Cure Rights.


(a)       Notwithstanding anything to the contrary contained in Section 8.01, in the event that the Borrowers fail to comply with the Consolidated Fixed Charge Coverage Ratio covenant contained in Section 7.11 as of the end of any fiscal quarter or fiscal year, Holdings, at the sole option of the Borrowers, shall have the right, no later than 10 days after the date the financial statements with respect to such fiscal quarter or fiscal year are required to be delivered to the Administrative Agent pursuant to Section 6.01(a) or (b), to issue Equity Interests not constituting Disqualified Equity Interests in exchange for cash, or obtain other cash common or preferred equity contributions (not constituting Disqualified Equity Interests), in an aggregate amount not in excess of the minimum amount necessary to cure the relevant failure to comply with the Consolidated Fixed Charge Coverage Ratio covenant, the cash proceeds of which shall be contributed by Holdings in cash to the common or preferred equity (not constituting Disqualified Equity Interests) of U.S. Borrower (collectively, the “Cure Right”), and upon the receipt by U.S. Borrower of such cash (the “Cure Amount”), the Consolidated Fixed Charge Coverage Ratio covenant shall be recalculated giving effect to the following pro forma adjustments:


(i)        Consolidated EBITDA shall be increased, solely for the purpose of measuring the Consolidated Fixed Charge Coverage Ratio covenant in Section 7.11 and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;


(ii)       if, after giving effect to the foregoing recalculations, Borrowers shall then be in compliance with the requirements of the Consolidated Fixed Charge Coverage Ratio covenant in Section 7.11, Borrowers shall be deemed to have satisfied the requirements of such covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the Consolidated Fixed Charge Coverage Ratio covenant in Section 7.11 that had occurred shall be deemed cured for all purposes of this Agreement and the other Loan Documents;


(iii)     to the extent a fiscal quarter ended on a date as of which the Consolidated Fixed Charge Coverage Ratio covenant in Section 7.11 is initially recalculated as a result of a Cure Right is included in the calculation of the Consolidated Fixed Charge Coverage Ratio covenant in Section 7.11 in a subsequent fiscal period, the Cure Amount shall be included in the amount of Consolidated EBITDA for such initial fiscal quarter.


(b)       Notwithstanding anything herein to the contrary, (i) in each four-fiscal quarter period of the Borrowers, there shall be at least two fiscal quarters in which the Cure Right is not exercised, (ii) Cure Amounts received pursuant to the exercise of any Cure Right pursuant to this Section 8.05 shall be disregarded for purposes of determining any baskets with respect to the covenants (including the related definitions) set forth herein, except as otherwise expressly 







contemplated by this Section 8.05, (iii) Cure Amounts shall be excluded (and no adjustment to Consolidated EBITDA shall be made in respect thereof pursuant to clause (a)(i) above) for purposes of determining the permissibility of effecting Incremental Revolving Credit Commitments or for purposes of determining whether a transaction constitutes a Permitted Acquisition or additional Permitted Subordinated Indebtedness pursuant to the proviso in Section 7.03(c) or a Permitted Refinancing pursuant to Section 7.03(a)(ii), in each case based upon compliance on a pro forma basis with the financial covenant set forth in Section 7.11 or with a stated minimum Consolidated Fixed Charge Coverage Ratio, or for purposes of determining whether the ABL Payment Conditions have been satisfied and (iv) the Cure Right shall not be exercised more than five (5) times during the term of the Credit Agreement.









ARTICLE IX


The Agents


SECTION 9.01.  Appointment and Authority.


(a)       Each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and each L/C Issuer hereby irrevocably appoints the Administrative Agent, the Collateral Agent and the Co-Collateral Agent to act on its behalf as its agents hereunder and under the other Loan Documents and authorizes the Agents to take such actions on its behalf and to exercise such powers as are delegated to the Agents by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except for Section 9.06, the provisions of this Article are solely for the benefit of the Agents, the Lenders and the L/C Issuers, and neither the Borrowers nor any other Loan Parties shall have rights as a third party beneficiary of any of such provisions.


(b)        Fondé de pouvoir.  For greater certainty, and without limiting the powers of the Administrative Agent, or the Collateral Agent, each of the Secured Parties hereby irrevocably constitutes the Canadian Collateral Agent as the holder of an irrevocable power of attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) in order to hold hypothecs and security granted by any Loan Party on property pursuant to the laws of the Province of Québec in order to secure obligations of any Loan Party under any bond, debenture or similar title of indebtedness, issued by any Loan Party, and hereby agrees that the Administrative Agent may act as the holder and mandatary (i.e. agent) with respect to any shares, capital stock or other securities or any bond, debenture or similar title of indebtedness that may be issued by any Loan Party and pledged in favour of the Administrative Agent, for the benefit of the Secured Parties. The execution by the Canadian Collateral Agent, acting as fondé de pouvoir and mandatary, prior to the Credit Agreement of any deeds of hypothec or other security documents is hereby ratified and confirmed.


(c)       Agent as Bond Holder.  Notwithstanding the provisions of section 32 of An Act respecting the special powers of legal persons (Québec), the Administrative Agent may acquire and be the holder of any bond or debenture issued by any Loan Party (i.e. the fondé de pouvoir may acquire and hold the first bond issued under any deed of hypothec by any Loan Party).


(d)       Ratification of Fondé de Pouvoir by Successors and Assignees, etc.  The constitution of the Canadian Collateral Agent as fondé de pouvoir, and of the Administrative Agent as holder and mandatary with respect to any bond, debenture, shares, capital stock or other securities that may be issued and pledged from time to time to the Administrative Agent for the benefit of the Secured Parties, shall be deemed to have been ratified and confirmed by each Person accepting an assignment of, a participation in or an arrangement in respect of, all or any portion of any Secured Parties’ rights and obligations under this Agreement by the execution of an assignment, including an Assignment and Assumption or a joinder agreement in the case of any Cash Management Bank or Hedge Bank, or other agreement pursuant to which it becomes such assignee or participant, and by each successor Administrative Agent by the execution of an Assignment and Assumption or other 







agreement, or by the compliance with other formalities, as the case may be, pursuant to which it becomes a successor Administrative Agent under this Agreement.


(e)       Rights, etc. of Fondé de pouvoir. The Canadian Collateral Agent acting as fondé de pouvoir shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favour of the Administrative Agent in this Agreement, which shall apply mutatis mutandis to the Canadian Collateral Agent acting as fondé de pouvoir.


SECTION 9.02.  Rights as a Lender.  Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders.


SECTION 9.03.  Exculpatory Provisions. The Agents shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, neither Agent:


(a)       shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;


(b)      shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders, Required U.S. Lenders or Required Canadian Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law; and


(c)    shall,  except  as  expressly  set  forth  herein  and  in  the  other  Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity.


Neither Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct.   Neither Agent shall be deemed to have written knowledge of any Default unless and until notice describing such Default is given to such Agent by a Borrower, a Lender or an L/C Issuer.









Neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder  or  thereunder  or  in  connection  herewith  or  therewith,  (iii) the  performance  or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agents.


SECTION 9.04.  Reliance by Administrative Agent.  The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Agents also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is reasonably satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  Each Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.


SECTION 9.05.  Delegation of Duties.


(a)       Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more individual(s) or institution(s) as separate trustee(s), co-trustee(s), collateral agent(s), collateral sub-agent(s) or collateral co-agent(s) (any such additional individual or institution being referred to herein as a “Supplemental Collateral Agent”) appointed by such Agent.  Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agents.


(b)       In the event that the Collateral Agent appoints a Supplemental Collateral Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof 







by such Supplemental Collateral Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Collateral Agent, and (ii) the provisions of this Article and of Section 10.04 that refer to the Collateral Agent shall inure to the benefit of such Supplemental Collateral Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Collateral Agent, as the context may require.


(c)       Should any instrument in writing from any Loan Party be required by any Supplemental Collateral Agent so appointed by the Collateral Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent.  In case any Supplemental Collateral Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall vest in and be exercised by the Collateral Agent until the appointment of a new Supplemental Collateral Agent.


SECTION 9.06.  Resignation of Administrative Agent.  Each Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrowers.   Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with consent of with the Specified U.S. Borrower (so long as no Event of Default has occurred and be continuing), to appoint 
a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States and Canada.   If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Agent meeting the qualifications set forth above. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise  agreed  between  the  Borrowers  and  such  successor.    After  the  retiring  Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent.




SECTION 9.07.  Non-Reliance on    Administrative Agent  and  Other  Lenders. Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon either Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon either Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.


SECTION 9.08.  No  Other  Duties,  Etc.     Anything  herein  to  the  contrary notwithstanding, none of the Bookrunner or the Syndication Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan  Documents,  except  in  its  capacity,  as  applicable,  as  the  Administrative  Agent,  the Collateral Agent, a Lender or an L/C Issuer hereunder.


SECTION 9.09.  Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan 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 any Borrower) 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 unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections
2.03(h) and (i), 2.09 and 10.04) 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 and each L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making  







of  such  payments  directly  to  the  Lenders  and  the  L/C  Issuers,  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 2.09 and 10.04.


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 or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding.


SECTION 9.10.  Collateral   and   Guaranty   Matters.      Each   of   the   Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuers irrevocably authorize the Collateral Agent, at its option and in its discretion,


(a)       to release any Lien on any property granted to or held by the Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements  as   to   which   arrangements  reasonably  satisfactory  to   the   applicable  Cash Management Bank or Hedge Bank shall have been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii)  if approved, authorized or ratified in writing in accordance with Section 10.01;


(b)    to release any Guarantor from its obligations under the Guaranties if such
Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and


(c)       to  subordinate  any  Lien  on  any  property  granted  to  or  held  by  the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i).


Upon request by the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under a Guaranty pursuant to this Section 9.10.  In each case as specified in this Section 9.10, the Collateral Agent will, at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranties, in each case in accordance with the terms of the Loan Documents and this Section 9.10.
SECTION 9.11.  Secured  Cash  Management  Agreements  and  Secured  Hedge
Agreements.  No Cash Management Bank or Hedge Bank that obtains the benefits of Section
8.03, of any Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the 







Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other reasonably satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and  Secured Hedge Agreements unless  the  Administrative Agent has  received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Upon the request of the Administrative Agent at any time, the Hedge Banks and the Cash Management Banks shall provide to the Administrative Agent a summary of outstanding obligations under any Cash Management Agreements or Swap Contracts secured by a Lien on any asset of any Loan Party, as of such date as may be reasonably requested by the Administrative Agent, showing the aggregate amount of such obligations determined on a marked-to-market basis and such other information reasonably requested by the Administrative Agent.  At the request of the Administrative Agent from time to time, the Hedge Banks and the Cash Management Banks shall provide to the Administrative Agent copies of any Cash Management Agreements or Swap Contracts pursuant to which obligations secured by a Lien on any asset of any Loan Party have been incurred.









ARTICLE X


Miscellaneous
SECTION 10.01.  Amendments, Etc.  No amendment or waiver of any provision
of  this Agreement or  any other Loan Document, and no  consent to any departure by  any Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders or the Administrative Agent with the consent of the Required Lenders and the applicable Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:


(a)    extend  or  increase  the  Commitment  of  any  Lender  (or  reinstate  any
Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;


(b)    [Intentionally Omitted];


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


(d)       reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders and the Administrative Agent shall be necessary to waive any obligation of the
Borrowers to pay interest or Letter of Credit Fees at the Default Rate;


(e)       change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;


(f)        change (i) any provision of  this Section 10.01  or (ii) the definition of “Required Lenders”, “Required U.S. Lenders”, “Required Canadian Lenders” or “Supermajority 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 (other than the definitions specified in clause (ii) of this Section 10.01(f)), without the written consent of each Lender;


(g)       release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender (unless all Obligations have been paid in full in cash and the Commitments terminated);


(h)       release all or substantially all of the value of any Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from a Guaranty is permitted 







pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);


(i)        amend, modify or waive any provision of this Agreement, in each case governing the rights of the Lenders under any Facility, without the written consent of Lenders holding a majority in interest of the obligations under such Facility, if such amendment, modification or waiver, or such provision, by its express terms applies only to such Facility (or only to the Lenders thereunder) and if such amendment, modification or waiver adversely affects the Lenders under such Facility;


(j)        increase the advance rates set forth in the definition of the terms “U.S. Borrowing  Base”  or  “Canadian  Borrowing  Base”,  or  reduce  the  amounts  set  forth  in  the definition of the terms “Cash Dominion Event” or “Covenant Trigger Event”, without the written consent of the Supermajority Lenders;


(k)       change or otherwise modify the eligibility criteria, eligible asset classes, reserves, sublimits in respect of any Borrowing Base, or add new asset categories to any Borrowing Base, or otherwise cause any Borrowing Base or availability under the Revolving Credit Facility provided for herein to be increased, in each case without the written consent of the Supermajority Lenders; provided that this clause (k) shall not limit the discretion of the Agents to change, establish or eliminate any reserves, to add assets acquired in a Permitted Acquisition to any Borrowing Base or to otherwise exercise their discretion or Credit Judgment in respect of any determination expressly provided hereunder to be made by the Agents in their discretion or Credit Judgment, all to the extent otherwise set forth herein; or


(l)        amend, modify or change the provisions of Section 8.04 or the definition of “CAM Percentage” without the written consent of each Lender; provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document 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 applicable Swing Line Lender in addition to the Lenders required above, affect the rights or duties of such Swing Line Lender under this Agreement; (iii) 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 Agent under this Agreement or any other Loan Document; and (iv) each 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.


If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of more than the Required Lenders and that has been approved by the Required Lenders, the Borrowers may replace such non-consenting  Lender  in  accordance  with  Section 10.13;  provided  that  such  amendment, waiver, consent or 







release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrowers to be made pursuant to this paragraph).


Each Loan Party acknowledges the agreements set forth in the Fee Letters and agrees that it will execute and deliver such amendments to the Loan Documents as shall be deemed advisable by the Bookrunner to give effect to the provisions of the Fee Letters. Notwithstanding anything to the contrary in this Section 10.01, the Administrative Agent and the Loan Parties shall be permitted to execute and deliver such amendments and such amendments shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.


Subject to the restrictions set forth in the foregoing subparagraphs 10.01(a) to (j), but notwithstanding anything else to the contrary contained in this Section 10.01, (a) with respect to any provision contained in this Agreement relating to any Facility, the Administrative Agent, the Borrowers and a majority in interest of the Lenders under such Facility shall be permitted to amend such provision, without the consent of any other Lender, solely to the extent reasonably necessary or advisable to (i) comply with Applicable Law relating to such Facility or (ii) better implement the intentions of this Agreement with respect to such Facility, and, in the case of any amendment made pursuant to this clause (ii), solely to the extent that such amendment does not impair the rights, obligations or interests of any other Lender under this Agreement in any material respect and (b) the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.


Notwithstanding the foregoing provisions of this Section 10.01, technical and conforming  modifications  to  the  Loan  Documents  may  be  made  with  the  consent  of  the Borrowers and the Administrative Agent to the extent necessary to integrate any Incremental Revolving Credit Commitments on substantially the same basis as the Revolving Credit Commitments.


SECTION 10.02.  Notices; Effectiveness; Electronic Communications.


(a)     Notices  Generally.     Except  in  the  case  of  notices  and  other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:


(i)        if to the Borrowers, the Borrower Agent, the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, the L/C Issuers or the Swing Line Lenders, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and


(ii)       if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.


Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).   Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).


Each Loan Party located outside of the U.S. hereby irrevocably appoints the Borrower Agent as its agent to receive on behalf of such Loan Party and its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding. Such service may be made by mailing or delivering a copy of such process to such Loan Party in care of the Borrower Agent at the Borrower Agent’s address specified in this Agreement, and such Loan Party hereby irrevocably authorizes and directs the Borrower Agent to accept such service on its behalf.  As an alternative method of service, each Loan Party also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such Loan Party at its address specified in this Agreement.









(b)      Electronic Communications.   Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications  pursuant  to  procedures  approved  by  it,  provided  that  approval  of  such procedures may be limited to particular notices or communications.


Unless  the  Administrative  Agent  otherwise  prescribes,  (i) notices  and  other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.


(c)      The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT  OF  THIRD  PARTY  RIGHTS  OR  FREEDOM  FROM  VIRUSES  OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Agents or the Bookrunner or any of their Related Parties (collectively, the “Agent Parties”) have any liability to the Borrowers or any other Loan Parties, any Lender, any L/C Issuer or any other Person for losses,  claims,  damages,  liabilities  or  expenses  of  any  kind  (whether  in  tort,  contract  or otherwise) arising out of the Borrowers’ or any Agent’s or any Bookrunner’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any other Loan Party, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).


(d)       Change of Address, Etc.  Each Borrower, the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, each L/C Issuer and each Swing Line Lender may change  







its  address,  telecopier  or  telephone  number  for  notices  and  other  communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower Agent, the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, the applicable L/C Issuer and the applicable Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record  (i)  an  effective  address,  contact  name,  telephone  number,  telecopier  number  and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to  the  Borrowers  or  their securities for  purposes  of  United States Federal or  state securities laws.


(e)       Reliance by the Agents, L/C Issuers and Lenders.  The Agents, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of a Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  Each Borrower shall indemnify the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Borrower.  All telephonic notices to and other telephonic communications with any Agent may be recorded by such Agent, and each of the parties hereto hereby consents to such recording.




SECTION 10.03.  No Waiver; Cumulative Remedies.  No failure by any Lender, any L/C Issuer or any Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.


Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the 







Lenders and the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) any Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other  Loan  Documents,  (c)  any  Lender  from  exercising  setoff  rights  in  accordance  with Section 10.08  (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.


SECTION 10.04.  Expenses; Indemnity; Damage Waiver.


(a)       Costs and Expenses.  The Borrowers shall pay (i) all reasonable out-of- pocket expenses incurred by the Bookrunner, Administrative Agent, the Collateral Agent and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, the Collateral Agent and the Bookrunner), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery  and  administration  of  this  Agreement  and  the  other  Loan  Documents  or  any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of- pocket expenses incurred by each L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by any Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of any counsel for the Agents, any Lender or any L/C Issuer) in connection  with  the  enforcement  or  protection  of  its  rights  (A)  in  connection  with  this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such out-of- pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.


(b)       Indemnification  by  the  Borrowers.    The  Borrowers  shall  jointly  and severally indemnify each Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonably related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party (but limited, in the case of legal fees and expenses, to the payment of the reasonable and documented fees, out- of-pocket disbursements and other charges of (i) one firm of legal counsel for all Indemnitees, taken as a whole, (ii) in the case of an actual or perceived conflict of interest, another firm of legal counsel for each Indemnitee similarly situated with respect to such conflict, taken as a whole, in each jurisdiction and (iii) if 







deemed reasonably necessary by any Indemnitee, one firm of  local  counsel  for  the  Indemnitees  in  any  relevant  local  jurisdiction)  arising  out  of,  in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of any Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or  Letter of  Credit or  the use  or  proposed  use  of  the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party or any such Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross  negligence  or  willful  misconduct  of  such  Indemnitee  or  the  material  breach  of  its obligations under this Agreement or any Loan Document by such Indemnitee or with respect to the settlement of any proceeding entered into by such Indemnitee without the written consent of the U.S. Borrower (such consent not to be unreasonably withheld or delayed).


(c)       Reimbursement by Lenders.   To the extent that any Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to any Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to such Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) or any L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) or any L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).


(d)       Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended  recipients  by  such  







Indemnitee  through  telecommunications, electronic  or  other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.


(e)       Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.


(f)        Survival.  The agreements in this Section shall survive the resignation of any Agent, any L/C Issuer and any Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.


SECTION 10.05.  Payments Set Aside.  To the extent that any payment by or on behalf of a Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Overnight Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.


SECTION 10.06.  Successors and Assigns.


(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 neither the Borrowers nor any other Loan Parties 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 assignee in accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(f) (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 Agents, each L/C Issuer 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 assignees, other than to any Competitor, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:


(i)    Minimum Amounts.


(A)      in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and


(B)     in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the 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
$1,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the applicable Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;


(ii)       Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A) apply to any Swing Line Lender’s rights and obligations in respect of the applicable Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis.


(iii)     Required  Consents.     No  consent  shall  be  required  for  any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:









(A)      the consent of the applicable Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment (2)  such  assignment  is  to  a  Lender,  an  Affiliate  of  a  Lender  or  an Approved Fund or (3) during the primary syndication of the Loans and
Commitments;


(B)      the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Commitment if such assignment is to a Person that is not a Lender with a Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender;


(C)      the consent of the applicable L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and


(D)      the  consent of  the  applicable Swing  Line  Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.


(iv)      Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and applicable tax form(s).


(v)       No Assignment to Borrower.  No such assignment shall be made to a Borrower or any Borrower’s Affiliates or Subsidiaries.


(vi)      No Assignment to Natural Persons.  No such assignment shall be made to a natural person.


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 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 (provided that any liability of either Borrower to such assignee under Section 3.04 or 3.05 shall be limited to the amount, if any, that would have been payable thereunder by such Borrower in the absence of such assignment, except to the extent any such amounts are attributable to a Change in Law occurring after the date of such assignment), 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 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, the applicable Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.   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 Section 10.06(d).   No assignee (including an assignee that is already a Lender hereunder at the time of the assignment) shall be entitled to receive any greater amount pursuant to Section 3.01 than that to which the assignor would have been entitled to receive had no such assignment occurred.


(c)       Register.  The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office 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 and L/C Obligations  owing  to,  each  Lender  pursuant  to  the  terms  hereof  from  time  to  time  (the “Register”). Upon the acceptance of any Assignment and Assumption, the Administrative Agent shall promptly record the information contained therein in the Register.  The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative Agent, the Collateral 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 Borrowers and any 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, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or any Borrower or any Borrower’s 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 (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer 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, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this Section,  each  Borrower  agrees  that  each  Participant  shall  be  entitled  to  the  benefits  of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.06(b).   To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.









(e)       Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01  unless  the  applicable  Borrower  is  notified  of  the  participation  sold  to  such Participant and such Participant agrees, for the benefit of such Borrower, to comply with Section
3.01(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 (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


(g)      Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Credit Suisse AG, Cayman Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo Bank, National Association, UBS AG, Stamford Branch, or UBS AG Canada Branch assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to Section 10.06(b), Credit Suisse AG, Cayman Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo Bank, National Association, UBS AG, Stamford Branch or UBS AG Canada Branch (as applicable) may, (i) upon 30 days notice to the Borrowers and the Lenders, resign as U.S. L/C Issuer and Canadian L/C Issuer and/or (ii) upon 30 days notice to the Borrowers, resign as U.S. Swing Line Lender and Canadian Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line  Lender, the  Borrower  Agent  shall  be  entitled to  appoint from  among  the  Lenders a successor L/C Issuer or Swing Line Lender hereunder (subject to the consent of such successor); provided, however, that no failure by the Borrower Agent to appoint any such successor shall affect the resignation of Credit Suisse AG, Cayman Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo Bank, National Association, UBS AG, Stamford Branch or UBS AG Canada Branch (as applicable) as L/C Issuer or Swing Line Lender, as the case may be. If any of Credit Suisse AG, Cayman Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo Bank, National Association, UBS AG, Stamford Branch or UBS AG Canada Branch resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with  respect  to  all  Letters  of  Credit  outstanding as  of  the  effective  date  of  its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).   If UBS AG, Stamford Branch or UBS AG Canada Branch (as applicable) resigns as Swing Line Lender, it shall retain all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of  such  resignation, including the  right  to  require the  Lenders to  make Base  Rate  Loans, Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).   Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) 







the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession  or  make  other  arrangements satisfactory  to  Credit  Suisse  AG,  Cayman  Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo Bank, National Association, UBS AG, Stamford  Branch  or  UBS  AG  Canada  Branch  (as  applicable)  to  effectively  assume  the obligations of Credit Suisse AG, Cayman Islands Branch, Credit Suisse AG, Toronto Branch, Wells Fargo  Bank, National Association, UBS  AG,  Stamford Branch or  UBS  AG  Canada Branch (as applicable) with respect to such Letters of Credit.




SECTION 10.07.  Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (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 any regulatory authority purporting to have jurisdiction over it (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 hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement 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 applicable Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than a Borrower.  In addition, the Administrative Agent, Bookrunner and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers in connection with the administration and management of this Agreement and the other Loan Documents.


For purposes of this Section, “Information” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their  respective  businesses,  other  than  any  such  information  that  is   available  to   the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary thereof, provided that, in the case of information received from a Loan Party or any such Subsidiary 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.


Each of the Administrative Agent, the Collateral Agent, the Co-Collateral Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrowers or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle 







such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.


SECTION 10.08.  Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer 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, such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have.  Each Lender and each L/C Issuer agrees to notify the applicable Borrower 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.  No Lender shall set off against any Dominion Account without the prior consent of Collateral Agent.


SECTION 10.09.  Interest  Rate  Limitation.    Notwithstanding  anything  to  the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Borrowers.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated  term  of  the  Obligations  hereunder.    Without  limiting  the  generality  of  the foregoing, if any provision of any of the Loan Documents would obligate Canadian Loan Parties to make any payment of interest with respect to the Canadian Obligations in an amount or calculated at a rate which would be prohibited by applicable Law or would result in the receipt of interest with respect to the Canadian Obligations at a criminal rate (as such terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rates shall be deemed to have been adjusted with 
retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the applicable recipient of interest with respect to the Canadian Obligations at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (i) first, by reducing the amount or rates of interest required to be paid to the applicable recipient under the Loan Documents; and (ii) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to the applicable recipient which would constitute interest with respect to the Canadian Obligations for purposes of Section 347 of the Criminal Code (Canada).  Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if the applicable recipient shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada), then Canadian Loan Parties shall be entitled, by notice in writing to the Administrative Agent, to obtain reimbursement from the applicable recipient in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by the applicable recipient to the applicable Canadian Loan Party.  Any amount or rate of interest with respect to the Canadian Obligations referred to in this Section 10.09 shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that any Canadian Revolving Credit Loans to the Canadian Borrowers remain outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be prorated over that period of time and otherwise be prorated over the period from the Effective Date to the date of payment in full of the Canadian Obligations, and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive, absent manifest error, for the purposes of such determination.


SECTION 10.10.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and the Fee Letters constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or in “pdf” or similar format by electronic mail shall be effective as delivery of a manually executed counterpart of this Agreement.


SECTION 10.11.  Survival      of       Representations      and       Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent, the Collateral Agent, the Co-Collateral Agent and each Lender, regardless of any investigation made by the Administrative Agent, the Collateral Agent, the Co-Collateral Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent, the Collateral Agent, the Co-Collateral Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long 







as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


SECTION 10.12.  Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic  effect  of  which  comes  as  close  as  possible  to  that  of  the  illegal,  invalid  or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


SECTION 10.13.  Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if a Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender  is  a  Defaulting Lender  or  if  any  other  circumstance exists  hereunder that  gives  a Borrower the right to replace a Lender as a party hereto, then the applicable Borrower may, at its 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 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents (which assignee may be another Lender, if a Lender accepts such assignment), provided that:


(a)       such Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b);


(b)      such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or such Borrower (in the case of all other amounts);


(c)       in   the   case  of   any  such   assignment  resulting  from  a   claim  for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and


(d)    such assignment does not conflict with applicable Laws.


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 a Borrower to require such assignment and delegation cease to apply.


SECTION 10.14. Governing Law; Jurisdiction; Etc.









(a)       GOVERNING LAW.   THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


(b)       Submission to Jurisdiction.  EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING WILL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT; PROVIDED THAT NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  ADMINISTRATIVE  AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.   EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.


(c)      Waiver of Venue.  EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT  FORUM  TO  THE  MAINTENANCE  OF  SUCH  ACTION  OR PROCEEDING IN ANY SUCH COURT.


(d)     Service of Process.    EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.









SECTION 10.15.  Waiver of Jury Trial.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,  ANY   RIGHT   IT  MAY   HAVE   TO   A   TRIAL  BY   JURY   IN   ANY   LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR  ANY  OTHER  THEORY).     EACH  PARTY  HERETO  (A) CERTIFIES  THAT  NO REPRESENTATIVE,   AGENT   OR   ATTORNEY   OF   ANY   OTHER   PERSON   HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND  (B) ACKNOWLEDGES  THAT  IT  AND  THE  OTHER  PARTIES  HERETO  HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


SECTION 10.16.  No Advisory or Fiduciary Responsibility.  In connection with all  aspects  of  each  transaction  contemplated  hereby  (including  in  connection  with  any amendment,  waiver  or  other  modification  hereof  or  of  any  other  Loan  Document),  each Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Bookrunner are arm’s-length commercial transactions between the Borrowers, the other Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent and the Bookrunner on the other hand, (B) each Borrower and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated  hereby  and  by  the  other  Loan  Documents;  (ii)  (A)  each  Agent  and  each Bookrunner and Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) neither Agent, nor any Bookrunner or Lender, has any obligation to any Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents, the Bookrunner, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the other Loan Parties and their respective Affiliates, and neither the Agents nor any Bookrunner has any obligation to disclose any of such interests to any Borrower, any other Loan Party or any of their respective Affiliates.  To the fullest extent permitted by law, each Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Agents, the Bookrunner and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.









SECTION 10.17.  Electronic  Execution  of   Assignments   and   Certain   Other Documents.   The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 10.18.  USA Patriot Act Notice.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Loan Party, which 







information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act. Each Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” an anti-money laundering rules and regulations, including the Act.


SECTION 10.19.  Judgment Currency.  If for the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency in which it is due (the “Original Currency”) into another currency (the “Second Currency”), the rate of exchange applied shall be that at which, in accordance with normal banking procedures, the Administrative Agent could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two (2) Business Days preceding that on which judgment is given. Each Loan Party agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the Administrative Agent receives payment of any sum so adjudged to be due hereunder in the Second Currency, the Administrative Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, each Loan Party agrees as a separate obligation and notwithstanding any such payment or judgment to indemnify the Administrative Agent and the Appropriate Lenders against such loss.   The term “rate of exchange” in this Section 10.19 means the spot rate at which the Administrative Agent, in accordance with normal practices, is able on the relevant date to purchase the Original Currency with the Second Currency, and includes any premium and costs of exchange payable in connection with such purchase.


SECTION 10.20.  Language.  The parties have requested that this Agreement and the other documents contemplated hereby or relating hereto be drawn up in the English language. Les parties ont requis que cette convention ainsi que tous les documents qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.


SECTION 10.21.  Intercreditor Agreement.  Reference is made to the Amended and Restated Lien Subordination and Intercreditor Agreement dated as of February 11, 2011, among the Collateral Agent, on behalf of the Secured Parties, the Trustee, on behalf of the “Noteholder Secured Parties” (as defined therein), and the Loan Parties (the “Intercreditor Agreement”).  Each Lender hereunder (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Collateral Agent to enter into the Intercreditor Agreement as 







Collateral Agent and on behalf of such Lender.  The Noteholders are intended third party beneficiaries of the foregoing  provisions and the provisions of the Intercreditor Agreement.


SECTION 10.22.  Amendment and Restatement.   This Agreement amends and restates in its entirety the Existing Credit Agreement and upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement shall, subject to this Section 10.22, be superseded in all respects hereby.  All references to the “Credit Agreement” contained in the Loan Documents delivered in connection with the Existing Credit Agreement or this Agreement shall, and shall be deemed to, refer to this Agreement.   Notwithstanding the amendment  and  restatement  of  the  Existing  Credit  Agreement  by  this  Agreement,  the Obligations of the Borrowers and the other Loan Parties outstanding under the Existing Credit Agreement and the other Loan Documents as of the Effective Date shall remain outstanding and shall constitute continuing Obligations and shall continue as such to be secured by the Collateral. Such Obligations shall in all respects be continuing and this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of such  Obligations.  The Liens securing payment and performance of the Obligations (as defined under the Existing Credit Agreement), as amended and restated in the form of this Agreement, shall in all respects be continuing, securing the payment and performance of all Obligations.


[Remainder of Page Intentionally Blank]









IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written


	
		
	PLY GEM INDUSTRIES, INC., 
as the Specified U.S. Borrower

	by

	 
	/s/ Shawn K. Poe

	 
	Name: Shawn K. Poe

	 
	Title: Vice President, Chief Financial Officer, Treasurer & Secretary








	
		
	PLY GEM CANADA, INC., 
as a Canadian Borrower

	by

	 
	/s/ Shawn K. Poe

	 
	Name: Shawn K. Poe

	 
	Title: Vice President, Treasurer & Secretary








	
			
	GIENOW CANADA INC., 
as a Canadian Borrower

	by

	 
	/s/ Shawn K. Poe

	 
	Name: Shawn K. Poe

	 
	Title: Vice President, Treasurer & Secretary

	



MITTEN INC., 
as a Canadian Borrower

	By

	 
	/s/ Shawn K. Poe

	 
	Name: Shawn K. Poe

	 
	Title: Vice President, Treasurer & Secretary

	







PLY GEM Holdings, INC., 
as Holdings

	by

	 
	/s/ Shawn K. Poe

	 
	Name: Shawn K. Poe

	 
	Title: Vice President, Chief Financial Officer, Treasurer & Secretary















	
		
	UBS AG, Stamford branch,
as U.S. Administrative Agent, U.S. Collateral Agent and a U.S. L/C Issuer

	by

	 
	/s/ Lana Gifas

	 
	Name: Lana Gifas

	 
	Title: Director

	 
	 

	by
	/s/ Jennifer Anderson

	 
	Name: Jennifer Anderson

	 
	Title: Associate Director








	
		
	UBS AG, Stamford branch,
as U.S. Swing Line Lender and as a U.S. Lender

	by

	 
	/s/ Lana Gifas

	 
	Name: Lana Gifas

	 
	Title: Director

	by
	/s/ Jennifer Anderson

	 
	Name: Jennifer Anderson

	 
	Title: Associate Director








	
			
	UBS AG CANADA BRANCH,
as Canadian Administrative Agent, Canadian Collateral Agent, Canadian Swing Line Lender and Canadian L/C Issuer and as a Canadian Lender
	 

	by
	 

	 
	/s/ Lana Gifas
	 

	 
	Name: Lana Gifas
	 

	 
	Title: Director
	 

	by
	/s/ Jennifer Anderson

	 
	Name: Jennifer Anderson

	 
	Title: Associate Director















	
		
	WELLS FARGO CAPITAL FINANCE, LLC 
as Co-Collateral Agent

	by

	 
	/s/ Dennis Rebman

	 
	Name: Dennis Rebman

	 
	Title: Vice President








	
		
	WELLS FARGO BANK, National Association, 
as a U.S. L/C Issuer and as a U.S. Lender

	by

	 
	/s/ Dennis Rebman

	 
	Name: Dennis Rebman

	 
	Title: Vice President








	
		
	WELLS FARGO CAPITAL FINANCE COrporation canada,
as a Canadian Lender

	by

	 
	/s/ Carmela Massari

	 
	Name: Carmela Massari

	 
	Title: Senior Vice President






	
		
	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a U.S. L/C Issuer and as a U.S. Lender

	by

	 
	/s/ Robert Hetu

	 
	Name: Robert Hetu

	 
	Title: Authorized Signatory

	 
	 

	 
	/s/ Patrick Freytag

	 
	Name: Patrick Freytag

	 
	Title: Authorized Signatory















	
		
	CREDIT SUISSE AG, TORONTO BRANCH, 
as a Canadian L/C Issuer and as a Canadian Lender

	by

	 
	/s/ Alan Daouse

	 
	Name: Alan Daouse

	 
	Title: Authorized Signatory

	 
	 

	 
	/s/ Chris Gage

	 
	Name: Chris Gage

	 
	Title: Authorized Signatory








	
		
	Goldman Sachs Bank USA, 
as a U.S. Lender and a Canadian Lender

	by

	 
	/s/ Mark Walton

	 
	Name: Mark Walton

	 
	Title: Authorized Signatory








	
		
	JPMorgan Chase Bank, N.A., 
as a U.S. Lender and a Canadian Lender

	by

	 
	/s/ Peter Predun

	 
	Name: Peter Predun

	 
	Title: Executive Director








	
		
	U.S. Bank National Association, 
as a U.S. Lender

	by

	 
	/s/ Kelli Lattanzio

	 
	Name: Kelli Lattanzio

	 
	Title: Vice President













	
		
	U.S. Bank National Association
Canada branch, 
as a Canadian Lender

	by

	 
	/s/ Joseph Rauhala

	 
	Name: Joseph Rauhala

	 
	Title: Principal Officer








	
		
	Royal Bank of Canada, 
as a U.S. Lender and a Canadian Lender

	by

	 
	/s/ Stuart Coulter

	 
	Name: Stuart Coulter

	 
	Title: Attorney in fact

	by

	 
	/s/ Francois Thibaudeau

	 
	Name: Francois Thibaudeau

	 
	Title: Attorney in fact