Exhibit 10.1




 





 


 


FIFTH AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of February 26, 2010


 


Among


 


ACCURIDE CORPORATION


 


and


 


ACCURIDE CANADA INC.,

as Borrowers


 


and


 


THE INITIAL LENDERS NAMED HEREIN,

as Initial Lenders


 


and


 


DEUTSCHE BANK TRUST COMPANY AMERICAS.,

as Administrative Agent


 


and


 


DEUTSCHE BANK SECURITIES INC.,

as Lead Arranger


 




 





 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  Definitions And Accounting Terms

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 1.01 

  	
  Certain Defined Terms

  	
  3

  
	
  Section 1.02 

  	
  Computation of Time Periods

  	
  31

  
	
  Section 1.03 

  	
  Accounting Terms

  	
  31

  
	
  Section 1.04 

  	
  Currency Equivalent

  	
  31

  
	
  Section 1.05 

  	
  Uniform Commercial Code

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  Amounts and Terms of the Advances

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 2.01 

  	
  The Advances

  	
  31

  
	
  Section 2.02 

  	
  Repayment of Advances

  	
  32

  
	
  Section 2.03 

  	
  Prepayments

  	
  32

  
	
  Section 2.04 

  	
  Interest

  	
  35

  
	
  Section 2.05 

  	
  Fees

  	
  36

  
	
  Section 2.06 

  	
  Conversion of Advances

  	
  36

  
	
  Section 2.07 

  	
  Increased Costs, Etc.

  	
  37

  
	
  Section 2.08 

  	
  Payments and Computations

  	
  39

  
	
  Section 2.09 

  	
  Taxes

  	
  41

  
	
  Section 2.10 

  	
  Sharing of Payments, Etc.

  	
  45

  
	
  Section 2.11 

  	
  Defaulting Lenders

  	
  46

  
	
  Section 2.12 

  	
  Letters of Credit

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  [RESERVED]

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  Representations and Warranties

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 4.01 

  	
  Representations and Warranties of Each Borrower

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  Covenants of the Borrowers

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 5.01 

  	
  Affirmative Covenants

  	
  58

  
	
  Section 5.02 

  	
  Negative Covenants

  	
  63

  
	
  Section 5.03 

  	
  Reporting Requirements

  	
  72

  
	
  Section 5.04 

  	
  Financial Covenants

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  Guaranty

  	
  78

  
	
   

  	
   

  	
   

  
	
  Section 6.01 

  	
  Guaranty

  	
  78

  
	
  Section 6.02 

  	
  Guaranty Absolute

  	
  78

  
	
  Section 6.03

  	
  Waivers and Acknowledgments

  	
  80

  
	
  Section 6.04 

  	
  Subrogation

  	
  81

  
	
  Section 6.05 

  	
  Continuing Guaranty; Assignments

  	
  82

  



 


i

















 


Table of Contents


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  Events of Default

  	
  82

  
	
   

  	
   

  	
   

  
	
  Section 7.01 

  	
  Events of Default

  	
  82

  
	
  Section 7.02 

  	
  Application of Funds

  	
  84

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  The Administrative Agent

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 8.01 

  	
  Authorization and Action

  	
  85

  
	
  Section 8.02

  	
  Administrative Agent’s Reliance, Etc.

  	
  86

  
	
  Section 8.03 

  	
  DBTCA and Affiliates

  	
  87

  
	
  Section 8.04 

  	
  Lender Party Credit Decision

  	
  87

  
	
  Section 8.05 

  	
  Indemnification

  	
  87

  
	
  Section 8.06 

  	
  Successor Administrative Agents

  	
  89

  
	
  Section 8.07 

  	
  Lead Arranger

  	
  90

  
	
  Section 8.08 

  	
  Collateral Matters

  	
  90

  
	
  Section 8.09 

  	
  Delivery of Information

  	
  90

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  Miscellaneous

  	
  91

  
	
   

  	
   

  	
   

  
	
  Section 9.01 

  	
  Amendments, Etc.

  	
  91

  
	
  Section 9.02 

  	
  Notices, Etc.

  	
  92

  
	
  Section 9.03 

  	
  No Waiver; Remedies

  	
  92

  
	
  Section 9.04 

  	
  Costs, Expenses

  	
  93

  
	
  Section 9.05 

  	
  Right of Set-off

  	
  94

  
	
  Section 9.06 

  	
  Binding Effect

  	
  94

  
	
  Section 9.07 

  	
  Assignments and Participations

  	
  94

  
	
  Section 9.08 

  	
  Replacements of Lenders Under Certain Circumstances

  	
  98

  
	
  Section 9.09 

  	
  Execution in Counterparts

  	
  98

  
	
  Section 9.10 

  	
  No Liability of the Issuing Bank

  	
  98

  
	
  Section 9.11

  	
  Confidentiality

  	
  99

  
	
  Section 9.12 

  	
  Release of Collateral

  	
  99

  
	
  Section 9.13 

  	
  USA Patriot Act

  	
  100

  
	
  Section 9.14 

  	
  Jurisdiction, Etc.

  	
  100

  
	
  Section 9.15 

  	
  Judgment

  	
  100

  
	
  Section 9.16 

  	
  Reference to and Effect on the Loan Documents

  	
  101

  
	
  Section 9.17 

  	
  Governing Law

  	
  101

  
	
  Section 9.18 

  	
  Waiver of Jury Trial

  	
  101

  
	
  Section 9.19 

  	
  Confirmation Order; Binding Effect

  	
  101

  



 


ii

















 


Table of Contents


 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  —

  	
  Commitments
  and Applicable Lending Offices

  
	
  Schedule
  II

  	
  —

  	
  Subsidiary
  Guarantors

  
	
  Schedule
  III

  	
  —

  	
  Letters
  of Credit

  
	
  Schedule 4.01(b)

  	
  —

  	
  Subsidiaries

  
	
  Schedule 4.01(d)

  	
  —

  	
  Government
  and Third Party Approvals

  
	
  Schedule 4.01(l)

  	
  —

  	
  Reportable
  Events and Specified Underfunded Plans

  
	
  Schedule 4.01(m)

  	
  —

  	
  Environmental
  Issues

  
	
  Schedule 4.01(r)

  	
  —

  	
  Surviving
  Debt

  
	
  Schedule 4.01(s)

  	
  —

  	
  Owned
  Real Property

  
	
  Schedule 4.01(t)

  	
  —

  	
  Leased
  Real Property

  
	
  Schedule 4.01(u)

  	
  —

  	
  Leases
  of Real Property

  
	
  Schedule 4.01(v)

  	
  —

  	
  Intellectual
  Property

  
	
  Schedule 5.02(a)

  	
  —

  	
  Existing
  Liens

  
	
  Schedule 5.02(e)

  	
  —

  	
  Existing
  Investments

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  —

  	
  Form of
  U.S. Lender Note

  
	
  Exhibit A-2

  	
  —

  	
  Form of
  Canadian Lender Note

  
	
  Exhibit B

  	
  —

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit C

  	
  —

  	
  Form of
  Mortgage

  



 


i

















 


FIFTH AMENDED AND RESTATED CREDIT AGREEMENT


 


FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of February 26, 2010 (this “Agreement”), among ACCURIDE
CORPORATION, a Delaware corporation (the “U.S. Borrower”), ACCURIDE
CANADA INC., a corporation organized and existing under the law of the Province
of Ontario (the “Canadian Borrower”, and, together with the U.S.
Borrower, the “Borrowers”), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as lenders (the
“Initial Lenders”), CITIBANK, N.A., as the existing issuing bank (the “Existing
Issuing Bank”), DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as
administrative agent (together with any successor appointed pursuant to Article VIII,
the “Administrative Agent”) for the Lender Parties (as hereinafter
defined), and DEUTSCHE BANK SECURITIES INC. as lead arranger (the “Lead
Arranger”) for the Lender Parties.


 


PRELIMINARY
STATEMENTS:


 


(1)                                  The Borrowers
entered into the Fourth Amended and Restated Credit Agreement, dated as of January 31,
2005 as amended, modified or supplemented up to, but not including, the
Petition Date (the “Existing Credit Agreement”), with the banks,
financial institutions and other institutional lenders party thereto as
lenders, Citibank, N.A., as initial issuing bank, Citicorp as swing line Bank
and as administrative agent, Citigroup Global Markets Inc. and Lehman Brothers
Inc. as joint lead arrangers and joint book-runners, Lehman Commercial Paper
Inc. as syndication agent, and DBTCA as documentation agent.


 


(2)                                  Pursuant to the
Existing Credit Agreement (i) Canadian Revolving Credit Commitments (as
defined therein) were extended to the Canadian Borrower, (ii) U.S.
Revolving Credit Commitments (as defined therein) were extended to the U.S.
Borrower, (iii) a Letter of Credit Commitment (as defined therein) was
extended to the U.S. Borrower, (iv) a Swing Line Facility (as defined
therein) was provided to the U.S. Borrower and (v) Term Commitments (as
defined therein) were extended to the U.S. Borrower.


 


(3)                                  Citicorp,
DBTCA, the Borrowers and each Subsidiary Guarantor entered into the Resignation
and Assignment Agreement, pursuant to which Citicorp resigned and was succeeded
by DBTCA as Administrative Agent for the lenders party to the Existing Credit
Agreement and the Secured Parties under the Collateral Documents.


 


(4)                                  The Borrowers,
the Subsidiary Guarantors and certain of the Lenders entered into the Fourth
Amendment and Canadian Forbearance Agreement, dated as of October 8, 2009
(the “Fourth Amendment and Canadian Forbearance Agreement”).  As a result of entering into the Fourth
Amendment and Canadian Forbearance Agreement, the Canadian Borrower was not
required to commence voluntary proceedings under the Companies’ Creditors
Arrangement Act (Canada) following the occurrence of Events of Default under
the Existing Credit Agreement arising from the Bankruptcy Filings.


 


(5)                                  The U.S.
Borrower and the Subsidiaries of the U.S. Borrower that are Subsidiary
Guarantors on the date of this Agreement (collectively, and together with the
U.S. Borrower, the “Debtors”) commenced voluntary cases under Chapter 11
of the Bankruptcy Code


 

















 


(Case Nos. 09-13450 through
09-13469, inclusive, which have been administratively consolidated as Chapter
11 Case No. 09-13449 (collectively, the “Bankruptcy Filings”)) in
the Bankruptcy Court on October 8, 2009 (the “Petition Date”).


 


(6)                                  As a result of
the Bankruptcy Filings, the Canadian Revolving Credit Commitments and the U.S.
Revolving Credit Commitments were terminated under the Existing Credit
Agreement.


 


(7)                                  On February 18,
2010, the Bankruptcy Court entered an order (the “Confirmation Order”)
confirming the Joint Plan of Reorganization for Accuride Corporation, et al.
(as in effect on the Effective Date, the “Plan of Reorganization”).


 


(8)                                  Pursuant to the
Plan of Reorganization, proceeds from the issuance of the New Senior
Convertible Notes will be used to repay, among other things, in full the Last
Out Term Advances on the occurrence of the effective date of the Plan of
Reorganization (the “Effective Date”). 
With respect to interest accrued but not paid in cash on the Last Out
Term Advances until the Effective Date, the Last Out Term Lenders will be
deemed to make on the Effective Date a borrowing to the U.S. Borrower of PIK
Advances in an amount equal to the paid in kind interest accrued on the Last
Out Term Advances.


 


(9)                                  Pursuant to the
Plan of Reorganization, the outstanding Advances under (and as defined in) the
Existing Credit Agreement will continue to be classified as indebtedness of the
U.S. Borrower and will be maintained as Existing Advances hereunder and certain
of the outstanding Letters of Credit under (and as defined in) the Existing
Credit Agreement will be maintained as Letters of Credit hereunder.


 


(10)                            Pursuant to the
Plan of Reorganization, certain payment obligations of the U.S. Borrower in
respect of certain hedge agreements that were terminated will be classified as
indebtedness of the U.S. Borrower and the Hedging Lenders will be deemed to
make on the Effective Date a borrowing to the U.S. Borrower of Hedging Advances
in an amount equal to such payment obligations.


 


(11)                            Pursuant to the
Consent, the parties hereto have agreed to amend and restate the Existing
Credit Agreement as provided herein to implement the terms of the Plan of
Reorganization as it relates to the Existing Credit Agreement.


 


Capitalized terms used but
not defined in the foregoing Preliminary Statements have the meanings ascribed
to such terms in Section 1.01.


 


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


 


2

















 


ARTICLE I


 


Definitions And Accounting Terms


 


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


 


“Accuride Mexican Pledge Agreement” means the
Pledge of Shares Agreement, dated as of June 13, 2003, between the U.S.
Borrower and Citicorp, in its capacity as the Administrative Agent, for the
benefit of the Secured Parties, as amended by the Accuride Mexico Confirmation
and Amendment and as assigned by the Accuride Mexico Assignment and
Substitution Agreement.


 


“Accuride Mexico Assignment and Substitution
Agreement” means the Assignment and Substitution Agreement, dated as of August 14,
2009, by and between Citicorp, in its capacity as the resigning administrative
agent, and DBTCA, in its capacity as the successor administrative agent.


 


“Accuride Mexico Confirmation and Amendment”
means the Confirmation and Amendment Agreement, dated as of January 31,
2005, between the U.S. Borrower and Citicorp, in its capacity as Administrative
Agent.


 


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


 


“Administrative Agent’s Account” means the
account of the Administrative Agent maintained by the Administrative Agent at (a) its
office at 60 Wall Street, New York, New York 10005, Reference: Accuride or (b) such
other office of the Administrative Agent located in the United States as may
from time to time hereafter be designated as such in a written notice delivered
by the Administrative Agent to the Borrowers and each Lender Party.


 


“Advance” means a U.S. Loan Advance, a Canadian
Advance or a U.S. Letter of Credit Advance.


 


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


 


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


 


“Anti-Terrorism Laws” means:


 


3

















 


(a)                                  the Executive Order No. 13224 of September 23,
2001, Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten To Commit, or Support Terrorism (the “Executive Order”);


 


(b)                                 the USA Patriot Act;


 


(c)                                  the Money Laundering Control Act of 1986,
Public Law 99-570;


 


(d)                                 the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701 et seq., and the Trading with the Enemy
Act, 50 U.S.C. App. §§ 1 et  seq., and any Executive Order or
regulation promulgated thereunder and administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury;


 


(e)                                  Part II.1 of the Criminal Code
(Canada);


 


(f)                                    the Proceeds of Crime (Money Laundering)
and Terrorist Financing Act (Canada);


 


(g)                                 the Regulations Implementing the United
Nations Regulations on Suppression of Terrorism (Canada);


 


(h)                                 United Nations Al-Qaida and Taliban
Regulations (Canada); and


 


(i)                                     any similar law enacted in the United
States of America or Canada subsequent to the date of this Agreement.


 


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


 


“Applicable Margin” means, for all Advances, a
percentage per annum equal to (a) 6.75% per annum in the case of
Eurodollar Rate Advances and (b) 5.75% per annum in the case of Base Rate
Advances.


 


“Applicable Rate” has the meaning specified in Section 2.08(d).


 


“Appropriate Borrower” means (a) with
respect to the Canadian Facility, the Canadian Borrower and (b) with
respect to the U.S. Loan Facility and the U.S. Letter of Credit Facility, the
U.S. Borrower.


 


“Appropriate Lender” means, at any time, with
respect to (a) the Canadian Facility, a Canadian Lender, (b) the U.S.
Loan Facility, a U.S. Lender, and (c) the U.S. Letter of Credit Facility,
a U.S. Letter of Credit Lender.


 


“Assignment and Acceptance” means an assignment
and acceptance entered into by a Lender Party and an Eligible Assignee, and
accepted by the Administrative Agent and the 


 


4

















 


Appropriate Borrower, in
accordance with Section 9.07 and in substantially the form of Exhibit B
hereto.


 


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


 


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


 


“Bankruptcy Code” means the United States
Bankruptcy Code (11 U.S.C. §101 et seq.),
as amended from time to time.


 


“Bankruptcy Court” means the United States
Bankruptcy Court for the District of Delaware, or any other court having
jurisdiction over the Bankruptcy Filings from time to time.


 


“Bankruptcy Filing” has the meaning specified
in Preliminary Statement (5).


 


“Base Rate” means, for any day, a rate per
annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the
Federal Funds Rate in effect on such day plus 1⁄2 of 1% and (c) the
Eurodollar Rate for a Eurodollar Rate Advance denominated in U.S. dollars with
a one-month interest period commencing on such day plus 1.0%. For
purposes of clause (c) of this definition, the Eurodollar Rate shall be
determined using the Eurodollar Rate as otherwise determined by the
Administrative Agent in accordance with the definition of Eurodollar Rate,
except that (x) if a given day is a Business Day, such determination shall
be made on such day (rather than on the second Business Day prior to the first
day of an Interest Period) or (y) if a given day is not a Business Day, the
Eurodollar Rate for such day shall be the rate determined by the Administrative
Agent pursuant to preceding clause (x) for the most recent Business Day
preceding such day; provided that the determination of the Eurodollar
Rate shall disregard (A) the rounding requirement set forth in the
definition of Eurodollar Rate and (B) the last sentence of such
definition.  Notwithstanding the
foregoing, the Base Rate shall not be less than 4.00% per annum.


 


“Base Rate Advance” means an Advance that bears
interest as provided in Section 2.04(a)(i).


 


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


 


“Borrowing” means all Advances of the same Type
converted or continued on the same day.


 


“Bostrom Mexican Pledge Agreement” means the Pledge
of Shares Agreement, dated as of April 18, 2005, between Bostrom Seating, Inc.
and Citicorp, in its capacity as the Administrative Agent, for the benefit of
the Secured Parties, as assigned by the Bostrom Mexico Assignment and
Substitution Agreement.


 


“Bostrom Mexico Assignment and Substitution
Agreement” means the Assignment and Substitution Agreement, dated as of August 14,
2009, by and between Citicorp, 


 


5

















 


in its capacity as the
resigning administrative agent, and DBTCA, in its capacity as the successor
administrative agent.


 


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


 


“Canadian Advances” means the revolving credit
advances made to the Canadian Borrower under the Existing Credit Agreement in
an aggregate amount, as of the Effective Date, equal to $22,000,000, which
advances shall be payable by the Canadian Borrower to the Canadian Lenders as
provided herein.


 


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


 


“Canadian Confirmation and Amendment” means the
duly executed confirmation and amendment dated as of January 31, 2005,
made by the Canadian Borrower to the Administrative Agent for the benefit of
the Secured Parties under the Canadian Security Agreement.


 


“Canadian Facility” means, at any time, the
aggregate amount of the Canadian Advances at such time.


 


“Canadian Lender” means, at any time, any
Lender that has made a Canadian Advance that is outstanding at such time.


 


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


 


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


 


“Canadian Security Agreement” means the
Security Agreement, dated as of July 27, 2001, between the Canadian
Borrower and Citicorp, in its capacity as the Administrative Agent for the
benefit of the Secured Parties, as amended as of June 13, 2003, as further
amended by the Canadian Confirmation and Amendment, and as further amended,
supplemented or otherwise modified from time to time, and including any
agreement entered into by the Canadian Borrower and the Administrative Agent as
a replacement thereof.


 


6

















 


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


 


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


 


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


 


“Cash Equivalents” means (a) marketable
securities (i) issued or directly and unconditionally guaranteed as to
interest and principal by the United States government or (ii) issued by
any agency of the United States of America the obligations of which are backed
by the full faith and credit of the United States, in each case maturing within
24 months after the date of acquisition thereof; (b) marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within 12 months after the date of acquisition thereof
and having, at the time of the acquisition thereof, an investment grade rating
generally obtainable from either Standard & Poor’s Ratings Services (“S&P”)
or Moody’s Investors Service, Inc. (“Moody’s”); (c) commercial
paper maturing no more than 12 months from the date of creation thereof and
having, at the time of the acquisition thereof, a rating of a least A-1 from
S&P or at least P-1 from Moody’s; (d) domestic and eurodollar
certificates of deposit or bankers’ acceptances maturing within 12 months after
the date of acquisition thereof and issued or accepted by any Lender or by any
other commercial bank organized or doing business under the laws of the United
States or any state thereof or the District of Columbia that has combined
capital and surplus of not less than $500,000,000; (e) repurchase
agreements with a term of not more than 30 days for underlying securities of
the types described in clauses (a) and (b) above entered into


 


7
















 


with any commercial bank
meeting the requirements specified in clause (d) above or with any
securities dealer of recognized national standing; (f) shares of
investment companies that are registered under the Investment Company Act of
1940 and that invest solely in one or more of the types of investments referred
to in clauses (a) through (e) above; and (g) in the case of any
Subsidiary which is not a U.S. Person, high quality, short-term liquid
Investments made by such Subsidiary in the ordinary course of managing its
surplus cash position in a manner consistent with past practices.


 


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


 


“Change of Control” means, and shall be deemed
to have occurred, if: (a) any “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act  shall have become the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d) 5 under the Exchange Act),
directly or indirectly, of more than 30% of the outstanding Voting Stock of the
U.S. Borrower; and/or (b) at any time Continuing Directors shall not
constitute a majority of the Board of Directors of the U.S. Borrower; and/or (c) a
Specified Change of Control shall occur. For purposes of this definition, “Continuing
Director” means, as of any date of determination, an individual (i) who
is a member of the Board of Directors of the U.S. Borrower on the Effective
Date, (ii) who, as of such date of determination, has been a member of such
Board of Directors for at least the 12 preceding months (or, if such date of
determination occurs during the period comprising the first 12 months after the
Effective Date, since the Effective Date), or (iii) who is recommended by
at least a majority of the then Continuing Directors.


 


“Citicorp” means Citicorp USA, Inc.


 


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


 


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


 


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


 


“Consent” means the Consent to Fifth Amended
and Restated Credit Agreement, dated as of the date hereof, among the Borrowers
and the Lenders listed on the signature pages thereto.


 


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


 


“Conversion”, “Convert” and “Converted”
each refer to a conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.06 or 2.07.


 


“Current Assets” of any Person means all assets
of such Person that would, in accordance with GAAP, be classified as current
assets of a company conducting a business the 


 


8

















 


same as or similar to
that of such Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP, but excluding the current portion of
any deferred income taxes.


 


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


 


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


 


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


 


9

















 


accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt; provided that the amount of Debt of
such Person under clauses (j) and (k) above shall (subject to any
obligation set forth therein) be deemed to be the principal amount of the Debt
guaranteed or secured thereby and, with respect to any Lien on property of such
Person as described in clause (k) above, if such Person has not assumed or
otherwise become liable for any such Debt, the amount of the Debt of such
Person in connection therewith shall be limited to the lesser of the face
amount of such Debt or the fair market value of all property of such Person
securing such Debt.


 


For the purposes hereof, the “maximum fixed repurchase
price” of any Disqualified Equity Interests which do not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified  Equity Interests as if such
Disqualified  Equity Interests were
purchased on any date on which Debt shall be required to be determined pursuant
to this Agreement, and if such price is based upon, or measured by, the fair
market value of such Disqualified Equity Interests, such fair market value to
be determined reasonably and in good faith by the Board of Directors of the
issuer of such Disqualified Equity Interests. Notwithstanding the foregoing, “Debt”
shall not include trade payables and accrued liabilities incurred in the
ordinary course of business for the purchase of goods or services that are not
secured by a Lien other than a Permitted Lien or a Lien permitted under Section 5.02(a) and
that are not overdue by more than 180 days.


 


“Debtors” has the meaning specified in
Preliminary Statement (5).


 


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


 


“Defaulted Amount” means, with respect to any
Lender Party at any time, any amount required to be paid by such Lender Party
to the Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Issuing Bank pursuant to Section 2.12(b) to
purchase a portion of a U.S. Letter of Credit Advance made by the Issuing Bank,
(b) any Lender Party pursuant to Section 2.10 to purchase any
participation in Advances owing to such other Lender Party and (c) the
Administrative Agent or the Issuing Bank pursuant to Section 8.05
to reimburse the Administrative Agent or the Issuing Bank for such Lender Party’s
ratable share of any amount required to be paid by the Lender Parties to the
Administrative Agent or the Issuing Bank as provided therein.  In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.11(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other Loan Document on
the same date as the Defaulted Amount so deemed paid in part.


 


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


 


“Designated Subsidiary Side Letter” means the
side letter dated as of the date hereof and in a form agreed between the U.S.
Borrower and the Administrative Agent.


 


10

















 


“Disclosure Statement” means that certain
Disclosure Statement for Joint Plan of Reorganization for Accuride Corporation,
et al. under Chapter 11 of the Bankruptcy Code, as amended, supplemented, or
modified from time to time, that was approved by the Disclosure Statement Order
and describes the Plan of Reorganization, including all exhibits and schedules
thereto and references therein that relate to the Plan of Reorganization.


 


“Disclosure Statement
Order” means that
certain Order  entered by the Bankruptcy Court on
December 21, 2009 Docket No. 454, as the order may be amended from
time to time.


 


“Disqualified Equity Interest” shall mean any
Equity Interest which, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of
any event (other than an event which would constitute a Change of Control), (a) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the sole option of the holder thereof, in whole
or in part, on a date on or prior to one year after the Termination Date, in
each case, other than a maturity or redemption that entitles the holder of such
Equity Interest to receive common stock of a Borrower as sole consideration
upon maturity or redemption, or (b) is convertible into or exchangeable
for (whether at the option of the issuer or the holder thereof) (i) debt
securities or (ii) any Equity Interests referred to in clause (a) above,
in each case at any time on a date on or prior to one year after the
Termination Date; provided that only the portion of Equity Interests
that so matures or is mandatorily redeemable, is so convertible or exchangeable
or is so redeemable at the option of the holder thereof prior to such date
shall be deemed to be Disqualified Equity Interests.


 


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


 


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


 


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


 


“EBITDA” means, for any period, the sum,
determined on a Consolidated basis, of the amounts for such period of (a) Net
Income plus (b) to the extent included in computing Net Income, the
sum (without duplication) of (i) Interest Expense, (ii) taxes
computed on the basis of income, (iii) depreciation expense, (iv) amortization
expense (including amortization of deferred financing fees), (v) any
expenses or charges incurred in connection with any issuance of debt or equity
securities (including upfront and amendment fees payable in respect of bank
facilities), (vi) any fees and expenses related to Investments permitted
pursuant to Section 5.02(e) of this Agreement, (vii) losses
on asset sales, (viii) restructuring charges or reserves for such period
incurred by the U.S. Borrower or any Subsidiary in connection with (x) plant
closures and the consolidation, relocation or elimination of operations and (y) related
severance costs and other costs incurred in connection with the termination,
relocation and training of employees (collectively, “Restructuring Charges”);
provided that unless otherwise 


 


11

















 


agreed by the
Administrative Agent (acting on the instructions of the Majority Lenders), the
maximum amount of all restructuring charges or reserves that may be included in
EBITDA (x) during the term of this Agreement shall not exceed $15,000,000
in the aggregate or (y) in any consecutive four Fiscal Quarters shall not
exceed $10,000,000 in the aggregate, (ix) any deduction for minority
interest expense, (x) any other non-cash charges, (xi) any other
non-recurring charges, (xii) currency losses (except any losses on currency
hedging agreements that are entered into to hedge against fluctuations in
foreign currencies with respect to items included in calculating “Operating Income”),
(xiii) fees or expenses incurred or paid by the U.S. Borrower or any of its
Subsidiaries in connection with the Restructuring and the Related Documents,
and (xiv) with respect to any Measurement Period which contains a Fiscal
Quarter with respect to which an EBITDA Deficiency was cured pursuant to and in
compliance with the provisions of Section 5.04(b), an amount equal
to the EBITDA Deficiency Add Back with respect to such Fiscal Quarter, minus
(c) to the extent included in computing Net Income the sum, without
duplication, the amounts for such period of (i) any non-recurring gains, (ii) all
non-cash gains, (iii) gains on asset sales and (iv) currency gains
(except any gains on currency hedging agreements that are entered into to hedge
against fluctuations in foreign currencies with respect to items included in
calculating “Operating Income”), determined, in the case of each of the
foregoing clauses (a), (b) and (c) for the U.S. Borrower and its
Subsidiaries, in accordance with GAAP for such period; provided that for
purposes of such calculation, in the case of any Subsidiary acquired by the
U.S. Borrower or any of its Subsidiaries following the commencement of any such
period, amounts attributable to such Subsidiary shall be calculated as though
such Subsidiary had been acquired on the first day of such period.


 


“EBITDA Deficiency” has the meaning specified
in Section 5.04(b).


 


“EBITDA Deficiency Add Back” means, with
respect to any Fiscal Quarter with respect to which there is an EBITDA
Deficiency, the amount of Net Cash Proceeds from the sale or issuance of Equity
Securities of the U.S. Borrower or Permitted Subordinated Debt that (a) is
received by the U.S. Borrower during the period from the last day of such
Fiscal Quarter to the date 20 days after delivery of the financial statements
required pursuant to Section 5.03(b) or (c) with respect
to such Fiscal Quarter; and (b) is designated by the U.S. Borrower and
notified to the Administrative Agent as EBITDA Deficiency Add Back; provided
that the aggregate amount of EBITDA Deficiency Add Back for all Fiscal Quarters
during the term of this Agreement shall not exceed $15,000,000.


 


“ECF Percentage” means, at any time, 75%.


 


“Effective Date” has the meaning specified in
Preliminary Statement (8).


 


“Eligible Assignee” means (a) with respect
to the U.S. Loan Facility or the U.S. Letter of Credit Facility, (i) a
Lender, (ii) an Affiliate of a Lender or a Related Fund of a Lender, (iii) a
commercial bank organized under the laws of the United States, or any State
thereof, and having total assets of at least $3,000,000,000, (iv) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof, and having total assets of at least
$3,000,000,000, (v) a commercial bank organized under the laws of any
other country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of 


 


12

















 


any such country, and
having total assets in excess of $3,000,000,000, so long as such bank is acting
through a branch or agency located in the United States, (vi) the central
bank of any country that is a member of the OECD, (vii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having total assets in excess of $250,000,000, and (viii) any
other Person approved by the Administrative Agent and the U.S. Borrower, in
each case such approval not to be unreasonably withheld or delayed, and (b) with
respect to the Canadian Facility, (i) a bank listed on Schedule I
or II to the Bank Act (Canada), and having a combined capital and
surplus of at least $250,000,000, and, so long as no Event of Default has
occurred and is continuing, approved by the Canadian Borrower, such approval
not to be unreasonably withheld or delayed, (ii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is a resident of Canada
for purposes of the Income Tax Act (Canada) or that is an authorized foreign
bank deemed to be a resident of Canada for the purposed of Part XIII of
the Income Tax (Canada) in respect of any amount paid to such bank under the
Canadian Facility, as the case may be, and (iii) any other Person approved
by the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Canadian Borrower, in each case such approval not to be
unreasonably withheld or delayed, provided that the Canadian Borrower
shall not be obliged to approve any person that has not provided the Canadian
Borrower with evidence satisfactory to it as to such Person’s residency and in
no event shall the Canadian Borrower be obliged to approve any Person that does
not meet the residency requirements set forth in subclause (ii) above; and
(c) with respect to the Issuing Bank, a Person that is an Eligible
Assignee under subclause (ii), (iii) or (v) of clause (a) of
this definition and is approved by the Administrative Agent and the U.S.
Borrower, in each case such approval not to be unreasonably withheld or
delayed; provided, however, that no Person that is a Loan Party,
an Affiliate of a Loan Party or an Investor Lender shall qualify as an Eligible
Assignee under this definition.


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


“Eurodollar Rate” means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same Borrowing,
an interest rate per annum equal to the rate per annum obtained by dividing (a) the
rate per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) at which deposits in U.S. dollars are offered by the principal office of
the Administrative Agent in London, England to first-class banks in the London
interbank market at 11:00 A.M. (London time) for U.S. dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Rate Advance of the Administrative Agent (in its
capacity as a Lender) (or, if the Administrative Agent is not a Lender with
respect thereto, taking the average principal amount of the Eurodollar Rate
Advance then being made by the various Lenders pursuant thereto) with
maturities comparable to the Interest Period applicable to such Eurodollar Rate
Advance commencing two Business Days thereafter as of 10:00 A.M. (New York
City time) on the applicable Interest Determination Date by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.  The Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance comprising part
of the same Borrowing shall be determined by the Administrative Agent, 


 


14

















 


subject, however, to the
provisions of Section 2.04. 
Notwithstanding the foregoing, the Eurodollar Rate shall not be less than
3.00% per annum.


 


“Eurodollar Rate Advance” means an Advance that
bears interest as provided in Section 2.04(a)(ii).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


(i)                                     the aggregate
amount of all scheduled principal payments of Debt of the U.S. Borrower or its
Subsidiaries (including, without limitation, the Advances and the principal
component of payments with respect to Obligations under Capitalized Leases), minus


 


(j)                                     the amount of
Investments made during such period pursuant to Section 5.02(e) (other
than Investments in Persons that are Subsidiaries of the Borrowers at the time
of such Investments) to the extent that such Investments were financed with
internally generated cash flow of the U.S. Borrower and its Subsidiaries, minus


 


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


 


(l)                                     without double
counting, to the extent not otherwise included in the calculation of
Consolidated Net Income or adjusted for in any other provision of this
definition of Excess Cash Flow for such period, cash payments by the Borrowers
and their Subsidiaries during such period in respect of post-retirement
benefits, pensions and taxes, minus


 


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


 


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


 


“Exchange Act” means Securities Exchange Act of
1934, as amended from time to time.


 


“Executive Order” has the meaning set forth in
the definition of “Anti-Terrorism Laws.”


 


“Existing Advances” means the Canadian Advances
and the Existing U.S. Advances.


 


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


 


16

















 


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


 


“Existing U.S. Advance” means a U.S. Revolving
Credit Advance, an Existing U.S. Letter of Credit Advance or a First Out Term
Advance.


 


“Existing U.S. Letter of Credit Advances” means
the letter of credit advances made to the U.S. Borrower by certain of the U.S.
Lenders under the Existing Credit Agreement in an aggregate amount, as of the
Effective Date, equal to $16,123,055.00.


 


“Facility” means the Canadian Facility, the
U.S. Loan Facility or the U.S. Letter of Credit Facility.


 


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


 


“First Designated Subsidiary” means the
Subsidiary designated as the “First Designated Subsidiary” in the Designated
Subsidiary Side Letter.


 


“First Out Term Advances” means the first out
term advances made to the U.S. Borrower by certain of the U.S. Lenders under
the Existing Credit Agreement in an aggregate amount, as of the Effective Date,
equal to $224,559,153.15, which advances shall be payable by the U.S. Borrower
to such U.S. Lenders as provided herein.


 


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


 


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


 


“FLSA” means the Fair Labor Standards Act of
1938, as amended from time to time.


 


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


 


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


 


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


 


17

















 


“Fourth Amendment and Canadian Forbearance
Agreement” has the meaning specified in Preliminary Statement (4).


 


“GAAP” means generally accepted accounting
principles in the United States set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the accounting profession), which are applicable
to the circumstances as of the date of determination, subject to Section 1.03
hereof.


 


“Governmental Authority” shall mean the
government of the United States of America, Canada, any other nation or, in
each case, any political subdivision thereof, whether state, provincial or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to
government.


 


“Guarantee and Collateral Agreement” means the
Second Amended and Restated Guarantee and Collateral Agreement, dated as of February 26,
2010, among the U.S. Borrower, each Subsidiary Guarantor, and the
Administrative Agent, as amended pursuant to the Third Amendment and Consent
to the Fourth Amended and Restated Credit Agreement; and First Amendment to the
Amended and Restated Guarantee and Collateral Agreement, dated as of August 14,
2009, and as such
agreement may be further amended, supplemented or otherwise modified from time
to time.


 


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


 


“Guaranty” has the meaning specified in Section 6.01.


 


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


 


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


 


“Hedging Advance” has the meaning specified in Section 2.01(c).


 


“Hedging Lender” means each Lender identified
as such on Schedule I hereto.


 


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


 


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


 


18
















 


“Insolvency Proceeding” means any proceeding in
respect of bankruptcy, insolvency, winding up, receivership, dissolution or
assignment for the benefit of creditors, in each of the foregoing events
whether under the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada)
or any similar federal, state or foreign bankruptcy, insolvency,
reorganization, receivership or similar law.


 


“Interest Determination Date” means, with
respect to any Eurodollar Rate Advance, the second Business Day prior to the
commencement of any Interest Period relating to such Eurodollar Rate Advance.


 


“Interest Expense” means, for any Person for
any period, cash interest expense (including that attributable to Capitalized
Leases in accordance with GAAP), net of cash interest income, of such Person
with respect to all outstanding Debt of such Person, including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers’ acceptance financing and net costs
under Hedge Agreements (other than currency swap agreements, currency future or
option contracts and other similar agreements), but excluding, however,
amortization of deferred financing costs and any other amounts of non-cash
interest, all as calculated in accordance with GAAP; provided that (a) there
shall be included in any determination of Consolidated Interest Expense for the
U.S. Borrower and its Subsidiaries for any period the cash interest expense (or
income) of any Person which becomes a Subsidiary (through an acquisition in
accordance with Section 5.02(c) or otherwise) for such entire
period, assuming that any Debt incurred or prepaid in connection with any such
acquisition had been incurred or prepaid on the first day of such period and (b) there
shall be excluded from any determination of Consolidated Interest Expense of
the U.S. Borrower and its Subsidiaries for any period any upfront and amendment
fees paid by the U.S. Borrower in such period in respect of amendments to this
Agreement to the extent otherwise included in such Consolidated Interest
Expense.


 


“Interest Period”  means, for each Eurodollar Rate Advance
comprising part of the same Borrowing to either Borrower, the period commencing
on the date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on the last
day of the period selected by such Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by such Borrower pursuant to the provisions below.  The duration of each such Interest Period
shall be one, two, three or six months, or, with the consent of all of the
Appropriate Lenders, nine or twelve months, as such Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


“Investor Lender” means a Lender that either (x) holds
an Equity Interest issued by a Loan Party or (y) is an Affiliate of a
holder of an Equity Interest issued by a Loan Party.


 


“Issuing Bank” means the Existing Issuing Bank
and any successor Issuing Bank.


 


“KEIP” means the key employee incentive program
approved by the Bankruptcy Court on November 24, 2009, with respect to
certain senior managers of the U.S. Borrower.


 


“Last Out Term Advances” means the last out
term advances made to the U.S. Borrower under the Existing Credit Agreement in
an aggregate amount, as of the Effective Date, equal to $70,065,846.00, which
advances were repaid with a portion of the proceeds of the New Senior
Convertible Notes.


 


“LC Cash Return” has the meaning specified in Section 2.03(b)(v).


 


“LC Cash Return Funded Portion” means, with
respect to any Replacement Letter of Credit, the portion, if any, of the cash
applied by the U.S. Borrower to cash collateralize such Replacement Letter of
Credit, which portion was either funded with or reimbursed by the proceeds of
an LC Cash Return.


 


“LC Cash Return Payment Date” means, with
respect to any LC Cash Return, (a) if on the date of such LC Cash Return,
the aggregate amount of all proceeds returned to the U.S. Borrower under all LC
Cash Returns as of such date exceeds the aggregate amount of cash 


 


20

















 


applied by the U.S.
Borrower to cash collateralize Replacement Letters of Credit as of such date,
the earlier of (i) the ninetieth (90th) day following the date of such LC
Cash Return and (ii) promptly, and in any event not later than one (1) Business
Day, after the date on which the U.S. Borrower or any of its Subsidiaries
obtains (or decides not to obtain) a new Replacement Letter of Credit, and (b) if
on the date of such LC Cash Return, the aggregate amount of all proceeds
returned to the U.S. Borrower under all LC Cash Returns as of such date is less
than or equal to the aggregate amount of cash applied by the U.S. Borrower to
cash collateralize Replacement Letters of Credit as of such date, on the date
of such LC Cash Return.


 


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


 


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


 


“Lender Note” means a Canadian Lender Note or a
U.S. Lender Note.


 


“Lender Party” means any Lender or the Issuing
Bank.


 


“Lenders” means (a) the Initial Lenders, (b) with
respect to the U.S. Letter of Credit Advances made by it, the Issuing Bank, and
(c) each Person that shall become a Lender or a successor Issuing Bank
hereunder pursuant to Section 9.07.


 


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


 


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


 


“Liquidity” means, as of any date of
determination, an amount equal to the sum of cash and Cash Equivalents held by
the U.S. Borrower and its Subsidiaries in (a) any cash collateral account
held with DBTCA, (b) any other account subject to a Cash Collateral
Account Letter, Cash Concentration Account Letter, Control Agreement or Pledged
Account Letter (as each such term is defined in the Guarantee and Collateral
Agreement), (c) any other account
subject to a Pledged Account Letter, Cash Concentration Account Letter or Cash
Collateral Account Letter (each substantially in the form attached as an
exhibit to the Canadian Security Agreement) or (d) any account of a
Mexican Subsidiary, but only up to a maximum amount of $2,500,000 for all such
accounts on an aggregate basis; provided that amounts held in
payroll, tax, trust and similar accounts or amounts pledged on a first priority
basis to Persons other than the Secured Parties shall be excluded in
calculating Liquidity.


 


“Loan Documents” means (a) for purposes of
this Agreement and the Lender Notes and any amendment or modification hereof or
thereof and for all other purposes other than for purposes of the Guaranty and
the Collateral Documents, (i) this Agreement, (ii) the Lender Notes, (iii) the
Guaranty, (iv) the U.S. Letter of Credit Agreements, (v) the
Designated Subsidiary Side Letter and (vi) the Collateral Documents and (b) for
purposes of the Guaranty and the Collateral Documents, (i) this Agreement,
(ii) the Lender Notes, (iii) the Guaranty, (iv) the Collateral
Documents, (v) the Designated Subsidiary Side Letter and (vi) the
U.S. Letter of 


 


21

















 


Credit Agreements, in
each case as amended, supplemented or otherwise modified from time to time.


 


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


 


“Majority Lenders” means, at any time, Lenders
owed or holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Advances outstanding at such time; and (b) the
aggregate Available LC Amount of all Letters of Credit outstanding at such time
provided, however, that if any Lender Party shall be a Defaulting
Lender at such time, there shall be excluded from the determination of Majority
Lenders at such time (i) the aggregate principal amount of the Advances
owing to such Lender Party (in its capacity as Lender Party) and outstanding at
such time and (ii) such Lender Party’s Pro Rata Share of the aggregate
Available LC Amount of all Letters of Credit outstanding at such time.


 


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


 


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


 


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


 


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


 


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


 


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


 


“NAIC” means the National Association of
Insurance Commissioners.


 


“Net Cash Proceeds” means, with respect to any
sale, lease, transfer or other disposition of any asset, the sale or issuance
of any Equity Interests, or the incurrence or issuance of any Debt by any
Person, or any Recovery Event, the aggregate amount of cash received from time
to time (whether as initial consideration or through payment or disposition of
deferred consideration, but only as and when received) by or on behalf of such
Person in connection with such transaction or event after deducting therefrom
only (without duplication):


 


22

















 


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


 


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


 


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


 


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


 


(e)                                  the amount of
any proceeds received from the sale, lease, transfer or other disposition of
any asset pursuant to Section 5.02(d) or any Recovery Event to
the extent that such proceeds are invested in the business within six months
following such sale or Recovery Event, provided that, from and after the
Effective Date, the aggregate amount of proceeds (other than proceeds of asset
dispositions permitted pursuant to Section 5.02(d)(i) or 5.02(d)(iv) and
proceeds from Recovery Events) that may be so reinvested in the business shall
not exceed $5,000,000 in any Fiscal Year;


 


provided, however,
that in the event the amount of any estimated tax payable described in clause (b) above
exceeds the amount actually paid, or upon any subsequent reduction in the
amount of any reserve described in clause (d) above, the U.S. Borrower or
its applicable Subsidiary shall be deemed to have received Net Cash Proceeds in
an amount equal to such excess or reduction, at the time of payment of such
taxes or on the date of such reduction, as the case may be; provided  further
that any portion of any proceeds received from the sale, lease, transfer or
other disposition of any asset pursuant to Section 5.02(d) or
any Recovery Event that has not been invested in the business as permitted
under this Agreement within such six-month period shall (i) be deemed to
be Net Cash Proceeds of such a sale or Recovery Event occurring on the last day
of such six-month period and (ii) be applied to the prepayment of Advances
in accordance with Section 2.03(b); provided  further
that, for purposes of the preceding proviso, such six-month period shall be
extended by up to six additional months from the last day of such initial
six-month period so long as (A) such proceeds are to be invested in the
business as permitted under this Agreement within such additional six-month
period under the U.S. Borrower’s or any of its Subsidiaries’ business plan as
most recently adopted in good faith by its board of directors and (B) such
Person believes in good faith that such proceeds will be so reinvested within
such additional six-month period.


 


“Net Income” means, with respect to any Person
for any period, the net income (or loss) of such Person; provided that,
for purposes of determining Net Income for any Person and its Subsidiaries on a
Consolidated basis, there shall be excluded from such determination (a) 


 


23

















 


any after-tax gains or
losses, and any related fees and expenses, in each case to the extent
attributable to the sale of assets, and (b) any net extraordinary gains
(or losses).


 


“New Senior Convertible Notes” means the 7.5%
Convertible Notes issued pursuant to the New Senior Convertible Notes
Indenture.


 


“New Senior Convertible Notes Indenture” means
the indenture, dated as of the Effective Date, entered into by the U.S.
Borrower in connection with the issuance of the New Senior Convertible Notes,
together with all instruments and other agreements entered into by the U.S.
Borrower and the Subsidiaries that are guarantors of the New Senior Convertible
Notes in connection therewith, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 5.02(h).


 


“NPL” means the National Priorities List under
CERCLA.


 


“Obligation” means, with respect to any Person,
any payment, performance or other obligation of such Person of any kind,
including, without limitation, any liability of such Person on any claim,
whether or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether or
not such claim is discharged, stayed or otherwise affected by any proceeding
referred to in Section 7.01(f). Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Loan Documents
include (a) the unpaid principal of and interest on the Advances, reimbursement
obligations in respect of the Letters of Credit, Letter of Credit commissions,
charges, expenses, fees, attorneys’ fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document (including,
without limitation, interest accruing at the then applicable rate provided
herein after the maturity of the Advances and reimbursement obligations in
respect of the Letters of Credit and Post-Petition Interest and Expenses) to
the Administrative Agent or any Lender Party, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement,
the other Loan Documents, any Letter of Credit or any other document made,
delivered or given in connection with any of the foregoing, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the Lender
Parties that are required to be paid by any Borrower pursuant to the terms of
any of the foregoing agreements) and (b) the obligation of any Loan Party
to reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of such
Loan Party.


 


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


 


“Off-Balance Sheet Liabilities” of any Person
shall mean (a) any repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person, (b) any
liability of such Person under any sale and leaseback transactions that does
not create a liability on the balance sheet of such Person (other than an
operating lease), (c) any obligation under a Synthetic Lease or (d) any
obligation arising with respect to any other 


 


24

















 


transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such Person.


 


“Other Permitted Debt” has the meaning
specified in Section 5.02(b)(iii)(I).


 


“Other Permitted Debt Documents” means all
agreements, indentures and instruments pursuant to which Debt of the Borrowers
or any of their Subsidiaries (other than Permitted Subordinated Debt) is
issued.


 


“Other Taxes” has the meaning specified in Section 2.09(b).


 


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


 


“Permitted Equity Documents” means all
agreements, indentures and instruments pursuant to which Equity Interests other
than Disqualified Equity Interests are issued.


 


“Permitted Liens” means such of the following
as to which no enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced:  (a) Liens
for taxes, assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(b) hereof; (b) Liens
imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and
repairmen’s Liens and other similar Liens arising in the ordinary course of
business outstanding at any time and securing indebtedness that is not overdue
for a period of more than 30 days; (c) Liens arising from judgments or decrees
in circumstances not constituting an Event of Default under Section 7.01(g);
(d) Liens incurred or deposits made in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of
business; (e) ground leases in respect of real property on which
facilities owned or leased by the U.S. Borrower or any of its Subsidiaries are
located; (f) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the U.S. Borrower and
its Subsidiaries taken as a whole; (g) any interest or title of a lessor
or secured by a lessor’s interest under any lease permitted by this Agreement
and any Liens arising from any financing statement filed in connection with
such lease; (h) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods; (i) Liens on goods the purchase price of which is
financed by a documentary letter of credit issued for the account of the U.S.
Borrower or any of its Subsidiaries; provided that such Lien secures
only the obligations of the U.S. Borrower or such Subsidiaries in respect of
such letter of credit to the extent permitted under Section 5.02(b)(iii)(F);
and (j) leases or subleases granted to others not interfering in any
material respect with the business of the U.S. Borrower and its Subsidiaries,
taken as a whole.


 


“Permitted Subordinated Debt” has the meaning
specified in Section 5.02(b)(i)(B).


 


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


 


25

















 


“Petition Date” has the meaning specified in
Preliminary Statement (5).


 


“PIK Advance” has the meaning specified in Section 2.01(b).


 


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


 


“Plan of Reorganization” has the meaning
specified in Preliminary Statement (7).


 


“Post-Petition Interest and Expenses” means
interest accruing at the then applicable rate provided herein after the filing
of any petition in bankruptcy, or the commencement of any Insolvency
Proceeding, relating to either Borrower, and expenses reimbursable hereunder
which are incurred after the filing of any petition in bankruptcy or the
commencement of any such Insolvency Proceeding, whether or not a claim for such
post-filing or post-petition interest or expenses is allowed in such
proceeding.


 


“PPSA” means the Personal Property Security Act
(Ontario), and the regulations thereunder and equivalent legislation in other
provinces of Canada, as applicable.


 


“Prime Rate” means the rate which the
Administrative Agent announces from time to time as its prime lending rate, the
Prime Rate to change when and as such prime lending rate changes.  The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any
customer by the Administrative Agent, which may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.


 


“Pro Rata Share” of any amount means, with respect
to any U.S. Letter of Credit Lender at any time, the product of such amount times
a fraction the numerator of which is the amount of such U.S. Letter of Credit
Lender’s pro rata share of the U.S. Letter of Credit Facility at such time and
the denominator of which is the U.S. Letter of Credit Facility at such time.


 


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


 


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


 


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


 


“Related Documents” means the New Senior
Convertible Notes, the New Senior Convertible Notes Indenture, any Subordinated
Debt Documents and any Other Permitted Debt Documents.


 


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


 


26

















 


“Replacement Letter of Credit” has the meaning
specified in Section 5.02(b)(iii)(G).


 


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


 


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


 


“Resignation and Assignment Agreement” means
that certain Resignation and Assignment Agreement, dated as of August 14,
2009, among the Borrowers, Citicorp, as Existing Administrative Agent (as such
term is defined therein), DBTCA, as Successor Administrative Agent (as such
term is defined therein) and the other Loan Parties.


 


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


 


“Restricted Party” means any person listed:


 


(a)                                  in the Annex to the Executive Order;


 


(b)                                 on the “Specially Designated Nationals
and Blocked Persons” list maintained by the Office of Foreign Assets Control of
the U.S. Department of the Treasury;


 


(c)                                  in any successor list to either of the
foregoing;


 


(d)                                 any person or entity that commits,
threatens or conspires to commit or supports “terrorism” as defined in the
Executive Order; or


 


(e)                                  a person or entity:


 


(i)                                     on a list established by the Governor in
Council under Section 83.05 of the Criminal Code (Canada);


 


(ii)                                  that is a “listed person” within the
meaning of the Regulations Implementing the United Nations Resolutions on the
Suppression of Terrorism (Canada);


 


(iii)                               “Osama Bin Laden or his associates”, the “Taliban”
or “a person associated with the Taliban”, each as defined in the United
Nations Al-Qaida and Taliban Regulations (Canada); or


 


(iv)                              with which any Loan Party is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law.


 


27

















 


“Restructuring” means the restructuring of the
capital structure of the U.S. Borrower pursuant to and in accordance with the
provisions of the Plan of Reorganization and the Disclosure Statement.


 


“Restructuring Charges” has the meaning
specified in the definition of “EBITDA”.


 


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


 


“Second Designated Subsidiary” means the
Subsidiary designated as the “Second Designated Subsidiary” in the Designated
Subsidiary Side Letter.


 


“Secured Parties” means the Administrative
Agent and the Lender Parties.


 


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


 


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


 


“Specified Underfunded Plan” means any Plan
that has any Unfunded Current Liability.


 


“STA” means the Securities Transfer Act
(Ontario) and the regulations thereunder and equivalent legislation in other
provinces of Canada, as applicable.


 


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


 


28

















 


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


 


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


 


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


 


“Surviving Debt” means all Debt of the U.S.
Borrower and its Subsidiaries that is outstanding immediately prior to the
Effective Date and which is identified on Schedule 4.01(r).


 


“Synthetic Lease” shall mean a lease
transaction under which the parties intend that (a) the lease will be
treated as an “operating lease” by the lessee and (b) the lessee will be
entitled to various tax and other benefits ordinarily available to owners (as
opposed to lessees) of like property.


 


“Taxes” has the meaning specified in Section 2.09(a).


 


“Termination Date” means (a) with respect
to the U.S. Loan Facility, the earlier of June 30, 2013 and the date on
which the outstanding principal amount of the U.S. Loan Advances become due and
payable pursuant to Section 7.01, (b) with respect to the
Canadian Facility, the earlier of June 30, 2013 and the date on which the
outstanding principal amount of the Canadian Advances become due and payable
pursuant to Section 7.01, and (c) with respect to the U.S.
Letter of Credit Facility, the earlier of June 30, 2013 and the date on
which the outstanding U.S. Letter of Credit Advances become due and payable
pursuant to Section 7.01.


 


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


 


“Unfunded Current Liability” of any Plan means
the amount, if any, by which the present value of the accumulated benefits
under the Plan as of the close of its most recent plan year, determined in
accordance with Statement of Financial Accounting Standards No. 87 as in
effect on the date hereof, exceeds the fair market value of the assets
allocable thereto; provided that upon the direction of the
Administrative Agent (acting in its own discretion or at the request of any
Lender), the Unfunded Current Liability of each Plan shall be calculated as set
forth above but the present value of the accumulated benefits under such Plan
as of the close of its most recent plan year shall be based upon the actuarial
assumptions that would be used by the Plan’s actuary in a termination of such
Plan.


 


29
















 


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


 


“Unmatured Surviving Obligations” has the
meaning specified in the Guarantee and Collateral Agreement.


 


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


 


“U.S. Lender” means, at any time, any Lender
that has made an Existing U.S. Advance, a Hedging Advance or a PIK Advance that
is outstanding at such time.


 


“U.S. Lender Note” means a promissory note of
the U.S. Borrower payable to the order of any U.S. Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the aggregate indebtedness
of the U.S. Borrower to such Lender resulting from the Existing U.S. Advances
made by such Lender.


 


“U.S. Letter of Credit Advances” means the
advances made by the Issuing Bank or any U.S. Revolving Credit Lender pursuant
to Section 2.12(b) after the Effective Date, all of which
advances shall be payable by the U.S. Borrower to the Issuing Bank and the U.S.
Revolving Credit Lenders as provided herein.


 


“U.S. Letter of Credit Agreement” means the
application and agreement for letter of credit specified by the Issuing Bank to
the U.S. Borrower for use in connection with a Letter of Credit.


 


“U.S. Letter of Credit Facility” means, at any
time, an amount equal to the aggregate amount of the U.S. Letter of Credit
Advances at such time.


 


“U.S. Letter of Credit Lender” means, at any
time, the Issuing Bank or any U.S. Revolving Credit Lender.


 


“U.S. Loan Advance” means an Existing U.S.
Advance, a Hedging Advance or a PIK Advance.


 


“U.S. Loan Facility” means, at any time, the
aggregate amount of the Existing U.S. Advances, the Hedging Advances and the
PIK Advances at such time.


 


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


 


“U.S. Revolving Credit Advances” means the
revolving credit advances made to the U.S. Borrower by certain of the U.S.
Lenders under the Existing Credit Agreement in an aggregate amount, as of the
Effective Date, equal to $34,069,786.78, which advances shall be payable by the
U.S. Borrower to such U.S. Lenders as provided herein.


 


“U.S. Revolving Credit Lender” means each
Lender identified as such on Schedule I hereto.


 


30

















 


“USA Patriot Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act, Title III of Public Law 107-56 (signed into law October 26,
2001).


 


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


 


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


 


Section 1.03 
Accounting Terms.  The
financial statements to be furnished to the Lender Parties pursuant hereto
shall be made and prepared in accordance with GAAP consistently applied
throughout the periods involved; provided that all computations and
all definitions (including accounting terms) used in determining compliance
with Section 5.02 and Section 5.04 shall utilize GAAP
and policies in conformity with those used to prepare the financial statements
referred to in Section 4.01(f)(i).


 


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


 


Section 1.05 
Uniform Commercial Code. 
Unless otherwise defined herein or in the other Loan Documents, terms
used herein which are defined in the Uniform Commercial Code as in effect in
the State of New York from time to time (or the PPSA or STA in respect of
matters related to the Canadian Borrower or its property or assets) are used
herein as therein defined.


 


ARTICLE II


 


Amounts and Terms of the Advances


 


Section 2.01 
The Advances.


 


(a)                                  Existing
Advances.  The
aggregate outstanding principal amount of the Existing Advances owed to each
Lender as of the Effective Date is set forth on Schedule I
hereto.  Amounts repaid or prepaid in
respect of the Existing Advances may not be reborrowed.


 


(b)                                 PIK Advances.  On the Effective Date, in accordance with the
Plan of Reorganization, each U.S. Lender that was owed Last Out Term Advances,
in respect of which interest accrued but was not paid in cash following the
Petition Date, will be deemed to make an advance (a “PIK Advance”) to
the U.S. Borrower in the amount of such accrued and unpaid interest.  The aggregate outstanding principal amount of
the PIK Advances owed to each U.S. 


 


31

















 


Lender as of the Effective Date is set forth
on Schedule I hereto. 
Amounts repaid or prepaid in respect of the PIK Advances may not be reborrowed.


 


(c)                                  Hedging
Advances.  On the
Effective Date, in accordance with the Plan of Reorganization, each Hedging
Lender that was owed a termination payment in respect of its hedge agreement
with the U.S. Borrower will be deemed to make an advance (a “Hedging Advance”)
to the U.S. Borrower in the amount of such termination payment.  The aggregate outstanding principal amount of
the Hedging Advances owed to each Hedging Lender as of the Effective Date is
set forth on Schedule I hereto. 
Amounts repaid or prepaid in respect of the Hedging Advances may not be
reborrowed.


 


(d)                                 Type and
Duration.  On the
Effective Date, all Advances will be deemed to be made as Base Rate Advances.


 


Section 2.02  Repayment of Advances.  The Borrowers shall each repay to the Administrative
Agent for the ratable account of the U.S. Lenders (in the case of repayments of
U.S. Advances by the U.S. Borrower), the Canadian Lenders (in the case of
repayments of Canadian Advances by the Canadian Borrower) and the U.S. Letter
of Credit Lenders (in the case of repayments of U.S. Letter of Credit Advances
by the U.S. Borrower) the aggregate outstanding principal amount of the
Advances on the Termination Date in respect of the U.S. Facility, the Canadian
Facility or the U.S. Letter of Credit Facility, as applicable.


 


Section 2.03 
Prepayments.


 


(a)                                  Optional.  The Appropriate Borrower may, on same
Business Day’s notice in the case of Base Rate Advances and one Business Day’s
notice in the case of Eurodollar Rate Advances, in each case to the Administrative
Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Appropriate Borrower shall, prepay
the outstanding aggregate principal amount of the U.S. Loan Advances, the U.S.
Letter of Credit Advances or the Canadian Advances, as applicable, comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple
of $500,000 in excess thereof, and (y) if any prepayment of a Eurodollar
Rate Advance is made on a date other than the last day of an Interest Period
for such Advance such Borrower shall also pay any amounts owing pursuant to Section 9.04(c).  Each such prepayment of (i) any U.S.
Loan Advances shall be applied to U.S. Loan Advances comprising part of such
Borrowing ratably, (ii) any Canadian Advances shall be applied to Canadian
Advances comprising part of such Borrowing ratably, and (iii) any U.S.
Letter of Credit Advances shall be applied to U.S. Letter of Credit Advances
comprising part of such Borrowing ratably.


 


(b)                                 Mandatory.


 


(i)                                     The Borrowers shall, on the
earlier of (x) the fifth Business Day following the date of delivery of
the financial information required pursuant to Section 5.03(b) and
(y) the fifth Business Day after the 90th day following the end of each
Fiscal Year commencing with the Fiscal Year ending December 31, 2011,
prepay U.S. Loan 


 


32

















 


Advances, Canadian Advances and U.S. Letter of Credit Advances, if any,
ratably in an aggregate amount equal to the lesser of (A) the remainder
(if any) of (i) the ECF Percentage of the amount of Excess Cash Flow for
such Fiscal Year minus (ii) the aggregate amount of any optional
prepayments of Advances made by the Borrowers during such Fiscal Year and (B) the
maximum amount based upon projected uses of cash and Cash Equivalents during
the month in which such repayment of Advances is made, as reflected in the most
recent 13-Week Cash Flow Forecast delivered pursuant to Section 5.03(e) or,
if no 13-Week Cash Flow Forecast is required to be delivered pursuant to Section 5.03(e),
a cash flow forecast provided by the U.S. Borrower for such month in a form
reasonably satisfactory to the Administrative Agent, that would not cause a
Default to occur under Section 5.04(a) in respect of such
month.  Each such prepayment of Advances
shall be applied ratably to the outstanding aggregate principal amount of the
U.S. Loan Advances, the Canadian Advances and the U.S. Letter of Credit
Advances, if any, and pro rata to the remaining installments thereof.


 


(ii)                                  The Borrowers shall,
promptly and in any event not later than one (1) Business Day after  the date of receipt of the Net Cash Proceeds
by any Loan Party or any of its Subsidiaries from the sale, lease, transfer or
other disposition (other than inventory sold in the ordinary course of
business) of any assets of any Loan Party or any of its Subsidiaries or from
any Recovery Event, prepay U.S. Loan Advances, Canadian Advances and U.S.
Letter of Credit Advances, if any, ratably in an aggregate amount equal to 100%
of the amount of such Net Cash Proceeds; provided, that up to $5,000,000
of the Net Cash Proceeds received in respect of a sale or disposition of the
First Designated Subsidiary or all or substantially all of the assets of the
First Designated Subsidiary made in accordance with Section 5.02(d)(iv) may
be retained by the Borrowers for reinvestment. 
Each such prepayment of Advances shall be applied ratably to the
outstanding aggregate principal amount of the U.S. Loan Advances, the Canadian
Advances and the U.S. Letter of Credit Advances, if any, and pro rata to the
remaining installments thereof.


 


(iii)                               The Borrowers
shall, promptly and in any event not later than one (1) Business Day after
the date of receipt of the Net Cash Proceeds by any Loan Party or any of its Subsidiaries
from the incurrence or issuance of any Debt (excluding any Debt incurred or
issued in accordance with Section 5.02(b) other than any Debt
issued or incurred for the purposes of curing an EBITDA Deficiency in
accordance with Section 5.04(b)), prepay U.S. Loan Advances,
Canadian Advances and U.S. Letter of Credit Advances, if any, ratably in an
aggregate amount equal to 100% of the amount of such Net Cash Proceeds.  Each such prepayment of Advances shall be applied
ratably to the outstanding aggregate principal amount of the U.S. Loan
Advances, the Canadian Advances and the U.S. Letter of Credit Advances, if any,
and pro rata to the remaining installments thereof


 


(iv)                              The Borrowers
shall, promptly and in any event not later than one (1) Business Day after
the date of receipt of the Net Cash Proceeds by any Loan Party or any of its
Subsidiaries from the sale or issuance of any Equity Interests of the U.S.
Borrower (including, without limitation, any capital contribution) prepay U.S.
Loan Advances, Canadian Advances and U.S. Letter of Credit Advances, if any,
ratably in an aggregate 


 


33

















 


amount equal to 100% of such Net Cash Proceeds.  Each such prepayment of Advances shall be
applied ratably to the outstanding aggregate principal amount of the U.S. Loan
Advances, the Canadian Advances and the U.S. Letter of Credit Advances, if any,
and pro rata to the remaining installments thereof.


 


(v)                                 If (i) any
beneficiary that has received proceeds of a draw under a letter of  credit issued pursuant to the Existing Credit
Agreement (including the Letters of Credit hereunder) returns all or any
portion of those proceeds to the U.S. Borrower or (ii)  the LC Cash Return
Funded Portion of any Replacement Letter of Credit is returned to the U.S.
Borrower for any reason (any such return of the amounts described under clause (i) or
(ii), an “LC Cash Return”), then, on the LC Cash Return Payment Date for
such LC Cash Return, the U.S. Borrower shall procure prepayment of U.S. Loan
Advances, Canadian Advances and U.S. Letter of Credit Advances, if any, ratably
in an aggregate amount equal to the lesser of (x) the amount of proceeds
returned to the U.S. Borrower pursuant to such LC Cash Return and (y) the
amount, if any, by which the aggregate amount of all proceeds returned to the
U.S. Borrower pursuant to all LC Cash Returns as of such LC Cash Return Payment
Date exceeds the sum of (A) the aggregate amount of cash applied by the
U.S. Borrower to cash collateralize Replacement Letters of Credit as of such LC
Cash Return Payment Date plus (B) the amount of all payments made
or procured by the U.S. Borrower under this paragraph (v) prior to such LC
Cash Return Payment Date.  Each such
prepayment of Advances shall be applied ratably to the outstanding aggregate
principal amount of the U.S. Loan Advances, the Canadian Advances and the U.S.
Letter of Credit Advances, if any, and pro rata to the remaining installments
thereof.


 


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


 


(vii)                           Notwithstanding
any other provision of this Section 2.03, the Canadian Borrower
shall not be liable for or required to repay any Obligation of the Loan Parties
under the Loan Documents other than those Obligations incurred under the
Canadian Facility.


 


(viii)                        With respect to
each prepayment of Advances required by this subsection (b), the Appropriate
Borrower may designate the Type of Advances which are to be prepaid and, in the
case of Eurodollar Rate Advances, the specific Borrowing or Borrowings pursuant
to which such Eurodollar Rate Advances were made; provided that each
prepayment of any Advances made pursuant to a Borrowing shall be applied pro
rata among such Advances.  In the absence
of a designation by the Appropriate Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, apply such
prepayment to Base Rate Advances, if any, and thereafter make such designation
in its sole discretion.


 


(ix)                                Notwithstanding
any of the other provisions of this Section 2.03(b), so long as no
Default under Section 7.01(a) or 7.01(f) or Event
of Default shall have occurred and be continuing, if any prepayment of
Eurodollar Rate Advances is required to be made under this Section 2.03(b) other
than on the last day of the Interest Period 


 


34

















 


therefor, the Borrower to which such Eurodollar Rate
Advances were made may, in its sole discretion, deposit the amount of any such
prepayment otherwise required to be made hereunder into the Cash Collateral
Account of such Borrower until the last day of such Interest Period, at which
time the Administrative Agent shall be authorized (without any further action
by or notice to or from such Borrower) to apply such amount to the prepayment
of such Advances in accordance with this Section 2.03(b).


 


Section 2.04 
Interest.


 


(a)                                  Scheduled
Interest.  Each
Borrower shall pay interest on the unpaid principal amount of each Advance
owing by it to each Lender Party from the Effective Date (with respect to U.S.
Loan Advances and the Canadian Advances) or the date of such Advance (with
respect to U.S. Letter of Credit Advances) until such principal amount shall be
paid in full, at the following rates per annum:


 


(i)                                     Base Rate
Advances.  During such
periods as such Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to time plus
(B) the Applicable Margin in effect from time to time, payable in arrears
quarterly on the last Business Day of each March, June, September and December during
such periods, subject, however, to the provisions of subsection (b) of
this Section 2.04.


 


(ii)                                  Eurodollar Rate
Advances.  During such
periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at
all times during each Interest Period for such Advance to the sum of (A) the
Eurodollar Rate for such Interest Period for such Advance plus (B) the
Applicable Margin in effect on the first day of such Interest Period, payable
in arrears on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid in
full, subject, however, to the provisions of subsection (b) of this Section 2.04.


 


(b)                                 Default
Interest.  If all or a
portion of (i) the principal amount of any Advance or (ii) any
interest payable thereon or fees or other amounts payable under this Agreement
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), the aggregate principal amount of all Advances outstanding at such
time shall bear interest, payable on demand, at a rate per annum that is (x) in
the case of overdue principal, the rate that would otherwise be applicable
thereto plus 2% per annum or (y) in the case of any overdue interest,
fees or other amounts payable, to the extent permitted by applicable law, the
rate described in Section 2.04(a)(i) plus 2% per annum,
in each case, from the date of such non-payment to the date on which such
overdue amount is paid in full (after as well as before judgment).


 


(c)                                  Interest Rate
Determination. Upon each Interest Determination Date, the
Administrative Agent shall determine the Eurodollar Rate for each Interest
Period applicable to the respective Eurodollar Rate Advances and shall promptly
notify the Appropriate Borrower and the Lenders thereof.  Each such determination shall, absent
manifest error, be final and 


 


35

















 


conclusive and binding on all parties
hereto.  If on any Interest Determination
Date, the Administrative Agent determines that, by reason of any changes
arising after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate,
the Administrative Agent shall forthwith notify the Appropriate Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances and (A) each such Advance will automatically, on the last
day of the then existing Interest Period therefor, convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and (B) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Appropriate Borrower and the Lenders that
the circumstances causing such suspension no longer exist.


 


Section 2.05 
Fees.


 


(a)                                  Letter of Credit Fees, Etc.


 


(i)                                     The U.S.
Borrower shall pay to the Administrative Agent for the account of each U.S.
Revolving Credit Lender a commission, accruing from the Effective Date, payable
in arrears quarterly on the last Business Day of each March, June, September and
December, commencing March 31, 2010, and on the earliest to occur of the
full drawing expiration, termination or cancellation of any such Letter of
Credit and on the Termination Date, on such Lender’s Pro Rata Share of the
average daily aggregate Available LC Amount of all Letters of Credit at a rate
per annum equal to the Applicable Margin for Eurodollar Rate Advances.


 


(ii)                                  The U.S.
Borrower shall pay to the Issuing Bank, for its own account, (A) a
fronting fee, accruing from the Effective Date, payable in arrears quarterly on
the last Business Day of each March, June, September and December,
commencing March 31, 2010, and on the earliest to occur of the full
drawing expiration, termination or cancellation of any such Letter of Credit
and on the Termination Date, on the average daily aggregate Available LC Amount
of all Letters of Credit at the rate of 0.25% per annum and (B) such other
reasonable and customary commissions, transfer fees and other fees and charges
in connection with the issuance or administration of each Letter of Credit as
the U.S. Borrower and the Issuing Bank shall agree.


 


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


 


Section 2.06 
Conversion of Advances.


 


(a)                                  Optional.  Either Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 12:00 P.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.04 and 2.07,
Convert all or any portion of the Advances of one Type owed by it comprising
the same Borrowing into Advances of the other Type; provided, however,
that any 


 


36

















 


Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than $2,000,000 no Conversion of
any Advances shall result in more than five separate Borrowings and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Advances under such Facility.  Each such
notice of Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances.  Each
notice of Conversion shall be irrevocable and binding on such Borrower.


 


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


 


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


 


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


 


Section 2.07 
Increased Costs, Etc.  (a) 
In the event that, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
or administration of any applicable law or regulation after the Effective Date,
(ii) the compliance with any applicable guideline or request from the NAIC
or any central bank or other Governmental Authority (whether or not having the
force of law) or (iii) any other circumstance affecting the interbank
Eurodollar market or the position of any Lender Party in such market which
leads such Lender Party to reasonably determine that the Eurodollar Rate for any
Interest Period for any Eurodollar Rate Advance made by such Lender Party will
not adequately reflect the cost to such Lender Party of making, funding or
maintaining such Eurodollar Rate Advance for such Interest Period, there shall
be any increase in the cost to or reduction in the amount received or
receivable by any Lender Party as a result of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of
issuing or maintaining Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances (excluding for purposes of this Section 2.07
any such increased costs resulting from (A) Taxes or Other Taxes (as to
which Section 2.09 shall govern) and (B) changes in the basis
of taxation of overall net income or overall gross income by the United States
or Canada or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable 


 


37

















 


Lending Office or any
political subdivision thereof), then the U.S. Borrower shall from time to time,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender Party, in
its reasonable discretion, shall determine) sufficient to compensate such
Lender Party for such increased cost; provided, however, that a
Lender Party claiming additional amounts under this Section 2.07(a) agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office for
any Advances affected by such event if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue; provided that such designation is made on terms that
such Lender Party and its Applicable Lending Office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of this subsection (a).  A certificate as to the amount of such
increased cost and showing in reasonable detail the basis for the calculation
thereof, submitted to such Borrower by such Lender Party at the time of demand,
shall be conclusive and binding for all purposes, absent manifest error.


 


(b)                                 If, due to
either (i) the introduction of or any change in or in the interpretation
or administration of any applicable law or regulation after the Effective Date
or (ii) the compliance with any applicable guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the amount of capital required or
expected to be maintained by any Lender Party or any corporation controlling
such Lender Party which has or would have the effect of reducing the rate of
return on such Lender Party’s capital or assets as a result of or based upon
the existence of such Lender Party’s commitments and obligations under this
Agreement to a level below that which such Lender Party could have achieved but
for such change or compliance (taking into consideration such Lender Party’s or
any corporation controlling such Lender Party’s policies with respect to
capital adequacy), then, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent), the U.S. Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate
such Lender Party in the light of such circumstances, it being understood and
agreed that a Lender Party shall not be entitled to such compensation as a
result of such Lender Party’s compliance with, or pursuant to any request or
directive to comply with, any such law, regulation, guideline or request in
effect on the Effective Date.  Any amount
payable pursuant to this Section 2.07(b) shall be payable only
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party’s commitment to
lend or to issue Letters of Credit hereunder or to the issuance or maintenance
of any Letters of Credit.  A certificate
as to such amounts and showing in reasonable detail the basis for the
calculation thereof submitted to such Borrower by such Lender Party at the time
of demand shall be conclusive and binding for all purposes, absent manifest
error.


 


(c)                                  Notwithstanding
any other provision of this Agreement, if the introduction of or any change in
or in the interpretation of any law or regulation shall make it unlawful, or
any central bank or other governmental authority shall assert that it is
unlawful, for any Lender Party or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to continue to fund
or maintain Eurodollar Rate Advances hereunder, with respect 


 


38

















 


to any Eurodollar Rate Advance affected by
circumstances described in this subsection (c), such Borrower will, and with
respect to any Eurodollar Rate Advance affected by circumstances described in
subsections (a) or (b) above, such Borrower may, on the last day of
the then existing Interest Period therefor, convert each Eurodollar Rate
Advance affected by such circumstances into a Base Rate Advance by giving the
Administrative Agent telephonic notice (confirmed promptly in writing) thereof
on the same date that such Borrower was notified by a Lender Party pursuant to
subsection (a) or (b) above or this subsection (c) (as
applicable); provided that if more than one Lender Party is affected at
any time, then all affected Lender Parties must be treated in the same manner
pursuant to this Section 2.07(c). 
In the event of an illegality as described in this subsection (c) the
obligation of the affected Lender Parties to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Appropriate Borrower that such Lender Party has determined
that the circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender Party agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office for
any Advances affected by such event if the making of such a designation would
allow such Lender Party or its Applicable Lending Office to continue to perform
its obligations to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar Rate Advances; provided that such designation is
made on terms that such Lender Party and its Applicable Lending Office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of this subsection.


 


(d)                                 Anything in
this Agreement to the contrary notwithstanding, to the extent any notice under Section 2.07,
2.09 or 9.04(c) is given by any Lender Party more than 180
days after such Lender Party has knowledge (or should have had knowledge) of
the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Section 2.07,
2.09 or 9.04(c), as the case may be, such Lender Party shall not
be entitled to compensation under such Section for any such amounts
incurred or accruing prior to the giving of such notice to the Appropriate
Borrower.


 


Section 2.08 
Payments and Computations. 
(a)  Each Borrower shall make each payment owed by it hereunder and
under the Lender Notes, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.11), not later than
12:00 P.M. (New York City time) on the day when due (or, in the case of
payments made by the U.S. Borrower pursuant to Section 6.01, on the
date of demand therefor) in U.S. dollars to the Administrative Agent at the
Administrative Agent’s Account in same day funds.  The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by a
Borrower is in respect of principal, interest, fees or any other Obligation
then payable hereunder and under the Lender Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment
by a Borrower is in respect of any Obligation then payable hereunder to one
Lender Party, to such Lender Party for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement.  Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the
effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Lender Notes in respect 


 


39

















 


of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.


 


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


 


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


 


(d)                                 All
computations of interest, fees and commissions shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable; provided that (i) interest in respect of which the rate of
interest is calculated on the basis of clause (a) of the definition of “Base
Rate” contained in Section 1.01 and (ii) any fees payable
hereunder shall be calculated on the basis of a year of 365 (or 366, as the
case may be) days for the actual number of days elapsed; and provided  further
that for purposes of the Interest Act (Canada), whenever interest, fees or
commissions hereunder are to be calculated at a rate based upon a 360 day
period (the “Applicable Rate”), the rate or percentage of interest on a
yearly basis is equivalent to such Applicable Rate multiplied by the actual
number of days in the year divided by 360. 
Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.


 


(e)                                  Whenever any
payment hereunder or under the Lender Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may be; provided,
however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.


 


(f)                                    Unless the
Administrative Agent shall have received notice from the Appropriate Borrower
prior to the date on which any payment is due to any Lender Party hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each such Lender Party on such
due date an amount equal to the amount then due


 


40
















 


such Lender Party.  If and to the extent such Borrower shall not
have so made such payment in full to the Administrative Agent, each such Lender
Party shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender Party together with interest thereon, for each day
from the date such amount is distributed to such Lender Party until the date
such Lender Party repays such amount to the Administrative Agent, at the
Federal Funds Rate.


 


Section 2.09 
Taxes.  (a)  Any and
all payments by either Borrower hereunder or under the Lender Notes shall be
made, in accordance with Section 2.08, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding (i) in the case of each Lender Party and the Administrative
Agent, (A) taxes that are imposed on its overall net income by the United
States, and taxes that are imposed on its overall net income or, in the case of
any Canadian Lender, capital (and franchise taxes imposed in lieu thereof), by
the state, province or other jurisdiction under the laws of which such Lender
Party or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and (B) any taxes imposed on the
Administrative Agent or any Lender Party as a result of a current or former
connection between the Administrative Agent or such Lender Party, as the case
may be, and the jurisdiction imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
from the Administrative Agent or such Lender Party having executed, delivered
or performed its obligations or received any payment under, or sought
enforcement of, this Agreement) and (ii) (A) in the case of each
Lender Party, taxes that are imposed on its overall net income (and franchise
taxes imposed in lieu thereof) by the state, province or other jurisdiction of
such Lender Party’s Applicable Lending Office or any political subdivision
thereof and (B) in the case of each Canadian Lender, taxes that are
imposed on its overall capital under the federal or provincial laws of Canada
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the
Lender Notes being hereinafter referred to as “Taxes”) unless such
Borrower is required by law or the interpretation or administration thereof to
withhold or deduct Taxes.  If either
Borrower shall be required by law or the interpretation or administration
thereof by the relevant taxing authority to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender Party or the
Administrative Agent, (x) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.09) such
Lender Party or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (y) such Borrower shall make such deductions and (z) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; provided, however,
that the U.S. Borrower shall not be required to increase any such amounts
otherwise payable to a Lender Party so long as such Lender Party fails to
comply with the requirements of subsection (e) below.


 


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


 


41

















 


(c)           Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.09, imposed on
or paid by such Lender Party or the Administrative Agent (as the case may be),
and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto that would not have arisen
but for the Appropriate Borrower’s failure to pay any Taxes or Other Taxes when
due to the appropriate taxing authority or remit to the Administrative Agent
the receipts or other documentary evidence required under subsection (d) below.  This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.


 


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


 


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


 


42

















 


Agent that it is not (A) a
“bank” as defined in Section 881(c)(3)(A) of the Internal Revenue
Code), (B) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code) of such Borrower or (C) a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code), as appropriate, properly completed and duly
executed by such Lender Party or (ii) notify the Administrative Agent and
the U.S. Borrower of its inability to deliver any such forms or
certificates.  If the forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate form certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant
to which a Lender Party becomes a party to this Agreement, the Lender Party
assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date.  If
any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date of the Existing Credit Agreement
(in the case of Canadian Lenders) or on the date hereof (in the case of Lender
Parties other than Canadian Lenders) by Internal Revenue Service form W-8BEN or
W-8ECI or the related certificate described above, that the Lender Party
reasonably considers to be confidential, the Lender Party shall give notice
thereof to such Borrower and shall not be obligated to include in such form or
document such confidential information. 
Each Lender Party that is organized under the laws of the United States
and is not an “exempt recipient” as such term is defined in Section 1.6049-4(c)(1)(ii) of
the Treasury Regulations shall at each time specified above in this subsection (e) provide
the Administrative Agent and the U.S. Borrower with two original properly
completed and duly executed Internal Revenue Service Forms W-9; provided,
however, if after the initial delivery by such Lender Party of such Form W-9,
there is a lapse in time or change in circumstance that renders such form obsolete
or inaccurate in any material respect, and such Lender Party is unable to
deliver to the U.S. Borrower two new original copies of such form,
properly completed and duly executed by such Lender, such Lender shall
promptly notify the Administrative Agent and U.S. Borrower of its inability to
deliver any such form.


 


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


 


43

















 


accordance with the
provisions of clause (i) above and to cooperate with the Canadian Borrower
to provide, at either Borrower’s reasonable request, information necessary to
determine the amount of withholding or deduction that may be required.


 


(g)           For any period with respect to which either (i) a
Lender Party has failed to provide the U.S. Borrower with the appropriate form,
certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law occurring after the date on
which a form, certificate or other document originally was required to be
provided or if such form otherwise is not required under subsection (e) above)
or (ii) any representation or certification made by a Lender Party
pursuant to subsection (e) or (f) above is incorrect in any material
respect at the time a payment hereunder is made (other than by reason of any
change in treaty, law or regulation having effect after the date of such
representation or certification when made), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) with respect
to Taxes imposed by the United States or Canada by reason of such failure or
incorrectness, as the case may be; provided, however, that should
a Lender Party become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, such Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.


 


(h)           Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.09 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office or designate a
different Applicable Lending Office if the making of such a change or
designation would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue; provided that such change
or designation is made on terms that such Lender Party and its Applicable
Lending Office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
subsection (a) or (c) above; provided  further that
nothing in this subsection (h) shall affect or postpone any of the
obligations of the Borrowers or the rights of any Lender Party pursuant to this
Section 2.09.


 


(i)            If the U.S. Borrower determines in good faith that a
reasonable basis exists for contesting any taxes for which indemnification has
been demanded hereunder, the relevant Lender Party or the Administrative Agent,
as applicable, shall cooperate with the U.S. Borrower in challenging such taxes
at the U.S. Borrower’s expense if so requested by the U.S. Borrower.  If any Lender Party or the Administrative
Agent, as applicable, receives a refund of a tax for which a payment has been
made by the U.S. Borrower pursuant to this Section, which refund in the good
faith judgment of such Lender Party or Administrative Agent, as the case may
be, is attributable to such payment made by the U.S. Borrower, then the Lender
Party or the Administrative Agent, as the case may be, shall reimburse the U.S.
Borrower for such amount as the Lender Party or the Administrative Agent, as
the case may be, determines to be the proportion of the refund as will leave
it, after such reimbursement, in no better or worse position than it would have
been in if the payment had not been required. 
If a Lender Party or the Administrative Agent is required to return all
or a portion of any refund for which reimbursement was made under the preceding
sentence to the authority that granted such refund, the U.S. Borrower shall pay
over to such Lender Party or the Administrative Agent, as the case may be, the
portion of such reimbursement as will leave such Lender Party or the
Administrative Agent, as the case may be, in no better or worse position than
if no such reimbursement had been 


 


44

















 


made.  A Lender Party or the Administrative Agent
shall claim any refund that it determines in good faith is available to it,
unless it concludes in its reasonable discretion that it would be adversely
affected by making such a claim; provided, however, that each
Lender Party and the Administrative Agent shall be fully justified in refusing
to claim any such refund, unless, if it so requests, it shall first be
indemnified to its satisfaction against any expense that may be incurred by it
in connection therewith.  Nothing herein
contained shall interfere with the right of a Lender Party or the
Administrative Agent to arrange its tax affairs in whatever manner it thinks
fit nor oblige any Lender Party or the Administrative Agent to disclose any
information relating to its tax affairs or any computations in respect thereof
or require any Lender Party or the Administrative Agent to do anything that
would prejudice its ability to benefit from any other reliefs, remissions or
repayments to which it may be entitled.


 


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


 


Section 2.10 
Sharing of Payments, Etc. 
Subject to the priority of payments specifically set forth herein or in
any other Loan Document and subject to the provisions of Section 9.07(g)(vi) hereof,
if any Lender Party shall obtain at any time any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) (a) on
account of Obligations due and payable to such Lender Party hereunder and under
the Loan Documents at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to
such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Loan
Documents at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Loan Documents at such
time obtained by all the Lender Parties at such time or (b) on account of
Obligations owing (but not due and payable) to such Lender Party hereunder and
under the Loan Documents at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations owing (but not due
and payable) to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Loan Documents at such time) of payments on account of
the Obligations owing (but not due and payable) to all Lender Parties hereunder
and under the Loan Documents at such time obtained by all of the Lender Parties
at such time, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in the Obligations due and payable or owing to
them, as the case may be, as shall be necessary to cause such purchasing Lender
Party to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender Party, such purchase from each other Lender Party shall
be rescinded and such other Lender Party shall repay to the purchasing Lender
Party the purchase price to the extent of such Lender Party’s ratable share
(according to the proportion of (i) the purchase price paid to such Lender
Party to (ii) the aggregate purchase price paid to all Lender Parties) of
such recovery together with an amount equal to such Lender Party’s ratable
share (according to the proportion of (i) the amount of such other Lender
Party’s required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest 


 


45

















 


or other amount paid or
payable by the purchasing Lender Party in respect of the total amount so
recovered.  Each Borrower agrees that any
Lender Party so purchasing a participation from another Lender Party pursuant
to this Section 2.10 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender Party were the direct
creditor of such Borrower in the amount of such participation.


 


Section 2.11 
Defaulting Lenders.  (a) 
In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and (iii) the
Appropriate Borrower shall make any payment hereunder or under any other Loan
Document to the Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of such other
Lender Parties and to the fullest extent permitted by applicable law, apply at
such time the amount so paid by such Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. 
In the event that the Administrative Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date.  Any such
amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other Lender
Parties, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Administrative Agent and such other Lender
Parties and, if the amount of such payment made by such Borrower shall at such
time be insufficient to pay all such Defaulted Amounts owing by each such
Defaulting Lender at such time to the Administrative Agent and the other Lender
Parties, in the following order of priority:


 


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


 


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


 


Any portion of such amount
paid by such Borrower for the account of such Defaulting Lender remaining,
after giving effect to the amount applied by the Administrative Agent pursuant
to this subsection (a), shall be applied by the Administrative Agent as
specified in subsection (c) of this Section 2.11.


 


(b)           In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not
owe a Defaulted Amount and (iii) either Borrower, the Administrative Agent
or any other Lender Party shall be required to pay or distribute any amount
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then such Borrower or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by 


 


46

















 


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


 


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


 


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


 


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


 


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


 


(c)           The rights and remedies against a Defaulting Lender under
this Section 2.11 are in addition to other rights and remedies that
the Administrative Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.


 


Section 2.12 
Letters of Credit.


 


(a)           Letter of Credit Reports.  The Issuing Bank shall furnish (i) to
the Administrative Agent on the first Business Day of each week a written
report summarizing expiration dates of Letters of Credit and drawings during
such week under all Letters of Credit, (ii) to each U.S. Revolving Credit
Lender on the first Business Day of each month a written report summarizing
expiration dates of Letters of Credit and drawings during such month under all
Letters of Credit and (iii) to the Administrative Agent and each U.S.
Revolving Credit Lender 


 


47

















 


on the first Business Day of
each calendar quarter a written report setting forth the average daily
aggregate Available LC Amount during the preceding calendar quarter of all
Letters of Credit.


 


(b)           Drawing and Reimbursement.  The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a U.S. Letter of Credit Advance,
which shall initially be a Base Rate Advance (and which may be Converted
pursuant to and in accordance with Section 2.06), in the amount of
such draft.  Upon notice of such payment
to the Administrative Agent, each U.S. Revolving Credit Lender shall purchase
from the Issuing Bank, and the Issuing Bank shall sell and assign to each such
U.S. Revolving Credit Lender, such Lender’s Pro Rata Share of such outstanding
U.S. Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank, by deposit to the
Administrative Agent’s Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such U.S. Letter of Credit
Advance to be purchased by such Lender. 
Promptly after receipt thereof, the Administrative Agent shall transfer
such funds to the Issuing Bank.  The U.S.
Borrower hereby agrees to each such sale and assignment.  Each U.S. Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding U.S. Letter of Credit Advance on (i) the
Business Day on which notification is given by the Issuing Bank of a draft on a
Letter of Credit; provided notice of such draft is given not later than
12:00 P.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such notice if notice of such draft is given
after such time.  Upon any such
assignment by the Issuing Bank to any other U.S. Revolving Credit Lender of a
portion of a U.S. Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such U.S. Letter of
Credit Advance, the Loan Documents or any Loan Party.  If and to the extent that any U.S. Revolving
Credit Lender shall not have so made the amount of such U.S. Letter of Credit
Advance available to the Administrative Agent, such U.S. Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of notice by
the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable.  If such Lender
shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a U.S. Letter of Credit Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the U.S. Letter of Credit Advance made by the Issuing Bank shall be
reduced by such amount on such Business Day. 
Each U.S. Letter of Credit Advance made by the Issuing Bank in respect
of a Letter Credit and each assignment of an interest in such U.S. Letter of
Credit Advance to the U.S. Revolving Credit Lenders shall be deemed to be a
single Borrowing of U.S. Letter of Credit Advances.


 


(c)           Failure to Make U.S. Letter of Credit Advances.  The failure of any U.S. Letter of Credit
Lender to make the U.S. Letter of Credit Advance to be made by it on the date
specified in Section 2.12(b) shall not relieve any other U.S.
Letter of Credit Lender of its obligation hereunder to make its U.S. Letter of
Credit Advance on such date, but no U.S. Letter of Credit Lender shall be
responsible for the failure of any other U.S. Letter of Credit Lender to 


 


48

















 


make the U.S. Letter of
Credit Advance to be made by such other U.S. Letter of Credit Lender on such
date.


 


(d)           Repayment of U.S. Letter of Credit Advances.  The U.S. Borrower shall repay on the
Termination Date to the Administrative Agent, for the ratable account of the
U.S. Letter of Credit Lenders, the aggregate principal amount of U.S. Letter of
Credit Advances outstanding on the Termination Date.


 


(e)           Replacement, Extension or Renewal.  The Letters of Credit shall not be replaced,
extended or renewed by the Issuing Bank.


 


(f)            Termination or Reduction.  If any Letter of Credit expires without being
drawn or replaced or if the original of any Letter of Credit is returned to the
Issuing Bank without such Letter of Credit being drawn or replaced, then the
aggregate amount of all U.S. Letter of Credit Advances that each U.S. Letter of
Credit Lender is required to make or purchase shall be automatically and
permanently reduced by the Available LC Amount of such Letter of Credit and
each such reduction shall be made ratably among the U.S. Letter of Credit
Lenders.


 


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


 


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


 


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


 


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


 


(iv)          any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;


 


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


 


49

















 


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


 


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


 


ARTICLE III


 


[RESERVED]


 


 


ARTICLE IV


 


Representations and
Warranties


 


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


 


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


 


(b)           Loan Parties’ Subsidiaries - Due Organization and
Formation; Good Standing; Corporate, Limited Liability Company or Partnership
Authorization and Authority; Capital Stock, Membership Interests, Partnership
Interests.  Set forth on Schedule 4.01(b) hereto
is a complete and accurate list of all Subsidiaries of each Loan Party as of
the date of such schedule, showing as of the date hereof (as to each such
Subsidiary) the jurisdiction of its incorporation or formation, the number of
limited liability company membership interests or partnership interests or
shares of each class of capital stock authorized, and the number outstanding,
on the date hereof and the percentage of the outstanding limited liability
company membership interests, partnership interests and shares of each such
class owned (directly or indirectly) by such Loan Party and the number of
limited liability company membership interests, partnership interests or shares
covered by all outstanding options, warrants, rights of conversion or purchase 


 


50

















 


and similar rights at the date hereof.  All of the outstanding capital stock, limited
liability company membership interests and partnership interests of all of such
Subsidiaries have been validly issued, are fully paid and non-assessable and
are owned by such Loan Party or one or more of its Subsidiaries free and clear
of all Liens, except those created under the Loan Documents.  Each such Subsidiary (i) is a
corporation, limited liability company or partnership (as applicable) duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, (ii) is duly qualified and
in good standing as a foreign corporation or other entity in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except where the failure to
be so qualified or in good standing has not had or would not reasonably be
likely to have a Material Adverse Effect and (iii) has all requisite
corporate, limited liability company or partnership (as applicable)  power and authority (including, without
limitation, all governmental licenses, permits and other approvals) to own or
lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.


 


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


 


(d)           Governmental and Third Party Approvals.  Other than those that have already been
obtained and as set forth in Schedule 4.01(d) and are in full
force and effect, or as would not reasonably be expected to have a Material
Adverse Effect, no authorization or approval (including, in the case of the
Canadian Borrower, exchange control approval) or other action by, and no notice
to or filing with, any Governmental Authority or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Loan Document or any Related Document to
which it is or is to be a party and (ii) the consummation of the
transactions contemplated by the Loan Documents, the Related Documents and the
Plan of Reorganization.


 


51
















 


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


 


(f)            Historical Financial Statements.  (i)  The Consolidated balance sheet of
the U.S. Borrower and its Subsidiaries as at December 31, 2008, and the
related Consolidated statements of income and cash flow of the U.S. Borrower
and its Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Deloitte & Touche LLP, independent public accountants, (ii) the
Consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at September 30,
2009, and the related Consolidated statements of income and cash flow of the
U.S. Borrower and its Subsidiaries for the nine months then ended, duly
certified by the chief financial officer of the U.S. Borrower, and (iii) the
Consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at November 30,
2009, and the related Consolidated statements of income and cash flow of the
U.S. Borrower and its Subsidiaries for the twelve months then ended (or, in the
case of such cash flow statement, the eleven months then ended), duly certified
by the chief financial officer of the U.S. Borrower, copies of which have been
furnished to each Lender Party, fairly present in all material respects,
subject, in the case of (x) said balance sheet as at September 30,
2009, and said statements of income and cash flow for the nine months then
ended and (y) said balance sheet as at November 30, 2009, and said
statements of income and cash flow for the twelve (or, as applicable, eleven)
months then ended, to year-end audit adjustments, the Consolidated financial
condition of the U.S. Borrower and its Subsidiaries as at such dates and the
Consolidated results of the operations of the U.S. Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with GAAP
applied on a consistent basis (unless otherwise expressly noted therein), and
since December 31, 2008, there has been no Material Adverse Effect (other
than the effects of the filing of the Bankruptcy Filings, the matters disclosed
in the Disclosure Statement and the Restructuring).


 


(g)           Pro Forma Financial Statements.  The Consolidated pro  forma balance
sheet of the U.S. Borrower and its Subsidiaries as at November 30, 2009,
and the related Consolidated pro  forma statement of income of the
U.S. Borrower and its Subsidiaries for the twelve months then ended, certified
by the chief financial officer of the U.S. Borrower, copies of which have been
furnished to each Lender Party, fairly present in all material respect the
Consolidated pro  forma financial condition of the U.S. Borrower
and its Subsidiaries as at such date and the Consolidated pro  forma
results of operations of the U.S. Borrower and its Subsidiaries for the period
ended on such date, in each case giving effect to the Restructuring and other
transactions contemplated hereby.


 


(h)           Forecasts. 
The Consolidated forecasted balance sheets, income statements and cash
flows statements of the U.S. Borrower and its Subsidiaries delivered to the
Lender Parties pursuant to the Consent or Section 5.03 were
prepared in good faith on the basis of the estimates and assumptions stated
therein, which estimates and assumptions were believed to be reasonable and
fair in the light of conditions existing at the time 


 


52

















 


made, it being understood by the Lender Parties that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results.


 


(i)            Other Information. 
No information, exhibit or report furnished by any Loan Party to the
Administrative Agent or any Lender Party in writing in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made herein and therein, taken
as a whole, not misleading at such time in light of the circumstances in which
the same were made, it being understood that for purposes of this Section 4.01(i),
such factual information does not include projections and pro  forma
financial information.


 


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


 


(k)           Compliance with Margin Regulations.


 


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


 


(ii)           Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the value of
the assets (either of either Borrower only or of either Borrower and its
Subsidiaries on a Consolidated basis) subject to the provisions of Section 5.02(a) or
5.02(d) or subject to any restriction contained in any agreement or
instrument between either Borrower and any Lender or any Affiliate of any
Lender relating to Debt and within the scope of Section 7.01(e) will
be Margin Stock.


 


(l)            Employee Benefit Plans and ERISA Related Matters.  (i)  Schedule 4.01(l), in the
form approved by the Administrative Agent, sets forth each Specified
Underfunded Plan and the Unfunded Current Liability thereof; each Plan is in
compliance with ERISA, the Internal Revenue Code and any applicable Requirement
of Law; no Reportable Event has occurred (or is reasonably likely to occur)
with respect to any Plan; no Plan is insolvent or in reorganization (or is
reasonably likely to be insolvent or in reorganization), and no written notice
of any such insolvency or reorganization has been given to any Borrower, any
Subsidiary or any ERISA Affiliate; each Plan which is subject to Sections 412
or 430 of the Internal Revenue Code or Sections 302 or 309 of ERISA satisfies
the minimum funding standard, within the meaning of such sections of the
Internal Revenue Code or ERISA, or has not applied for or received a waiver of
the 


 


53

















 


minimum funding standard or an extension of any
amortization period, within the meaning of Section 412 of the Internal
Revenue Code or Section 303 or 304 of ERISA; neither any Loan Party nor
any ERISA Affiliate has incurred (or is reasonably expected to incur) any
liability to or on account of a Plan pursuant to Section 409, 502(i),
502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 436(f),
4971 or 4975 of the Internal Revenue Code or has been notified in writing that
it will incur any liability under any of the foregoing Sections with respect to
any Plan; no proceedings have been instituted (or are reasonably likely to be
instituted) to terminate or to reorganize any Plan or to appoint a trustee to
administer any Plan, and no written notice of any such proceedings has been
given to any Loan Party or any ERISA Affiliate; and no lien imposed under the
Internal Revenue Code or ERISA on the assets of any Loan Party or any ERISA
Affiliate exists on account of any Plan (or is reasonably likely to exist) nor
has any Loan Party or any ERISA Affiliate been notified in writing that such a
lien will be imposed on the assets of any Loan Party or any ERISA Affiliate on
account of any Plan, except to the extent that a breach of any of the foregoing
representations and warranties in this Section 4.01(l)(i) would
not result, individually or in the aggregate, in an amount of liability that
would be reasonably likely to have a Material Adverse Effect.  No Plan (other than a multiemployer plan) has
an Unfunded Current Liability that would 
be reasonably likely to have a Material Adverse Effect.  With respect to Plans that are multiemployer
plans (as defined in Section 3(37) of ERISA), the representations and
warranties in this Section 4.01(l)(i), other than any made with
respect to (a) liability under Section 4201 or 4204 of ERISA or (b) liability
for termination or reorganization of such Plans under ERISA, are made to the
best knowledge of the Borrowers.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


55

















 


Party or any of its Subsidiaries or described in the
Mortgages, and (D) neither any Loan Party or any of its Subsidiaries, nor,
to the knowledge of any Loan Party, any other Person has released or discharged
Hazardous Materials on any property currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries or described in any of the Mortgages.


 


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


 


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


 


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


 


(p)           Taxes.  Each
Loan Party has timely filed or caused to be filed all tax returns and reports
required to have been filed and has paid or caused to be paid all taxes,
assessments and governmental charges or levies required to have been paid by
it, except (i) taxes, assessments and governmental charges or levies that
are being contested in accordance with the proviso to Section 5.01(b),
or (ii) to the extent that the failure to do so would not, in the
aggregate, reasonably be expected to result in a Material Adverse Effect.  As of the date hereof, neither Borrower is a
party to any tax sharing or similar arrangement with any Subsidiary Guarantor
or any Affiliates of a Subsidiary Guarantor.


 


(q)           Labor Matters. 
Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:  (i) there
are no strikes or other labor disputes against any Borrower or any other
Subsidiary pending or, to the knowledge of a Borrower, threatened in writing; (ii) hours
worked by and payment made to employees of a Borrower or any other Subsidiary
have not been in violation of the FLSA or any other equivalent and applicable
law dealing with such matters; and (iii) all payments due from a Borrower
or any other Subsidiary on account of employee health and welfare insurance
have been paid or accrued as a liability on the books of the relevant Person.


 


56

















 


(r)            Surviving Debt. 
Set forth on Schedule 4.01(r) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date of such Schedule
the principal amount outstanding thereunder, the maturity date thereof and the
amortization schedule therefor, and such principal amount has not been
increased from that amount shown on such Schedule.


 


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


 


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


 


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


 


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


 


(w)          Senior Indebtedness. 
The Obligations of the U.S. Borrower under the Loan Documents constitute
“Senior Indebtedness” and “Designated Senior Indebtedness” of the U.S. Borrower
under and as defined in the Subordinated Debt Documents.  The 


 


57

















 


Obligations of each Subsidiary Guarantor under the
Guarantee and Collateral Agreement constitute “Guarantor Senior Indebtedness”
of such Subsidiary Guarantor under and as defined in the Subordinated Debt
Documents.


 


(x)            Anti-Terrorism Laws.  To the best knowledge of the Loan Parties, no
such Loan Party nor any Subsidiary thereof: (i) is, or is controlled by or
is acting on behalf of, a Restricted Party; (ii) has received funds or
other property from a Restricted Party; or (iii) is in breach of or is the
subject of any action or investigation under any Anti-Terrorism Law.


 


ARTICLE V


 


Covenants of the Borrowers


 


Section 5.01 
Affirmative Covenants.  So
long as any Advance shall remain unpaid or any Letter of Credit shall be
outstanding, each Borrower will:


 


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


 


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


 


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


 


(d)           Preservation of Corporate, Limited Liability Company
and Partnership Existence, Etc. 
Preserve and maintain, and cause each of its  Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, 


 


58

















 


licenses, approvals, privileges and franchises,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; provided, however, that each
Borrower and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(c) and provided  further
that neither Borrower nor any of its Subsidiaries shall be required to preserve
any right, permit, license, approval, privilege or franchise if the Board of
Directors of such Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to such Borrower, such
Subsidiary or the Lender Parties.


 


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


 


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


 


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


 


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


 


(i)            Transactions with Affiliates.  Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under the Loan Documents with
any of their Affiliates on terms that are fair and reasonable and no less
favorable to such Borrower or such Subsidiary than it would obtain in a
comparable arm’s length 


 


59

















 


transaction with a Person not an Affiliate, other
than (i) transactions between or among the Loan Parties and any
Subsidiaries of the U.S. Borrower; (ii) reasonable and customary fees paid
to members of the U.S. Borrower’s board of directors; (iii) the
transactions permitted by Section 5.02(f); (iv) transactions
consummated as a part of the Restructuring and expressly contemplated by the
Plan of Reorganization; and (v) transactions otherwise expressly permitted
hereunder.


 


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


 


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


 


(B)           within 20 days after such formation
or acquisition in the case of a wholly-owned Subsidiary which is a first-tier
Subsidiary of (x) the U.S. Borrower or (y) any other Subsidiary that is
a Domestic Subsidiary, cause the U.S. Borrower (or other relevant Subsidiary),
to pledge the stock or other equity interests of each such Subsidiary and to
duly execute and deliver such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in 100% of the issued and outstanding
stock or other equity interests of such Subsidiary owned by such Loan Party,
together with delivery to the Administrative Agent of certificates representing
such pledged stock or other equity interests accompanied by undated stock
powers or other appropriate powers or assignments executed in blank; provided,
in the case of a first-tier Subsidiary which is a Foreign Subsidiary (other
than the Canadian Borrower), the U.S. Borrower (or other relevant Subsidiary)
shall not be required to pledge more than 66% of the issued and outstanding
stock or other equity interests of such Subsidiary, and provided  further
that the stock of any Subsidiary which is not wholly-owned (directly or
indirectly) will be owned by a wholly-owned 


 


60

















 


Subsidiary of the U.S.
Borrower whose stock or other equity interests have been pledged in accordance
with the Loan Documents,


 


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


 


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


 


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


 


(F)           within 30 days after such request,
formation or acquisition, duly execute and deliver, and cause each such
Subsidiary, and cause each direct and indirect parent of such Subsidiary (other
than any Foreign Subsidiary) to take 


 


61

















 


whatever action (including,
without limitation, the recording of mortgages, the filing of Uniform Commercial
Code or PPSA financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the mortgages,
pledges, assignments, assumption agreements and other security agreements
delivered pursuant to this Section 5.01(j), enforceable against all
third parties in accordance with their terms,


 


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


 


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


 


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


 


(k)           Investments in Canadian Borrower.  In the case of the U.S. Borrower, make loans
or advances, or make equity contributions, to the Canadian Borrower from time
to time in amounts sufficient to enable the Canadian Borrower to perform its
Obligations pursuant to Sections 2.02, 2.03, 2.04, 2.09,
9.04(b) and 9.15.


 


62
















 


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


 


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


 


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


 


(o)           Use
of Proceeds.  The proceeds of the
issuance of the New Senior Convertible Notes will be used to repay the Last Out
Term Advances and to provide working capital for the Borrowers and their
Subsidiaries and for other general corporate purposes.


 


Section 5.02 
Negative Covenants.  So
long as any Advance shall remain unpaid or any Letter of Credit shall be
outstanding, neither Borrower will, at any time:


 


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


 


63

















 


(i)            Liens created under the Loan Documents;


 


(ii)           Permitted Liens;


 


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


 


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


 


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


 


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


 


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


 


64

















 


(viii)        Liens on the assets of a Foreign
Subsidiary to secure Debt permitted to be incurred by such Foreign Subsidiary
under Section 5.02(b)(ii)(B) or (C);


 


(ix)           Liens consisting of cash collateral as security for the
reimbursement obligation of the U.S. Borrower in respect of the letters of
credit permitted to be issued under Section 5.02(b)(iii)(G); and


 


(x)            other Liens securing Obligations of the U.S. Borrower and
its Subsidiaries in an aggregate principal amount not to exceed $5,000,000 at
any time outstanding.


 


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


 


(i)            in the case of the U.S. Borrower,


 


(A)          the New Senior Convertible Notes (and
any additions of paid in kind interest to the outstanding principal amount
thereof);


 


(B)           up to an aggregate principal amount
of $20,000,000 of Subordinated Debt that is (i) additional senior
convertible notes issued on terms that are identical to the New Senior
Convertible Notes or (ii) other Subordinated Debt, in each case that (x) is
unsecured and fully subordinated to the Obligations of the Borrowers hereunder
(on terms no less favorable to the Lender Parties than those applicable to the
New Senior Convertible Notes), (y) has a scheduled maturity that is later
than June 30, 2013 and (z) by its terms does not pay interest in cash
prior to the date on which the New Senior Convertible Notes pay interest in
cash (as set forth in the New Senior Convertible Notes Indenture) (all
Subordinated Debt satisfying the foregoing, “Permitted Subordinated Debt”);


 


(C)           Debt in respect of Hedge Agreements
incurred in the ordinary course of business and providing protection to the
Borrowers and their Subsidiaries against fluctuations in currency values or
commodity prices in connection with the Borrowers’ or any of its Subsidiaries’
operations, in either case; provided that such Hedge Agreements are bona fide hedging activities and are not entered into for
speculative purposes;


 


(D)          Debt consisting of an undertaking by
the U.S. Borrower to guaranty the obligations of all Foreign Subsidiaries with
respect to Debt in an aggregate principal amount not to exceed the amount of
Debt permitted to be incurred by the Foreign Subsidiaries pursuant to Section 5.02(b)(ii)(B) and/or
(C);


 


(E)           Debt consisting of promissory notes
issued with respect to any repurchase of capital stock (and/or options or
warrants in respect thereof) permitted to be purchased pursuant to Section 5.02(f)(iii) in
an aggregate principal amount not to exceed $1,000,000 during the term of the
Facilities; and


 


65

















 


(F)           Debt owed to the Canadian Borrower or
to a Subsidiary Guarantor;


 


(ii)           in the case of any of Subsidiary,


 


(A)          Debt owed to the Borrowers or to a
Subsidiary of the U.S. Borrower;


 


(B)           in the case of the Mexican
Subsidiaries and the Canadian Borrower collectively, Debt in an aggregate
principal amount, when aggregated with any Debt incurred by any other Foreign
Subsidiaries pursuant to Section 5.02(b)(ii)(C), not to exceed
$5,000,000 at any time outstanding;


 


(C)           in the case of any Foreign
Subsidiaries, other than the Mexican Subsidiaries and the Canadian Borrower,
collectively, Debt in an aggregate principal amount, not to exceed $2,500,000
at any time outstanding; and


 


(D)          in the case of Subsidiary Guarantors
only, guaranty Obligations in respect of Permitted Subordinated Debt of the
U.S. Borrower or Other Permitted Debt of the Borrowers; provided that
such guaranty Obligations of Permitted Subordinated Debt are unsecured and
subordinated on the same terms as the Obligations of the U.S. Borrower in
respect of the Permitted Subordinated Debt are subordinated; and


 


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


 


(A)          Debt under the Loan Documents;


 


(B)           Debt secured by Liens permitted by Section 5.02(a)(iv) and
Capitalized Leases not to exceed an aggregate principal amount equal to
$5,000,000 at any time outstanding;


 


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


 


(D)          endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business;


 


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


 


66

















 


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


 


(G)           Debt consisting of reimbursement
obligations with respect to new letters of credit (such new letters of credit, “Replacement
Letters of Credit”) in an aggregate face amount, when aggregated with the
amount of all cash proceeds of draws under the letters of credit issued
pursuant to the Existing Credit Agreement (including the Letters of Credit
hereunder) received by the beneficiaries thereunder, which cash proceeds remain
held by such beneficiaries and which cash proceeds have not been returned to
the U.S. Borrower and applied in accordance with Section 2.03(b)(v),
not to exceed $20,000,000 at any time outstanding;


 


(H)          Debt of any Person existing at the
time such Person is merged into or consolidated or amalgamated with, or
acquired by, either Borrower or any Subsidiary or becomes a Subsidiary of
either Borrower in accordance with the provisions of Section 5.02(e)(xii);
provided that (x) such Debt was not incurred in contemplation of
such merger, consolidation, amalgamation or investment, (y) neither
Borrower nor any Subsidiary which acquired such Person is liable for such Debt,
and (z) the aggregate principal amount of all Debt incurred hereunder,
when aggregated with all Investments made pursuant to Section 5.02(e)(xii),
shall in no event exceed $5,000,000 in the aggregate at any time outstanding;
and


 


(I)            other Debt outstanding in an
aggregate principal amount not to exceed $5,000,000 at any time outstanding
(such Debt incurred pursuant to this paragraph (I), “Other Permitted Debt”).


 


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


 


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


 


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


 


(iii)          in connection with any acquisition permitted under Section 5.02(e),
the U.S. Borrower or any Subsidiary may merge into or amalgamate with or
consolidate with any other Person or permit any other Person to merge into or 


 


67

















 


amalgamate with or consolidate with it; provided
that (A) the Person surviving such merger, amalgamation or consolidation shall
be the U.S. Borrower or a Subsidiary, as the case may be, or shall assume all
obligations of the U.S. Borrower or such Subsidiary, as the case may be, under
the Loan Documents in a manner reasonably satisfactory to the Administrative
Agent, (B) such merger, amalgamation or consolidation shall not result in
a Change of Control, (C) immediately after such transaction no Event of
Default or Default exists and (D) the Person surviving such merger or
consolidation or the amalgamated entity shall have no Debt other than Debt
permitted to be incurred under Section 5.02(b).


 


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


 


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


 


(ii)           sales of assets for fair value in an aggregate amount not
to exceed $5,000,000 during the term of this Agreement (excluding the proceeds
from a sale of the First Designated Subsidiary or the Second Designated
Subsidiary or all or substantially all of the assets of the First Designated
Subsidiary or the Second Designated Subsidiary in accordance with Section 5.02(d)(iv) or
(v)); provided that (A) the Net Cash Proceeds of any such
sales shall be applied pursuant to Section 2.03(b)(ii), (B) immediately
before and after giving effect to such sale, no Default shall have occurred and
be continuing or would result therefrom, (C) with respect to any such sale
(or series of related sales) in an aggregate amount in excess of $2,500,000,
immediately after giving effect to such sale, the U.S. Borrower and its
Subsidiaries shall be in pro  forma
compliance with the covenants contained in Section 5.04,
calculated based on the relevant financial statements delivered pursuant to Section 5.03(b) or
(c), as though such sale had occurred at the beginning of the
Measurement Period covered thereby, as evidenced by a certificate of the chief
financial officer of the U.S. Borrower furnished to the Administrative Agent
demonstrating such compliance and (D) no sale or other disposition of
assets shall be permitted by this clause (ii) unless such disposition is
for at least 75% cash consideration;


 


(iii)          sales or contributions of equipment or other personal
property to Subsidiaries or other joint ventures; provided that the
aggregate fair market value of the assets so sold or contributed to Foreign
Subsidiaries or such other joint ventures by the U.S. Borrower or any Domestic
Subsidiary (determined, in each case, at the time of such sale or contribution)
does not exceed $5,000,000 during the term of this Agreement;


 


(iv)          the sale of the First Designated Subsidiary or all or
substantially all of the assets of the First Designated Subsidiary, so long as
the consideration for such sale includes net cash consideration in an amount
not less than the amount designated for the First Designated Subsidiary in the
Designated Subsidiary Side 


 


68

















 


Letter, after deducting from the gross amount of
cash consideration received in respect of such sale an amount equal to the
amount reserved for any liability under Section 4201, 4204 or 4212 of
ERISA to which any Loan Party or any of its Subsidiaries may be subject as a
result of any withdrawal from a multiemployer plan in connection with such
sale; and


 


(v)           the sale of the Second Designated Subsidiary or all or
substantially all of the assets of the Second Designated Subsidiary, so long as
the consideration for such sale includes net cash consideration in an amount
not less than the amount designated for the Second Designated Subsidiary in the
Designated Subsidiary Side Letter, after deducting from the gross amount of
cash consideration received in respect of such sale an amount equal to the
amount reserved for any liability under Section 4201, 4204 or 4212 of
ERISA to which any Loan Party or any of its Subsidiaries may be subject as a
result of any withdrawal from a multiemployer plan in connection with such
sale.


 


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


 


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


 


(ii)           loans and advances to employees in the ordinary course of
business of  the U.S. Borrower and its
Subsidiaries as presently conducted in an aggregate amount not to exceed
$2,000,000 at any time outstanding and other loans and advances to employees
solely for the purchase of capital stock of the U.S. Borrower not to exceed
$2,500,000 at any time outstanding, provided that each such loan and
advance shall be evidenced by a promissory note which shall be pledged to the
Administrative Agent for the benefit of the Secured Parties pursuant to the
Guarantee and Collateral Agreement as security for the Obligations of such
pledgor hereunder;


 


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


 


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


 


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


 


(vi)          Investments received in connection with the bankruptcy or
reorganization of suppliers or customers and in settlement of delinquent 


 


69

















 


obligations of, and other disputes with, customers
arising in the ordinary course of business;


 


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


 


(viii)        Investments in the Canadian Borrower and
the Mexican Subsidiaries, provided that (A) immediately before and
after giving effect thereto, no Default shall have occurred and be continuing
or would result therefrom and (B) the aggregate amount of all such
Investments in the Canadian Borrower and the Mexican Subsidiaries as permitted
by this clause (viii) and made after the Effective Date, when aggregated
with all Investments in any other Foreign Subsidiaries pursuant to Section 5.02(e)(ix),
shall not exceed $5,000,000 in the aggregate at any time outstanding plus
the aggregate fair market of assets contributed to the Foreign Subsidiaries as
permitted by Section 5.02(d)(iii);


 


(ix)           Investments in the Foreign Subsidiaries other than the
Canadian Borrower or any Mexican Subsidiary, provided that (A) immediately
before and after giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom and (B) the aggregate amount of all
such Investments in such Foreign Subsidiaries as permitted by this clause (ix) and
made after the Effective Date shall not exceed $2,500,000 in the aggregate at
any time outstanding plus the aggregate fair market of assets
contributed to the Foreign Subsidiaries as permitted by Section 5.02(d)(iii);


 


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


 


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


 


(xii)          other Investments in an aggregate amount outstanding for
all such Investments not to exceed $5,000,000.


 


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


 


70

















 


of capital stock or rights to acquire capital stock
of the U.S. Borrower or with proceeds from substantially concurrent equity
contributions or issuances of new shares of capital stock; provided that
such other class of capital stock contains terms and provisions at least as
advantageous to the Lender Parties as those contained in the capital stock
redeemed thereby, (iii) the U.S. Borrower may repurchase shares of its
capital stock (and/or options or warrants in respect thereof) held by its
officers, directors and employees, so long as such repurchase is pursuant to,
and in accordance with the terms of (x) the KEIP (as in effect on the
Effective Date) or (y) any other management and/or employee stock plans,
stock subscription agreements or shareholder agreements; provided that
aggregate amount of cash paid (including cash paid on promissory notes issued
pursuant to Section 5.02(b)(i)(E)) in respect of any such repurchases
pursuant to this clause (y) does not exceed $500,000 in any calendar year,
and (iv) the U.S. Borrower may make cash payments in lieu of issuing
fractional shares in connection with any exchange of any Subordinated Debt for
preferred or common stock of the U.S. Borrower, provided, however,
that the aggregate payment under this clause (iv) does not exceed in any
calendar year $2,500,000; provided  further that such $2,500,000
amount in any calendar year may be increased by an amount not to exceed (A) the
cash proceeds from the sale of capital stock of the U.S. Borrower to members of
management, directors or consultants (or their heirs or estates) of U.S.
Borrower and its Subsidiaries that occurs after the date hereof plus (B) the
cash proceeds of key man life insurance policies received by the U.S. Borrower
and any of its Subsidiaries after the date hereof.  Notwithstanding anything herein to the
contrary, cancellation of Debt owing to the U.S. Borrower from members of
management in connection with a purchase of capital stock of the U.S. Borrower
by such members of management (in an amount not less than such Debt and
financed from a source other than such Debt) will not be deemed to constitute a
payment in violation of this Section 5.02(f) or any other
provision hereof.


 


(g)           Prepayments, Etc., of Debt.  Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Permitted
Subordinated Debt, other than (i) any prepayment of Debt owed by any Loan
Party to any other Loan Party, (ii) any exchange of Permitted Subordinated
Debt (including exchanges or conversions of New Senior Convertible Notes) for
preferred or common stock of the U.S. Borrower and  (iii) cash payments in lieu of issuing
fractional shares in connection with any exchange of Permitted Subordinated
Debt (including exchanges or conversions of New Senior Convertible Notes) for
preferred or common stock of the U.S. Borrower, provided, however,
that (A) in the case of the preceding clause (ii) or (iii), such
exchange (x) is made in satisfaction of any Obligations owed by the U.S.
Borrower under, or in connection with, such Permitted Subordinated Debt and (y) shall
not result in any Change of Control and (B) in the case of the preceding
clause (iii), such cash payment does not exceed in any calendar year
$2,500,000; provided  further that such $2,500,000 amount in any
calendar year may be increased by an amount not to exceed (A) the cash
proceeds from the sale of capital stock of the U.S. Borrower to members of
management, directors or consultants (or their heirs or estates) of U.S.
Borrower and its Subsidiaries that occurs after the date hereof plus (B) the
cash proceeds of key man life insurance policies received by the U.S. Borrower
and any of its Subsidiaries after the date hereof.  Notwithstanding anything herein to the
contrary, cancellation of Debt owing to the U.S. 


 


71

















 


Borrower from members of management in connection
with a purchase of capital stock of the U.S. Borrower by such members of
management (in an amount not less than such Debt and financed from a source
other than such Debt) will not be deemed to constitute a payment in violation
of this Section 5.02(g) or any other provision hereof.


 


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


 


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


 


(j)            Capital Expenditures.  From and after the Effective Date, make, or
permit any of its Subsidiaries to make, any Capital Expenditures that would
cause the aggregate amount of all Capital Expenditures of the U.S. Borrower and
its Subsidiaries in any Fiscal Year set forth below to exceed the amount set
forth for such Fiscal Year below:


 


	
  Fiscal
  Year

  	
   

  	
  Capital

  Expenditures

  	
   

  
	
  2010

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  35,500,000

  	
   

  
	
  2012

  	
   

  	
  $

  	
  41,000,000

  	
   

  
	
  2013

  	
   

  	
  $

  	
  41,000,000

  	
   

  



 


No amount referred to above may be carried forward or carried backwards
for expenditure in a subsequent or prior Fiscal Year if such amount is not
expended in the Fiscal Year for which it is permitted.


 


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


 


Section 5.03 
Reporting Requirements.  So
long as any Advance shall remain unpaid or any Letter of Credit shall be
outstanding, the U.S. Borrower will furnish to the Lender Parties:


 


72

















 


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


 


(b)           Annual Financials. 
As soon as available and in any event within 90 days after the end of
each Fiscal Year, a Consolidated balance sheet of the U.S. Borrower and its
Subsidiaries as of the end of such Fiscal Year and the related Consolidated
statements of income and cash flow for such Fiscal Year setting forth in each
case in comparative form the corresponding figures for the previous Fiscal
Year, accompanied by an opinion which shall be unqualified as to the scope of
the audit and as to the going concern status of the U.S. Borrower and its
Subsidiaries, taken as a whole, of Deloitte & Touche LLP or other
independent public accountants of recognized standing acceptable to the
Majority Lenders, together with (A) a certificate of such accounting firm
to the Lender Parties stating that in the course of the regular audit of the
business of the U.S. Borrower and its Subsidiaries which audit was conducted by
such accounting firm in accordance with GAAP, such accounting firm has obtained
no knowledge that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof, (B) a schedule in
form satisfactory to the Administrative Agent of the computations used by the
U.S. Borrower in determining, as of the end of such Fiscal Year, compliance
with the covenants contained in Sections 5.02(j) and 5.04
(including, for purposes of determining compliance with Section 5.04(b),
the aggregate amount of Restructuring Charges incurred as of the end of such
Fiscal Year); provided that in the event of any change in GAAP used in
the preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Sections 5.02(j) and
5.04, a statement of reconciliation conforming such financial statements
to GAAP used to
prepare the financial statements referred to in Section 4.01(f)(i) and (C) a
certificate of the chief financial officer of the U.S. Borrower stating that no
Default has occurred and is continuing or, if a default has occurred and is
continuing, a statement as to the nature thereof and the action that the U.S.
Borrower has taken and proposes to take with respect thereto.


 


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


 


73
















 


adjustments) by the chief financial officer of such
Borrower as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that such Borrower has taken and proposes to
take with respect thereto, and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the U.S. Borrower in determining
compliance with the covenants contained in Sections 5.02(j) and
5.04 (including, for purposes of determining compliance with Section 5.04(b),
the aggregate amount of Restructuring Charges incurred as of the end of such
Fiscal Quarter); provided that in the event of any change in GAAP used
in the preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Sections 5.02(j) and
5.04, a statement of reconciliation conforming such financial statements
to GAAP used to
prepare the financial statements referred to in Section 4.01(f)(i).


 


(d)           Monthly Financials. As soon as available and in any
event within 30 days after the end of each calendar month (commencing with January 2010
and excluding the last calendar month in any Fiscal Quarter), a Consolidated
management internally generated balance sheet of the U.S. Borrower and its
Subsidiaries as of the end of such month and the related Consolidated
statements of income and cash flow for the period commencing at the end of the
previous month and ending with the end of such month, setting forth in
comparative form the corresponding figures for the corresponding period of (A) the
preceding Fiscal Year, and (B) the applicable annual forecast delivered
pursuant to Section 5.03(f), all in reasonable detail and duly
certified (subject to quarterly adjustments and year-end audit adjustments) by
the chief financial officer of the U.S. Borrower as fairly presenting in all
material respects the financial position or results of operations of the U.S.
Borrower and its Subsidiaries for such month.


 


(e)           13-Week Cash Flow Forecast.  (i) On the last Business Day of each
month occurring prior to the one year anniversary of the Effective Date, the
U.S. Borrower shall deliver to the Administrative Agent, (a) a 13-week
cash flow forecast in a form reasonably satisfactory to the
Administrative Agent (the “13-Week Cash Flow Forecast”), (b) a
reconciliation of the cash balances of the U.S. Borrower and its Subsidiaries
between the amount shown on the U.S. Borrower’s general ledger for the
prior month and the amount maintained on deposit for such month by
the U.S. Borrower and its Subsidiaries with banks, (c) a variance report (i) showing
on a line item basis the percentage and dollar variance of actual cash
disbursements and revenues and cash receipts for the prior month from the
amounts set forth for such month in the most recent 13-Week Cash Flow
Forecast and (ii) containing explanations of material variances from such
13-Week Cash Flow Forecast, and (d) a certificate, in a form satisfactory
to the Administrative Agent, of a Responsible Officer of the U.S. Borrower
as to the calculation of Liquidity for the prior month and attaching forth
such calculations.  Each delivery of the 13-Week Cash Flow Forecast shall
be deemed to be a representation by the U.S. Borrower that such 13-Week Cash
Flow Forecast has been prepared based upon good faith estimates and assumptions
that the U.S. Borrower believes were reasonable at the time made (it being
understood and agreed that such 13-Week Cash Flow Forecast is 


 


74

















 


not to be viewed as fact and that actual results
during the period or periods covered thereby may differ from such projected
results).


 


(ii)           If,
as of the end of any month following the one year anniversary of the Effective
Date, Liquidity is less than $50,000,000, the U.S. Borrower shall deliver a
13-Week Cash Flow Forecast in a form consistent with requirements of the preceding
paragraph to the Administrative Agent on the last Business Day of such month.


 


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


 


(g)           ERISA. 
Promptly after any Loan Party or any ERISA Affiliate obtains knowledge, or
has reason to know, of the occurrence of any of the following events that
individually or in the aggregate (including in the aggregate such events
previously disclosed or exempt from disclosure hereunder, to the extent the
liability therefor remains outstanding), would be reasonably likely to have a
Material Adverse Effect, a certificate of a Responsible Officer of the U.S.
Borrower setting forth details as to such occurrence and the action, if any,
that any Loan Party or any ERISA Affiliate is required or proposes to take,
together with any notices (required, proposed or otherwise) given to or filed
with or by or received by any Loan Party, any ERISA Affiliate, the PBGC, a Plan
participant (other than notices relating to an individual participant’s benefits)
or  the Plan administrator with respect
thereto:  that a Reportable Event has
occurred; that a Plan has failed to satisfy the minimum funding standard,
within the meaning of Section 412 of the Internal Revenue Code or Section 302
of ERISA, or an application has been or is to be made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Internal Revenue Code with
respect to a Plan; that a Plan having an Unfunded Current Liability has been or
is to be terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA (including the giving of written notice thereof); that a Plan other
than a Specified Underfunded Plan has an Unfunded Current Liability; that a
Specified Underfunded Plan has an Unfunded Current Liability in excess of the
Unfunded Current Liability set forth on Schedule 4.01(l) for such
Specified Underfunded Plan; that proceedings are reasonably expected to be or
have been instituted to terminate a Plan having an Unfunded Current Liability
(including the giving of written notice thereof); that a proceeding has been
instituted against any Loan Party or any ERISA Affiliate pursuant to Section 515
of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified any Loan Party or any ERISA Affiliate of its intention to appoint a
trustee to administer any Plan; that any Loan Party or any ERISA Affiliate has
failed to make a required installment or other payment pursuant to Section 412
of the Internal Revenue Code with respect to a Plan; or that any Loan Party or
any ERISA Affiliate has incurred or is reasonably expected to incur (or has
been notified in writing that it will incur) any liability (including any 


 


75

















 


contingent or secondary liability) to or  on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 436(f), 4971
or 4975 or the Internal Revenue Code.


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)            Quarterly Management Calls.  At a date to be mutually agreed upon between
the Administrative Agent and the U.S. Borrower occurring not less than once per
Fiscal Quarter, the U.S. Borrower shall provide each of the Lenders (other than
any Investor Lender) with an update (via a meeting or conference call with the
U.S. Borrower’s management and/or its advisors) on the ongoing financial
performance, operations and Liquidity of the U.S. Borrower and its
Subsidiaries.


 


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


 


(k)           Securities Reports/Other Information.  Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders or the trustee
and/or the holders 


 


76

















 


of the New Senior Convertible Notes, and copies of
all regular, periodic and special reports, and all registration statements or
prospectuses, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may be
substituted therefor, or with any national, state or provincial securities
regulator (in each case to the extent not theretofore delivered to the Lender
Parties pursuant to this Agreement), and with reasonable promptness such other
information (financial or otherwise) as the Administrative Agent on its own
behalf or on behalf of any Lender Party may reasonably request in writing from
time to time.


 


(l)            Net Cash Proceeds. 
Promptly, and in any event not later than one (1) Business Day,
after the date of receipt of any Net Cash Proceeds with respect to any sale,
lease, transfer or other disposition of any asset, the sale or issuance of any
Equity Interests, or the incurrence or issuance of any Debt by any Person, or
any Recovery Event, a certificate of a Responsible Officer of the U.S. Borrower
setting forth the calculation of the Net Cash Proceeds with respect to such
sale, lease, transfer or other disposition of any asset, such sale or issuance
of any Equity Interests, or such incurrence or issuance of any Debt by any
Person, or such Recovery Event.


 


(m)          LC Cash Returns. 
Promptly, and in any event not later than one (1) Business Day,
after the date of any LC Cash Return and, to the extent applicable, promptly,
and in any event not later than one (1) Business Day, after the date on
which cash is posted to collateralize a reimbursement obligation with respect
to a Replacement Letter of Credit, a certificate of a Responsible Officer of
the U.S. Borrower setting forth the amount of proceeds received under such LC
Cash Return or, to the extent applicable, the amount of cash posted to
collateralize the reimbursement obligation with respect to such Replacement
Letter of Credit.


 


Section 5.04 
Financial Covenants.  So
long as any Advance shall remain unpaid or any Letter of Credit shall be
outstanding, the U.S. Borrower will:


 


(a)           Minimum Liquidity. 
Maintain as of the close of business on the last Business Day of any
month, Liquidity in an amount not less than $25,000,000. The Borrower shall, on
the first Business Day of each month, deliver to the Administrative Agent a
report setting forth the Liquidity at the end of the previous Business Day.


 


(b)           Minimum EBITDA. 
Maintain at the end of each Fiscal Quarter a minimum EBITDA of not less
than the amount set forth below for each Measurement Period set forth below:


 


	
  Measurement
  Period Ending

  	
   

  	
  EBITDA

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  67,200,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  76,300,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  83,800,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  97,900,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  104,900,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  112,700,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  120,600,000

  	
   

  



 


77

















 


	
  March 31, 2013

  	
   

  	
  $

  	
  125,700,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  131,300,000

  	
   

  



 


provided that if at the end of any Measurement Period listed
above, EBITDA of the U.S. Borrower for such Measurement Period is less than the
required minimum EBITDA for such Measurement Period (the amount of such
deficiency, an “EBITDA Deficiency”), no default under this Section 5.04(b) shall
be deemed to exist with respect to such Measurement Period if, during the
period commencing on the day after the last day of such Measurement Period and
ending on the day which is 20 days after the date on which the financial
statements required pursuant to Section 5.03(b) or (c) with
respect to such Measurement Period are required to be delivered, the Net Cash
Proceeds received by the U.S. Borrower from the sale or issuance of (x) Equity
Interests of the U.S. Borrower or (y) Permitted Subordinated Debt equals
or exceeds the EBITDA Deficiency for such Measurement Period; provided  further
that (i) an EBITDA Deficiency shall not be deemed cured pursuant to the
preceding proviso (x) more than twice during the term of this Agreement or
(y) in respect of any Measurement Period if an EBITDA Deficiency with
respect to any of the three Measurement Periods immediately preceding such
Measurement Period was deemed cured pursuant to the preceding proviso, (ii) no
Net Cash Proceeds may be applied to the cure of any EBITDA Deficiency if the
aggregate amount of all Net Cash Proceeds applied to the cure of EBITDA
Deficiencies pursuant to the preceding proviso would exceed $15,000,000 and (iii) the
Net Cash Proceeds received by the U.S. Borrower from any such sale or issuance
of Equity Interests or Permitted Subordinated Debt shall be applied to the
prepayment of Advances in accordance with Section 2.03(b)(iii) or
(iv), as applicable.


 


ARTICLE VI


 


Guaranty


 


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


 


Section 6.02 
Guaranty Absolute.  The
U.S. Borrower guarantees that all of the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Loan Documents, regardless of any
Requirements of Law now or hereafter in effect in any jurisdiction 


 


78

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(viii)        any other circumstance (including,
without limitation, any statute of limitations or any existence of or reliance
on any representation by the Administrative 


 


79

















 


Agent or any of the other Lender Parties) that might
otherwise constitute a defense available to, or a discharge of, the U.S.
Borrower or any other guarantor or surety.


 


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


 


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


 


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


 


The U.S. Borrower hereby waives (i) any defense
arising by reason of any claim or defense based upon an election of remedies by
the Administrative Agent or the other Lender Parties which in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the U.S.
Borrower or any other rights of the U.S. Borrower to proceed against the
Canadian Borrower, any other guarantor or any other Person or any of the
Collateral, and (ii) any defense based on any right of setoff or
counterclaim against or in respect of the Obligations of the U.S. Borrower
under this Guaranty.


 


80

















 


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


 


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


 


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


 


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


 


81

















 


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


 


ARTICLE VII


 


Events of Default


 


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


 


(a)           Non-payment. 
either Borrower shall (i) fail to pay any principal of any Advance
owing by it when the same shall become due and payable or (ii) fail to pay
any interest on any Advance owing by it, or any fees payable pursuant to Section 2.05,
or any other amounts owing by it under any Loan Document, in each case within
five days after the due date thereof; or


 


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


 


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


 


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


 


(e)           Cross Default. 
any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect of
any Debt that is outstanding in a principal amount of at least $2,500,000 (or
its equivalent in another currency) either individually or in the aggregate
(but excluding Debt outstanding hereunder) of such Loan Party or such
Subsidiary (as the case may be), when the same 


 


82

















 


becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to
any such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt or otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made
other than in connection with a sale of assets permitted by Section 5.02(d),
in each case prior to the stated maturity thereof; or


 


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


 


(g)           Judgments. 
one or more judgments or decrees shall be entered against either
Borrower or any of the Subsidiaries involving a liability of $2,500,000 or more
in the aggregate for all such judgments and decrees for the Borrowers and their
Subsidiaries (to the extent not paid or fully covered by insurance provided by
a carrier not disputing coverage) and any such judgments or decrees shall not
have been satisfied, vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof; or


 


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


 


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


 


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(j)            Change of Control. 
any Change of Control shall occur; or


 


(k)           ERISA.  (i) any
Plan shall fail to satisfy the minimum funding standard required for any plan
year or part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Internal
Revenue Code; any Plan is or shall have been terminated or is the subject of
termination proceedings under ERISA (including the giving of written notice
thereof); an event shall have occurred or a condition shall exist in either
case entitling the PBGC to terminate any Plan or to appoint a trustee to
administer any Plan (including the giving of written notice thereof); any Plan
shall fail to satisfy the minimum funding standards of Section 412 or 430
of the Code or Sections 302 and 303 of ERISA; or any Loan Party or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 436(f), 4971 or 4975 of the Internal
Revenue Code (including the giving of written notice thereof), (ii) there
could result from any event or events set forth in clause (i) of this Section 7.01(k) the
imposition of a lien, the granting of a security interest, or a liability, or
the reasonable likelihood of incurring a lien, security interest or liability,
and (iii) such lien, security interest or liability will or would be
reasonably likely to result in a liability of any Loan Party or any ERISA
Affiliate of $2,500,000 or more; provided, that the incurrence of any
liability by any Loan Party or its Subsidiaries under Section 4201, 4204
or 4212 of ERISA as a result of any withdrawal from a multiemployer plan in
connection with any sale in compliance with Section 5.02(d)(iv) or
(v) shall not constitute an Event of Default hereunder
notwithstanding that the amount of such liability may exceed $2,500,000; or


 


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


 


then, and in any such event,
the Administrative Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Appropriate Borrower,
declare the Lender Notes, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Lender Notes, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Borrower and (ii) shall at the request, or may with the consent of the
Majority Lenders by notice to each party required under the terms of any
agreement in support of which a Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to any Loan Party or any of its Subsidiaries under the
Federal Bankruptcy Code, the Lender Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Borrower.


 


Section 7.02 
Application of Funds.  (a) 
Any amounts received on account of the Obligations on or after the occurrence
of an Event of Default under Section 7.01(a) or the


 


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acceleration of the
Obligations under the Loan Documents shall be applied by the Administrative
Agent in the following order:


 


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


 


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


 


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


 


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


 


(v)           Last, the balance, if any, after all of the
Obligations (other than Unmatured Surviving Obligations) of the Loan Parties
under or in respect of the Loan Documents have been indefeasibly paid in full
and no Letters of Credit shall be outstanding that have not been cash
collateralized in a manner reasonably satisfactory to the Administrative Agent
and the Issuing Bank, to the U.S. Borrower or as otherwise required by law.


 


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


 


ARTICLE VIII


 


The Administrative Agent


 


Section 8.01 
Authorization and Action. 
Each Lender Party (in its capacities as a Lender and the Issuing Bank
(if applicable)) hereby irrevocably appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental thereto.  The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents, and the Administrative Agent may perform any
of its respective duties hereunder by or through its officers, directors,
agents, employees or affiliates.  The
duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent 


 


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shall not have by reason
of this Agreement or any other Loan Document a fiduciary relationship in
respect of any Lender Party or the holder of any Lender Note; and nothing in
this Agreement or in any other Loan Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or any other Loan Document except as
expressly set forth herein or therein. As to any matters not expressly provided
for by the Loan Documents (including, without limitation, enforcement or
collection of the Lender Notes), the Administrative Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall not incur any liability to any Lender Party
and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall be binding
upon all Lender Parties and all holders of Lender Notes; provided, however,
that the Administrative Agent shall not be required to take any action that
exposes the Administrative Agent to personal liability or that is contrary to
this Agreement or applicable law. 
Without limiting the foregoing, neither any Lender Party nor the holder
of any Lender Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Loan Document in accordance
with the instructions of the Majority Lenders (or, if so specified by this
Agreement, any applicable greater percentage of Lenders).  The Administrative Agent agrees to give to
each Lender Party prompt notice of each notice given to it by either Borrower
pursuant to the terms of this Agreement.


 


Section 8.02 
Administrative Agent’s Reliance, Etc.  Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision).  Without
limitation of the generality of the foregoing, the Administrative Agent:  (a) may deem and treat the payee of any
Lender Note as the holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Lender Note, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 9.07; (b) with respect to any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Lender Note, may
consider as conclusive and binding any such request, authority or consent
of  such Person, as applicable, on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of such
Lender Note or of any Lender Note or Lender Notes issued in exchange therefore;
(c) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (d) makes
no warranty or representation to any Lender Party and shall not be responsible
to any Lender Party for any recitals, statements, information, warranties or
representations (whether written or oral) made in or in connection with the
Loan Documents; (e) shall not have any duty to ascertain or to inquire as
to (x) the performance or observance of any of the terms, provisions,
covenants or conditions of this Agreement or any Loan Document on the part of
any Loan Party, (y) the financial condition of any Loan Party or (z) the
existence or possible existence of any Default; (f) shall not have any
duty to inspect the property (including the books and records) of any Loan
Party; (g) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, collectibility,
sufficiency or value of any Loan Document, the financial condition of 


 


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the Borrowers or any of
their Subsidiaries or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (h) shall incur no liability under or in respect of any Loan Document
by acting upon any notice, statement, consent, order, certificate or other
instrument or writing (which may be by telegram, telecopy, telex, cablegram or
electronic mail) or telephone message believed by it to be genuine and signed,
sent or made by the proper party or parties.


 


Section 8.03 
DBTCA and Affiliates.  With
respect to the Advances made or required to be made by it and the Lender Notes
issued to it, DBTCA shall have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as though it were
not the Administrative Agent; and the term “Lender Party” or “Lender
Parties” or any similar terms shall, unless otherwise expressly indicated,
include DBTCA in its individual capacity. 
DBTCA and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of banking, investment banking, trust or other
business with, or provide debt financing, equity capital or other services
(including financial advisory services) to, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if DBTCA were not the Administrative
Agent and without any duty to account therefor to the Lender Parties.  DBTCA may accept fees and other consideration
from any Loan Party or any Affiliate of any Loan Party for services in
connection with this Agreement and otherwise without having to account for the
same to the Lender Parties.


 


Section 8.04 
Lender Party Credit Decision. 
Each Lender Party acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender Party and based on
the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement.  Each Lender Party also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement. 
Except as expressly provided in this Agreement, the Administrative Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender Party or the holder of any Lender Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.


 


Section 8.05 
Indemnification.


 


(a)           Each
Lender Party severally agrees to indemnify the Administrative Agent (to the
extent not promptly reimbursed by the Borrowers) from and against such Lender
Party’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Administrative Agent
(or any affiliate thereof) in performing its duties hereunder or under any
other Loan Document or in any way relating to or arising out of the Loan
Documents or any action taken or omitted by the Administrative Agent under the
Loan Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages, 


 


87

















 


penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent’s gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).  Without limitation of the foregoing, each
Lender Party agrees to reimburse the Administrative Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section 9.04,
to the extent that the Administrative Agent is not promptly reimbursed for such
costs and expenses by the Borrowers.  For
purposes of this Section 8.05, the Lender Parties’ respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at
such time and owing to the respective Lender Parties and (ii) their
respective Pro Rata Shares of the aggregate Available LC Amount of all Letters
of Credit outstanding at such time.  The
failure of any Lender Party to reimburse the Administrative Agent promptly upon
demand for its ratable share of any amount required to be paid by the Lender
Party to the Administrative Agent as provided herein shall not relieve any
other Lender Party of its obligation hereunder to reimburse the Administrative
Agent for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse the
Administrative Agent for such other Lender Party’s ratable share of such
amount.  Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 8.05
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


(b)           Each
U.S. Revolving Credit Lender severally agrees to indemnify the Issuing Bank (to
the extent not promptly reimbursed by the Borrowers) from and against such
Lender Party’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however,
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank’s gross negligence or
willful misconduct.  Without limitation
of the foregoing, each such Lender Party agrees to reimburse the Issuing Bank
promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
payable by the Borrowers under Section 9.04, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrowers.  For purposes of this Section 8.05(b),
the U.S. Revolving Credit Lenders’ respective ratable shares of any amount
shall be determined, at any time, according to the aggregate principal amount
of the Existing U.S. Letter of Credit Advances outstanding at such time and
owing to the respective U.S. Revolving Credit Lenders.  The failure of any such Lender Party to
reimburse the Issuing Bank promptly upon demand for its ratable share of any
amount required to be paid by the Lender Parties to the Issuing Bank as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse the Issuing Bank for its ratable share of such amount,
but no Lender Party shall be responsible for the failure of any other Lender
Party to reimburse the Issuing Bank for such other Lender Party’s ratable share
of such amount.  Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each such Lender Party 


 


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contained in this Section 8.05(b) shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.


 


Section 8.06 
Successor Administrative Agents. 
The Administrative Agent may resign as to any or all of the Facilities
at any time by giving written notice thereof to the Lender Parties and the
Borrowers.  Upon any such resignation,
the Majority Lenders shall, with the consent of the U.S. Borrower (such consent
not to be unreasonably withheld or delayed and such consent not to be required
if an Event of Default then exists) have the right to appoint a successor
Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned.  Such
successor Administrative Agent shall serve until such time, if any, as the
Majority Lenders appoint a new successor Administrative Agent as provided
above.  If no successor Administrative
Agent has been appointed by the 20th Business Day after the date such notice of
resignation was given by the retiring Administrative Agent, such retiring
Administrative Agent’s resignation shall become effective and the Majority
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Loan Document with respect to the Facility or
Facilities as to which the retiring Administrative Agent has resigned until
such time, if any, as the Majority Lenders appoint a successor Administrative
Agent as provided above.  If no successor
Administrative Agent shall have been so appointed by the Majority Lenders and
consented to by the U.S. Borrower, and shall have accepted such appointment,
within 15 Business Days after the retiring Administrative Agent’s giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lender Parties and with the consent of the U.S. Borrower (such consent not
to be unreasonably withheld or delayed and such consent not to be required if
an Event of Default then exists) appoint a successor Administrative Agent,
which shall be a commercial bank or trust company organized under the laws of the
United States or of any State thereof and having a combined capital and surplus
of at least $250,000,000.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to all of the Facilities and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Majority Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Majority Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Administrative Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent as to such
Facilities, other than with respect to funds transfers and other similar
aspects of the administration of Borrowings under such Facilities, and payments
by the Borrowers in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. 
Notwithstanding the foregoing, the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents with respect to any Facility or Facilities upon the
effectiveness of its resignation pursuant to the fourth 


 


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sentence of this Section 8.06.  After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent as to all of the Facilities, the
Administrative Agent shall remain indemnified to the extent provided in this
Agreement and the other Loan Documents, and the provisions of this Article VIII
and Section 9.04 (and the analogous provisions of the other Loan
Documents) shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent as to any Facilities under this
Agreement.


 


Section 8.07 
Lead Arranger.  The Lead
Arranger shall have no duties or obligations under this Agreement or the other
Loan Documents in its capacity as Lead Arranger.


 


Section 8.08 
Collateral Matters.  (a) 
Each Lender Party authorizes and directs the Administrative Agent to enter into
the Collateral Documents for the benefit of the Lender Parties and the other
Secured Parties.  Each Lender Party
hereby agrees, and each holder of any Lender Note by the acceptance thereof
will be deemed to agree, that, except as otherwise set forth herein, any action
taken by the Majority Lenders in accordance with the provisions of this
Agreement or the Collateral Documents, and the exercise by the Majority Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
the Lender Parties.  The Administrative
Agent is hereby authorized on behalf of all of the Lender Parties, without the
necessity of any notice to or further consent from any Lender Party, from time
to time prior to an Event of Default, to take any action with respect to any
Collateral or Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and liens upon the Collateral
granted pursuant to the Collateral Documents.


 


(b)           The Administrative Agent shall have no obligation
whatsoever to the Lender Parties or to any other Person to assure that the
Collateral exists or is owned by any Loan Party or is cared for, protected or
insured or that the Liens granted to the Administrative Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Administrative Agent in this Section 8.08
or in any of the Collateral Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, the
Administrative Agent may act in any manner it may deem appropriate, in its sole
discretion, given the Administrative Agent’s own interest in the Collateral as
one of the Lender Parties and that the Administrative Agent shall have no duty
or liability whatsoever to the Lender Parties, except for its gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).


 


Section 8.09 
Delivery of Information. 
The Administrative Agent shall not be required to deliver to any Lender
Party originals or copies of any documents, instruments, notices,
communications or other information received by the Administrative Agent from
any Loan Party, any Subsidiary of any Loan Party, the Majority Lenders, any
Lender Party or any other Person under or in connection with this Agreement or
any other Loan Document except (i) as specifically provided in this
Agreement or any other Loan Document and (ii) as specifically requested
from time to time in writing by any Lender Party with respect to a specific
document, instrument, notice or other written communication received by and in
the possession of the 


 


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Administrative Agent at
the time of receipt of such request and then only in accordance with such
specific request.


 


ARTICLE IX


 


Miscellaneous


 


Section 9.01 
Amendments, Etc.  No
amendment or waiver of any provision of this Agreement or the Lender Notes or
any other Loan Document, nor consent to any departure by either Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed (or, in the case of the Collateral Documents, consented to) by the
Majority Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that (a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders (other than any Lender that is, at
such time, a Defaulting Lender), do any of the following at any time:  (i) waive any of the conditions
specified in the Consent, (ii) change the number of Lenders or the
percentage of (x) the aggregate unpaid principal amount of the Advances or
(y) the aggregate Available LC Amount of outstanding Letters of Credit
that, in each case, shall be required for the Lenders or any of them to take
any action hereunder, (iii) amend this Section 9.01, (iv) release
the U.S. Borrower from its guaranty obligations or reduce or limit the obligations
of the U.S. Borrower under Section 6.01 of the Guaranty or (v) otherwise
limit either Borrower’s liability with respect to the Obligations owing to the
Administrative Agent and the Lender Parties under any of the Loan Documents,
and (b) no amendment, waiver or consent shall, unless in writing and
signed by the Majority Lenders and by each affected Lender, (i) increase
the amount of U.S. Letter of Credit Advances required to be made or purchased
by such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest (other than a waiver of increased interest
following Default pursuant to Section 2.04(b)) on, the Lender Notes
held by such Lender or any reimbursement obligation in respect of any Letter of
Credit or any fees or other amounts payable hereunder to such Lender or (iii) postpone
any date fixed for any payment of principal or interest on the Lender Notes
held by such Lender or any reimbursement obligation in respect of any Letter of
Credit any fees or other amounts payable hereunder to such Lender or the final
maturity date of any Facility; provided, that no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Bank in addition to
the Lenders required above to take such action, affect the rights or
obligations of the Issuing Bank under this Agreement; and provided  further
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.  Notwithstanding the
foregoing, in connection with any amendment, waiver, consent or other matter
requiring the vote of the Majority Lenders, each Investor Lender shall be deemed
to vote the aggregate principal amount of the Advances owed to it in the same
manner as the majority of the Advances held by the Lenders that are not
Investor Lenders with respect to such amendment, waiver, consent or other
matter.


 


Notwithstanding the foregoing, this Agreement and the
other Loan Documents may be amended (or amended and restated) with the
written consent of the Majority Lenders, the Administrative Agent and each
Borrower (a) to add a letter of credit facility to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and 


 


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the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Advances and the accrued interest and fees in
respect thereof and (b) to include appropriately the issuing bank or,
if applicable, Lenders, that make extensions of credit under such letter
of credit facility in any determination of the Majority Lenders; provided
that any such letter of credit facility shall be subject to the following
conditions: (i) the aggregate face value of letters of credit permitted to
be issued under such letter of credit facility shall not exceed $20,000,000 and
(ii) concurrently with the issuance of any new letter of credit under such
letter of credit facility for the benefit of either a beneficiary under a
letter of credit issued pursuant to the Existing Credit Agreement (including
the Letters of Credit hereunder) or a new beneficiary in lieu of any such
beneficiary, the U.S. Borrower shall procure prepayment of  U.S. Loan Advances, Canadian Advances and
U.S. Letter of Credit Advances, if any, ratably in an aggregate amount not less
than 100% of the cash drawn by the beneficiary of the letter of credit that is
being replaced by such new letter of credit being issued for the benefit
of either such beneficiary or a new beneficiary in lieu thereof.


 


Section 9.02 
Notices, Etc.  All notices
and other communications provided for hereunder shall be in writing (including
telegraphic or telecopy communication) and mailed, telegraphed, telecopied or
delivered, if to the U.S. Borrower, to its address at P.O. Box 15600, 7140
Office Circle, Evansville, IN 47715, Attn: 
Office of General Counsel; if to the Canadian Borrower, addressed to it
c/o the U.S. Borrower at the U.S. Borrower’s address; if to any Initial Lender
or the Existing Issuing Bank, to its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender, to its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Administrative Agent, to its address at
60 Wall Street, at Deutsche Bank Trust Company Americas, 60 Wall Street, MS NYC60-0208,
New York, New York 10005, Attention: Omayra Laucella; or, as to either Borrower
or the Administrative Agent, to such other address as shall be designated by
such party in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the U.S. Borrower and the Administrative Agent pursuant to this Section 9.02;
provided that materials required to be delivered pursuant to Section 5.03(b),
(c) and (j) shall be delivered to the Administrative
Agent in an electronic medium in a format reasonably acceptable to the
Administrative Agent.  All such notices
and communications shall, when mailed, telegraphed, telecopied or e-mailed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by e-mail, respectively, except that
notices and communications to the Administrative Agent pursuant to Sections 2.03(a) and
2.06(a) and with respect to selected Interest Periods in respect of
Eurodollar Rate Advances shall not be effective until received by the
Administrative Agent.  Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Lender Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.


 


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


 


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


 


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


 


(c)           If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by either Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.03,
2.06(b)(i) or 2.07(c), acceleration of the maturity of the
Lender Notes pursuant to Section 7.01 or for any other reason, such
Borrower shall, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result
of such payment, 


 


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including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender Party to fund or maintain such Advance.


 


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


 


(e)           Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements
and obligations of the Borrowers contained in Sections 2.07 and 2.09
and this Section 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under any of
the other Loan Documents.


 


Section 9.05 
Right of Set-off.  Upon (a) the
occurrence and during the continuance of any Event of Default and (b) the
making of the request or the granting of the consent specified by Section 7.01
to authorize the Administrative Agent to declare the Lender Notes due and
payable pursuant to the provisions of Section 7.01, each Lender
Party and each of its respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
otherwise apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender Party or such Affiliate to or for the credit or the account of
either Borrower against any and all of the Obligations of such Borrower now or
hereafter existing under this Agreement and the Lender Note or Lender Notes (if
any) held by such Lender Party, irrespective of whether such Lender Party shall
have made any demand under this Agreement or such Lender Note or Lender Notes
and although such obligations may be unmatured. 
Each Lender Party agrees promptly to notify such Borrower after any such
set-off and application; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application.  The rights of each Lender
Party and its respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its respective Affiliates may have.


 


Section 9.06 
Binding Effect.  This
Agreement shall become effective when (a) the Consent shall have been
executed by each Borrower and the Administrative Agent and (b) the
Administrative Agent shall have been notified that (i) the Plan
of Reorganization has been approved and, as approved, provides that all U.S.
Lenders are conclusively deemed to have accepted the Plan of Reorganization and
to be bound by the terms of the Consent and this Agreement without further
notice to or order of the Bankruptcy Court, (ii) each Canadian Lender
has executed the Consent and (iii) all other conditions set forth in the
Consent shall have been satisfied or waived, and thereafter shall be binding
upon and inure to the benefit of each Borrower, the Administrative Agent and
each Lender Party and their respective successors and assigns, except that
neither Borrower shall have the right to assign its rights or Obligations
hereunder or any interest herein without the prior written consent of the
Lender Parties.


 


Section 9.07  Assignments and Participations.  (a)  Each Lender may, with the consent
of the Administrative Agent, and, so long as no Event of Default has occurred
and is 


 


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continuing, with the consent
of the Appropriate Borrower (in each case, such consent not to be unreasonably
withheld or delayed), assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its obligation to make or purchase U.S. Letter
of Credit Advances, the Advances owing to it and the Lender Note or Lender
Notes held by it); provided, however, that no consent by either
Borrower or the Administrative Agent shall be required for an assignment to any
Person who is an Affiliate or a Related Fund of such Lender, and provided
further that (i) each such assignment shall be of a uniform, and
not a varying, percentage of all rights and obligations under and in respect of
one or more Facilities, (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender, an Affiliate
of any Lender or a Related Fund of any Lender or an assignment which will
result in a group of Lenders which are managed by the same Person holding an
obligation to make or purchase U.S. Letter of Credit Advances or an Advance (as
the case may be) of not less than $1,000,000 or an assignment of all of a
Lender’s rights and obligations under this Agreement, the amount of the
obligation to make or purchase U.S. Letter of Credit Advances or the Advances
(as the case may be) of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $1,000,000 (or
integral multiples of $200,000 in excess thereof), (iii) each such
assignment shall be to an Eligible Assignee, and (iv) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Lender Note or Lender Notes subject to such assignment and,
other than in the case of an assignment to an Affiliate of such Lender, a
processing and recordation fee of $3,500, provided that only one such
fee shall be payable in connection with simultaneous assignments by or to two
or more Related Funds.


 


(b)           Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender’s or Issuing Bank’s rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.07, 2.09
and 9.04).


 


(c)           By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows:  (i) other than as provided in such
Assignment and Acceptance, such assigning Lender Party makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Lender
Party makes no representation or warranty and assumes no


 


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responsibility with respect
to the financial condition of either Borrower or any other Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender Party or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the
Loan Documents as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.


 


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


 


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


 


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


 


(g)           Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its obligation to make or purchase U.S. Letter
of Credit Advances or the Advances owing to it and the Lender Note or Lender
Notes (if any) held by it); provided, however, that (i) such
Lender Party’s rights and obligations under this Agreement (including its
obligation to make or purchase U.S. Letter of Credit Advances) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such
Lender Party shall remain the holder of any such Lender Note for all purposes
of this Agreement, (iv) the Borrowers, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party’s rights and obligations
under this Agreement, (v) no participant under any such participation
shall have any right to approve any amendment or waiver of any provision of any
Loan Document, or any consent to any departure by any Loan Party therefrom,
except to the extent that such amendment, waiver or consent would reduce the
principal of, or interest (other than increased interest following Default
pursuant to Section 2.04(b)) on, the Lender Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any Termination Date or date fixed for payment of
interest on, the Lender Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, or release the U.S.
Borrower from its Obligations under Article VI hereof, and (vi) neither
Borrower shall be subject to any increased liability to any Lender Party
pursuant to this Agreement by virtue of such participation.


 


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


 


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


 


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


 


Section 9.08 
Replacements of Lenders Under Certain Circumstances.  The U.S. Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.07 or 2.09, (b) is affected in the manner
described in Section 2.07(c) and as a result thereof any of
the actions described in such Section is required to be taken or (c) becomes
a Defaulting Lender, with a replacement bank or other financial institution; provided
that (i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) the Appropriate Borrower shall repay (or the replacement
bank or institution shall purchase, at par) all Loans and other amounts (other
than any disputed amounts), pursuant to Section 2.07, 2.08
or 2.09, as the case may be, owing to such replaced Lender prior to the
date of replacement, (iv) the replacement bank or institution, if not
already a Lender, and the terms and conditions of such replacement, shall be
reasonably satisfactory to the Administrative Agent, (v) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 9.07 (provided that such Borrower
shall be obligated to pay the registration and processing fee referred to
therein) and (vi) any such replacement shall not be deemed to be a waiver
of any rights that either Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.


 


Section 9.09 
Execution in Counterparts. 
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. 
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.


 


Section 9.10 
No Liability of the Issuing Bank. 
The U.S. Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to its use of
such Letter of Credit.  Neither the
Issuing Bank nor any of its officers or directors shall be liable or
responsible for:  (a) the use that
may be made of any Letter of Credit or any acts or omissions of any beneficiary
or transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Issuing Bank against presentation of documents
that do not comply with the terms of a Letter of Credit, including failure of
any documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to
make 


 


98

















 


payment under any Letter
of Credit, except that the U.S. Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to the U.S. Borrower, to the extent
of any direct, but not consequential, damages suffered by the U.S. Borrower
that the U.S. Borrower proves were caused by (i) the Issuing Bank’s
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank’s willful failure to make lawful payment
under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit.  In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.


 


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


 


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


 


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


 


(b)           Upon the sale, lease, transfer or other disposition of all
of the capital stock of any Loan Party that is Subsidiary Guarantor in
accordance with the terms of the Loan Documents, the Administrative Agent will,
at the U.S. Borrower’s expense, execute and deliver 


 


99

















 


to such Loan Party such
documents as such Loan Party may reasonably request to evidence its release as
a Subsidiary Guarantor from its Obligations under the Guarantee and Collateral
Agreement in accordance with the terms of the Loan Documents.


 


Section 9.13 
USA Patriot Act.  Each Lender Party
that is subject to the USA Patriot Act and the Administrative Agent (for itself
and not on behalf of any Lender Party) hereby notifies each Loan Party that,
pursuant to the requirements of the USA Patriot Act, it is required to obtain,
verify and record information that identifies such Loan Party, which
information includes the name, address and tax identification number of such
Loan Party and other information regarding such Loan Party that will allow such
Lender Party or the Administrative Agent, as applicable, to identify such Loan
Party in accordance with the USA Patriot Act. 
This notice is given in accordance with the requirements of the USA
Patriot Act and is effective as to the Lender Parties and the Administrative
Agent.


 


Section 9.14 
Jurisdiction, Etc.  (a) 
Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any of the other Loan Documents
to which it is a party, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court.  Each Borrower
irrevocably consents to the service of any and all process in any such action
or proceeding by the mailing of copies of such process by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
such Borrower at its address specified in Section 9.02 and agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction.  Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.


 


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


 


Section 9.15 
Judgment.  (a)  If for
the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder or under any of the other Loan Documents in U.S. dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase U.S. dollars with such other currency at DBTCA on the Business Day
preceding that on which final judgment is given.


 


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


 


Section 9.16 
Reference to and Effect on the Loan Documents.  Each Borrower hereby confirms and agrees that
each of the Canadian Lender Notes, to the extent each is outstanding as of the
date hereof, is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, except that, upon the
effectiveness of this Agreement and on and after the date hereof, each
reference in such Lender Notes to the “Credit Agreement”, “thereunder”, “thereof”,
“therein” or words of like import referring to the Existing Credit Agreement
shall mean and be a reference to this Agreement.


 


Section 9.17 
Governing Law.  THIS AGREEMENT AND THE LENDER NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES.


 


Section 9.18 
Waiver of Jury Trial.  EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.


 


Section 9.19 
Confirmation Order; Binding Effect.  Pursuant to the Confirmation Order and the
Plan of Reorganization on the Effective Date, this Agreement and the other Loan
Documents to which they are a party shall be contractually binding upon the
Administrative Agent and each of the Lender Parties (other than the Canadian
Lenders) as if they were executed by the Administrative Agent and each of the
Lender Parties (other than the Canadian Lenders) directly.


 


*     *     *


 


101

















 


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


 


 


	
   

  	
  ACCURIDE
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCURIDE
  CANADA INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY 

  AMERICAS., as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK SECURITIES.,

  
	
   

  	
  as Lead Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: