EXHIBIT 10.1




 





[Published CUSIP Number:                          ]


 


CREDIT
AGREEMENT


Dated as of November 18,
2005


 


among


 


CERIDIAN
CORPORATION,


as the Borrower,


 


CERIDIAN
CANADA LTD.,


as the Canadian Borrower,


 


BANK
OF AMERICA, N.A.,


as the Administrative Agent,
Swingline Lender


and


L/C Issuer,


 


BANK
OF AMERICA, N.A.,


acting through its Canada
branch, as Canadian Subfacility Agent,


 


JPMORGAN
CHASE BANK, N.A.


and


WACHOVIA
BANK, NATIONAL ASSOCIATION,


as Co-Syndication Agents,


 


PNC
BANK, NATIONAL ASSOCIATION


and


WELLS
FARGO BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents,


 


and


 


The Other Lenders Party Hereto


 


BANC
OF AMERICA SECURITIES LLC,


as


Sole Lead Arranger and Sole
Book Manager


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I.

  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
   

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
   

  
	
  1.03

  	
  Accounting Terms

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  
	
  1.05

  	
  Exchange
  Rates; Currency Equivalents

  	
   

  
	
  1.06

  	
  Additional
  Alternative Currencies

  	
   

  
	
  1.07

  	
  Change of Currency

  	
   

  
	
  1.08

  	
  Times of Day

  	
   

  
	
  1.09

  	
  Letter of Credit
  Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Revolving Loans

  	
   

  
	
  2.02

  	
  Borrowings,
  Conversions and Continuations of Revolving Loans

  	
   

  
	
  2.03

  	
  Letters of Credit

  	
   

  
	
  2.04

  	
  Swing Line Loans

  	
   

  
	
  2.05

  	
  Prepayments

  	
   

  
	
  2.06

  	
  Reduction
  or Termination of Commitments

  	
   

  
	
  2.07

  	
  Repayment of Loans

  	
   

  
	
  2.08

  	
  Interest

  	
   

  
	
  2.09

  	
  Fees

  	
   

  
	
  2.10

  	
  Evidence of Debt

  	
   

  
	
  2.11

  	
  Computation
  of Interest and Fees

  	
   

  
	
  2.12

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
   

  
	
  2.13

  	
  Sharing of
  Payments by Lenders

  	
   

  
	
  2.14

  	
  Increase in
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IIA.

  THE CANADIAN SUBFACILITY

  	
   

  
	
   

  	
   

  	
   

  
	
  2A.01 

  	
  Canadian
  Subfacility Loans

  	
   

  
	
  2A.02 

  	
  Borrowings,
  Conversions and Continuations of Canadian Subfacility Loans

  	
   

  
	
  2A.03 

  	
  Prepayments

  	
   

  
	
  2A.04 

  	
  Reduction
  or Termination of Commitments

  	
   

  
	
  2A.05 

  	
  Repayment of Loans

  	
   

  
	
  2A.06 

  	
  Interest

  	
   

  
	
  2A.07 

  	
  Canadian
  Subfacility Fronting Fee

  	
   

  
	
  2A.08 

  	
  Computation
  of Interest and Fees

  	
   

  
	
  2A.09 

  	
  Evidence of Debt

  	
   

  
	
  2A.10 

  	
  Payments
  Generally; Canadian Subfacility Agent’s Clawback

  	
   

  
	
  2A.11 

  	
  Sharing of
  Payments by Lenders

  	
   

  



 


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  ARTICLE III.

  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability to
  Determine Rates

  	
   

  
	
  3.04

  	
  Increased Costs

  	
   

  
	
  3.05

  	
  Compensation for
  Losses

  	
   

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions to
  Effectiveness

  	
   

  
	
  4.02

  	
  Conditions
  to all Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Corporate
  Existence and Power

  	
   

  
	
  5.02

  	
  Corporate
  Authorization; No Contravention

  	
   

  
	
  5.03

  	
  Governmental
  Authorization

  	
   

  
	
  5.04

  	
  Binding Effect

  	
   

  
	
  5.05

  	
  Litigation

  	
   

  
	
  5.06

  	
  No Default

  	
   

  
	
  5.07

  	
  ERISA Compliance

  	
   

  
	
  5.08

  	
  Title to Properties

  	
   

  
	
  5.09

  	
  Taxes

  	
   

  
	
  5.10

  	
  Financial Condition

  	
   

  
	
  5.11

  	
  Environmental
  Matters

  	
   

  
	
  5.12

  	
  Regulated Entities

  	
   

  
	
  5.13

  	
  No Burdensome
  Restrictions

  	
   

  
	
  5.14

  	
  Solvency

  	
   

  
	
  5.15

  	
  Labor Relations

  	
   

  
	
  5.16

  	
  Copyrights,
  Patents, Trademarks and Licenses, Etc

  	
   

  
	
  5.17

  	
  Material
  Subsidiaries and Equity Investments

  	
   

  
	
  5.18

  	
  Insurance

  	
   

  
	
  5.19

  	
  Full Disclosure

  	
   

  
	
  5.20

  	
  Year End

  	
   

  
	
  5.21

  	
  Existing
  Indebtedness

  	
   

  
	
  5.22

  	
  Swap Contracts

  	
   

  
	
  5.23

  	
  Margin
  Regulations; Investment Company Act

  	
   

  



 


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  ARTICLE VI.

  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial
  Statements

  	
   

  
	
  6.02

  	
  Certificates;
  Other Information

  	
   

  
	
  6.03

  	
  Notices

  	
   

  
	
  6.04

  	
  Preservation
  of Corporate Existence, Etc

  	
   

  
	
  6.05

  	
  Maintenance of
  Property

  	
   

  
	
  6.06

  	
  Insurance

  	
   

  
	
  6.07

  	
  Payment of
  Obligations

  	
   

  
	
  6.08

  	
  Compliance with Laws

  	
   

  
	
  6.09

  	
  Inspection
  of Property and Books and Records

  	
   

  
	
  6.10

  	
  Environmental Laws

  	
   

  
	
  6.11

  	
  Use of Proceeds

  	
   

  
	
  6.12

  	
  Further Assurances

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII.

  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Limitation on Liens

  	
   

  
	
  7.02

  	
  Mergers,
  Consolidations and Dispositions of Assets

  	
   

  
	
  7.03

  	
  Cash
  Investments; Minority Investments

  	
   

  
	
  7.04

  	
  Indebtedness

  	
   

  
	
  7.05

  	
  Contingent
  Obligations

  	
   

  
	
  7.06

  	
  Use of Proceeds

  	
   

  
	
  7.07

  	
  Hostile
  Acquisitions

  	
   

  
	
  7.08

  	
  Lease Obligations

  	
   

  
	
  7.09

  	
  Interest Coverage
  Ratio

  	
   

  
	
  7.10

  	
  Debt/Total
  Capitalization

  	
   

  
	
  7.11

  	
  Change in Business

  	
   

  
	
  7.12

  	
  Accounting Changes

  	
   

  
	
  7.13

  	
  Contracts of
  Subsidiaries

  	
   

  
	
  7.14

  	
  Licenses

  	
   

  
	
  7.15

  	
  Transactions
  with Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  
	
  8.02

  	
  Remedies
  Upon Event of Default

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and
  Authority

  	
   

  
	
  9.02

  	
  Rights as a Lender

  	
   

  
	
  9.03

  	
  Exculpatory
  Provisions

  	
   

  
	
  9.04

  	
  Reliance by
  Administrative Agent and the Canadian Subfacility Agent

  	
   

  



 


iii





















 


	
  9.05

  	
  Delegation of Duties

  	
   

  
	
  9.06

  	
  Resignation
  of Administrative Agent or the Canadian Subfacility Agent

  	
   

  
	
  9.07

  	
  Non-Reliance
  on Administrative Agent, Canadian Subfacility Agent and Other Lenders

  	
   

  
	
  9.08

  	
  No Other Duties, Etc

  	
   

  
	
  9.09

  	
  Administrative
  Agent and Canadian Subfacility Agent May File Proofs of Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc

  	
   

  
	
  10.02

  	
  Notices;
  Effectiveness; Electronic Communication

  	
   

  
	
  10.03

  	
  No Waiver;
  Cumulative Remedies

  	
   

  
	
  10.04

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  
	
  10.05

  	
  Payments Set Aside

  	
   

  
	
  10.06

  	
  Successors and
  Assigns

  	
   

  
	
  10.07

  	
  Treatment
  of Certain Information; Confidentiality

  	
   

  
	
  10.08

  	
  Right of Setoff

  	
   

  
	
  10.09

  	
  Interest Rate
  Limitation

  	
   

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  
	
  10.11

  	
  Survival of
  Representations and Warranties

  	
   

  
	
  10.12

  	
  Severability

  	
   

  
	
  10.13

  	
  Replacement of
  Lenders

  	
   

  
	
  10.14

  	
  Governing
  Law; Jurisdiction; Etc

  	
   

  
	
  10.15

  	
  Waiver of Jury Trial

  	
   

  
	
  10.16

  	
  USA PATRIOT Act
  Notice

  	
   

  
	
  10.17

  	
  Judgment Currency

  	
   

  



 


iv





















 


SCHEDULES


 


	
  1.01(e)

  	
   

  	
  Existing Letter of Credit

  
	
  1.01(i)

  	
   

  	
  Initial Permitted Indebtedness

  
	
  1.01(m)

  	
   

  	
  Mandatory Cost

  
	
  2.01

  	
   

  	
  Commitments and Applicable Percentages

  
	
  5.05

  	
   

  	
  Material Litigation

  
	
  5.07

  	
   

  	
  ERISA Matters

  
	
  5.11

  	
   

  	
  Environmental Matters

  
	
  5.17

  	
   

  	
  Subsidiaries

  
	
  5.17(A)

  	
   

  	
  Investments

  
	
  7.02

  	
   

  	
  Permitted Corporate Transactions

  
	
  10.02

  	
   

  	
  Eurocurrency and Domestic Lending Offices,
  Addresses for Notices

  
	
  10.06

  	
   

  	
  Processing and Recordation Fees

  



 


EXHIBITS


 


	
   

  	
   

  	
  Form of

  
	
   

  	
   

  	
   

  
	
  A-1

  	
   

  	
  Revolving Loan Notice

  
	
  A-2

  	
   

  	
  Canadian Subfacility Loan Notice

  
	
  A-3

  	
   

  	
  Swing Line Loan Notice

  
	
  B-1

  	
   

  	
  Note

  
	
  B-2

  	
   

  	
  Canadian Subfacility Note

  
	
  C

  	
   

  	
  Compliance Certificate

  
	
  D

  	
   

  	
  Assignment and Assumption

  
	
  E

  	
   

  	
  Guaranty

  
	
  F

  	
   

  	
  Opinion of Counsel (Content Summary)

  



 


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CREDIT
AGREEMENT


 


This CREDIT
AGREEMENT (“Agreement”) is entered into as of November 18,
2005, among CERIDIAN CORPORATION,
a Delaware corporation (the “Borrower”), CERIDIAN CANADA LTD., a corporation organized under the laws
of Canada, (the “Canadian Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”),
BANK OF AMERICA, N.A., as
Administrative Agent, Swingline Lender and L/C Issuer, and BANK OF AMERICA, N.A., acting through its
Canada branch, as Canadian Subfacility Agent.


 


The Borrower has requested that the Lenders provide a
revolving credit facility, and the Canadian Borrower has requested that the
Lenders provide a subfacility thereof for the making of revolving credit loans
thereto, and the Lenders are willing to do so on the terms and conditions set
forth herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined
Terms.  As used in this Agreement,
the following terms shall have the meanings set forth below:


 


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


 


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


 


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


 


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


 


“Aggregate Commitments” means the Commitments
of all the Lenders.


 


“Agreement” means this Credit Agreement.


 


“Alternative Currency” means each of Canadian
Dollars, Euro, and Sterling and each other currency (other than US Dollars)
that is approved in accordance with Section 1.06.


 


“Alternative Currency Equivalent” means, at any
time, (a) with respect to any amount determined in an Alternative
Currency, such amount, and (b) with respect to any amount


 


1





















 


denominated in US Dollars, the
equivalent amount thereof in the applicable Alternative Currency as determined
by the Administrative Agent or the Canadian Subfacility Agent, as applicable,
at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Alternative Currency with US
Dollars.


 


“Alternative Currency Sublimit” means an amount
equal to the lesser of the Aggregate
Commitments and US Dollar Equivalent of US$50,000,000.  The Alternative Currency Sublimit is part of,
and not in addition to, the Aggregate Commitments.  Loans denominated in an Alternative Currency,
other than Canadian Subfacility Loans, may only be Eurocurrency Rate Loans.


 


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


 


“Applicable Rate” means the following
percentages per annum, each based upon the applicable “Pricing Level”:


 


	
  Applicable Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Eurocurrency

  Rate +

  	
   

  	
  Base Rate +

  	
   

  
	
  Pricing

  Level

  	
   

  	
  Debt Ratings

  S&P/Moody’s

  	
   

  	
  Facility

  Fee

  	
   

  	
  Letters of

  Credit

  	
   

  	
  Canadian

  Prime Rate

  	
   

  
	
  1

  	
   

  	
  > BBB+ / Baa1

  	
   

  	
  0.100

  	
  %

  	
  0.375

  	
  %

  	
  0.000

  	
  %

  
	
  2

  	
   

  	
  BBB / Baa2

  	
   

  	
  0.125

  	
  %

  	
  0.450

  	
  %

  	
  0.000

  	
  %

  
	
  3

  	
   

  	
  BBB— / Baa3

  	
   

  	
  0.150

  	
  %

  	
  0.575

  	
  %

  	
  0.000

  	
  %

  
	
  4

  	
   

  	
  BB+ / Ba1

  	
   

  	
  0.175

  	
  %

  	
  0.825

  	
  %

  	
  0.000

  	
  %

  
	
  5

  	
   

  	
  < BB+ / Ba1

  	
   

  	
  0.225

  	
  %

  	
  1.150

  	
  %

  	
  0.000

  	
  %

  



 


“Debt Rating”
means, as of any date of determination, the rating as determined by either
S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that if a
Debt Rating is issued by each of the foregoing rating agencies which would
result in different Pricing Levels, then the higher of such Debt Ratings shall
apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest), unless there is a split in Debt
Ratings of more than one level, in which case the Pricing Level that is one
level higher than the Pricing Level of the lower Debt Rating shall apply.  If the Borrower has only one Debt Rating, the
Debt Rating that is one Pricing Level lower than


 


2





















 


the Pricing Level of the actual Debt Rating shall apply.  Pricing Level 5 shall apply at any time as there
shall exist no Debt Rating.


 


On the Closing Date, the Applicable Rate shall be based upon the
Pricing Level corresponding to the then-applicable Debt Rating.  Any change in the Applicable Rate resulting
from a publicly announced change in the Debt Rating shall be effective on and
as of the date of such public announcement of any Debt Rating that indicates a
different Applicable Rate in accordance with this definition and the above
chart.


 


“Applicable Time” means, with respect to any
borrowings and payments in any Alternative Currency, the local time in the
place of settlement for such Alternative Currency as may be determined by the
Administrative Agent (or, with respect to any borrowings and payments in
Canadian Dollars under the Canadian Subfacility, as determined by the Canadian
Subfacility Agent) to be necessary for timely settlement on the relevant date
in accordance with normal banking procedures in the place of payment.


 


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


 


“Arranger” means Banc of America Securities
LLC, in its capacity as sole lead arranger and sole book manager.


 


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


 


“Assignment and Assumption” means an assignment
and assumption entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section 10.06(b)), and
accepted by the Administrative Agent, in substantially the form of Exhibit D
or any other form approved by the Administrative Agent.


 


“Attorney Costs” means and includes all
reasonable fees and disbursements of any law firm or other external counsel and
the non-duplicative allocated cost of internal legal services and all
disbursements of internal counsel.


 


“Attributable Indebtedness” means, on any date,
(a) in respect of any Capital Lease of any Person, the capitalized amount
thereof that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease were accounted for as a
Capital Lease, and (c) in respect of any Permitted Securitization, the
present value of the remaining stream of scheduled or expected payments due or
to become due with respect to any and all Permitted Receivables at such time
subject to such Permitted Securitization, discounted at a rate equal to the
then applicable interest rate of the indebtedness associated with the Permitted
Securitization.


 


“Audited Financial Statements” means the
audited consolidated balance sheet of the Borrower and its Subsidiaries for the
fiscal year ended December 31, 2004, and the related


 


3





















 


consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year of the Borrower and
its Subsidiaries, including the notes thereto.


 


“Availability Period” means the period from and
including the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.06,
and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions,
the obligation of the Swing Line Lender to make Swing Line Loans, and the
obligation of the Canadian Subfacility Funding Lenders to make Canadian
Subfacility Loans pursuant to Section 8.02.


 


“Bank of America” means Bank of America, N.A.,
and its successors.


 


“Bankruptcy Code” means Title 11 of the United
States Code, as amended.


 


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


 


“Base Rate Loan” means a Loan that bears
interest based on the Base Rate.  All
Base Rate Loans shall be denominated in US Dollars.


 


“Borrower” has the meaning set forth in the
introductory paragraph hereto.


 


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


 


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


 


“Business Day” means any day other than a
Saturday, Sunday or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the Administrative
Agent’s Office with respect to Obligations denominated in US Dollars is located
and:


 


(a)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in US Dollars, any fundings, disbursements, settlements and
payments in US Dollars in respect of any such Eurocurrency Rate Loan, or any
other dealings in US Dollars to be carried out pursuant to this Agreement in
respect of any such Eurocurrency Rate Loan, means any such day on which
dealings in deposits in US Dollars are conducted by and between banks in the
London interbank Eurocurrency market;


 


4





















 


(b)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;


 


(c)           if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than US Dollars or Euro, means any such day on
which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency; and


 


(d)           if
such day relates to any fundings, disbursements, settlements and payments in a
currency other than US Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than US Dollars or Euro, or any other dealings
(including Canadian Prime Rate Loans) in any currency other than US Dollars or
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such
day on which banks are open for foreign exchange business in the principal
financial center of the country of such currency.


 


“Canadian Borrower” has the meaning set forth
in the introductory paragraph hereto.


 


“Canadian Dollars” or “CAN$” means the
lawful currency of Canada.  Unless
otherwise specified, all payments under this Agreement to the Canadian
Subfacility Agent and the Canadian Subfacility Funding Lenders shall be made in
Canadian Dollars.


 


“Canadian Prime Rate” means on any day a
fluctuating rate of interest per annum equal to the higher of (i) the 30-day
CDOR Rate plus 0.50%, and (ii) the rate of interest per annum most
recently announced by the Canadian Subfacility Agent as its reference rate of
interest for loans made in Canadian Dollars to the Canadian Borrower and
designated as its “prime rate” (the “prime rate” being a rate set by the
Canadian Subfacility Agent based upon various factors including the Canadian
Subfacility Agent’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate).  Any change in the prime rate announced by the
Canadian Subfacility Agent shall take effect at the opening of business on the
day specified in the public announcement of such change.  Each interest rate based upon the Canadian
Prime Rate shall be adjusted simultaneously with any change in the Canadian
Prime Rate.


 


“Canadian Prime Rate Loan” means a Canadian
Subfacility Loan that bears interest at the Canadian Prime Rate.


 


“Canadian Subfacility” means the subfacility in
Article IIA providing for Loans to be advanced to the Canadian
Borrower.


 


“Canadian Subfacility Agent” means Bank of
America, N.A., acting through its Canada branch for purposes of being the
administrative agent for the Canadian Subfacility.


 


5





















 


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


 


“Canadian Subfacility Borrowing” means a
borrowing of simultaneous Canadian Subfacility Loans of the same Type and, in
the case of Eurocurrency Rate Loans, having the same Interest Period made by
each of the Canadian Subfacility Funding Lenders pursuant to Section 2A.01.


 


“Canadian Subfacility Fronting Fee” has the
meaning specified in Section 2A.07.


 


“Canadian Subfacility Funding Fronting Lender”
means each of Bank of America, acting through its Canada Branch and JPMorgan
Chase Bank, N.A., Toronto Branch in its capacity as a Canadian Subfacility
Funding Lender for Canadian Subfacility Loans in which the Canadian Subfacility
Participating Lenders purchase Canadian Subfacility Risk Participations.


 


“Canadian Subfacility Funding Lender” means,
with respect to each Canadian Subfacility Loan, each Canadian Subfacility Funding
Fronting Lender and Mellon Bank, N.A., Canada Branch.


 


“Canadian Subfacility Funding Applicable Percentage”
means, (a) with respect to each Canadian Subfacility Funding Lender other
than the Canadian Subfacility Funding Fronting Lenders, its Applicable
Percentage; and (b) with respect to each Canadian Subfacility Funding
Fronting Lender, the percentage (carried out to the ninth decimal place)
determined in accordance with the following formula:


 


Sum of the Commitment of such


Canadian Subfacility Funding
Fronting Lender


plus 50% of the aggregate
Commitments


of the
Canadian Subfacility Participating Lenders


Aggregate Commitments


 


“Canadian Subfacility Loan” has the meaning
specified in Section 2A.01.


 


“Canadian Subfacility Loan Credit Exposure”
means, with respect to any Canadian Subfacility Loan, (i) for each
Canadian Subfacility Funding Lender other than the Canadian Subfacility Funding
Fronting Lenders, the aggregate principal amount of all Canadian Subfacility
Loans advanced by such Lender, (ii) for each Canadian Subfacility Funding
Fronting Lender, the aggregate principal amount of all Canadian Subfacility
Loans advanced thereby, net of all Canadian Subfacility Risk Participations
purchased or funded, as applicable, therein, and (iii) for each Canadian
Subfacility Participating Lender, the aggregate principal amount of all
Canadian Subfacility Risk Participations purchased or funded, as applicable, by
such Lender in all Canadian Subfacility Loans.


 


“Canadian Subfacility Loan Notice” means a
notice of (a) a Canadian Subfacility Borrowing, (b) a conversion of
Canadian Subfacility Loans from one Type to the other, or (c) a continuation
of Eurocurrency Rate Loans under the Canadian Subfacility, pursuant to Section 2A.02(a),
which, if in writing, shall be substantially in the form of Exhibit A-2.


 


6





















 


“Canadian Subfacility Participating Lender”
means, with respect to each Canadian Subfacility Loan, each of Wachovia Bank,
National Association, PNC Bank, National Association, Wells Fargo Bank,
National Association, AmSouth Bank, The Bank of Tokyo-Mitsubishi, Ltd., Chicago
Branch and The Bank of New York, but specifically excludes any assignees
thereof otherwise permitted hereunder.


 


“Canadian Subfacility Risk Participation”
means, with respect to each Canadian Subfacility Loan advanced by each Canadian
Subfacility Funding Fronting Lender, the risk participation purchased by each
of the Canadian Subfacility Participating Lenders in such Loan in an amount
determined in accordance with such Lender’s Applicable Percentage, as provided
in Section 2A.02(f).


 


“Canadian Subfacility Sublimit” means an amount
equal to the lesser of the Aggregate Commitments and US$100,000,000.  The Canadian Subfacility Sublimit is part of,
and not in addition to, the Aggregate Commitments.


 


“Capital Lease” means, as applied to any
Person, any lease of property by such Person as lessee that is classified as a
capital lease under GAAP.


 


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


 


“Cash Equivalents” means:


 


(a)           securities
issued or fully guaranteed or insured by the U.S. Government or any agency
thereof, having maturities of not more than six months from the date of
acquisition;


 


(b)           certificates
of deposit, time deposits, Eurocurrency time deposits, repurchase agreements,
reverse repurchase agreements, or bankers’ acceptances, having in each case a
tenor of not more than six months, issued by any Lender, or by any U.S.
commercial or investment bank or broker having combined capital and surplus of
not less than US$500,000,000 whose short term securities are rated at least A-1
by S&P and P-1 by Moody’s;


 


(c)           commercial
paper or promissory notes of an issuer rated at least A-1 by S&P or P-1 by
Moody’s and in either case having a tenor of not more than three months; and


 


(d)           money
market funds which comply with all material provisions of Rule 2a-7 issued
by the SEC under the Investment Company Act of 1940.


 


“CDOR Rate” means the average bankers’
acceptance rate as quoted on Reuters CDOR page (or such other page as
may, from time to time, replace such page on that service for the purpose
of displaying quotations for bankers’ acceptances accepted by banks listed in Schedule I
to the Bank Act (Canada)) at approximately 10:00 a.m. on the applicable
date for bankers’ acceptances having a comparable maturity date.


 


7





















 


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


 


“Change of Control” means an event or series of
events by which:


 


(a)           with
respect to the Borrower, any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of the Borrower or its Subsidiaries, or any
Person acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person shall
be deemed to have “beneficial ownership” of all securities that such person has
the right to acquire (such rights, “option rights”), whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of 30% or more of the equity interests of the Borrower on a
partially-diluted basis, taking into account equity interests realizable upon
the exercise of such person’s or group’s option rights;


 


(b)           with
respect to the Borrower, during any period of 12 consecutive months, a majority
of the members of the board of directors or other equivalent governing body of
the Borrower ceases to be composed of individuals (A) who were members of
that board or equivalent governing body on the first day of such period, (B) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (A) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body; or (C) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (A) and
(B) above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body; and


 


(c)           with
respect to the Canadian Borrower, at any time it ceases to be a Wholly-Owned
Subsidiary of the Borrower if the Canadian Subfacility has not then been
voluntarily terminated pursuant to Section 2A.04.


 


“Closing Date” means the first date all the
conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Comdata” means Comdata Network, Inc., a
Maryland corporation, or any of its Subsidiaries.


 


“Commitment” means, as to each Lender, its
obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01,
(b)(i) if such Lender is a Canadian Subfacility Funding Lender, to make
Canadian Subfacility Loans to the Canadian Borrower pursuant to Section 2A.01,
or (ii) if such Lender is a Canadian Subfacility Participating Lender, to
purchase Canadian Subfacility Risk Participations in all Canadian Subfacility
Loans pursuant to Section 2A.02(f),


 


8





















 


(c) purchase participations
in L/C Obligations, and (d) purchase participations in Swing Line Loans,
in an aggregate principal amount at any one time outstanding not to exceed the
US Dollar amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.


 


“Compliance Certificate” means a certificate
substantially in the form of Exhibit C.


 


“Consolidated EBIT” means, for any period, for
the Borrower and its Subsidiaries on a consolidated basis, an amount equal to
the sum of (a) Consolidated Net Income, plus (b) Consolidated
Interest Expense, plus (c) the amount of taxes, based on or
measured by income, used or included in the determination of such Consolidated
Net Income, less (d) interest income; provided, however,
“Consolidated Net Income” shall be computed for these purposes without giving
effect to extraordinary losses or gains, or losses or gains from discontinued
operations.


 


“Consolidated Indebtedness” means, at any time,
the sum of (a) all amounts which would, in accordance with GAAP, be
included as indebtedness on a consolidated balance sheet of the Borrower and
its Subsidiaries as of such time, (b) Attributable Indebtedness incurred
by the Borrower or any of its Subsidiaries in connection with any Permitted
Securitization, (c) Attributable Indebtedness incurred by the Borrower or
any of its Subsidiaries in connection with any Synthetic Lease, and (d) Attributable
Indebtedness incurred by the Borrower or any of its Subsidiaries in connection
with any Capital Lease, excluding Customer Funds Obligations.


 


“Consolidated Interest Expense” means, for any
period, for the Borrower and its Subsidiaries on a consolidated basis, the sum
of (a) all interest, premium payments, fees, charges and related expenses
of the Borrower and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with
GAAP, and (b) the portion of rent expense of the Borrower and its
Subsidiaries with respect to such period under Capital Leases that is treated
as interest in accordance with GAAP.


 


“Consolidated Net Income” means, for any
period, for the Borrower and its Subsidiaries on a consolidated basis, the net
income of the Borrower and its Subsidiaries from continuing operations, as
determined in accordance with GAAP.


 


“Consolidated Net Worth” means, at any time,
with respect to the Borrower and its Subsidiaries on a consolidated basis,
shareholders’ equity on the date of determination as determined in accordance
with GAAP (except that the effects of direct charges or credits to shareholders’
equity related to accounting for pensions (“FAS 87”) and foreign currency
translation (“FAS 52”) are to be disregarded), excluding for the purposes of
this calculation Customer Funds and Customer Funds Obligations.


 


“Consolidated Total Assets” means, at any time,
the total consolidated assets of the Borrower and its Subsidiaries measured as
of the last day of the fiscal quarter ending on or before the date of
determination, as determined in accordance with GAAP, excluding Customer Funds
required by GAAP to be included therewith.


 


9





















 


“Contingent Obligation” means, as to the
Borrower or any of its Subsidiaries, (a) any Guaranty Obligation of that
Person; (b) any reimbursement obligation of that Person with respect to a
standby letter of credit, surety bond, banker’s acceptance, bank guaranty or
similar instrument; (c) any obligation of that Person to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person (other than the Borrower or one of its Subsidiaries) if the
relevant contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered; and (d) all Indebtedness (other than that of the Borrower or any
of its Subsidiaries) secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property (including accounts and contract rights) owned by the Borrower or any
such Subsidiary, excluding for the purposes of this calculation, however,
Customer Funds Obligations.


 


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


 


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


 


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


 


“Customer Funds” means assets of the customers
of the Borrower or any of its Subsidiaries held in trust or in segregated
accounts in the Ordinary Course of Business thereof, if required under GAAP to
be included as an asset on the balance sheet thereof.


 


“Customer Funds Obligations” means liabilities
corresponding to Customer Funds, if required under GAAP to be included as a
liability on the balance sheet of the Borrower or any of its Subsidiaries.


 


“Debt Rating” has the meaning set forth in the
definition of “Applicable Rate.”


 


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


 


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


 


“Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit Fees
and Canadian Subfacility Loans, an interest rate equal to (i) the Base
Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate
Loans plus (iii) 2% per annum; provided,


 


10





















 


however,
that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, (b) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum, and (c) when used with respect to Canadian
Subfacility Loans, an interest rate equal to (i) the Canadian Prime Rate plus
(ii) the Applicable Rate, if any, applicable to Canadian Prime Rate Loans plus
(iii) 2% per annum.


 


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


 


“Eligible Assignee” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent,
the L/C Issuer, the Swing Line Lender and the Canadian Subfacility Funding
Fronting Lenders, and (ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries; and provided  further,
however, that an Eligible Assignee shall include only a Lender, an
Affiliate of a Lender or another Person, which, through its Lending Offices, is
capable of lending the applicable Alternative Currencies to the relevant
Borrower without the imposition of any additional Indemnified Taxes.


 


“EMU” means the economic and monetary union in
accordance with the Treaty of Rome 1957, as amended by the Single European Act
1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.


 


“EMU Legislation” means the legislative
measures of the European Council for the introduction of, changeover to or
operation of a single or unified European currency.


 


“Environmental Claims” means all claims, however
asserted, by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law or for
release or injury to the environment or threat to public health, personal
injury (including sickness, disease or death), property damage, natural
resources damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type of
relief, resulting from or based upon (a) the alleged or actual presence,
placement, migration, spillage, leakage, disposal, discharge, emission or
release of any Hazardous Material at, in, or from property, whether or not
owned by the Borrower, or (b) any other circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law.


 


“Environmental Laws” means all federal, state
or local laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed


 


11





















 


duties, requests, licenses,
authorizations, registration requirements and permits of, and agreements with,
any Governmental Authorities, in each case relating to environmental and land
use matters, or health and safety matters involving Hazardous Materials.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974 and any regulations issued pursuant thereto.


 


“ERISA Affiliate” means any trade or business
(whether or not incorporated) that is currently or at any relevant time in the
past was under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412, of the Code).


 


“ERISA Event” means (a) a Reportable Event
with respect to a Pension Plan; (b) a withdrawal by the Borrower or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001
(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which would reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon the Borrower or
any ERISA Affiliate.


 


“Euro” and “EUR” mean the lawful
currency of the Participating Member States introduced in accordance with the
EMU Legislation.


 


“Eurocurrency Base Rate” has the meaning
specified in the definition of Eurocurrency Rate.


 


“Eurocurrency Rate” means for any Interest
Period with respect to a Eurocurrency Rate Loan, a rate per annum determined by
the Administrative Agent pursuant to the following formula:


 




	
   

  	
   

  	
  Eurocurrency
  Base Rate

  
	
  Eurocurrency Rate =

  	
   

  	
  1.00 –
  Eurocurrency Reserve

  Percentage

  






 


Where,


 


“Eurocurrency
Base Rate” means, for such Interest Period:


 


(a)           the
rate per annum equal to the British Banker’s Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) as approximately 11:00 a.m., London time, two Business
Days prior to the


 


12





















 


commencement of such Interest Period, for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period.


 


(b)           If
such rate referenced in the preceding clause (a) is not available at such
time for any reason, then the “Eurocurrency Base Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in the relevant currency for delivery on the first day
of such Interest Period in Same Day Funds in the approximate amount of the
Eurocurrency Rate Loan being made, continued or converted by Bank of America
and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch (or other Bank of America branch or Affiliate) to major
banks in the London or other offshore interbank market for such currency at
their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.


 


“Eurocurrency
Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently referred
to as “Eurocurrency liabilities”).  The
Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurocurrency
Reserve Percentage.


 


“Eurocurrency Rate Loan” means a Revolving Loan
or a Canadian Subfacility Loan that bears interest at a rate based on the
Eurocurrency Rate.  Eurocurrency Rate
Loans may be denominated in US Dollars or in an Alternative Currency.  All Revolving Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.


 


“Event of Default” means any of the events or
circumstances specified in Section 8.01.


 


“Evergreen Letter of Credit” has the meaning
set forth in Section 2.03(b)(iii).


 


“Excluded Taxes” means, with respect to the
Administrative Agent, the Canadian Subfacility Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower or the Canadian Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (by reason of its existence or in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending
Office is located or in which it maintains any other Lending Office, (b) any
branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower or the Canadian Borrower is
located and (c) except as provided in the following sentence, in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 10.13), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Foreign Lender’s failure or inability (other than as a


 


13





















 


result of a Change in Law) to
comply with Section 3.01(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new Lending Office (or assignment), to receive additional amounts from the
Borrower or the Canadian Borrower with respect to such withholding tax pursuant
to Section 3.01(a). 
Notwithstanding anything to the contrary contained in this definition, “Excluded
Taxes” shall not include any withholding tax imposed at any time on payments
made by or on behalf of a Foreign Obligor to any Lender hereunder or under any
other Loan Document, provided that such Lender shall have complied with
the penultimate paragraph of Section 3.01(e).


 


“Existing Credit Facility” means that certain
Credit Agreement dated as of January 13, 2001 among the New Ceridian
Corporation, Bank of America, as administrative agent and L/C issuer, and the
lenders party thereto (as amended from time to time).


 


“Existing Letter of Credit” means the letter of
credit listed at Schedule 1.01(e).


 


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


 


“Fee Letter” means the letter agreement, dated September 30,
2005, among the Borrower, the Administrative Agent and the Arranger.


 


“Foreign Lender” means, (a) with respect
to the Borrower, any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes; for
purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction; and (b) with
respect to the Canadian Borrower, any Canadian Subfacility Funding Lender that
is organized under the laws of a jurisdiction other than that in which the
Canadian Borrower is a resident for tax purposes.


 


“Foreign Obligor” means a Loan Party that is a
Foreign Subsidiary.


 


“Foreign Subsidiary” means any Subsidiary that
is organized under the laws of a jurisdiction other than the United States, a
State thereof or the District of Columbia.


 


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


 


“Fund” means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.


 


14





















 


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


 


“Governmental Authority” means any nation or
government, any state or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, administrative tribunal,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or
the European Central Bank), and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.


 


“Guarantor” means Ceridian Corporation with
respect to all Obligations of the Canadian Borrower.


 


“Guaranty” means the Guaranty made by the
Guarantor in favor of the Administrative Agent on behalf of the Lenders,
substantially in the form of Exhibit E.


 


“Guaranty Obligation” means, as to any Person, (a) any
obligation, contingent or otherwise, of such Person guarantying or having the
economic effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligees in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligees against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or
other obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person; provided, however, that the
term “Guaranty Obligation” shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.  The amount of any Guaranty Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guaranty Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guarantying Person in good faith.


 


“Hazardous Materials” means all those
substances which are regulated by, or which may form the basis of liability
under, any Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous


 


15





















 


constituent, hazardous
chemicals, special waste, hazardous substance, hazardous material, regulated
substance, or toxic substance, or petroleum or petroleum derived substance or
waste.


 


“Honor Date” has the meaning set forth in Section 2.03(c)(i).


 


“Increase Effective Date” has the meaning set
forth in Section 2.14(b).


 


“Indebtedness” means, as to any Person at a
particular time, all of the following:


 


(a)           all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;


 


(b)           any
fixed (non-contingent) obligations of such Person arising under letters of
credit (including standby and commercial), bankers acceptances, bank
guaranties, surety bonds and similar instruments;


 


(c)           net
obligations under any Swap Contract in an amount equal to (i) if such Swap
Contract has been closed out, the Swap Termination Value, or (ii) if such
Swap Contract has not been closed out, the market-to-market value thereof
determined on the basis of readily available quotations provided by any
recognized dealer in such Swap Contract;


 


(d)           whether
or not so included as liabilities in accordance with GAAP, all obligations of
such Person to pay the deferred purchase price of property or services (other
than trade payables entered into in the Ordinary Course of Business pursuant to
ordinary terms and paid within the specified time), and indebtedness (excluding
prepaid interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse; and


 


(e)           Capital
Leases and Synthetic Lease Obligations.


 


For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (which is not itself a
corporation, limited liability company or limited liability partnership) in
which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person, except for
customary exceptions acceptable to the Required Lenders.  The amount of any Capital Lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.  Without limiting the generality of the
foregoing, any indebtedness of the Borrower to any of the Borrower’s
Wholly-Owned Subsidiaries or of any of the Borrower’s Wholly-Owned Subsidiaries
to another of the Borrower’s Wholly-Owned Subsidiaries shall not constitute
Indebtedness hereunder.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


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


 


16





















 


“Information” has the meaning specified in Section 10.07.


 


“Initial Permitted Indebtedness” means that
Indebtedness set forth on Schedule 1.01(i).


 


“Interest Payment Date” means, (a) as to
any Loan other than a Base Rate Loan or a Canadian Prime Rate Loan, the last
day of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including any Swing Line Loan) and any
Canadian Prime Rate Loan, the last Business Day of each March, June, September and
December, and the Maturity Date.


 


“Interest Period” means as to each Eurocurrency
Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is
disbursed or (in the case of any Eurocurrency Rate Loan) converted to or
continued as a Eurocurrency Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower or the Canadian Borrower in
its Revolving Loan Notice or its Canadian Subfacility Loan Notice,
respectively; provided that:


 


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


 


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


 


(iii)          no
Interest Period shall extend beyond the scheduled Maturity Date.


 


“Internal Control Event” means a material
weakness in, or fraud that involves management or other employees who have a
significant role in, the Borrower’s internal controls over financial reporting,
in each case as described in the Securities Laws.


 


“Investment” of a Person means (i) the
outstanding principal amount of any loan, advance, extension of credit (other
than loans, advances or extensions of credit arising in the Ordinary Course of
Business), or (ii) the amount (measured by the amount of cash expended or
the then-current fair market value of other assets, including stock of such
Person, utilized as consideration) of any contribution of capital by such Person
to any other Person or any investment in, or purchase or other acquisition of,
the stock, partnership or membership interests, notes, debentures or other
securities of any other Person made by such Person, reduced by the amount of
any distribution by such other Person constituting a return of capital, any
payment of principal on such notes, debentures or other debt securities, or any
proceeds from the sale of any equity or debt securities of such other Person.


 


“IRS” means the United States Internal Revenue
Service.


 


17





















 


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


 


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


 


“Laws” means, collectively, all international,
foreign, Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of
law.


 


“L/C Advance” means, with respect to each
Lender, such Lender’s participation in any L/C Borrowing in accordance with its
Applicable Percentage.  All L/C Advances
shall be denominated in US Dollars.


 


“L/C Borrowing” means an extension of credit
resulting from a drawing under any Letter of Credit which has not been
reimbursed on the date when made or refinanced as a Revolving Borrowing.  All L/C Borrowings shall be denominated in US
Dollars.


 


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


 


“L/C Issuer” means Bank of America in its
capacity as issuer of Letters of Credit hereunder, or any successor issuer of
Letters of Credit hereunder.


 


“L/C Obligations” means, as at any date of
determination, the aggregate undrawn face amount of all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings.  For purposes of computing
the amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Lender” has the meaning specified in the
introductory paragraph hereto and, as the context requires, includes the L/C
Issuer, the Swing Line Lender and each Canadian Subfacility Funding Lender.


 


“Lending Office” means, as to any Lender, the
office or offices of such Lender described as such on Schedule 10.02,
or such other office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.


 


18





















 


“Letter of Credit” means any standby letter of
credit issued hereunder and shall include the Existing Letter of Credit.  Letters of Credit may only be issued in US
Dollars.


 


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


 


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


 


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


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable, but excluding the interest of a lessor under an Operating Lease.


 


“Loan” means, collectively or individually as
the context may require, (i) an extension of credit by a Lender to the
Borrower under Article II in the form of a Revolving Loan or a
Swing Line Loan or (ii) an extension of credit by a Canadian Subfacility
Funding Lender to the Canadian Borrower under Article IIA in the
form of a Canadian Subfacility Loan.


 


“Loan Documents” means this Agreement, each
Note, the Fee Letter, each Request for Credit Extension, each Compliance
Certificate, the Guaranty, and any document executed by the Borrower to
accomplish Cash Collateralization.


 


“Loan Parties” means, collectively, the
Borrower, the Canadian Borrower and the Guarantor, and individually means any
one of them.


 


“Mandatory Cost” means, with respect to any
period, the percentage rate per annum determined in accordance with Schedule 1.01(m).


 


“Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the operations,
business, properties, liabilities (actual or contingent) or condition
(financial or otherwise) of the Borrower or the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document to which it is a
party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to
which it is a party.


 


“Material Subsidiary” means at any time any
Subsidiary of the Borrower (other than a Securitization Subsidiary), the assets
of which are 10% or more of Consolidated Total Assets (or the equivalent
thereof in another currency), based initially upon the Audited Financial
Statements and thereafter upon the most recent financial statements delivered
to the Administrative Agent under Section 6.01.


 


19





















 


“Maturity Date” means November 18, 2010.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


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


 


“Nonrenewal Notice Date” has the meaning set
forth in Section 2.03(b)(iii).


 


“Note” means, collectively, or individually as
the context may require, (i) a promissory note made by the Borrower in
favor of a Lender evidencing Loans made by such Lender, substantially in the
form of Exhibit B-1, and (ii) a promissory note made by the
Canadian Borrower in favor of a Canadian Subfacility Funding Lender evidencing
Canadian Subfacility Loans made by such Canadian Subfacility Funding Lender,
substantially in the form of Exhibit B-2.


 


“Notice of Lien” means any “notice of lien” or
similar document intended to be filed or recorded with any court, registry,
recorder’s office, central filing office or other Governmental Authority for
the purpose of evidencing, creating, perfecting or preserving the priority of a
lien securing obligations owing to a Governmental Authority.


 


“Obligations” means all advances to, and debts,
liabilities, obligations, covenants and duties of, any Loan Party arising under
any Loan Document, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest that accrues after the commencement by
or against any Loan Party or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding.


 


“Operating Lease” means, as applied to any
Person, any lease of property which is not a Capital Lease.


 


“Ordinary Course of Business” means, in respect
of any transaction involving the Borrower or any Subsidiary, the ordinary
course of such Person’s business, as conducted by any such Person (or its
predecessor) in accordance with past practice and undertaken by such Person in
good faith and not for purposes of evading any covenant or restriction in any
Loan Document.


 


“Organization Documents” means, (a) with
respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to
any non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust
or other form of business entity, the partnership, joint venture or other
applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the jurisdiction
of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity, in each case as amended
from time to time.


 


20





















 


“Other Taxes” means all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or under any other Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document, other than Excluded Taxes.


 


“Outstanding Amount” means (i) with
respect to Revolving Loans and Canadian Subfacility Loans on any date, the US
Dollar Equivalent amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of such
Revolving Loans and Canadian Subfacility Loans occurring on such date; (ii) with
respect to Swing Line Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of such Swing Line Loans occurring on such date; and (iii) with
respect to any L/C Obligations on any date, the aggregate outstanding amount of
such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate amount
of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts, less, only with respect
to Section 2.05(c), the amount by which any L/C Obligation has been
Cash Collateralized.


 


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


 


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


 


“PBGC” means the Pension Benefit Guaranty
Corporation.


 


“Participating Member State” means each state
so described in any EMU Legislation.


 


“Pension Plan” means any “employee pension
benefit plan” (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or to which the
Borrower or any ERISA Affiliate contributes or has an obligation to contribute,
or in the case of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the immediately preceding five
plan years.


 


“Permitted Liens” has the meaning specified in Section 7.01.


 


“Permitted Receivables” means accounts
receivable originated by Comdata in the Ordinary Course of Business, together
with any guarantees, insurance, letters of credit, collateral and other
ancillary property rights of Comdata arising in connection with the
transactions giving rise to such accounts receivable, and all contracts,
invoices and records related to the foregoing.


 


21





















 


“Permitted Securitization” means (a) a
transfer accompanied by the delivery of a customary true-sale or contribution
opinion given by independent counsel to a Securitization Subsidiary or other
Person of Permitted Receivables by Comdata for fair value consideration
consisting of cash, cash plus an equity or subordinated interest in, or
subordinated indebtedness issued by, the Securitization Subsidiary or in the
transferred Permitted Receivables, and that does not entail, directly or
indirectly, recourse against the seller of such Permitted Receivables (or
against any of such seller’s Affiliates, other than a Securitization
Subsidiary) by way of a guarantee or other direct or indirect support
arrangement, with respect to the amount of such receivables based on the
financial condition or circumstances of the obligor thereunder, other than such
limited recourse as is reasonable given market standards for transactions of a
similar type, taking into account such factors as historical bad debt, loss
experience and obligor concentration levels; and (b) if applicable, the
issuance by the Securitization Subsidiary of Indebtedness secured by a Lien on
any or all of the assets of such Securitization Subsidiary; provided, however,
that the Attributable Indebtedness arising in connection with all Permitted
Securitizations in the aggregate shall not at any time exceed US$150,000,000.


 


“Permitted Swap Obligations” means all
obligations (contingent or otherwise) of the Borrower or any of its
Subsidiaries existing or arising under Swap Contracts, provided that
such obligations are (or were) entered into by such Person in the ordinary
course of such Person’s business for the purpose of directly mitigating risks
associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person in conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a “market
view.”


 


“Person” means any individual, trustee,
corporation, general partnership, limited partnership, limited liability
company, joint stock company, trust, unincorporated organization, bank,
business association, firm, joint venture, or Governmental Authority.


 


“Plan” means any “employee benefit plan” (as
such term is defined in Section 3(3) of ERISA) established by the
Borrower or any ERISA Affiliate.


 


“Platform” has the meaning specified in Section 6.02.


 


“Purchase” means any transaction, or any series
of related transactions, consummated on or after the Closing Date, by which the
Borrower or any of its Subsidiaries (a) acquires any ongoing business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise, or (b) directly
or indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of
the outstanding partnership or membership interests of a partnership or limited
liability company, respectively.


 


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


 


“Registered Public Accounting Firm” has the
meaning specified in the Securities Laws and shall be independent of the
Borrower as prescribed by the Securities Laws.


 


22





















 


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


 


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


 


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


 


“Request for Increased Credit Extension” has
the meaning set forth in Section 4.02.


 


“Required Lenders” means, as of any date of
determination, Lenders having more than 50% of the Aggregate Commitments or, if
the commitment of each Lender to make Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions, the obligation of the Swing Line Lender
to make Swing Line Loans, and the obligation of the Canadian Subfacility
Funding Lenders to make Canadian Subfacility Loans have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of
the Total Outstandings (with the aggregate amount of each Lender’s Canadian
Subfacility Risk Participations and its risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by
such Lender for purposes of this definition and the aggregate amount of
Canadian Subfacility Risk Participations not being deemed “held” by the
Canadian Subfacility Funding Fronting Lenders for the purposes of this
definition); provided that (a) with respect to Revolving Loans and
Canadian Subfacility Loans if the Defaulting Lender is a Canadian Subfacility
Funding Lender, the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders, and (b) with respect to
Letters of Credit, Swing Line Loans and Canadian Subfacility Loans if the
Defaulting Lender is a Canadian Subfacility Participating Lender, the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be deemed held by the L/C Issuer, the Swing
Line Lender and the Canadian Subfacility Funding Fronting Lenders,
respectively.


 


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


 


“Revaluation Date” means (a) with respect
to any Loan, each of the following:  (i) each
date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section 2.02,
and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; (b) with respect to any
Letter of Credit,


 


23





















 


each of the
following:  (i) each date of an
amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), and (ii) such
additional dates as the Administrative Agent or the L/C Issuer shall determine
or the Required Lenders shall require; and (c) with respect to any
Canadian Subfacility Loan, (i) each date of a Canadian Subfacility
Borrowing, (ii) each date of continuation of Canadian Subfacility Loan, (iii) each
Canadian Subfacility Participation Payment Date under Section 2A.02(f) with
respect to which the Canadian Subfacility Fronting Lender has requested payment
from the Canadian Subfacility Participating Lenders in US Dollars, (iv) each
other date pursuant to Section 2A.02 on which payments in US
Dollars are made by the Canadian Subfacility Participating Lenders, and (v) such
additional dates as the Canadian Subfacility Agent, the Administrative Agent or
the Required Lenders shall require.


 


“Revolving Borrowing” means a borrowing
consisting of simultaneous Revolving Loans of the same Type, in the same
currency and, in the case of Eurocurrency Rate Loans, having the same Interest
Period made by each of the Lenders pursuant to Section 2.01.


 


“Revolving Loan” has the meaning specified in Section 2.01.


 


“Revolving Loan Notice” means a notice of (a) a
Revolving Borrowing, (b) a conversion of Revolving Loans from one Type to
the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A-1.


 


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


 


“Same Day Funds” means (a) with respect to
disbursements and payments in US Dollars, immediately available funds, and (b) with
respect to disbursements and payments in an Alternative Currency, same day or
other funds as may be determined by the Administrative Agent (or, with respect
to the Canadian Subfacility, as determined by the Canadian Subfacility Agent)
to be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.


 


“Sarbanes-Oxley” means the Sarbanes-Oxley Act
of 2002.


 


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


 


“Securities Laws” means
the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley
and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public
Company Accounting Oversight Board, as each of the foregoing may be amended and
in effect on any applicable date hereunder.


 


“Securitization Subsidiary” means a Subsidiary
created solely for purposes of effectuating a securitization of Permitted
Receivables, the activities and assets of which are limited solely to such
purpose and assets, and the Organization Documents of which contain customary
bankruptcy - remote provisions.


 


24





















 


“Solvent” means, as to any Person at any time,
that (a) the fair value of the property of such Person is greater than the
fair value of such Person’s liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in
the alternative, for purposes of the Uniform Fraudulent Conveyances Act (as
enacted in the State of New York); (b) the present fair saleable value of
the property 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 is able to realize upon its property
and pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business; (d) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature; and (e) 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 unreasonably small capital.


 


“Special Notice Currency” means at any time an
Alternative Currency, other than the currency of a country that is a member of
the Organization for Economic Cooperation and Development at such time located
in North America or Europe.


 


“Spot Rate” for a currency means the rate
determined by the Administrative Agent or the Canadian Subfacility Agent to be
the rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on
the date two Business Days prior to the date as of which the foreign exchange
computation is made; provided that the
Administrative Agent or the Canadian Subfacility Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent
or the Canadian Subfacility Agent if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such
currency.


 


“Sterling” and “£” mean the lawful
currency of the United Kingdom.


 


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


 


“Swap Contract” means (a) any and all rate
swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing),


 


25





















 


whether or not
any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Swap Termination Value” means, in respect of
any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the mark-to market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may
include a Lender or any Affiliate of a Lender).


 


“Swing Line” means the revolving credit
facility made available by the Swing Line Lender pursuant to Section 2.04.


 


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


 


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


 


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


 


“Swing Line Loan Notice” means a notice of a
Swing Line Borrowing pursuant to Section 2.04(b), which, if in
writing, shall be substantially in the form of Exhibit A-3.


 


“Swing Line Sublimit” means an amount equal to
the lesser of (a) US$25,000,000
and (b) the Aggregate Commitments. 
The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.


 


“Synthetic Lease Obligation” means the monetary
obligation of a Person under (a) a so-called synthetic, off-balance sheet
or tax retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).


 


“TARGET Day” means any day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET)
payment system (or, if such payment system ceases to be operative, such other
payment system (if any) determined by the Administrative Agent to be a suitable
replacement) is open for the settlement of payments in Euro.


 


26





















 


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


 


“Threshold Amount” means US$10,000,000.


 


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


 


“Type” means, with respect to a Revolving Loan,
its character as a Base Rate Loan or a Eurocurrency Rate Loan, and with respect
to a Canadian Subfacility Loan, its character as a Canadian Prime Rate Loan or
a Eurocurrency Rate Loan.


 


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


 


“Unreimbursed Amount” has the meaning set forth
in Section 2.03(c)(i).


 


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


 


“US Dollar Equivalent” means, at any time, (a) with
respect to any amount denominated in US Dollars, such amount, and (b) with
respect to any amount denominated in any Alternative Currency, the equivalent
amount thereof in US Dollars as determined by the Administrative Agent or the
Canadian Subfacility Agent, as applicable, at such time on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the
purchase of US Dollars with such Alternative Currency.


 


“Wholly-Owned Subsidiary” means any Subsidiary
in which (other than directors’ qualifying shares required by law) 100% of the
equity interests at the time as of which any determination is being made, is
owned, beneficially and of record, by the Borrower, or by one or more of the
other Wholly-Owned Subsidiaries of the Borrower, or both.


 


1.02        Other Interpretive Provisions.  With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:


 


(a)           The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections,


 


27





















 


Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


(b)           In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


 


(c)           Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03        Accounting
Terms.


 


(a)           All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data required to be submitted
pursuant to this Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except
as otherwise specifically prescribed herein.


 


(b)           Because
of a previous change in GAAP, the Borrower and its Subsidiaries are required to
report Customer Funds as assets on their balance sheets and Customer Funds
Obligations as liabilities on their balance sheets, and Customer Funds and
Customer Funds Obligations shall not be deemed assets or liabilities,
respectively, for purposes of the covenants contained in Sections 7.04, 7.05,
7.09 or 7.10.


 


(c)           If at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until so
amended, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (b) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


 


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


 


28





















 


1.05        Exchange Rates; Currency Equivalents.


 


(a)           The
Administrative Agent and, with respect to the Canadian Subfacility, the
Canadian Subfacility Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating US Dollar Equivalent amounts of
Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies.  Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed in
converting any amounts between the applicable currencies until the next
Revaluation Date to occur.  Except for
purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than US Dollars) for purposes
of the Loan Documents shall be such US Dollar Equivalent amount as so
determined by the Administrative Agent or, with respect to the Canadian
Subfacility, by the Canadian Subfacility Agent.


 


(b)           Wherever
in this Agreement in connection with a Borrowing or conversion, continuation or
prepayment of a Eurocurrency Rate Loan, an amount, such as a required minimum
or multiple amount, is expressed in US Dollars, but such Borrowing or
Eurocurrency Rate Loan is denominated in an Alternative Currency, such amount
shall be the relevant Alternative Currency Equivalent of such US Dollar amount
(rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit
being rounded upward), as determined by the Administrative Agent or, with
respect to the Canadian Subfacility, by the Canadian Subfacility Agent.


 


1.06        Additional
Alternative Currencies.  (a) The Borrower may from time to time request that
Eurocurrency Rate Loans be made under Article II in a currency
other than those specifically listed in the definition of “Alternative
Currency;” provided that such requested currency is a lawful currency
(other than US Dollars) that is readily available and freely transferable and
convertible into US Dollars.  In the case
of any such request with respect to the making of Eurocurrency Rate Loans, such
request shall be subject to the approval of the Administrative Agent and all of
the Lenders.


 


(b)           Any
such request shall be made to the Administrative Agent not later than 11:00 a.m.,
20 Business Days prior to the date of the desired Credit Extension (or such
other time or date as may be agreed by the Administrative Agent).  In the case of any such request pertaining to
Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each
Lender thereof.  Each Lender shall notify
the Administrative Agent, not later than 11:00 a.m., ten Business Days
after receipt of such request whether it consents, in its sole discretion, to
the making of Eurocurrency Rate Loans in such requested currency.


 


(c)           Any
failure by a Lender to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Lender to
permit Eurocurrency Rate Loans to be made in such requested currency.  If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency,
the Administrative Agent shall so notify the Borrower and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder
for purposes of any Revolving Borrowings of Eurocurrency Rate Loans. If the
Administrative Agent shall fail to obtain consent


 


29





















 


from each
Lender to any request for an additional currency under this Section 1.06,
the Administrative Agent shall promptly so notify the Borrower.


 


1.07        Change of
Currency.  (a) Each
obligation of the Borrower to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such
member state, the basis of accrual of interest expressed in this Agreement in
respect of that currency shall be inconsistent with any convention or practice
in the London interbank market for the basis of accrual of interest in respect
of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Revolving Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Revolving Borrowing,
at the end of the then current Interest Period.


 


(b)           Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.


 


(c)           Each
provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in currency.


 


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


 


1.09        Letter of
Credit Amounts.  With respect to any Letter of Credit that, by its terms or the terms
of any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Revolving
Loans.  Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Revolving Loan”) to the Borrower in US
Dollars or in one or more Alternative Currencies from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Revolving Borrowing, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans plus such


 


30





















 


Lender’s
Canadian Subfacility Loans (less, in the case of each Canadian Subfacility Funding
Fronting Lender, the Canadian Subfacility Risk Participations in all Canadian
Subfacility Loans advanced by such Canadian Subfacility Funding Fronting
Lender) or its Canadian Subfacility Risk Participations shall not exceed such
Lender’s Commitment, and (iii) the aggregate Outstanding Amount of all
Revolving Loans denominated in Alternative Currencies shall not exceed the
Alternative Currency Sublimit.  Within
the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.


 


2.02        Borrowings, Conversions and Continuations of
Revolving Loans.


 


(a)           Each
Revolving Borrowing, each conversion of Revolving Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given
by telephone.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in US Dollars or of any
conversion of Eurocurrency Rate Loans denominated in US Dollars to Base Rate
Loans, (ii) four Business Days (or five Business Days in the case of a
Special Notice Currency) prior to the requested date of any Borrowing or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Revolving Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
US$5,000,000 or a whole multiple of US$1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Revolving Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of US$500,000 or a whole multiple of US$100,000
in excess thereof.  Each Revolving Loan
Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Revolving Borrowing, a conversion of Revolving Loans
from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Revolving
Loans to be borrowed, converted or continued, (iv) the Type of Revolving
Loans to be borrowed or to which existing Revolving Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, and (vi) the
currency of the Revolving Loans to be borrowed. 
If the Borrower fails to specify a currency in a Revolving Loan Notice
requesting a Borrowing, then the Revolving Loans so requested shall be made in
US Dollars.  If the Borrower fails to
specify a Type of Revolving Loan in a Revolving Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
applicable Revolving Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation
of Revolving Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an
Interest Period of one month.  Any
automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable
Eurocurrency Rate Loans.  If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Revolving Loan Notice, but fails to specify


 


31





















 


an Interest
Period, it will be deemed to have specified an Interest Period of one
month.  No Revolving Loan may be
converted into or continued as a Revolving Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Revolving
Loan and reborrowed in the other currency.


 


(b)           Following
receipt of a Revolving Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of
the applicable Revolving Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Revolving Loans denominated in a currency other than US
Dollars, in each case as described in the preceding subsection.  In the case of a Revolving Borrowing, each
Lender shall make the amount of its Revolving Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent’s Office for
the applicable currency not later than 1:00 p.m., in the case of any
Revolving Loan denominated in US Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any Revolving Loan in
an Alternative Currency, in each case on the Business Day specified in the
applicable Revolving Loan Notice.  Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Revolving Loan Notice with respect to such Borrowing denominated in US
Dollars is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Borrowing, first, shall be applied to the payment
in full of any such L/C Borrowings, and, second, shall be made available
to the Borrower as provided above.


 


(c)           Except
as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate
Loan.  During the existence of a Default
or Event of Default, no Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans (whether in US Dollars or any Alternative Currency)
without the consent of the Required Lenders, and the Required Lenders may
demand that any or all of the then outstanding Eurocurrency Rate Loans denominated
in an Alternative Currency be prepaid, or redenominated into US Dollars in the
amount of the US Dollar Equivalent thereof, on the last day of the then current
Interest Period with respect thereto.


 


(d)           The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans
upon determination of such interest rate. 
At any time that Base Rate Loans are outstanding, the Administrative
Agent shall notify the Borrower and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate promptly following the
public announcement of such change.


 


(e)           After
giving effect to all Revolving Borrowings, all conversions of Revolving Loans
from one Type to the other, and all continuations of Revolving Loans as the
same Type, there shall not be more than ten
Interest Periods in effect with respect to Revolving Loans.


 


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2.03        Letters
of Credit.


 


(a)           The
Letter of Credit Commitment.


 


(i)            Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit Expiration
Date, to issue Letters of Credit denominated in US Dollars for the account of
the Borrower, and to amend or extend Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrower and
any drawings thereunder; provided that after giving effect to any L/C
Credit Extension with respect to any Letter of Credit, (x) the Total
Outstandings shall not exceed the Aggregate Commitments, and (y) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans plus such Lender’s Canadian Subfacility
Loans (less, in the case of each Canadian Subfacility Funding Fronting Lender,
the Canadian Subfacility Risk Participations in all Canadian Subfacility Loans
advanced by such Canadian Subfacility Funding Fronting Lender) or its Canadian
Subfacility Risk Participations shall not exceed such Lender’s Commitment.  Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by
the Borrower that the L/C Credit Extension so requested complies with the
condition set forth in subpart (x) of the proviso to the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed.  All
Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.


 


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


 


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


 


(B)           the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date.


 


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


 


(A)          any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from


 


33





















 


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


 


(B)           the issuance of such Letter
of Credit would violate one or more policies of the L/C Issuer;


 


(C)           except as otherwise agreed
by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an
initial stated amount less than US$500,000;


 


(D)          except as otherwise agreed
by the Administrative Agent and the L/C Issuer, such Letter of Credit is to be
denominated in a currency other than US Dollars;


 


(E)           such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing
thereunder; or


 


(F)           a default of any Lender’s
obligations to fund under Section 2.03(c) exists or any Lender
is at such time a Defaulting Lender hereunder, unless the L/C Issuer has
entered into satisfactory arrangements with the Borrower or such Lender to
eliminate the L/C Issuer’s risk with respect to such Lender.


 


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


 


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


 


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


 


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(b)           Procedures
for Issuance and Amendment of Letters of Credit; Evergreen Letters of Credit.


 


(i)            Each Letter of Credit
shall be issued or amended, as the case may be, upon the request of the
Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m.
at least two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be.  In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require.  In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require.  Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


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


 


(iii)          If the Borrower so requests
in any applicable Letter of Credit Application, the L/C Issuer may, in it sole
and absolute discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an “Evergreen Letter of Credit”); provided
that any such Evergreen Letter of Credit must permit the L/C Issuer to prevent
any such


 


35





















 


renewal at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal
Notice Date”) in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. 
Unless otherwise directed by the L/C Issuer, the Borrower shall not be
required to make a specific request to the L/C Issuer for any such
renewal.  Once an Evergreen Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may
not require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to a date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer would have no obligation at such time to issue such Letter of Credit
in its renewed form under the terms hereof, or (B) it has received notice
(which may be by telephone or in writing) on or before five (5) Business
Days immediately preceding the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02
is not then satisfied.


 


(iv)          Notwithstanding anything to
the contrary contained herein, the L/C Issuer shall have no obligation to
permit the renewal of any Evergreen Letter of Credit at any time.


 


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


 


(c)           Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit (each such date, an “Honor Date”), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing in US Dollars. 
If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed
to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Revolving Loan
Notice).  Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


36





















 


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


 


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


 


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


 


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


 


(vi)          If any Lender fails to make
available to the Administrative Agent for the account of the L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect.  A certificate of the L/C Issuer submitted to
any Lender


 


37





















 


(through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.


 


(d)           Repayment
of Participations.


 


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


 


(ii)           If any payment received by
the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


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


 


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


 


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


 


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


 


38





















 


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


 


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


 


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


 


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


 


39





















 


assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(g)           Cash
Collateral.  (i) 
Upon the request of the Administrative Agent, (A) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding,
the Borrower shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations until (x) in the case of clause (A) above,
such L/C Borrowing is paid pursuant to a Borrowing or otherwise or (y) in the
case of clause (B) above, such Letter of Credit expires without being
drawn.


 


(ii)           Sections 2.05 and 8.02(c) set forth certain additional requirements
to deliver Cash Collateral hereunder.  For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding
meanings.  The Borrower hereby agrees to
grant to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.


 


(h)           Applicability
of ISP.   Unless otherwise
expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), the rules of the ISP shall apply to each standby Letter of
Credit.


 


(i)            Letter
of Credit Fees. 
The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, in US Dollars, a Letter of Credit fee (the “Letter of Credit Fee”)
for each Letter of Credit equal to the Applicable Rate times the daily
amount available to be drawn under such Letter of Credit.  Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March,
June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand. 
If there is any change in the Applicable Rate during any quarter, the
daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, while any Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.


 


(j)            Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The
Borrower shall pay directly to the L/C Issuer for its own account, in US
Dollars, a fronting fee with respect to each Letter of Credit, at the rate per
annum specified in the Fee Letter, computed on the daily amount available to be
drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the
most recently-ended


 


40





















 


quarterly
period (or portion thereof, in the case of the first payment), commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account, in US Dollars, the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


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


 


2.04        Swing Line Loans.


 


(a)           The
Swing Line. 
Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth
in this Section 2.04, to make loans in US Dollars (each such loan,
a “Swing Line Loan”) to the Borrower from time to time on any Business
Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the
fact that such Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans plus such
Lender’s Canadian Subfacility Loans (less, in the case of each Canadian
Subfacility Funding Fronting Lender, the Canadian Subfacility Risk
Participations in all Canadian Subfacility Loans advanced by such Canadian
Subfacility Funding Fronting Lender) or its Canadian Subfacility Risk
Participations shall not exceed such Lender’s Commitment, and provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. 
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.


 


(b)           Borrowing
Procedures. 
Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of US$500,000,
and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing


 


41





















 


Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender
will confirm with the Administrative Agent (by telephone or in writing) that
the Administrative Agent has also received such Swing Line Loan Notice and, if
not, the Swing Line Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. 
Unless the Swing Line Lender has received notice (by telephone or in
writing) from the Administrative Agent (including at the request of any Lender)
prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower either
by (I) crediting the account of the Borrower on the books of the Swing Line
Lender with the amount of such funds or (II) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably
acceptable to) the Swing Line Lender and the Borrower.


 


(c)           Refinancing
of Swing Line Loans.


 


(i)            The Swing Line Lender at
any time in its sole and absolute discretion may request, on behalf of the
Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding.  Such request shall be
made in writing (which written request shall be deemed to be a Revolving Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Revolving Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Revolving Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Revolving Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. 
The Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


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


 


42





















 


(iii)          If any Lender fails to make
available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect.  A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


 


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


 


(d)           Repayment
of Participations.


 


(i)            At any time after any
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Applicable Percentage
of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was
funded) in the same funds as those received by the Swing Line Lender.


 


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


 


(e)           Interest
for Account of Swing Line Lender.  The Swing Line Lender shall be responsible
for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender funds its Base Rate Loan or
risk participation pursuant to this Section 2.04 to refinance such


 


43





















 


Lender’s
Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.


 


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


 


2.05        Prepayments.  (a) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay
Revolving Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans denominated in US Dollars, (B) four
Business Days (or five, in the case of prepayment of Loans denominated in
Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate
Loans denominated in Alternative Currencies, and (C) on the date of
prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate
Loans denominated in US Dollars shall be in a principal amount of US$5,000,000
or a whole multiple of US$1,000,000 in excess thereof; (iii) any
prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
shall be in a minimum principal amount of the Alternative Currency Equivalent
of US$5,000,000 or a whole multiple of the Alternative Currency Equivalent of
US$1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans
shall be in a principal amount of US$500,000 or a whole multiple of US$100,000
in excess thereof or, in each case, if less, the entire principal amount
thereof then outstanding.  Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Revolving Loans to be prepaid and, if Eurocurrency Loans are to be prepaid, the
Interest Period(s) of such Loans.  The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment.  If such notice is given, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Revolving Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)           The
Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any
such prepayment shall be in a minimum principal amount of US$100,000.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein.


 


(c)           If the
Administrative Agent notifies the Borrower at any time that the Total
Outstandings at such time exceed an amount equal to the Aggregate Commitments
then in effect, then, within two Business Days after receipt of such notice,
the Borrower shall prepay Loans and/or the Borrower shall Cash Collateralize
the L/C Obligations in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to exceed the
Aggregate Commitments then in effect; provided, however, that,
subject to the


 


44





















 


provisions of Section 2.03(g)(ii),
the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c) unless after the prepayment
in full of the Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.  The Administrative Agent
may, at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of further exchange rate fluctuations.


 


(d)           If the
Administrative Agent notifies the Borrower at any time that the Outstanding
Amount of all Loans denominated in Alternative Currencies at such time exceeds
an amount equal to 105% of the
Alternative Currency Sublimit then in effect, then, within two Business Days
after receipt of such notice, the Borrower shall prepay Loans in an aggregate
amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency
Sublimit then in effect.


 


2.06        Reduction or Termination of Commitments.  The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments,
or from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate
amount of US$10,000,000 or any whole multiple of US$1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if,
after giving effect to any reduction of the Aggregate Commitments, the
Alternative Currency Sublimit, the Canadian Subfacility Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit
shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Commitments.  Except as provided above,
the amount of any such Aggregate Commitment reduction shall not be applied to
the Alternative Currency Sublimit, the Canadian Subfacility Sublimit or the
Swing Line Sublimit unless otherwise specified by the Borrower.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


2.07        Repayment of Loans.  (a) The Borrower shall
repay to the Lenders on the Maturity Date the aggregate principal amount of
Revolving Loans made to the Borrower outstanding on such date.


 


(b)           The
Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the
date ten Business Days after such Loan is made and (ii) the Maturity Date.


 


2.08        Interest.  Subject to the provisions of subsection (b) below,
(i) each Eurocurrency Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Rate plus
(in the case of a Eurocurrency Rate Loan of any Lender which is lent from a
Lending Office in the United Kingdom or a Participating Member State
denominated in any currency other than US Dollars or Canadian Dollars) the
Mandatory Cost; (ii) each Base Rate Loan shall


 


45





















 


bear interest
on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.


 


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


 


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


 


(ii)           Upon the request of the
Required Lenders, while any Event of Default exists, the Borrower shall pay
interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.


 


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


 


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


 


(d)           For
the purposes of the Interest Act (Canada), (i) whenever a rate of interest
or fee rate hereunder is calculated on the basis of a year (the “deemed year”)
that contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest or fee rate shall be expressed as a yearly
rate by multiplying such rate of interest or fee rate by the actual number of
days in the calendar year of calculation and dividing it by the number of days
in the deemed year, (ii) the principle of deemed reinvestment of interest
shall not apply to any interest calculation hereunder and (iii) the rates
of interest stipulated herein are intended to be nominal rates and not
effective rates or yields.


 


2.09        Fees.  In addition to
certain fees described in subsections (i) and (j) of Section 2.03:


 


(a)           Facility
Fee.  The
Borrower shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage, a facility fee in US Dollars
equal to the Applicable Rate times the actual daily amount of the
Aggregate Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Revolving Loans, Canadian Subfacility Loans, Swing
Line Loans and L/C Obligations), regardless of usage.  The


 


46





















 


facility fee
shall accrue at all times during the Availability Period (and thereafter so
long as any Revolving Loans, Canadian Subfacility Loans, Swing Line Loans or
L/C Obligations remain outstanding), including at any time during which one or
more of the conditions in Article IV is not met, and shall be due
and payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date (and, if applicable, thereafter on demand).  The facility fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(b)           Utilization
Fee.  The
Borrower shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage, a utilization fee in US Dollars
of 0.125% per annum times the Total Outstandings on each day that the
Total Outstandings exceed 50% of the actual daily amount of the Aggregate
Commitments then in effect (or, if terminated, in effect immediately prior to
such termination).  The utilization fee
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date.  The utilization fee shall be calculated
quarterly in arrears.  The utilization
fee shall accrue at all times, including at any time during which one or more
of the conditions in Article IV is not met.


 


(c)           Other
Fees.  (i) 
The Borrower shall pay to the Arranger and the Administrative Agent for their
own respective accounts, in US Dollars, fees in the amounts and at the times
specified in the Fee Letter.  Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 


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


 


2.10        Evidence of Debt.


 


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


 


47





















 


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


 


2.11        Computation
of Interest and Fees.  All computations of interest for Base Rate Loans when the Base Rate
is determined by Bank of America’s “prime rate” shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year), or, in the case of interest in respect of
Revolving Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, in accordance with such market
practice.  Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 


2.12        Payments
Generally; Administrative Agent’s Clawback.  (a) General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in US Dollars and in Same Day Funds not later
than 2:00 p.m. on the date specified herein.  Except as otherwise expressly provided
herein, all payments by the Borrower hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without
limiting the generality of the foregoing, the Administrative Agent may require
that any payments due under this Agreement be made in the United States.  If, for any reason, the Borrower is prohibited
by any Law from making any required payment hereunder in an Alternative
Currency, the Borrower shall make such payment in US Dollars in the US Dollar
Equivalent of the Alternative Currency payment amount.  The Administrative Agent will promptly distribute
to each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office.  All payments
received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in US Dollars, or (ii) after the Applicable Time specified by
the Administrative Agent in the case of payments in an Alternative Currency,
shall in each case be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the


 


48





















 


next
following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


(b)           (i)            Funding by Lenders;
Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Revolving
Borrowing of Eurocurrency Rate Loans (or, in the case of any Revolving
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Revolving
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Revolving Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Revolving
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Revolving Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in Same Day Funds with interest thereon, for each day
from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Lender, the Overnight Rate and (B) in
the case of a payment to be made by the Borrower, the interest rate applicable
to such Revolving Borrowing.  If the
Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such
period.  If such Lender pays its share of
the applicable Revolving Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Revolving Loan included in such
Revolving Borrowing.  Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against
a Lender that shall have failed to make such payment to the Administrative
Agent.


 


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


 


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


 


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


 


49





















 


the
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender,
without interest.


 


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


 


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


 


2.13        Sharing
of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Revolving Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Revolving
Loans or participations and accrued interest thereon greater than its pro
rata share thereof as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact,
and (b) purchase (for cash at face value) participations in the Revolving
Loans and subparticipations in L/C Obligations and Swing Line Loans of the
other Lenders, or make such other adjustments as shall be equitable, so that
the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and other amounts owing them, provided
that:


 


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


 


(b)           the
provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (y) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Revolving Loans or subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).


 


The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to


 


50





















 


such participation as fully as if such
Lender were a direct creditor of the Borrower in the amount of such
participation.


 


2.14        Increase in Commitments.


 


(a)           Request
for Increase. 
Provided there exists no Default or Event of Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower
may from time to time, request an increase in the Aggregate Commitments up to
an amount of US$400,000,000; provided that any such request for an
increase shall be in a minimum amount of US$50,000,000.  The Swing Line Sublimit, the Alternative
Currency Sublimit and the Canadian Facility Sublimit shall not be increased as
a result of any exercise of the option to increase the Aggregate Commitments
under this Section 2.14.  At
the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).


 


(b)           Lender
Elections to Increase.  Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its
Commitment and, if so, whether by an amount equal to, greater than, or less
than its Applicable Percentage of such requested increase.  Any Lender not responding within such time
period shall be deemed to have declined to increase its Commitment.


 


(c)           Notification
by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase following the response from each Lender to such request
and subject to the approval of the Administrative Agent and the L/C Issuer
(which approvals shall not be unreasonably withheld), the Borrower may also
invite additional Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance satisfactory to the Administrative Agent and
its counsel.


 


(d)           Effective
Date and Allocations.  If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase.  The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase and the Increase Effective Date.


 


(e)           Conditions
to Effectiveness of Increase.  As a condition precedent to such increase,
the Borrower shall deliver to the Administrative Agent a certificate of each
Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V (except Section 5.10(c))
and the other Loan Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of Section 5.10
shall be


 


51





















 


deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 6.01, and (B) no Default or
Event of Default exists.  The Borrower
shall prepay any Revolving Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Revolving Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.


 


(f)            Conflicting
Provisions. 
This Section shall supersede any provisions in Sections 2.13
or 10.01 to the contrary.


 


ARTICLE IIA.

THE CANADIAN SUBFACILITY


 


2A.01     Canadian
Subfacility Loans.  Subject to the terms and conditions set forth herein, each Canadian
Subfacility Funding Lender severally agrees to make loans (each such loan, a “Canadian
Subfacility Loan”) to the Canadian Borrower in Canadian Dollars from time
to time, on any Business Day during the Availability Period; provided, however,
that after giving effect to any Canadian Subfacility Borrowing, (i) the
Total Outstandings shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of the Canadian Subfacility Loans of any Canadian
Subfacility Funding Lender (less, with respect only to each Canadian
Subfacility Funding Fronting Lender, the aggregate US Dollar Equivalent of
Canadian Subfacility Risk Participations in all Canadian Subfacility Loans
advanced by such Canadian Subfacility Funding Fronting Lender) plus,
with respect only to the Canadian Subfacility Participating Lenders, the US
Dollar Equivalent of such Lender’s Canadian Subfacility Risk Participations in
Canadian Subfacility Loans advanced by the Canadian Subfacility Funding
Fronting Lenders, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and (iii) the aggregate Outstanding Amount of
all Canadian Loans shall not exceed the Canadian Subfacility Sublimit.  Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Canadian
Borrower may borrow from Canadian Subfacility Funding Lenders under this Section 2A.01,
prepay Canadian Subfacility Funding Lenders under Section 2A.05,
and reborrow from Canadian Subfacility Funding Lenders under this Section 2A.01.  Canadian Subfacility Loans may be Canadian
Prime Rate Loans or Eurocurrency Rate Loans, as further provided herein.


 


2A.02     Borrowings, Conversions and Continuations of Canadian Subfacility
Loans.


 


(a)           Each
Canadian Subfacility Borrowing, each conversion of Canadian Subfacility Loans
from one Type to the other, and each continuation of Eurocurrency Rate Loans
under the Canadian Subfacility shall be made upon the Canadian Borrower’s
irrevocable notice to the Canadian Subfacility Agent, which may be given by
telephone.  Each such notice must be
received by the Canadian Subfacility Agent not later than 11:00 a.m. (i) four
Business Days prior to the requested date of any Canadian Subfacility Borrowing
or continuation of Eurocurrency Rate Loans under the Canadian Subfacility, and (ii) one
Business Day prior the requested date of any Canadian Subfacility Borrowing of
Canadian Prime Rate Loans.  Each
telephonic notice by the Canadian Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery


 


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to the
Canadian Subfacility Agent of a written Canadian Subfacility Loan Notice,
appropriately completed and signed by a Responsible Officer of the Canadian
Borrower.  Each Canadian Subfacility
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be
in a principal amount of CAN$3,000,000 or a whole multiple of CAN$500,000 in
excess thereof.  Except as provided in Sections
2A.03(c) and 2A.04(c), each Canadian Subfacility Borrowing of
or conversion to Canadian Prime Rate Loans shall be in a principal amount of
CAN$500,000 or a whole multiple of CAN$100,000 in excess thereof.  Each Canadian Subfacility Loan Notice
(whether telephonic or written) shall specify (i) whether the Canadian
Borrower is requesting a Canadian Subfacility Borrowing, a conversion of
Canadian Subfacility Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans under the Canadian Subfacility, (ii) the requested
date of the Canadian Subfacility Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of
Canadian Subfacility Loans to be borrowed, converted or continued, (iv) the
Type of Canadian Subfacility Loans to be borrowed or to which existing Canadian
Subfacility Loans are to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. 
If the Canadian Borrower fails to specify a Type of Canadian Subfacility
Loan in a Canadian Subfacility Loan Notice, then the applicable Canadian
Subfacility Loans shall be made as Canadian Prime Rate Loans.  If the Canadian Borrower fails to give a
timely notice requesting a conversion or continuation of Canadian Subfacility
Loans, such Loans shall be continued as Eurocurrency Rate Loans with an Interest
Period of one month.  If the Canadian
Borrower requests a Canadian Subfacility Borrowing of, conversion to, or
continuation of Eurocurrency Rate Loans in any such Canadian Subfacility Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


 


(b)           Following
receipt of a Canadian Subfacility Loan Notice, the Canadian Subfacility Agent
shall promptly notify (i) each Canadian Subfacility Funding Lender of both
the US Dollar Equivalent and the Alternative Currency Equivalent of its
Canadian Subfacility Loan, (ii) each Canadian Subfacility Funding Fronting
Lender of both the US Dollar Equivalent and Alternative Currency Equivalent of
the aggregate Canadian Subfacility Risk Participations in its Canadian
Subfacility Loan, (iii) each Canadian Subfacility Participating Lender of
both the US Dollar Equivalent and the Alternative Currency Equivalent of its
Canadian Subfacility Risk Participation in such Canadian Subfacility Loan, and (iv) all
Lenders of the aggregate US Dollar Equivalent amount and Alternative Currency
Equivalent of such Canadian Subfacility Borrowing and the applicable Spot Rate
used by the Canadian Subfacility Agent to determine such US Dollar
Equivalent.  Each Business Day, the Canadian
Subfacility Agent shall inform the Administrative Agent of the Outstanding
Amount of Canadian Subfacility Loans.  If
no timely notice of a conversion or continuation is provided by the Canadian
Borrower, the Canadian Subfacility Agent shall notify each of the same Lenders
as set forth in (i) through (iv) above and the Administrative Agent
of the same details of any continuation of Canadian Subfacility Loans as
described in the preceding subsection. 
In the case of a Canadian Subfacility Borrowing, each Canadian Subfacility
Funding Lender shall make the amount of its Canadian Subfacility Funding
Applicable Percentage of the Canadian Subfacility Loan available to the
Canadian Subfacility Agent in Same Day Funds at the Canadian Subfacility Agent’s
Office not later than the Applicable Time specified by the Canadian Subfacility
Agent on the Business Day specified in the applicable Canadian Subfacility Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Canadian Subfacility Agent shall make all funds so received available to the
Canadian Borrower


 


53





















 


in like
funds as received by the Canadian Subfacility Agent either by (i) crediting
the account of the Canadian Borrower on the books of Bank of America, acting
through its Canada branch, with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Canadian Subfacility Agent by the
Canadian Borrower.


 


(c)           Except
as otherwise provided herein, a Eurocurrency Rate Loan under the Canadian
Subfacility may be continued or converted only on the last day of an Interest
Period for such Eurocurrency Rate Loan. 
During the existence of a Default or Event of Default, no Canadian
Subfacility Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Lenders, and the Required
Lenders may demand that any or all of the then outstanding Eurocurrency Rate
Loans under the Canadian Subfacility be prepaid, or redenominated into US
Dollars in the amount of the US Dollar Equivalent thereof, on the last day of
the then current Interest Period with respect thereto.


 


(d)           The
Canadian Subfacility Agent shall promptly notify the Canadian Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate.  At any time that Canadian Prime Rate Loans
are outstanding, the Canadian Subfacility Agent shall notify the Canadian
Borrower and the Lenders of any change in the Canadian Prime Rate promptly
following the public announcement of such change.


 


(e)           After
giving effect to all Canadian Subfacility Borrowings, all conversions of
Canadian Subfacility Loans from one Type to the other, and all continuations of
Canadian Subfacility Loans as the same Type, there shall not be more than ten Interest Periods in effect with
respect to Canadian Subfacility Loans.


 


(f)            (i)            Subject to all the terms
and conditions set forth in this Agreement, (A) each Canadian Subfacility
Funding Lender agrees from time to time on any Business Day during the
Availability Period, to fund its Canadian Subfacility Funding Applicable
Percentage of Canadian Subfacility Loans; and (B) the Canadian Subfacility
Participating Lenders, with respect to each Canadian Subfacility Loan,
severally agree to acquire a Canadian Subfacility Risk Participation in such
Canadian Subfacility Loan; provided that no Canadian Subfacility Funding
Lender shall be obligated to fund any Canadian Subfacility Loans, and no
Canadian Subfacility Participating Lender shall be obligated to risk
participate in any Canadian Subfacility Loans, if as of the date of such Canadian
Subfacility Loans, (x) the Outstanding Amount of all Canadian Subfacility Loans
would exceed the Canadian Subfacility Sublimit, (y) the Outstanding Amount of
all Loans and all L/C Obligations would exceed the Aggregate Commitments, or
(z) the Outstanding Amount of the Canadian
Subfacility Loans of any Lender (less, with respect only to each
Canadian Subfacility Funding Fronting Lender, the aggregate US Dollar
Equivalent of Canadian Subfacility Risk Participations in all Canadian
Subfacility Loans advanced by such Canadian Subfacility Funding Fronting
Lender), plus, with respect only to the Canadian Subfacility
Participating Lenders, the US Dollar Equivalent of such Lender’s Canadian
Subfacility Risk Participations in Canadian Subfacility Loans advanced by the
Canadian Subfacility Funding Fronting Lenders, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans, would exceed such Lender’s Commitment.


 


54





















 


(ii)           Each Canadian Subfacility
Loan shall be funded by the Canadian Subfacility Funding Lenders upon the
request of the Canadian Borrower in accordance with Sections 2A.02(a) and
(b).  Immediately upon the funding
by each Canadian Subfacility Funding Fronting Lender of its respective Canadian
Subfacility Funding Applicable Percentage of any Canadian Subfacility Loan,
each Canadian Subfacility Participating Lender shall be deemed to have
absolutely, irrevocably and unconditionally acquired from such Canadian
Subfacility Funding Fronting Lender a Canadian Subfacility Risk Participation
in such Canadian Subfacility Loan in an amount such that, after such
acquisition, each Lender (including the Canadian Subfacility Funding Lenders,
the Canadian Subfacility Funding Fronting Lenders and the Canadian Subfacility
Participating Lenders) will have a Canadian Subfacility Loan Credit Exposure
with respect to such Canadian Subfacility Loan equal in amount to its
Applicable Percentage of such Canadian Subfacility Loan.


 


(iii)          Upon the occurrence and
during the continuance of an Event of Default, either Canadian Subfacility
Funding Fronting Lender may, by written notice to the Canadian Subfacility Agent
delivered not later than 11:00 a.m. on the second Business Day preceding
the proposed date of funding and payment by Canadian Subfacility Participating
Lenders of their Canadian Subfacility Risk Participations purchased in such
Canadian Subfacility Loans as shall be specified in such notice (the “Canadian
Subfacility Participation Payment Date”), request each Canadian Subfacility
Participating Lender to fund the US Dollar Equivalent (as determined at the
date of such Canadian Subfacility Loan per Section 2A.02(b)) of its
Canadian Subfacility Risk Participation acquired with respect to such Canadian
Subfacility Loans advanced by such Canadian Subfacility Funding Fronting Lender
to the Canadian Subfacility Agent on the Canadian Subfacility Participation Payment
Date in US Dollars.  Following receipt of
such notice, the Canadian Subfacility Agent shall promptly notify each Canadian
Subfacility Participating Lender of the US Dollar Equivalent of its Canadian
Subfacility Risk Participation acquired with respect to each such Canadian
Subfacility Loan (determined at the Spot Rate used to determine the US Dollar
Equivalent in Section 2A.02(b) with respect to each such
Canadian Subfacility Loan) and the applicable Canadian Subfacility
Participation Payment Date.  Any notice
given by either Canadian Subfacility Funding Fronting Lender or the Canadian
Subfacility Agent pursuant to this subsection may be given by telephone if
immediately confirmed in writing; provided that the absence of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.


 


(iv)          On the applicable Canadian
Subfacility Participation Payment Date, each Canadian Subfacility Participating
Lender shall deliver the amount of such Canadian Subfacility Participating
Lender’s Canadian Subfacility Risk Participation with respect to such specific
Canadian Subfacility Loans specified for funding pursuant to this Section 2A.02(f) in
US Dollars and in Same Day Funds to the Canadian Subfacility Agent; provided,
however, that no Canadian Subfacility Participating Lender shall be responsible
for any default by any other Canadian Subfacility Participating Lender in such
other Canadian Subfacility Participating Lender’s obligation to pay such
amount.  Upon receipt of any such amounts
from the Canadian Subfacility Participating Lenders, the Canadian Subfacility
Agent shall distribute such US Dollar amounts in Same Day Funds to the


 


55





















 


Canadian Subfacility Funding Fronting Lenders in
accordance with the ratio of such Canadian Funding Fronting Lender’s Canadian
Subfacility Funding Applicable Percentage to the sum of Canadian Subfacility
Funding Applicable Percentages of both Canadian Funding Fronting Lenders.


 


(v)           In the event that any
Canadian Subfacility Participating Lender fails to make available to the
Canadian Subfacility Agent the amount of its Canadian Subfacility Risk
Participation as provided herein, the Canadian Subfacility Agent shall be
entitled to recover such amount on behalf of the Canadian Subfacility Funding
Fronting Lenders on demand from such Canadian Subfacility Participating Lender
together with interest at the Overnight Rate for three (3) Business Days
and thereafter at a rate per annum equal to the Default Rate.  A certificate of the Canadian Subfacility Agent
submitted to any Lender with respect to amounts owing hereunder shall be
conclusive in the absence of manifest error.


 


(vi)          In the event that either
Canadian Subfacility Funding Fronting Lender receives a payment in respect of
any Canadian Subfacility Loan, whether directly from the Canadian Borrower or
otherwise, in which Canadian Subfacility Participating Lenders have fully
funded in US Dollars their acquisition of Canadian Subfacility Risk
Participations, such Canadian Subfacility Funding Fronting Lender shall
promptly distribute to the Canadian Subfacility Agent, for its distribution to
each such Canadian Subfacility Participating Lender, the US Dollar Equivalent
of such Canadian Subfacility Participating Lender’s Applicable Percentage of
such payment in US Dollars and in Same Day Funds.  If any payment received by either Canadian
Subfacility Funding Fronting Lender with respect to any Canadian Subfacility
Loan made by it shall be required to be returned by such Canadian Subfacility
Funding Fronting Lender after such time as the Canadian Subfacility Funding
Fronting Lender has distributed such payment to such Canadian Subfacility Agent
pursuant to the immediately preceding sentence, each Canadian Subfacility
Participating Lender that has received a portion of such payment shall pay to
such Canadian Subfacility Funding Fronting Lender an amount equal to its
Applicable Percentage in US Dollars of the amount to be returned; provided,
however, that no Canadian Subfacility Participating Lender shall be responsible
for any default by any other Canadian Subfacility Participating Lender in such
other Canadian Subfacility Participating Lender’s obligation to pay such
amount.


 


(vii)         Anything contained herein to
the contrary notwithstanding, each Canadian Subfacility Participating Lender’s
obligation to acquire and pay for its purchase of Canadian Subfacility Risk
Participations as set forth herein shall be absolute, irrevocable and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Canadian Subfacility Participating Lender may have against
either Canadian Subfacility Funding Fronting Lender, the Canadian Subfacility
Agent, the Canadian Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default or a Default; (iii) any
adverse change in the condition (financial or otherwise) of the Canadian
Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Canadian Borrower or any other Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


 


56





















 


(viii)        Anything contained in this
Agreement to the contrary notwithstanding, no amendment, modification,
termination or waiver of any provision of this Agreement or of the other Loan
Documents, and no consent to any departure by the Canadian Borrower therefrom,
shall modify, terminate or waive any provision of this Section 2A.02(f) in
any manner adverse to any Lender without the written consent of such Lender.


 


(ix)           In no event shall (i) the
Canadian Subfacility Risk Participation of any Canadian Subfacility
Participating Lender in any Canadian Subfacility Loans pursuant to this Section 2A.02(f) be
construed as a loan or other extension of credit by such Canadian Subfacility
Participating Lender to the Canadian Borrower, any Lender or Canadian Subfacility
Agent or (ii) this Agreement be construed to require any Canadian
Subfacility Participating Lender to make any Canadian Subfacility Loans under
this Agreement or under the other Loan Documents.


 


2A.03     Prepayments.  (a) The Canadian Borrower may, upon
notice to the Canadian Subfacility Agent, at any time or from time to time
voluntarily prepay Canadian Subfacility Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received
by the Canadian Subfacility Agent not later than 11:00 a.m. (A) four
Business Days prior to any date of prepayment of Eurocurrency Rate Loans, and (B) one
Business Day prior to the date of prepayment of Canadian Prime Rate Loans; (ii) any
prepayment of Eurocurrency Rate Loans shall be in the principal amount of
CAN$3,000,000 or a whole multiple of the principal amount of CAN$500,000 in
excess thereof; and (iii) any prepayment of Canadian Prime Rate Loans
shall be in the principal amount of CAN$500,000 or a whole multiple of the
principal amount of CAN$100,000 in excess thereof or, in each case, if less,
the entire principal amount thereof then outstanding.  Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Canadian Subfacility Loans to be
prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest
Period(s) of such Loans.  The Canadian
Subfacility Agent will promptly notify the Administrative Agent and each Lender
of its receipt of each such notice, of the US Dollar Equivalent of such
prepayment, and of the amount of such Lender’s Applicable Percentage of such
prepayment and, with respect to each Canadian Subfacility Funding Lender, of
the amount of its Canadian Subfacility Funding Applicable Percentage.  If such notice is given, the Canadian Borrower
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied (I) in
the event all Canadian Subfacility Participating Lenders have funded their
Canadian Subfacility Risk Participations, to the Lenders in accordance with
their respective Applicable Percentages, and (II) in the event all Canadian
Subfacility Participating Lenders have not funded their Canadian Subfacility
Risk Participations after the Canadian Subfacility Participation Payment Date,
to the Canadian Subfacility Funding Lenders in accordance with their Canadian
Subfacility Funding Applicable Percentage.


 


(b)           If the Canadian Subfacility Agent notifies the Canadian Borrower at
any time that the aggregate Outstanding Amount of all Canadian Subfacility Loans
at such time exceed an amount equal to 105%
of the Canadian Subfacility Sublimit then in effect, then, within two Business
Days after receipt of such notice, the Canadian Borrower shall prepay Canadian
Subfacility Loans in an aggregate amount sufficient to reduce such Outstanding
Amount as of


 


57





















 


such date of payment to an amount not to
exceed 100% of the Canadian Subfacility Sublimit then in effect.  The Canadian Subfacility Agent may, at any
time and from time to time after the initial deposit of such Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of further exchange rate fluctuations.


 


2A.04     Reduction or Termination of Commitments.  The Canadian
Borrower may, upon notice to the Canadian Subfacility Agent, terminate the
Canadian Subfacility, or from time to time permanently reduce the Canadian
Subfacility Sublimit; provided that (i) any such notice shall be
received by the Canadian Subfacility Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate principal amount of US$5,000,000 or
any whole multiple of the principal amount of US$500,000 in excess thereof, (iii) the
Canadian Borrower shall not terminate the Canadian Subfacility or reduce the
Canadian Subfacility Sublimit if, after giving effect thereto and to any
concurrent prepayments hereunder, the Outstanding Amount of all Canadian
Subfacility Loans would exceed the Canadian Subfacility Sublimit.  The Canadian Subfacility Agent will promptly
notify the Administrative Agent, the Canadian Subfacility Funding Lenders and
the Canadian Subfacility Participating Lenders of any such notice of
termination of the Canadian Subfacility or reduction of the Canadian
Subfacility Sublimit.  All fees accrued
until the effective date of any termination of the Canadian Subfacility shall
be paid on the effective date of such termination.


 


2A.05     Repayment of Loans.  The Canadian Borrower shall repay to the
Canadian SubfacilityFunding Lenders on the Maturity Date the aggregate
principal amount of Canadian Subfacility Loans outstanding on such date.


 


2A.06     Interest.  Subject to the provisions of subsection (b) below,
(i) each Eurocurrency Rate Loan under the Canadian Subfacility shall bear
interest on the outstanding principal amount thereof for each Interest Period
payable for the account of the Canadian Subfacility Funding Lenders at a rate
per annum equal to the Eurocurrency Rate for such Interest Period plus
the Applicable Rate; and (ii) each Canadian Prime Rate Loan shall bear
interest on the outstanding principal amount thereof from the applicable
borrowing date payable for the account of the Canadian SubfacilityFunding
Lenders at a rate per annum equal to the Canadian Prime Rate plus the
Applicable Rate.


 


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


 


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


 


58





















 


(ii)           Upon the request of the
Required Lenders, while any Event of Default exists, the Canadian Borrower
shall pay interest on the principal amount of all outstanding Obligations owing
thereby hereunder at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.


 


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


 


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


 


(d)           For the purposes of the Interest Act (Canada), (i) whenever a
rate of interest or fee rate hereunder is calculated on the basis of a year
(the “deemed year”) that contains fewer days than the actual number of days in
the calendar year of calculation, such rate of interest or fee rate shall be
expressed as a yearly rate by multiplying such rate of interest or fee rate by
the actual number of days in the calendar year of calculation and dividing it
by the number of days in the deemed year, (ii) the principle of deemed
reinvestment of interest shall not apply to any interest calculation hereunder
and (iii) the rates of interest stipulated herein are intended to be
nominal rates and not effective rates or yields.


 


2A.07     Canadian Subfacility Fronting Fee.  The Borrower
shall pay directly to each Canadian Subfacility Funding Fronting Lender for its
own account, in Canadian Dollars, a fronting fee with respect to each Canadian
Subfacility Loan equal to 0.125% per annum times the amount of such Canadian
Subfacility Loan advanced by such Canadian Subfacility Funding Fronting Lender
in excess of its Applicable Percentage for each day such Canadian Subfacility
Loan remains outstanding payable on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the
most recently-ended quarterly period (or portion thereof, in the case of the
first payment), commencing with the first such date to occur after the funding
of such Canadian Subfacility Loan.


 


2A.08     Computation of Interest and
Fees.  Subject to Section 2A.06(d),
computation of interest on Canadian Prime Rate Loans shall be calculated on the
basis of a year of 365 or 366 days, as the case may be, and the actual number
of days elapsed.  Computation of all
other types of interest and all fees shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, which results in a higher yield
to the payee thereof than a method based on a year of 365 or 366 days.  Interest shall accrue on each Canadian
Subfacility Loan for the day on which the Canadian Subfacility Loan is made,
and shall not accrue on a Canadian Subfacility Loan, or any portion thereof,
for the day on which the Canadian Subfacility Loan or such portion is paid, provided
that any Canadian Subfacility Loan that is repaid on the same day on which it
is made shall bear interest for one day.


 


59





















 


2A.09     Evidence of
Debt.


 


(a)           The Credit Extensions under the Canadian Subfacility made by each
Canadian Subfacility Funding Lender shall be evidenced by one or more accounts
or records maintained by such Canadian Subfacility Funding Lender and by the
Canadian Subfacility Agent in the ordinary course of business.  The accounts or records maintained by the
Canadian Subfacility Agent and each Canadian Subfacility Funding Lender shall
be conclusive absent manifest error of the amount of the Credit Extensions
under the Canadian Subfacility made by the Canadian Subfacility Funding Lenders
to the Canadian Borrower and the interest and payments thereon.  Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Canadian Borrower hereunder to pay any amount owing with respect to the
Canadian Subfacility Loans.  In the event
of any conflict between the accounts and records maintained by any Canadian
Subfacility Funding Lender and the accounts and records of the Canadian
Subfacility Agent in respect of such matters, the accounts and records of such
Canadian Subfacility Funding Lender shall control.  Upon the request of any Canadian Subfacility
Funding Lender made through the Canadian Subfacility Agent, such Canadian
Subfacility Funding Lender’s Canadian Subfacility Loans may be evidenced by a
Note, in addition to such accounts or records. 
Each Canadian Subfacility Funding Lender may attach schedules to its
Note(s) and endorse thereon the date, Type (if applicable), amount and maturity
of the applicable Canadian Subfacility Loans and payments with respect thereto.


 


(b)           In addition to the accounts and records referred to in subsection (a),
each Canadian Subfacility Participating Lender and the Canadian Subfacility
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the Canadian Subfacility Risk Participations of such Canadian
Subfacility Participating Lender in each Canadian Subfacility Loan.  In the event of any conflict between the
accounts and records maintained by the Canadian Subfacility Agent and the
accounts and records of any Canadian Subfacility Participating Lender in
respect of such matters, the accounts and records of the Canadian Subfacility
Agent shall control.


 


2A.10     Payments
Generally; Canadian Subfacility Agent’s Clawback.  (a) General.  All payments to be made by the Canadian
Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Canadian Borrower
hereunder with respect to principal and interest on Canadian Subfacility Loans
shall be made to the Canadian Subfacility Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Canadian
Subfacility Agent’s Office in Same Day Funds not later than the Applicable Time
specified by the Canadian Subfacility Agent on the dates specified herein.  The Canadian Subfacility Agent will promptly
distribute to each Canadian Subfacility Funding Lender its Canadian Subfacility
Funding Applicable Percentage (or to each Lender its Applicable Percentage with
respect to any payment of a Canadian Subfacility Loan as to which all the
Canadian Subfacility Participating Lenders have fully funded their Canadian
Subfacility Risk Participations after the Canadian Subfacility Participation
Payment Date) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office.  All
payments received by the Canadian Subfacility Agent after the Applicable Time
specified by the Canadian Subfacility Agent shall be deemed received on the
next succeeding Business Day and any applicable interest or fee shall continue
to accrue.  If any payment to be made by
the Canadian Borrower shall come due on a day other


 


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than a Business Day, payment shall be made
on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.


 


(b)           (i)            Funding
by Lenders; Presumption by Canadian Subfacility Agent.  Unless the Canadian
Subfacility Agent shall have received notice from a Canadian Subfacility
Funding Lender prior to the proposed date of any Canadian Subfacility Borrowing of Eurocurrency Rate Loans (or, in
the case of any Canadian Subfacility Borrowing of Canadian Prime Rate Loans,
prior to 12:00 noon on the date of such Canadian Subfacility Borrowing) that
such Canadian Subfacility Funding Lender will not make available to the
Canadian Subfacility Agent such Canadian Subfacility Funding Lender’s share of
such Canadian Subfacility Borrowing, the Canadian Subfacility Agent may assume
that such Canadian Subfacility Funding Lender has made such share available on
such date in accordance with Section 2A.02 (or, in the case of a
Canadian Subfacility Borrowing of Canadian Prime Rate Loans, that such Canadian
Subfacility Funding Lender has made such share available in accordance with and
at the time required by Section 2A.02) and may, in reliance upon
such assumption, make available to the Canadian Borrower a corresponding
amount.  In such event, if a Canadian
Subfacility Funding Lender has not in fact made its share of the applicable Canadian
Subfacility Borrowing available to the Canadian Subfacility Agent, then the
applicable Canadian Subfacility Funding Lender and the Canadian Borrower
severally agree to pay to the Canadian Subfacility Agent forthwith on demand
such corresponding amount in Same Day Funds with interest thereon, for each day
from and including the date such amount is made available to the Canadian
Borrower to but excluding the date of payment to the Canadian Subfacility
Agent, at (A) in the case of a payment to be made by such Canadian
Subfacility Funding Lender, the Overnight Rate and (B) in the case of a
payment to be made by the Canadian Borrower, the interest rate applicable to
Canadian Prime Rate Loans.  If the
Canadian Borrower and such Canadian Subfacility Funding Lender shall pay such
interest to the Canadian Subfacility Agent for the same or an overlapping
period, the Canadian Subfacility Agent shall promptly remit to the Canadian
Borrower the amount of such interest paid by the Canadian Borrower for such
period.  If such Canadian Subfacility
Funding Lender pays its share of the applicable Canadian Subfacility Borrowing
to the Canadian Subfacility Agent, then the amount so paid shall constitute
such Canadian Subfacility Funding Lender’s Canadian Subfacility Loan included
in such Canadian Subfacility Borrowing. 
Any payment by the Canadian Borrower shall be without prejudice to any
claim the Canadian Borrower may have against a Canadian Subfacility Funding
Lender that shall have failed to make such payment to the Canadian Subfacility
Agent.


 


(ii)           Payments by the Canadian Borrower; Presumptions by Canadian
Subfacility Agent. 
Unless the Canadian Subfacility Agent shall have received notice from
the Canadian Borrower prior to the date on which any payment is due to the
Canadian Subfacility Agent for the account of the Canadian Subfacility Funding
Lenders hereunder that the Canadian Borrower will not make such payment, the
Canadian Subfacility Agent may assume that the Canadian Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Canadian Subfacility Funding Lenders and,
following payment of Canadian Subfacility Risk Participations after the
Canadian Subfacility Participation Payment Date, the Canadian Subfacility
Participating Lenders the amount due.  In
such event, if the Canadian Borrower has not in fact made such payment, then
each of such Lenders severally agrees to repay to the Canadian Subfacility
Agent forthwith on demand the amount so distributed to such Lender, in Same Day
Funds with interest thereon, for each day from and including the


 


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date such amount is distributed to it to
but excluding the date of payment to the Canadian Subfacility Agent, at the
Overnight Rate.


 


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


 


(c)           Failure to Satisfy Conditions Precedent.  If any Canadian Subfacility Funding Lender
makes available to the Canadian Subfacility Agent funds for any Canadian
Subfacility Loan to be made by such Lender to the Canadian Borrower as provided
in the foregoing provisions of this Article II, and such funds are
not made available to the Canadian Borrower by the Canadian Subfacility Agent
because the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the Canadian
Subfacility Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.


 


(d)           Obligations of Lenders Several.  The obligations of the Canadian Subfacility
Funding Lenders hereunder to make Canadian Subfacility Loans, and the
obligations of the Canadian Subfacility Participating Lenders to fund Canadian
Subfacility Risk Participations, are several and not joint.  The failure of any Canadian Subfacility
Funding Lender to make any Canadian Subfacility Loan, or the failure of any
Canadian Subfacility Participating Lender to fund any Canadian Subfacility Risk
Participation, on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Canadian Subfacility Funding
Lender to so make its Canadian Subfacility Loan or the failure of any other
Canadian Subfacility Participating Lender to purchase its Canadian Subfacility
Risk Participation.


 


(e)           Funding Source.  Nothing herein shall be deemed to obligate
any Canadian Subfacility Funding Lender to obtain the funds for any Canadian
Subfacility Loan in any particular place or manner or to constitute a
representation by any Canadian Subfacility Funding Lender that it has obtained
or will obtain the funds for any Canadian Subfacility Loan in any particular
place or manner.  Nothing herein shall be
deemed to obligate any Canadian Subfacility Partcipating Lender to obtain the
funds for any Canadian Subfacility Risk Participation payable on or after the
Canadian Subfacility Participation Payment Date in any particular place or
manner or to constitute a representation by any Canadian Subfacility
Participating Lender that it has obtained or will obtain the funds for any
Canadian Subfacility Risk Participation payable on or after the Canadian
Subfacility Participation Payment Date in any particular place or manner.


 


2A.11     Sharing of
Payments by Lenders.  If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Canadian Subfacility Loans made by it, or the Canadian
Subfacility Risk Participations it has funded, resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Canadian
Subfacility Loans or Canadian Subfacility Risk Participations and accrued
interest thereon greater than its pro  rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a) notify
the Canadian Subfacility Agent of such fact, and (b) purchase (for cash at
face value) participations in the Canadian Subfacility Loans and
subparticipations in Canadian Subfacility Risk Participations of


 


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the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Canadian Subfacility
Loans and Canadian Subfacility Risk Participations, provided that:


 


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


 


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


 


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


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments
Free of Taxes. 
Subject to Section 3.01(e), any and all payments by or on
account of any obligation of the Borrower or the Canadian Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if the Borrower or the Canadian Borrower shall be required by applicable
law to deduct any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Canadian
Subfacility Agent, Lender or L/C Issuer, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the
Borrower or the Canadian Borrower, as applicable, shall make such deductions
and (iii) the Borrower or the Canadian Borrower, as applicable, shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


(b)           Payment
of Other Taxes by the Borrower.  Subject to Section 3.01(e),
without limiting the provisions of subsection (a) above, the Borrower
and the Canadian Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


(c)           Indemnification
by the Borrower. 
Subject to Section 3.01(e), the Borrower and the Canadian
Borrower shall indemnify the Administrative Agent, Canadian Subfacility Agent,


 


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


 


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


 


(e)           Status
of Lenders. 
Each Foreign Lender shall deliver to the Borrower (with a copy to the
Administrative Agent) or to the Canadian Borrower (with a copy to the Canadian
Subfacility Agent), as applicable, at the time or times prescribed by
applicable law or reasonably requested by the Borrower, the Canadian Borrower,
the Administrative Agent or the Canadian Subfacility Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding under the law of the
jurisdiction in which the Borrower or the Canadian Borrower is resident for tax
purposes, or under any treaty to which such jurisdiction is a party, with
respect to any payments hereunder or under any other Loan Documents.  In addition, any Lender, if requested by the
Borrower, the Canadian Borrower, the Administrative Agent or the Canadian
Subfacility Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower, the Canadian Borrower,
the Administrative Agent or the Canadian Subfacility Agent as will enable the
Borrower, the Canadian Borrower, the Administrative Agent or the Canadian
Subfacility Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements.


 


Without limiting the generality of the foregoing, in
the event that the Borrower is resident for tax purposes in the United States,
each Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Borrower or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


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


 


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


 


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


 


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


 


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


 


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Notwithstanding anything to the contrary herein, the
Borrower and the Canadian Borrower shall not be required to pay any additional
amounts in respect of U.S. or Canadian income tax pursuant hereto to any Lender
for the account of any Lending Office of such Lender:


 


(i)            if the obligation to pay
such additional amounts would not have arisen but for a failure by such Lender
to comply with its obligations in Section 3.06(a) in respect
of such Lending Office; or


 


(ii)           if a Lender shall have
delivered to the Borrower or the Canadian Borrower the forms referred to above
in this Section 3.01(e), and such Lender shall not at any time be
entitled to complete exemption from deduction or withholding of U.S. or
Canadian income tax with respect of payments by the Borrower or the Canadian
Borrower hereunder for the account of the Lending Office of such Lender for any
reason other than a change in U.S. or Canadian Law or regulations after the
date of delivery of such forms.


 


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


 


3.02        Illegality.  If any Lender determines
that any Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office
to make, maintain or fund Eurocurrency Rate Loans (whether denominated in US
Dollars or an Alternative Currency), or to determine or charge interest rates
based upon the Eurocurrency Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, US Dollars or any Alternative Currency in the applicable
interbank market, then, on notice thereof by such Lender to the Borrower or the
Canadian Borrower through the Administrative Agent or the Canadian Subfacility
Agent, as applicable, any obligation of such Lender to make or continue


 


66





















 


Eurocurrency
Rate Loans in the affected currency or currencies or, in the case of
Eurocurrency Rate Loans in US Dollars, to convert Base Rate Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent and the Borrower, or the Canadian Subfacility Agent and
the Canadian Borrower, respectively, that the circumstances giving rise to such
determination no longer exist.  Upon
receipt of such notice, the Borrower or the Canadian Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent or the
Canadian Subfacility Agent, as applicable), prepay or, if applicable and such
Loans are denominated in US Dollars, convert all such Eurocurrency Rate Loans
of such Lender to Base Rate Loans or Canadian Prime Rate Loans, as applicable,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans.  Upon any such
prepayment or conversion, the Borrower or the Canadian Borrower, as applicable,
shall also pay accrued interest on the amount so prepaid or converted.


 


3.03        Inability
to Determine Rates.  If the Administrative Agent (with respect to (a) or (b) below)
or the Required Lenders (with respect to (c) below) determine that for any
reason in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (a) deposits (whether in US
Dollars or an Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable
amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any
requested Interest Period with respect to a proposed Eurocurrency Rate Loan
(whether denominated in US Dollars or an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender and/or, as applicable, the
Canadian Subfacility Agent will promptly so notify the Canadian Borrower and
each Canadian Subfacility Funding Lender. 
Thereafter, the obligation of the Lenders to make or maintain
Eurocurrency Rate Loans in the affected currency or currencies shall be
suspended until the Administrative Agent or the Canadian Subfacility Agent, as
applicable (upon the instruction of the Required Lenders) revokes such
notice.  Upon receipt of such notice, the
Borrower or the Canadian Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the
affected currency or currencies or, failing that, will be deemed to have
converted such request into a request for a Revolving Borrowing of Base Rate
Loans or Canadian Prime Rate Loans, as applicable, in the amount specified
therein.


 


3.04        Increased Costs.


 


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


 


(i)            impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with or for the account of, or
credit extended or participated in by, any Lender (except (A) any reserve
requirement reflected in the Eurocurrency Rate and (B) the requirements of
the Bank of England and the Financial Services Authority or the European
Central Bank reflected in the Mandatory Cost, other than as set forth below) or
the L/C Issuer;


 


67





















 


(ii)           subject any Lender or the
L/C Issuer to any tax of any kind whatsoever with respect to this Agreement,
any Letter of Credit, any participation in a Letter of Credit or any
Eurocurrency Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such Lender or the
L/C Issuer);


 


(iii)          cause the Mandatory Cost, as
calculated hereunder, to not represent the cost to any Lender of complying with
the requirements of the Bank of England and/or the Financial Services Authority
or the European Central Bank in relation to its making, funding or maintaining
Eurocurrency Rate Loans; or


 


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


 


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


 


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


 


(c)           Certificates
for Reimbursement. 
A certificate of a Lender or the L/C Issuer setting forth the amount or
amounts necessary to compensate such Lender or the L/C Issuer or its holding
company, as the case may be, as specified in subsection (a) or (b) of
this Section and delivered to the Borrower and/or the Canadian Borrower,
as applicable, shall be conclusive


 


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absent
manifest error.  The Borrower and/or the
Canadian Borrower, as applicable, shall pay such Lender or the L/C Issuer, as
the case may be, the amount shown as due on any such certificate within 30 days
after receipt thereof.


 


(d)           Delay
in Requests. 
Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that neither the Borrower nor the Canadian
Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to
the foregoing provisions of this Section for any increased costs incurred
or reductions suffered more than 180 days prior to the date that such Lender or
the L/C Issuer, as the case may be, notifies the Borrower or the Canadian
Borrower, as applicable, of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


(e)           Additional
Reserve Requirements.  To the extent not duplicative of Section 3.04(a),
the Borrower and the Canadian Borrower shall pay as long as such Lender shall
be required to comply with any reserve ratio requirement or analogous
requirement of any central banking or financial regulatory authority imposed in
respect of the maintenance of the Commitments or the funding of the
Eurocurrency Rate Loans (except (i) any reserve requirement reflected in
the Eurocurrency Rate and (ii) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the
Mandatory Cost (other than as provided in Section 3.04(a)(iii)),
such additional costs (expressed as a percentage per annum and rounded upwards,
if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive, which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrower and the Canadian Borrower shall have received at least 30 days’
prior notice (with a copy to the Administrative Agent or to the Canadian
Subfacility Agent, as applicable) of such additional interest or costs from
such Lender.  If a Lender fails to give
notice 30 days prior to the relevant Interest Payment Date, such additional
interest or costs shall be due and payable 30 days from receipt of such notice.


 


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


 


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


 


(b)           any
failure by the Borrower or the Canadian Borrower, as applicable, (for a reason
other than the failure of such Lender to make a Loan) to prepay, borrow,
continue or


 


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convert
any Loan other than a Base Rate Loan or a Canadian Prime Rate Loan on the date
or in the amount notified by the Borrower or the Canadian Borrower, as
applicable;


 


(c)           any
failure by the Borrower or the Canadian Borrower, as applicable, to make
payment of any Loan (or interest due thereon) denominated in an Alternative
Currency on its scheduled due date or any payment thereof in a different
currency; or


 


(d)           any
assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;


 


including any loss of anticipated profits,
any foreign exchange losses and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or
from the performance of any foreign exchange contract.  The Borrower and the Canadian Borrower shall
also pay any customary administrative fees charged by such Lender in connection
with the foregoing.


 


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


 


3.06        Mitigation Obligations; Replacement of Lenders.


 


(a)           Designation
of a Different Lending Office.  If any Lender requests compensation under Section 3.04,
or the Borrower or the Canadian Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  Each Lender also agrees to use
its commercially reasonable efforts to make such designation or assignment
prior to the occurrence of any circumstance described in Section 3.01,
3.02 or 3.04 in the event it has knowledge of such circumstance
prior to its occurrence or as soon thereafter as it becomes aware thereof.  The Borrower and the Canadian Borrower hereby
agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.


 


(b)           Replacement
of Lenders.  If any Lender requests compensation under Section 3.04,
or if the Borrower or the Canadian Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.01 or if any performance hereunder by
any Lender becomes illegal as described in Section 3.02, the
Borrower may replace such Lender in accordance with Section 10.13.


 


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3.07        Survival.  All of the Borrower’s
obligations and the Canadian Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


ARTICLE IV.

CONDITIONS PRECEDENT


 


4.01        Conditions to Effectiveness.  The obligation of the L/C
Issuer and each Lender to make its initial Credit Extension hereunder is
subject to satisfaction of the following conditions precedent:


 


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


 


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


 


(ii)           Notes executed by the
Borrower and the Canadian Borrower in favor of each Lender requesting Notes;


 


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


 


(iv)          such documents and
certifications as the Administrative Agent may reasonably require to evidence
that each Loan Party is duly organized or formed, and that each of the Borrower and the Canadian
Borrower is validly existing, in good standing and qualified to engage
in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;


 


(v)           a favorable opinion of Oppenheimer Wolff &
Donnelly LLP, counsel to the Loan Parties, Gary M. Nelson, general counsel to the
Borrower, and Taylor McCaffrey LLP, counsel to the Canadian Borrower, and
addressed to the Administrative Agent, the Canadian Subfacility Agent and each
Lender, as to the matters set forth in Exhibit F
and such other matters concerning the Loan Parties and the Loan Documents as
the Required Lenders may reasonably request;


 


(vi)          a certificate of a
Responsible Officer of each Loan Party either (A) attaching copies of all
consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such


 


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Loan Party of the Loan Documents to which
it is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals
are so required;


 


(vii)         a certificate signed by a
Responsible Officer of the Borrower certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been
satisfied with respect to the Borrower; (B) that, except for accounting matters
previously disclosed to the Administrative Agent and the Lenders or as
otherwise addressed in amendments to the Existing Credit Facility, there has
been no event or circumstance since the date of the Audited Financial
Statements that has had or would be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) the
current Debt Ratings;


 


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


 


(ix)           a duly completed Compliance Certificate as of the last day of the
fiscal quarter of the Borrower ended on September 30, 2005, signed by a
Responsible Officer of the Borrower;


 


(x)            evidence that the Existing
Credit Facility has been or concurrently with the Closing Date is being
terminated and all amounts outstanding or otherwise due and payable thereunder
have been paid in full; and


 


(xi)           such other assurances,
certificates, documents, consents or opinions as the Administrative Agent, the
Canadian Subfacility Agent, the L/C Issuer, the Swing Line Lender or the
Required Lenders reasonably may require.


 


(b)           Any
fees required to be paid on or before the Closing Date shall have been paid.


 


(c)           Unless
waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of such
fees, charges and disbursements as shall constitute its reasonable estimate of
such fees, charges and disbursements incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrower and the
Administrative Agent).


 


(d)           Without
limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


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4.02        Conditions
to all Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension
(other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans to the other Type, or a continuation of Eurocurrency Rate Loans) (the
foregoing discussed Request for Credit Extension sometimes referred to as a “Request
for Increased Credit Extension”) is subject to the following conditions
precedent:


 


(a)           The
representations and warranties of (i) the Borrower contained in Article V
(with the exception of Section 5.10(c)) and (ii) each Loan
Party contained in each other Loan Document or in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that
for purposes of this Section 4.02, the representations and
warranties contained in subsections (a) and (b) of Section 5.10
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01.


 


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


 


(c)           To the
Borrower’s best knowledge, as of the date of such Request for Increased Credit
Extension, no Internal Control Event which has resulted in or will result in a
material misstatement of any of the Borrower’s financial statements required to
be furnished under Sections 6.01(a) or 6.01(b) exists
or has occurred since the date of the last audited financial statements
delivered pursuant to Section 6.01(a) or, prior to the first
date of such delivery, the Audited Financial Statements, other than any
Internal Control Event which exists on the Closing Date and has been disclosed
to the Lenders prior thereto.


 


(d)           (i) the
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender or (ii) the Canadian Subfacility Agent shall have received a
Request for Increased Credit Extension in accordance with the requirements
hereof.


 


(e)           In the
case of a Credit Extension to be denominated in an Alternative Currency other
than in Canadian Dollars with respect to Credit Extensions under the Canadian
Subfacility, there shall not have occurred any change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Canadian Subfacility Agent (with respect only to the
Canadian Subfacility) or the Required Lenders would make it impracticable for
such Credit Extension to be denominated in the relevant Alternative Currency.


 


Each Request for Increased Credit Extension submitted
by the Borrower or the Canadian Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


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ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the
Administrative Agent and each Lender as follows:


 


5.01        Corporate Existence and Power.


 


(a)           Each
of the Borrower, the Canadian Borrower and each Material Subsidiary:


 


(i)            is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation;


 


(ii)           has the power and authority
and all material governmental licenses, authorizations, consents and approvals
to own its assets and carry on its business and to execute, deliver, and
perform its obligations under the Loan Documents;


 


(iii)          is duly qualified as a
foreign corporation, licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license, except where the
failure to be so qualified, licensed or in good standing would not adversely
affect the business or operations of the Borrower or such Subsidiary in any
significant manner; and


 


(iv)          is in compliance with all
material Laws applicable to it.


 


(b)           Each
Subsidiary of the Borrower which is not a Material Subsidiary:


 


(i)            is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation;


 


(ii)           has the power and authority
and all governmental licenses, authorizations, consents and approvals to own
its assets and carry on its business;


 


(iii)          is duly qualified as a
foreign corporation, licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification; and


 


(iv)          is in compliance with all
material Laws applicable to it;


 


except where any failure to comply with the
requirements of this subsection (b) would not, individually or in the
aggregate, result in a Material Adverse Effect.


 


(c)           As of
the Closing Date, the Borrower does not have any material place of business in
any jurisdiction other than the States of Minnesota, California, Georgia,
Kentucky and Pennsylvania.


 


5.02        Corporate
Authorization; No Contravention.  The execution, delivery and performance by
each Loan Party of this Agreement and each other Loan Document have been


 


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duly
authorized by all necessary corporate action by or on behalf of each Loan
Party, and do not and will not:


 


(a)           contravene
the terms of the such Loan Party’s Organization Documents;


 


(b)           conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which such Loan
Party is a party or any order, injunction, writ or decree of any Governmental
Authority to which such Loan Party or its property is subject; or


 


(c)           violate
any Law applicable to such Loan Party.


 


5.03        Governmental
Authorization. 
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, and Loan Party of this Agreement or any other Loan Document.


 


5.04        Binding
Effect.  This
Agreement and each other Loan Document to which any Loan Party is a party, when
executed and delivered, will constitute the legal, valid and binding
obligations of such Loan Party to the extent it is a party thereto, enforceable
against such Person in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors’ rights generally or by equitable
principles relating to enforceability.


 


5.05        Litigation.  Attached hereto as Schedule 5.05
is a list of all material litigation in which the Borrower or any Subsidiary of
the Borrower is a plaintiff or a defendant as of the Closing Date.  There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of the Borrower,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Borrower or its Subsidiaries or any of its
properties which:


 


(a)           purport
to affect or pertain to this Agreement, or any other Loan Document, or any of
the transactions contemplated hereby or thereby; or


 


(b)           except,
as provided in Schedule 5.05, would reasonably be expected to have
a Material Adverse Effect (and assuming for this purpose a reasonable
likelihood of an adverse decision).  No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin
or restrain the execution, delivery or performance of this Agreement or any
other Loan Document, or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.


 


5.06        No
Default.  No
Default or Event of Default exists or would result from the incurring of any
Obligations by any Loan Party.  As of the
Closing Date, neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected
to have a Material Adverse Effect.  As of
the Closing Date there exists no “Event of Default” under and as defined in the
Existing Credit Facility.


 


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5.07        ERISA
Compliance. 
Except as referenced or provided for in either Schedule 5.05
or Schedule 5.07 attached hereto:


 


(a)           To the
best knowledge of the Borrower, no facts or circumstances exist which would
reasonably be expected to have a Material Adverse Effect in connection with the
failure of any Plan, or the failure of the Borrower, an ERISA Affiliate or any
Person with regard to the Plan, to comply with the applicable provisions of
ERISA, the Code and other Federal or state law. 
The Borrower and each ERISA Affiliate have made all required
contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any
Plan.


 


(b)           There
are no pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan which has resulted or would, if determined adversely to the Borrower
or any Plan, reasonably be expected to result in a Material Adverse
Effect.  There has been no prohibited
transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or would reasonably be expected to
result in a Material Adverse Effect.


 


(c)           To the
best knowledge of the Borrower (i) no ERISA Event has occurred or is
reasonably expected to occur; (ii) neither the Borrower nor any ERISA
Affiliate has incurred, nor reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iii) neither the
Borrower nor any ERISA Affiliate has incurred, nor reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) neither
the Borrower nor any ERISA Affiliate has engaged in a transaction that would
reasonably be expected to be subject to Section 4069 or 4212(c) of
ERISA, which is individually or in the aggregate has resulted or would be
reasonably expected to result in a Material Adverse Effect.


 


5.08        Title to
Properties. 
As of the Closing Date, the property of the Borrower and its
Subsidiaries is subject to no Liens, other than Permitted Liens.


 


5.09        Taxes.  The Borrower and its
Subsidiaries have filed all Federal and other material tax returns and reports
required to be filed, and have paid all Federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise, due and payable, except those
which are being contested in good faith by appropriate proceedings and for
which adequate reserves have been provided in accordance with GAAP and no
Notice of Lien has been filed or recorded. 
There is no proposed tax assessment against the Borrower or any of its
Subsidiaries which would, if the assessment were made, have a Material Adverse
Effect.


 


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5.10        Financial
Condition.


 


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


 


(b)           The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
September 30, 2005, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii),
to the absence of footnotes and to normal year-end audit adjustments.


 


(c)           Since
the date of the Audited Financial Statements, except for accounting matters
previously disclosed to the Administrative Agent and the Lenders or as
otherwise addressed in amendments to the Existing Credit Facility, there has
been no event or circumstance, either individually or in the aggregate, that
has had or would reasonably be expected to have a Material Adverse Effect.


 


5.11        Environmental
Matters.


 


(a)           The
on-going operations of the Borrower and each of its Subsidiaries comply in all
respects with all Environmental Laws, except such non-compliance which would
not (if enforced in accordance with applicable law) result in liability that
would reasonably be expected to have a Material Adverse Effect.


 


(b)           As of
the Closing Date, except as specifically disclosed on Schedule 5.11,
neither the Borrower nor any of its Subsidiaries or any of their respective
present property or operations is subject to any outstanding written order from
or agreement with any Governmental Authority nor subject to any judicial or
docketed administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material.


 


(c)           Except
as specifically disclosed on Schedule 5.11, there are no Hazardous
Materials or other conditions or circumstances existing with respect to any
property, or arising from operations of the Borrower or any of its Subsidiaries
that would reasonably be expected to give rise to Environmental Claims with a
potential liability of the Borrower and its Subsidiaries that in the aggregate
for any such condition, circumstance or property would reasonably be expected
to have a Material Adverse Effect.


 


5.12        Regulated
Entities. 
None of the Borrower, any Person controlling the Borrower, or any
Subsidiary of the Borrower, is an “investment company” within the meaning of
the Investment Company Act of 1940.


 


5.13        No
Burdensome Restrictions.  Neither the Borrower nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation, or subject
to any charter or corporate


 


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restriction,
or any Law, which could reasonably be expected to have a Material Adverse
Effect.  As of the Closing Date, no
Subsidiary (other than any Securitization Subsidiary) is party to or bound by
any Contractual Obligation restricting the ability of such Subsidiary to pay
dividends or make loans to the Borrower.


 


5.14        Solvency.  The Borrower, each of its
Material Subsidiaries and the Canadian Borrower are each Solvent.


 


5.15        Labor
Relations. 
There are no strikes, lockouts or other labor disputes against the
Borrower or any of its Subsidiaries, or, to the best of the Borrower’s
knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of
the Borrower, threatened against any of them before any Governmental Authority
which, in any case, could reasonably be expected to have a Material Adverse Effect.


 


5.16        Copyrights,
Patents, Trademarks and Licenses, Etc.  Except for any failure to comply with the
requirements of this Section 5.16 which would not, individually or
in the aggregate, result in a Material Adverse Effect: (a) the Borrower or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, franchises,
authorizations, and other rights that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person, (b) to the best knowledge of the Borrower, no slogan or
other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed by the Borrower or
any of its Subsidiaries infringes upon any rights held by any other Person; and
(c) except as specifically disclosed on Schedule 5.05 attached
hereto, no claim or litigation regarding any of the foregoing is pending or, to
the best knowledge of the Borrower, threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation, standard
or code is pending or, to the knowledge of the Borrower, proposed.


 


5.17        Material
Subsidiaries and Equity Investments.  As of the Closing Date, the Borrower has no
Subsidiaries other than the Subsidiaries set forth on Schedule 5.17
attached hereto.  The Borrower has no
Material Subsidiaries other than as set forth on Schedule 5.17 or
as disclosed to the Administrative Agent and the Lenders pursuant to Section 6.03(i) (including
their jurisdiction of incorporation) and has no Investment in any Person which
is not a Subsidiary of the Borrower except for such Investments that do not
exceed in the aggregate 10% of Consolidated Net Worth.  All Investments of the Borrower and its
Subsidiaries (other than Investments in Subsidiaries) with a net book value in
excess of US$1,000,000 as of the Closing Date are set forth on Schedule 5.17(A) attached
hereto.


 


5.18        Insurance.  As of the Closing Date, the
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or such Subsidiary operates.


 


5.19        Full
Disclosure. 
None of the representations or warranties made by the Borrower or any of
its Subsidiaries in the Loan Documents as of the date such representations and


 


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warranties
are made or deemed made, and none of the statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of the Borrower or
any Subsidiary in connection with the Loan Documents as of the date such
statements are made or deemed made, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which
they are made, not misleading.


 


5.20        Year End.  The fiscal year of the
Borrower ends on December 31st of each year.


 


5.21        Existing
Indebtedness. 
As of the Closing Date, neither the Borrower nor any of its Subsidiaries
has any Indebtedness other than Initial Permitted Indebtedness.


 


5.22        Swap
Contracts. 
As of the Closing Date, neither the Borrower nor any of its Subsidiaries
is subject to any obligation in respect of any Swap Contracts other than
Permitted Swap Obligations.


 


5.23        Margin Regulations; Investment Company Act.


 


(a)           Neither
the Borrower nor the Canadian Borrower is engaged or will engage, principally
or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB),
or extending credit for the purpose of purchasing or carrying margin stock.  Following the application of the proceeds of
each Borrowing or drawing under each Letter of Credit, not more than 25% of the
value of the assets (either of the Borrower only, or of the Borrower and its
Subsidiaries on a consolidated basis, or of the Canadian Borrower only, or of
the Canadian Borrower and its Subsidiaries on consolidated basis, as
applicable), subject to the provisions of Section 7.01 or Section 7.02
or subject to any restriction contained in any agreement or instrument between
either the Borrower or the Canadian Borrower and any Lender or any Affiliate of
any Lender relating to Indebtedness and within the scope of Section 8.01(e) will
be margin stock.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


The Borrower covenants and agrees that, so long as any
Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain issued
and outstanding, unless the Required Lenders waive compliance in writing:


 


6.01        Financial
Statements. 
The Borrower shall deliver to the Administrative Agent and each Lender
in form and detail satisfactory to the Administrative Agent and the Required
Lenders:


 


(a)           As
soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the
Securities Laws (without regard to any extensions of such date permitted by the
Securities Laws for which any special application is required other than an
extension obtained under Rule 12b-25 thereunder), an unqualified audit
report prepared in accordance with GAAP on a consolidated basis for itself and
its Subsidiaries, including balance sheets as of the end of such fiscal year
and related


 


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statements
of income, and changes in stockholders’ equity and cash flows and accompanied
by (i) a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with audit standards
of the Public Company Accounting Oversight Board and applicable Securities Laws
and shall not be subject to any going concern or like qualification or
exception or any qualification or exception as to the scope of such audit or
with respect to the absence of any material misstatement and (ii) (A) management’s assessment of the effectiveness
of the Borrower’s internal
controls over financial reporting as of the end of such fiscal year of the
Borrower as required in accordance with Item 308 of SEC Regulation S-K, and (B) with respect to such fiscal year
of the Borrower, an attestation
report (or reports) of a Registered Public Accounting Firm on management’s assessment and the opinion of
the Registered Public Accounting Firm independently assessing the effectiveness of the Borrower’s internal controls over financial reporting
in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2,
and Section 404 of Sarbanes-Oxley.


 


(b)           as
soon as available, but in any event by the date on which consolidated financial
statements for such period are required to be delivered to the SEC under the
Securities Laws after the end of the first three fiscal quarters of each fiscal
year of the Borrower (without regard to any extensions of such date permitted
by the Securities Laws for which any special application is required other than
an extension obtained under Rule 12b-25 thereunder), (i) a copy of
the Borrower’s quarterly report on Form 10-Q filed with the SEC with
respect to such fiscal quarter, (ii) an operating report summarizing the
Borrower’s consolidated (A) year-to-date profit and loss, revenue,
operating profit, invested capital, and cash flow information, and (B) fiscal
year forecasts of profit and loss, balance sheet, and cash flow information, as
well as fiscal year comparative forecasts of consolidating revenue, profit and
loss, operating profit, and investment capital information; or (iii) if
the Borrower at such time is not required to file such Form 10-Q with the
SEC under the Securities Laws, as soon as available, but in any event within 50
days after the end of each fiscal quarter, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income and cash flows for such fiscal
quarter and for the portion of the Borrower’s fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year, and the corresponding portion of the
previous fiscal year, together with the items described at clauses (A) and
(B) of this subsection; all in reasonable detail and certified by a
Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.


 


6.02        Certificates;
Other Information. 
The Borrower shall furnish to the Administrative Agent and each Lender:


 


(a)           as
soon as available, but not later than 15 days after the delivery of the
financial statements referred to in Section 6.01(a) and (b) above,
a Compliance Certificate, signed by a Responsible Officer;


 


(b)           copies
of each registration statement (or prospectus contained therein) of the
Borrower other than with respect to employee benefit plans, each periodic
report regarding the


 


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Borrower
required pursuant to Section 13 of the Securities Exchange Act of 1934,
each annual report, each proxy statement and any amendments to any of the above
filed or reported by the Borrower with or to any securities exchange or the
SEC, copies of each communication from the Borrower or any Subsidiary to the
Borrower’s shareholders generally, promptly upon the filing or making thereof
and copies of such other filings, reports and communications with the Borrower’s
shareholders as the Administrative Agent may from time to time request;


 


(c)           upon
release, copies of all financially material press releases by the Borrower;


 


(d)           promptly
after the creation or Purchase of any Material Subsidiary, the name of such
Subsidiary, a description of its business, the price paid for the stock or
assets of such Subsidiary, its net worth and the value of its assets;


 


(e)           promptly, and in any event (i) no later
than three (3) Business Days prior to any Request for Increased Credit
Extension or (ii) together with the delivery of any Compliance Certificate
pursuant to Section 6.02(a), if as of such date any Loan Party or
any Subsidiary thereof has received any of the following since the most recent
Request for Credit Extension, a summary of each initial notice, or any
subsequent material notice, or other material correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning
any investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any
Subsidiary thereof, which summary shall not contain any
untrue statement of a material fact or omit any material fact included in such
notice or correspondence necessary to make the statements made in such summary,
in light of the circumstances under which they are made, not misleading; provided,
however, that the Borrower shall not be required to submit such summary
if it is in violation of applicable SEC rules, regulations or policies;


 


(f)            promptly,
such additional business, financial, corporate affairs and other information as
the Administrative Agent, at the request of any Lender, may from time to time reasonably
request.


 


Reports required to be delivered pursuant to Sections
6.01(a) or (b) or 6.02(b) shall be deemed to have
been delivered on the date on which Borrower posts such reports on the Borrower’s
website on the Internet at the website address listed on Schedule 10.02
hereof or when such report is posted on the Securities and Exchange Commission’s
website at www.sec.gov; provided that (x) Borrower shall deliver paper
copies of such reports to the Administrative Agent or any Lender who requests
the Borrower to deliver such paper copies until written request to cease
delivering paper copies is given by the Administrative Agent or such Lender,
(y) the Borrower shall notify by facsimile the Administrative Agent and each
Lender of the posting of any such reports, and (z) in every instance the
Borrower shall provide paper copies of the Compliance Certificates required by Section 6.02(a) to
the Administrative Agent and each of the Lenders.  Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the reports referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such reports.


 


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The Borrower hereby acknowledges that (a) the
Administrative Agent and/or the Arranger will make available to the Lenders and
the L/C Issuer materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities)
(each, a “Public Lender”).  The
Borrower hereby agrees that (w) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the
Borrower shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as
not containing any material non-public information with respect to the Borrower
or its securities for purposes of United States Federal and state securities
laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.07);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor”.  Notwithstanding the foregoing, the Borrower
shall not be under any obligation to mark any Borrower Materials “PUBLIC.”


 


6.03        Notices.  The Borrower or the
Canadian Borrower (with respect only to (a) below) shall promptly notify
the Administrative Agent and each Lender upon a Responsible Officer of the
Borrower or the Canadian Borrower, respectively, obtaining knowledge:


 


(a)           of the
occurrence of any Default or Event of Default;


 


(b)           of (i) any
breach or non-performance of, or any default under, any Contractual Obligation
of the Borrower or any of its Subsidiaries which would reasonably be expected
to result in a Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority which would
reasonably be expected to result in a Material Adverse Effect (and assuming for
this purpose a reasonable likelihood of an adverse decision);


 


(c)           of the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary (i) which would reasonably be
expected to have a Material Adverse Effect (and taking into account the
reasonable likelihood of an adverse decision), or (ii) in which the relief
sought is an injunction or other stay of the performance of this Agreement or
any Loan Document;


 


(d)           of (i) any
and all enforcement, cleanup, removal or other governmental or regulatory
actions affecting the Borrower or any of its Subsidiaries or any of their
respective properties pursuant to any applicable Environmental Laws, (ii) all
other Environmental Claims, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the property of
the Borrower or any Subsidiary that could reasonably be anticipated to cause
the property of the Borrower or any of its Subsidiaries or any part thereof to
be subject to any restrictions on the ownership, occupancy, transferability or
use of such property under any


 


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Environmental
Laws, if, individually or in the aggregate, the events or conditions described
or the amount claimed in clauses (i), (ii) and (iii) would reasonably
be expected to result in a Material Adverse Effect;


 


(e)           of the
Registered Public Accounting Firm’s determination (in connection with its
preparation of any report under Section 6.01(a)(ii)) or the
Borrower’s determination of the occurrence or existence of any Internal Control
Event;


 


(f)            of
the occurrence of any ERISA Event affecting the Borrower or any ERISA
Affiliate, and deliver to the Administrative Agent and each Lender a copy of
any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Borrower
or any ERISA Affiliate with respect to such event;


 


(g)           of any
Material Adverse Effect subsequent to the date of the most recent audited
financial statements of the Borrower delivered to the Lenders pursuant to Section 6.01(a);


 


(h)           of any
material labor controversy resulting in or threatening to result in any strike,
work. stoppage, boycott, shutdown or other labor disruption against or
involving the Borrower or any of its Subsidiaries;


 


(i)            of (i) any
Subsidiary (including its jurisdiction of incorporation) being or becoming a
Material Subsidiary, or (ii) of any Material Subsidiary ceasing to be a
Material Subsidiary;


 


(j)            of
any change in any Debt Rating assigned by S&P or Moody’s; and


 


(k)           of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary to the extent not disclosed in the reports required
to be made available under Section 6.02(b).


 


Each notice pursuant to this Section 6.03
shall be accompanied by a written statement by a Responsible Officer of the
Borrower or the Canadian Borrower, as applicable, setting forth details of the
occurrence referred to therein, and stating what action, if any, the Borrower
or, if applicable, the Canadian Borrower, proposes to take with respect thereto
and at what time.  Each notice to the
Lenders under Section 6.03(a) shall describe with
particularity any and all clauses or provisions of this Agreement or other Loan
Document that have been breached or violated.


 


6.04        Preservation
of Corporate Existence, Etc.  The Borrower shall, and shall cause each of
its Subsidiaries to:


 


(a)           except
as permitted in Section 7.02, preserve and maintain in full force
and effect its corporate existence and good standing under the laws of its
state or jurisdiction of incorporation;


 


(b)           preserve
and maintain in full force and effect all material rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in the
normal conduct of its business except in connection with transactions permitted
by Section 7.02;


 


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(c)           use
its reasonable efforts, in the Ordinary Course of Business, to preserve its
business organization and preserve the goodwill and business of the customers,
suppliers and others having material business relations with it; and


 


(d)           preserve
or renew all of its registered trademarks, trade names and service marks, the
non-preservation of which would reasonably be expected to have a Material
Adverse Effect, provided, however, that the Borrower shall not be
deemed to be in default under this Section 6.04 if a Subsidiary
(other than a Material Subsidiary) fails to comply herewith so long as such
failure is not material.


 


6.05        Maintenance
of Property. 
The Borrower shall maintain, and shall cause each of its Subsidiaries to
maintain, and preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear excepted, make all
necessary repairs thereto and renewals and replacements thereof, and to keep
such property free of any Hazardous Materials, except where the failure to do
so would not reasonably be expected to result in a Material Adverse Effect,
except as permitted by Section 7.02.  The Borrower shall use at least the standard
of care typical in the industry in the operation of its facilities.


 


6.06        Insurance.  The Borrower shall
maintain, and shall cause each of its Material Subsidiaries to maintain, with
financially sound and reputable independent insurers, insurance with respect to
its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons; including workers’ compensation insurance,
public liability and property and casualty insurance.  Upon request of the Administrative Agent or
any Lender, the Borrower shall furnish the Administrative Agent, with
sufficient copies for each Lender, at reasonable intervals (but not more than
once per calendar year) a certificate of a Responsible Officer of the Borrower
(and, if requested by the Administrative Agent, any insurance broker of the
Borrower) setting forth the nature and extent of all insurance maintained by
the Borrower and its Material Subsidiaries in accordance with this Section 6.06
(and which, in the case of a certificate of a broker, were placed through such
broker).


 


6.07        Payment
of Obligations. 
The Borrower shall, and shall cause its Subsidiaries to, pay and
discharge as the same shall become due and payable, all their respective
obligations and liabilities, including:


 


(a)           all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary;


 


(b)           all
lawful claims which, if unpaid, would by law become a Lien upon its property;


 


(c)           all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness;


 


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provided, however, that the Borrower and its Subsidiaries shall not
be deemed to be in default under this Section 6.07 if failure to
comply herewith would not result in a Material Adverse Effect.


 


6.08        Compliance
with Laws. 
The Borrower shall comply, and shall cause each of its Subsidiaries to
comply, in all material respects with all material Laws applicable to it or its
business (including the Federal Fair Labor Standards Act), except such as may
be contested in good faith or as to which a bona fide dispute may exist.


 


6.09        Inspection
of Property and Books and Records.  Each of the Borrower and the Canadian
Borrower shall maintain and the Borrower shall cause each of its Material
Subsidiaries to maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and
business of the Borrower and such Subsidiaries. 
The Borrower shall permit, and shall cause each of its Material
Subsidiaries to permit, and the Canadian Borrower shall permit, representatives
and independent contractors of the Administrative Agent (or the Canadian
Subfacility Agent, if applicable) or any Lender to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants at such reasonable times during
normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower or to the Canadian Borrower, as
applicable; provided, however, when a Default or Event of Default
exists, (i) the Administrative Agent (or the Canadian Subfacility Agent,
if applicable) or any Lender may do any of the foregoing with respect to the
Borrower or any Subsidiary or the Canadian Borrower at any time during normal
business hours and without advance notice and (ii) such inspection,
examination and meetings shall be at the expense of the Borrower or the
Canadian Borrower, as applicable.


 


6.10        Environmental
Laws.


 


(a)           The
Borrower shall, and shall cause each of its Subsidiaries to, conduct its
operations and keep and maintain its property in compliance in all material
respects with all Environmental Laws.


 


(b)           Upon
the written request of the Administrative Agent or any Lender, the Borrower
shall submit to the Administrative Agent with sufficient copies for each
Lender, at the Borrower’s sole cost and expense, a report providing an update
of the status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to Section 6.03(d).


 


6.11        Use of
Proceeds. 
The Borrower may use the proceeds of the Loans and the Letters of Credit
(a) to replace the Existing Credit Facility, (b) to provide liquidity
for the issuance of commercial paper, and (c) to meet the ongoing working
capital, capital expenditures and general corporate needs of the Borrower and
its subsidiaries, including Letters of Credit, permitted acquisitions and share
repurchases.  Letters of Credit shall be
used by the Borrower and its Subsidiaries for Ordinary Course of Business
purposes.  The Canadian Subfacility shall
be used to meet the ongoing working capital, capital expenditures and general
corporate needs of


 


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the
Canadian Borrower and its subsidiaries and to finance in whole or in part any
repatriation of funds to the Borrower under the American Jobs Creation Act of
2004.


 


6.12        Further
Assurances.


 


(a)           The
Borrower shall ensure that all written information, exhibits and reports
furnished to the Administrative Agent or the Lenders do not and will not
contain any untrue statement of a material fact and do not and will not omit to
state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, and will promptly
disclose to the Administrative Agent and the Lenders and correct any defect or
error that may be discovered therein or in any Loan Document or in the
execution, acknowledgment or recordation thereof.


 


(b)           Promptly
upon request by the Administrative Agent or the Required Lenders, each of the
Borrower and the Canadian Borrower shall (and shall cause any of its
Subsidiaries to) do, execute, acknowledge and deliver any and all such further
acts, certificates, assurances and other instruments as the Administrative
Agent or such Lenders, as the case may be, may reasonably require from time to
time in order (i) to carry out more effectively the purposes of this
Agreement or any other Loan Document, and (ii) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm to the Administrative
Agent and Lenders the rights granted or now or hereafter intended to be granted
to the Lenders under any Loan Document or tinder any other document executed in
connection therewith.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


The Borrower hereby covenants and agrees that, so long
as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied or any Letter of Credit shall
remain issued and outstanding, unless the Required Lenders waive compliance in
writing:


 


7.01        Limitation
on Liens. 
The Borrower shall not, and shall not suffer or permit any of its
Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer
to exist any Lien upon or with respect to any part of its property, whether now
owned or hereafter acquired, other than the following (“Permitted Liens”):


 


(a)           any
Lien created under any Loan Document;


 


(b)           Liens
for taxes, fees, assessments or other governmental charges or statutory
obligations which are not delinquent or remain payable without penalty, or to
the extent that nonpayment thereof is permitted by Section 6.07,
provided that no Notice of Lien has been filed or recorded under the Code;


 


(c)           Liens
arising in the Ordinary Course of Business in connection with obligations
(other than obligations for borrowed money) that are not overdue or which are
being contested in good faith and by appropriate proceedings, including, but
not limited to Liens under bid, performance and other surety bonds, supersedeas
and appeal, bonds, Liens on advance or progress payments received from
customers under contracts for the sale, lease or license of


 


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goods,
software or services and upon the products being sold or licensed, in each case
securing performance of the underlying contract or the repayment of such
advances in the event final acceptance of performance under such contracts does
not occur; and Liens upon funds collected temporarily from others pending
payment or remittance on their behalf;


 


(d)           Liens
(other than any Lien imposed by ERISA) required in the Ordinary Course of
Business in connection with workers’ compensation, unemployment insurance and
other social security legislation;


 


(e)           easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
Ordinary Course of Business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the
businesses of the Borrower and its Subsidiaries;


 


(f)            purchase
money security interests on any property acquired or held by the Borrower or
its Subsidiaries in the Ordinary Course of Business securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such property to the extent permitted under Section 7.04;
provided, however, that (i) any such Lien attaches to such
property concurrently with or within 20 days after the acquisition thereof, (ii) such
Lien attaches solely to the property so acquired in such transaction, and (iii) the
principal amount of the debt secured thereby does not exceed 100% of the cost
of such property;


 


(g)           Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided,
however, that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Borrower in excess of those set forth by regulations promulgated by the FRB,
and (ii) such deposit account is not intended by the Borrower or any of
its Subsidiaries to provide collateral to the depository institution;


 


(h)           rights
of holders of notes or debentures issued by the Borrower or any Subsidiary in
deposits placed in trust to legally or “in substance” defease such notes or
debentures;


 


(i)            Liens
consisting of pledges of cash collateral or government securities to secure, on
a mark-to-market basis, Permitted Swap Obligations only, provided that
the aggregate value of such collateral so pledged by the Borrower and the
Subsidiaries together in favor of any counterparty does not at any time exceed
US$25,000,000;


 


(j)            the
interest of a purchaser of Permitted Receivables pursuant to a Permitted
Securitization, or any Lien on the assets of a Securitization Subsidiary
granted pursuant to a Permitted Securitization;


 


(k)           Liens
on the property or assets of any corporation that becomes a Subsidiary of the
Borrower after the Closing Date, provided that (i) such Liens exist
at the time such corporation becomes a Subsidiary, and (ii) such Liens are
not created in contemplation of such acquisition by the Borrower or its
Subsidiaries or for purposes of circumventing this Agreement;


 


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(l)            Liens
on the property or assets of any Subsidiary securing obligations of any such
Subsidiary to the Borrower; or


 


(m)          any
Lien (not otherwise permitted by this Section 7.01) securing an
obligation of the Borrower or any Subsidiary if the aggregate amount of all
such obligations secured by all such Liens does not exceed 15% of Consolidated
Net Worth; provided, however, that the assets of any Material
Subsidiary or of the Canadian Borrower may only be subject to Liens permitted
under this Section 7.01(m) which secure obligations that do not
exceed 15% the total assets of such Material Subsidiary or of the Canadian
Borrower, respectively, as determined in accordance with GAAP.


 


Any specific exclusion of the Canadian Borrower under any of the
foregoing exceptions will not apply from any date the Canadian Subfacility is voluntarily
terminated pursuant to Section 2A.04.


 


7.02        Mergers, Consolidations and Dispositions of Assets.


 


(a)           Except
as provided in Section 7.02(b), the Borrower shall not, and shall
not permit any of its Subsidiaries to: (i) sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of related
transactions) any property or assets (including accounts and notes receivable,
with or without recourse) (collectively, “transfer”) to any Person
except in the Ordinary Course of Business; (ii) transfer to any Person
other than the Borrower or a Subsidiary any outstanding capital stock that has
been issued by any Subsidiary; or (iii) consolidate with or merge into any
other Person.


 


(b)           Section 7.02(a) shall not apply to or restrict:


 


(i)            merger or consolidation of
any third Person with or into the Borrower or any existing Subsidiary of the
Borrower, provided that (A) no Default or Event of Default has occurred
and is continuing at the time of, or would result from, the consummation of
such merger or consolidation, and (B) either (1) the Borrower or such
existing Subsidiary of the Borrower is the surviving entity in such merger or,
if the third Person or a new entity is the surviving or resulting entity in
such merger or consolidation with a Subsidiary, it becomes a Subsidiary of the
Borrower by virtue of such merger or consolidation with an existing Subsidiary,
or (2) if the merger or consolidation involves an existing Subsidiary of
the Borrower and clause (B)(1) is not applicable, the transaction would be
permitted by Section 7.02(b)(x) utilizing the net book value of the
Subsidiary; notwithstanding the foregoing in either (1) or (2), the
Canadian Borrower shall survive each merger or consolidation to which it is a
party, except such a merger in which the Borrower is the survivor;


 


(ii)           the merger or consolidation
of any Subsidiary into the Borrower, or (other than the Canadian Borrower) with
or into any other Subsidiaries, provided that if any such transaction is
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary
is the continuing or surviving corporation;


 


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(iii)          the transfer by any
Subsidiary of the Borrower of any assets (upon voluntary liquidation or otherwise)
to the Borrower or (other than the Canadian Borrower) a Wholly-Owned Subsidiary
of the Borrower;


 


(iv)          transfers of real estate not
used or useful in the business of the Borrower and its Subsidiaries, any bulk
sale of inventory not representing a then current product line of the Borrower
or its Subsidiaries, or any sale of property or assets used in connection with
discontinued or abandoned product lines of the Borrower or its Subsidiaries;


 


(v)           the sale of equipment to
the extent that such equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such replacement
equipment;


 


(vi)          the transfer of assets by
the Borrower to any of its Subsidiaries (A) made in connection with a
transaction permitted under subsection (b)(i) above, or (B) if
such transfer is a sale for fair market value and the consideration received by
the Borrower is cash;


 


(vii)         the mergers, consolidations
or transfers of assets listed on Schedule 7.02 attached hereto;


 


(viii)        (A) a sale or transfer of
Permitted Receivables pursuant to a Permitted Securitization and (B) servicer
advances, each for a term not exceeding three months, not to exceed
US$5,000,000 in the aggregate at any time for all such advances then
outstanding and undertaken pursuant to one or more Permitted Securitizations;


 


(ix)           any transfer of assets by
the Borrower or any of its Subsidiaries to any Person in connection with the
extension of Indebtedness or making an investment or acquisition transaction or
business combination otherwise permitted under this Agreement; and


 


(x)            transfers of assets not
otherwise permitted hereunder (whether by merger, consolidation or otherwise)
occurring after the Closing Date which are made for fair market value;
provided, however, that (A) at the time of any transfer, no Default or
Event of Default exists or would result from such transfer and (B) the
aggregate net book value of all assets so transferred per annum by the Borrower
and its Subsidiaries together shall not exceed 6% of Consolidated Total Assets.


 


Any specific exclusion of the Canadian Borrower under any of the
foregoing exceptions will not apply from any date the Canadian Subfacility is
voluntarily terminated pursuant to Section 2A.04.


 


7.03        Cash
Investments; Minority Investments.  The Borrower shall not, and shall not permit
any of its Subsidiaries to, (a) invest any assets classified in accordance
with GAAP on the Borrower’s consolidated balance sheet as “cash and equivalents”
or “short-term investments” in investments other than Cash Equivalents,
investment grade marketable securities, and servicer


 


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advances
permitted under Section 7.02(b)(viii), or (b) make any
Investment in any Person which is not a Subsidiary of the Borrower, except for
such Investments that, when aggregated with the Investments set forth on Schedule 5.17(A) hereto,
do not exceed in the aggregate 10% of Consolidated Net Worth.


 


7.04        Indebtedness.  The Borrower shall not, and
shall not permit any of its Subsidiaries to, incur, assume or suffer to exist
any Indebtedness (other than any Indebtedness arising hereunder) (a) if a
Default or Event of Default has occurred and is continuing or would result from
the incurrence or assumption of such Indebtedness or (b) if the aggregate
principal amount of all such Indebtedness of such Subsidiaries (other than
Securitization Subsidiaries) would exceed 10% of Consolidated Net Worth.


 


7.05        Contingent
Obligations. 
The Borrower shall not, and shall not suffer or permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Contingent
Obligations except:


 


(a)           Contingent
Obligations incurred pursuant to this Agreement;


 


(b)           Contingent
Obligations undertaken by Comdata pursuant to a Permitted Securitization;


 


(c)           endorsements
for collection or deposit in the Ordinary Course of Business;


 


(d)           Guaranty
Obligations of the Borrower relating to account overdrafts incurred by the
Borrower solely in its capacity as a trustee in respect of third party payroll
deposit accounts maintained by the Borrower in the Ordinary Course of Business,
where (i) recourse to the Borrower is limited to such trust assets, or (ii) recourse
is not so limited and the Borrower has recourse to such trust assets for
reimbursement or contribution under applicable law and contract;


 


(e)           Contingent
Obligations consisting of Guaranty Obligations of (i) the Borrower in
respect of the Indebtedness of, or other obligation payable or performable by,
any Wholly-Owned Subsidiary or (ii) any Subsidiary in respect of
Indebtedness of, or other obligation payable or performable by, the Borrower or
any Wholly-Owned Subsidiary;


 


(f)            other
Contingent Obligations of the Borrower and its Subsidiaries in an aggregate
amount not in excess of US$50,000,000 at any time.


 


7.06        Use of
Proceeds. 
Neither the Borrower nor the Canadian Borrower shall, and the Borrower
shall not suffer or permit any of its Subsidiaries to, use any portion of the
Loan proceeds, or any Letter of Credit, directly or indirectly, in violation of
Regulation T, U or X of the FRB.


 


7.07        Hostile
Acquisitions. 
The Borrower shall not, and shall not permit any of its Subsidiaries to,
(a) Purchase, or attempt to Purchase, any Person by means of a public debt
or equity tender offer or other unsolicited takeover (or the equivalent thereof
in any jurisdiction) or (b) engage in a proxy contest (or the equivalent
thereof in any jurisdiction) for control of the board of directors (or the functional
equivalent thereof) of any Person, in either case which has


 


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not
been approved and recommended by the board of directors (or the functional
equivalent thereof) of the Person being acquired or proposed to be acquired or
which is the subject of such proxy contest.


 


7.08        Lease
Obligations. 
The Borrower shall not permit the aggregate minimum noncancelable
payment commitments in respect of Operating Leases for the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP at the
end of any fiscal year to exceed, for any subsequent fiscal year,
US$75,000,000.


 


7.09        Interest
Coverage Ratio. 
On and after the Closing Date, the Borrower shall not permit its ratio
of (a) Consolidated EBIT to (b) Consolidated Interest Expense, each
calculated for the immediately preceding four fiscal quarters of the Borrower
(including fiscal quarters ending prior to the Closing Date), to be less than
2.75 to 1.00.


 


7.10        Debt/Total
Capitalization. 
On and after the Closing Date, the Borrower shall not permit, as of the
end of any fiscal quarter, its ratio of (a) Consolidated Indebtedness to (b) the
sum of Consolidated Indebtedness plus Consolidated Net Worth, to be greater
than 50%.


 


7.11        Change in
Business. 
The Borrower shall not, and shall not permit any of its Subsidiaries to,
(a) engage in any material line of business substantially different from
those lines of business conducted by the Borrower and its Subsidiaries on the
Closing Date; (b) extend any material amount of Indebtedness to or make
any material equity investment in any Person which engages in one or more lines
of business all of which are substantially different from those lines of
business carried on by the Borrower and its Subsidiaries on the Closing Date;
or (c) enter into any joint venture which engages in a material line of
business substantially different from those lines of business carried on by the
Borrower and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.


 


7.12        Accounting
Changes.  The
Borrower shall not, and shall not suffer or permit any of its Subsidiaries to,
make any significant change in accounting treatment or reporting practices,
except as required or permitted by GAAP, or change the fiscal year of the
Borrower or of any of its consolidated Subsidiaries.


 


7.13        Contracts
of Subsidiaries. 
The Borrower shall not permit any of its Subsidiaries (other than any
Canadian payroll processing Subsidiary of the Borrower in existence as of the
Closing Date or any Securitization Subsidiary) to enter into any Contractual
Obligation restricting the ability of such Subsidiary to pay dividends or make
loans to the Borrower or Subsidiaries of the Borrower.


 


7.14        Licenses.  The Borrower shall, and
shall cause each of its Subsidiaries to, obtain and maintain all material
licenses, authorizations, consents, filings, exemptions, registrations and
other governmental approvals necessary in connection with the execution,
delivery and performance of the Loan Documents, the consummation of the
transactions therein contemplated or the operation and conduct of its business
and ownership of their properties.


 


7.15        Transactions
with Affiliates. 
The Borrower shall not, and shall not suffer or permit any of its
Subsidiaries to, enter into any transaction of any kind with any Affiliate of
the


 


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Borrower
(other than a Subsidiary), other than Permitted Securitizations and arm’s-length
transactions with such Persons that are otherwise permitted hereunder.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of
Default.  Any
of the following shall constitute an Event of Default:


 


(a)           Non-Payment.  The Borrower or the
Canadian Borrower fails to pay (i) when and as required to be paid herein,
any amount of principal of any Loan, or any L/C Obligation, or (ii) within
three days after the same becomes due, any interest on any Loan or on any L/C
Obligation, or any commitment, utilization or other fee due hereunder, or (iii) within
five days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or


 


(b)           Specific
Covenants. 
The Borrower or the Canadian Borrower fails to perform or observe any
term, covenant, or agreement contained in Section 6.03(a), Section 6.09,
Section 6.11 or in Article VII; or the Borrower fails
to perform or observe any term, covenant or agreement contained in Section 6.01
or Section 6.02 or in Section 6.03 (other than subsection (a) thereof)
and such failure continues unremedied for a period of 10 days; or


 


(c)           Other
Defaults. 
The Borrower fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and such default
continues unremedied for a period of 20 days; or


 


(d)           Representations
and Warranties. 
Any representation or warranty made or deemed made by the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith, or therewith proves to have been incorrect in
any material respect when made or deemed made; or


 


(e)           Cross-Default.  (i) The Borrower or
any Subsidiary (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guaranty Obligation (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than the Threshold Amount, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guaranty
Obligation or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guaranty Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased or redeemed
(automatically or otherwise) prior to its stated maturity, or such Guaranty
Obligation to become payable or cash collateral in respect thereof to be
demanded; (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which the Borrower or any Subsidiary is
the Defaulting Party (as


 


92





















 


defined
in such Swap Contract) or (B) any Termination Event (as so defined) under
such Swap Contract as to which the Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by
the Borrower or such Subsidiary as a result thereof is greater than the
Threshold Amount; or (iii) there occurs any early termination,
liquidation, unwind or similar event or circumstance under any Permitted
Securitization as a result of which any purchaser of receivables thereunder has
ceased purchasing such receivables and has applied all collections on previously
purchased receivables thereunder to the repayment of such purchaser’s interest
in such previously purchased receivables, other than (A) any such event or
circumstance that arises solely as the result of a down-grading of the credit
rating of any bank or financial institution not affiliated with the Borrower
that provides liquidity, credit or other support in connection with any such
Permitted Securitization, or (B) any termination undertaken voluntarily by
the seller of Permitted Receivables and in the absence of any current or
anticipated event of default or termination event under the applicable
securitization documents; or


 


(f)            Insolvency
Proceedings, Etc. 
Any Loan Party or any of its Subsidiaries institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; provided,
however, that it shall not be an Event of Default under this subsection (f) if
any Subsidiary of the Borrower to which this subsection applies, other
than the Canadian Borrower, to which this subsection shall apply notwithstanding
the foregoing, does not have annual revenues in excess of 1% of the
consolidated revenues of the Borrower or net worth which constitutes more than
5% of the Consolidated Net Worth of the Borrower in the fiscal year immediately
preceding the date this subsection first becomes applicable to such
Subsidiary; or


 


(g)           Inability
to Pay Debts; Attachment.  (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; provided, however,
that it shall not be an Event of Default under this subsection (g) if
any Subsidiary of the Borrower to which this subsection applies, other
than the Canadian Borrower, to which this subsection shall apply
notwithstanding the foregoing, does not have annual revenues in excess of 1% of
the consolidated revenues of the Borrower or net worth which constitutes more
than 5% of the Consolidated Net Worth of the Borrower in the fiscal year
immediately preceding the date this subsection first becomes applicable to
such Subsidiary; or


 


(h)           Judgments.  There is entered against
the Borrower or any Subsidiary (A) a final judgment, order or decree for
the payment of money in an aggregate amount exceeding the Threshold Amount (to
the extent not covered by independent third-party insurance as to which


 


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the
insurer does not dispute coverage), or (B) any non-monetary final
judgment, order or decree that has, or would reasonably be expected to have, a
Material Adverse Effect and, in either case, (I) enforcement proceedings are
commenced by any creditor upon such judgment, order or decree, or (II) there
shall be any period of 10 consecutive days during which such judgment, order or
decree continues unsatisfied and during which a stay of enforcement of such
judgment, order, or decree, by reason of a pending appeal or otherwise, shall
not be in effect; or


 


(i)            ERISA.  (i) An ERISA Event
occurs with respect to a Pension Plan or Multiemployer Plan which has resulted
or would reasonably be expected to result in liability of the Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount that would reasonably be expected to result in a Material
Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of
ERISA under a Multiemployer Plan in an aggregate amount that would reasonably
be expected to result in a Material Adverse Effect; or


 


(j)            Invalidity
of Loan Documents. 
Any Loan Document, at any time after its execution and delivery and for
any reason other than the agreement of all the Lenders or satisfaction in full
of all the Obligations, ceases to be in full force and effect, or is declared
by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any material respect; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document; or


 


(k)           Change
of Control. 
There occurs any Change of Control.


 


8.02        Remedies
Upon Event of Default.  If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders,


 


(a)           declare
the commitment of each Lender to make Loans and any obligations of the L/C
Issuer to make L/C Credit Extensions, of the Swing Line Lender to make Swing
Line Loans, and of the Canadian Subfacility Funding Lenders to make Canadian
Subfacility Loans to be terminated, whereupon such commitments and obligations
shall be terminated;


 


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower and the Canadian Borrower;


 


(c)           require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and


 


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;


 


provided, however, that upon the occurrence of any event specified in
subsection (f) of Section 8.01, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make


 


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L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


8.03        Application
of Funds.  After
the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent and the Canadian Subfacility Agent and
amounts payable under Article III) payable to the Administrative
Agent or the Canadian Subfacility Agent, as applicable, in its respective
capacity as such;


 


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and
disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for
attorneys who may be employees of any Lender or the L/C Issuer) and
amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second
payable to them;


 


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other
Obligations, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Third payable to them;


 


Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Fourth
held by them;


 


Fifth,
to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and


 


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


 


Subject to Section 2.03(c), amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to
clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur.  If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.


 


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ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01        Appointment
and Authority.  Each of the Lenders and the L/C Issuer (with respect to (a) only)
hereby irrevocably appoints (a) Bank of America to act on its behalf as
the Administrative Agent and (b) Bank of America, acting through its
Canada branch, to act on its behalf as the Canadian Subfacility Agent hereunder
and under the other Loan Documents and authorizes the Administrative Agent and
the Canadian Subfacility Agent to take such actions on its behalf and to exercise
such powers as are delegated to each of the Administrative Agent and the
Canadian Subfacility Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.  The provisions of this Article are
solely for the benefit of each of the Administrative Agent, the Canadian
Subfacility Agent, the Lenders and the L/C Issuer, and no Loan Party shall have rights as a third party beneficiary of any of such
provisions.


 


9.02        Rights as
a Lender.  Each
Person serving as the Administrative Agent and the Canadian Subfacility Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent or the Canadian Subfacility Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent or
the Canadian Subfacility Agent hereunder in its individual capacity,
respectively.  Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or the Canadian Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent or
the Canadian Subfacility Agent hereunder and without any duty to account
therefor to the Lenders.


 


9.03        Exculpatory
Provisions.  Neither
the Administrative Agent nor the Canadian Subfacility Agent shall have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents.  Without limiting the
generality of the foregoing, neither the Administrative Agent nor the Canadian
Subfacility Agent:


 


(a)           shall
be subject to any fiduciary or other implied duties, regardless of whether a
Default or Event of Default has occurred and is continuing;


 


(b)           shall
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that either the Administrative Agent or the
Canadian Subfacility Agent, as applicable, is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that neither the Administrative Agent nor the
Canadian Subfacility Agent shall be required to take any action that, in its
opinion or the opinion of its counsel, may expose it to liability or that is
contrary to any Loan Document or applicable law; and


 


(c)           shall
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall be liable for the failure to disclose, any
information relating to the Borrower, the Canadian Borrower or any of their
respective Affiliates that is communicated to or


 


96





















 


obtained
by the Person serving as the Administrative Agent or the Canadian Subfacility
Agent or any of their Affiliates in any capacity.


 


Neither the Administrative Agent nor the Canadian
Subfacility Agent shall be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 10.01 and 8.02) or (ii) in the absence
of its own gross negligence or willful misconduct.  Neither the Administrative Agent nor the
Canadian Subfacility Agent shall be deemed to have knowledge of any Event of
Default unless and until notice describing such Event of Default is given to the
Administrative Agent by the Borrower, a Lender or the L/C Issuer or until
notice describing such Event of Default is given to the Canadian Subfacility
Agent by the Canadian Borrower or a Lender.


 


Neither the Administrative Agent nor the Canadian
Subfacility Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Event of Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent or to the Canadian Subfacility Agent.


 


9.04        Reliance
by Administrative Agent and the Canadian Subfacility Agent.  Each of the
Administrative Agent and the Canadian Subfacility Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  Each of the Administrative Agent and the
Canadian Subfacility Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the L/C
Issuer, the Administrative Agent and, with respect to a Canadian Subfacility
Loan, the Canadian Subfacility Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
or, in the case of a Canadian Subfacility Loan, the Canadian Subfacility Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or Canadian Subfacility Loan or the issuance
of such Letter of Credit.  Each of the
Administrative Agent and the Canadian Subfacility Agent may consult with legal
counsel (who may be counsel for the Borrower or the Canadian Borrower, respectively),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


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9.05        Delegation
of Duties.  Each
of the Administrative Agent and the Canadian Subfacility Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub agents appointed by the
Administrative Agent or the Canadian Subfacility Agent, respectively.  Each of the Administrative Agent and the
Canadian Subfacility Agent and any such sub agent may perform any and all of
its duties and exercise its rights and powers by or through their respective
Related Parties.  The exculpatory
provisions of this Article shall apply to any such sub agent and to the
Related Parties of the Administrative Agent and the Canadian Subfacility Agent
and of any such sub agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent or as Canadian Subfacility Agent.


 


9.06        Resignation
of Administrative Agent or the Canadian Subfacility Agent.  Each of the
Administrative Agent and the Canadian Subfacility Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer, the Borrower and the
Canadian Borrower, as applicable.  Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right (subject to the prior written consent of the Borrower (which shall not be
unreasonably withheld) to the extent no Default or Event of Default then
exists) to appoint a successor Administrative Agent, which shall be a bank with
an office in the United States, or an Affiliate of any such bank with an office
in the United States, and, with respect to the resignation of the Canadian
Subfacility Agent, in consultation with the Canadian Borrower, to appoint a
successor Canadian Subfacility Agent, which shall be a bank with an office in
Canada, or an Affiliate of any such bank with an office in Canada.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within
30 days after either the retiring Administrative Agent or the Canadian
Subfacility Agent gives notice of its resignation, then such retiring
Administrative Agent or such retiring Canadian Subfacility Agent, as the case
may be, may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent or Canadian Subfacility Agent, respectively, meeting the
qualifications set forth above; provided that if the Administrative
Agent shall notify the Borrower and the Lenders and that if the Canadian
Subfacility Agent shall notify the Canadian Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent or the retiring Canadian Subfacility Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, or all payments,
communications and determinations provided to be made by, to or through the
Canadian Subfacility Agent shall instead be made by or to each Canadian
Subfacility Funding Lender directly, until such time as the Required Lenders
appoint a successor Administrative Agent or Canadian Subfacility Agent,
respectively, as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent or Canadian Subfacility Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative Agent
or Canadian Subfacility Agent, respectively, and the retiring Administrative
Agent or Canadian Subfacility Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent or by the Canadian Borrower to a successor
Canadian Subfacility Agent


 


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shall
be the same as those payable to its predecessor unless otherwise agreed between
the Borrower or the Canadian Borrower and such respective successor.  After the retiring Administrative Agent’s or
Canadian Subfacility Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of each such retiring Administrative
Agent or Canadian Subfacility Agent, its sub agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any
of them while the retiring Administrative Agent or Canadian Subfacility Agent
was acting as Administrative Agent or Canadian Subfacility Agent, respectively.


 


Any resignation by Bank of
America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


 


Any resignation by Bank of
America, acting through its Canada branch, as Canadian Subfacility Agent
pursuant to this Section shall also constitute its resignation as a
Canadian Subfacility Funding Fronting Lender. 
Upon the acceptance of a successor’s appointment as Canadian Subfacility
Agent hereunder, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring Canadian
Subfacility Funding Fronting Lender, (b) the retiring Canadian Subfacility
Funding Fronting Lender shall be discharged from all of its respective duties
and obligations hereunder or under the other Loan Documents, and (c) the
successor Canadian Subfacility Funding Fronting Lender shall make arrangements
satisfactory to the retiring Canadian Subfacility Funding Fronting Lender to
effectively assume the obligations of the retiring Canadian Subfacility Funding
Fronting Lender with respect to outstanding Canadian Subfacility Loans.


 


9.07        Non-Reliance
on Administrative Agent, Canadian Subfacility Agent and Other Lenders.  Each Lender, the
L/C Issuer, the Swing Line Lender and each Canadian Subfacility Funding Fronting Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Canadian Subfacility Agent or any other Lender or any of their Related Parties
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.  Each Lender, the L/C Issuer, the Swing Line
Lender and each Canadian Subfacility
Funding Fronting Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Canadian Subfacility
Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.


 


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9.08        No Other
Duties, Etc.  Anything herein to the contrary notwithstanding, none of the Book
Managers, Arrangers, Co-Documentation Agents or Co-Syndication Agents listed on
the cover page hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, the Canadian Subfacility
Agent, a Lender or the L/C Issuer hereunder.


 


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


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the L/C Issuer, the
Administrative Agent and the Canadian Subfacility Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Lenders, the L/C Issuer, the Administrative Agent and the Canadian Subfacility
Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer, the Administrative Agent and the Canadian Subfacility Agent
under Sections 2.03(i) and (j), 2.09, 2A.07
and 10.04) allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender and the L/C Issuer to
make such payments to the Administrative Agent or the Canadian Subfacility
Agent, as applicable, and, in the event that the Administrative Agent or the
Canadian Subfacility Agent, as applicable, shall consent to the making of such
payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent or the Canadian Subfacility Agent, as applicable, any
amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and the Canadian Subfacility Agent and its
agents and counsel, and any other amounts due the Administrative Agent or the
Canadian Subfacility Agent, as applicable, under Sections 2.09 and 10.04.


 


Nothing contained herein shall be deemed to authorize
either the Administrative Agent or the Canadian Subfacility Agent to authorize
or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize either the Administrative


 


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Agent or the Canadian Subfacility Agent to
vote in respect of the claim of any Lender in any such proceeding.


 


ARTICLE X.

MISCELLANEOUS


 


10.01      Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any
other Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the Borrower or the applicable Loan Party, as the case may
be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such
amendment, waiver or consent shall:


 


(a)           waive
any condition set forth in Section 4.01(a) without the written
consent of each Lender;


 


(b)           extend
or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of
such Lender, or increase the Canadian Subfacility Funding Applicable Percentage
of either Canadian Subfacility Funding Fronting Lender without the written
consent of such Canadian Subfacility Funding Fronting Lender;


 


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


 


(d)           reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of
the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower or
Canadian Borrower to pay interest or Letter of Credit Fees at the Default Rate;


 


(e)           change
Section 2.13, Section 2A.12 or Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;


 


(f)            amend
Section 1.06 or the definition of “Alternative Currency” without
the written consent of each Lender;


 


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


 


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(h)           release
the Guarantor from the Guaranty without the written consent of each Lender; or


 


(i)            amend
Section 2A.02(f) in any manner adverse to any Lender without
the written consent of such Lender;


 


and, provided  further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties
of the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver
or consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iv) no
amendment, waiver or consent shall, unless in writing and signed by the
Canadian Subfacility Agent in addition to the Lenders required above, affect
the rights or duties of the Canadian Subfacility Agent under this Agreement or
any other Loan Document; (v) no amendment, waiver or consent shall, unless
in writing and signed by the applicable Canadian Subfacility Funding Fronting
Lender in addition to the Lenders required above, affect the rights or duties
of such Canadian Subfacility Funding Fronting Lender under this Agreement or
any other Loan Document; and (vi) the Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to the
contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


10.02      Notices; Effectiveness; Electronic Communication.


 


(a)           Notices
Generally. 
Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:


 


(i)            if to the Borrower, the
Canadian Borrower, the Administrative Agent, the Canadian Subfacility Agent,
the L/C Issuer or the Swing Line Lender, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule 10.02;
and


 


(ii)           if to any other Lender, to
the address, telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.


 


Notices sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when
sent (except that, if not given during normal business hours for


 


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the recipient, shall be deemed to have been
given at the opening of business on the next business day for the
recipient).  Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


(b)           Electronic
Communications. 
Notices and other communications to the Lenders and the L/C Issuer
hereunder may be delivered or furnished by electronic communication (including
e mail and Internet or intranet websites) pursuant to procedures approved by
the Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or the L/C Issuer pursuant to Article II or Article IIA,
as applicable, if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent or the Canadian Subfacility Agent, respectively, that
it is incapable of receiving notices under such Article by electronic
communication.  The Administrative Agent,
the Canadian Subfacility Agent, the Borrower or the Canadian Borrower may, in
its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.


 


Unless the Administrative Agent or the Canadian
Subfacility Agent, respectively, otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as available, return e-mail or
other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)           The
Platform. 
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties, or the Canadian Subfacility Agent or any of its
Related Parties (collectively, the “Agent Parties”), have any liability
to the Borrower, Canadian Borrower, any Lender, the L/C Issuer or any other
Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s, the
Canadian Borrower’s, the Administrative Agent’s or the Canadian Subfacility
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such
Agent Party; provided, however, that in no event shall any Agent
Party have


 


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any
liability to the Borrower, the Canadian Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).


 


(d)           Change
of Address, Etc. 
Each of the Borrower, the Canadian Borrower, the Administrative Agent,
the Canadian Subfacility Agent, the L/C Issuer and the Swing Line Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto.  Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Canadian Borrower, the Administrative Agent, the
Canadian Subfacility Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.


 


(e)           Reliance
by Administrative Agent, L/C Issuer and Lenders.  Except to the extent of their gross
negligence or willful misconduct, the Administrative Agent, the L/C Issuer and
the Lenders shall be entitled to rely and act upon any notices (including telephonic
Revolving Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower, except to the extent arising out of their gross negligence or
willful misconduct.  All telephonic
notices to and other telephonic communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.


 


(f)            Reliance
by Canadian Subfacility Agent and Lenders.  Except to the extent
of their gross negligence or willful misconduct, the Canadian Subfacility Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Canadian Subfacility Loan Notices) purportedly given by or on behalf
of the Canadian Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof.  The Canadian Borrower shall indemnify the
Canadian Subfacility Agent, each Lender and the Related Parties of each of them
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the Canadian
Borrower, except to the extent arising out of their gross negligence or willful
misconduct.  All telephonic notices to
and other telephonic communications with the Canadian Subfacility Agent may be
recorded by the Canadian Subfacility Agent, and each of the parties hereto
hereby consents to such recording.


 


10.03      No Waiver;
Cumulative Remedies.  No failure by any Lender or the Administrative Agent or the Canadian
Subfacility Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver


 


104





















 


thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


10.04      Expenses; Indemnity; Damage Waiver.


 


(a)           Costs
and Expenses. 
The Borrower shall pay (i) all reasonable out of pocket expenses
incurred by the Administrative Agent, the Canadian Subfacility Agent and their
respective Affiliates (including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and for the Canadian Subfacility
Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out of pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out of pocket expenses incurred by
the Administrative Agent, the Canadian Subfacility Agent, any Lender or the L/C
Issuer (including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent, the Canadian Subfacility Agent, any Lender or the
L/C Issuer), and shall pay all reasonable non-duplicative allocated fees and
time charges for attorneys who may be employees of the Administrative Agent,
the Canadian Subfacility Agent, any Lender or the L/C Issuer, in connection
with the enforcement or protection of its rights (A) in connection with
this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out of pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.


 


(b)           Indemnification
by the Borrower. 
The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), the Canadian Subfacility Agent (and any sub-agent therefor) each
Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by such Indemnitee with respect to
claims by third parties or asserted against such Indemnitee by any third party
or by the Borrower or by the Canadian Borrower or any other Loan Party arising
out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, or in the case of the Canadian Subfacility Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not


 


105





















 


strictly
comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or the Canadian Borrower or any of their
respective Subsidiaries, or any Environmental Liability related in any way to
the Borrower or the Canadian Borrower or any of their respective Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Borrower or any other Loan
Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Borrower or such
other Loan Party has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction.


 


(c)           Reimbursement
by Lenders. 
To the extent that the Borrower or the Canadian Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or
any sub-agent thereof), the Canadian Subfacility Agent (or any sub-agent
thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Canadian Subfacility Agent (or any sub-agent thereof), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), the Canadian Subfacility Agent
(or any sub-agent thereof) or the L/C Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent), the Canadian Subfacility Agent (or any sub-agent
thereof) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)           Waiver
of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, neither the Borrower nor the Canadian Borrower shall assert, and each of
them hereby waives, any claim against any Indemnitee, and no Indemnitee shall
assert, and each of them hereby waives, any claim against the Borrower or the
Canadian Borrower on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof.  No
Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.


 


(e)           Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


 


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(f)            Survival.  The agreements in this Section shall
survive the resignation of the Administrative Agent, Canadian Subfacility Agent
and the L/C Issuer, the
replacement of any Lender, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.


 


10.05      Payments
Set Aside.  To
the extent that any payment by or on behalf of the Borrower or the Canadian
Borrower is made to the Administrative Agent, the Canadian Subfacility Agent,
the L/C Issuer or any Lender, or the Administrative Agent, the Canadian
Subfacility Agent, the L/C Issuer or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the Canadian Subfacility Agent, the L/C Issuer or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had
not occurred, and (b) each Lender and the L/C Issuer severally agrees to
pay to the Administrative Agent or the Canadian Subfacility Agent upon demand
its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent or the Canadian Subfacility Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


10.06      Successors and Assigns.


 


(a)           Successors
and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent, the Canadian Subfacility Agent and each Lender (which consent shall not
be unreasonably withheld), and no Lender may assign or otherwise transfer any
of its rights or obligations hereunder except (i) to an Eligible Assignee
in accordance with the provisions of subsection (b) of this Section, (ii) by
way of participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Canadian Subfacility Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.


 


(b)           Assignments
by Lenders. 
Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (including in such reference to “Loans”
for


 


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purposes
of this subsection (b), Canadian Subfacility Risk Participations and
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); provided that


 


(i)            except in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than US$5,000,000 unless each of
the Administrative Agent and, so long as no Event of Default has occurred and
is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;


 


(ii)           each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned, except that this clause (ii) shall not apply
to rights in respect of Swing Line Loans;


 


(iii)          any assignment of a
Commitment must be approved by the Administrative Agent, the Canadian
Subfacility Agent, the Canadian Subfacility Funding Fronting Lenders, the L/C
Issuer and the Swing Line Lender unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee);


 


(iv)          any assignment by either a
Canadian Subfacility Funding Lender or a Canadian Subfacility Participating
Lender shall only be to an Eligible Assignee that will be a Canadian
Subfacility Funding Lender; and


 


(v)           the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in Schedule 10.06, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


Subject to acceptance and recording thereof
by the Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its


 


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obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Upon request, each of the Borrower and the
Canadian Borrower (at their expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


(c)           Register.  The Administrative Agent,
acting solely for this purpose as an agent of the Borrower and the Canadian
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to and Canadian Subfacility Risk
Participations acquired by, each Lender pursuant to the terms hereof from time
to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the Canadian
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by each of the Borrower, the Canadian Borrower, the
Canadian Subfacility Funding Fronting Lenders and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending,
any Lender may request and receive from the Administrative Agent a copy of the
Register.


 


(d)           Participations.  Any Lender may at any time,
without the consent of, or notice to, the Borrower, the Canadian Borrower, the
Canadian Subfacility Agent or the Administrative Agent, sell participations to
any Person (other than a natural person or the Borrower or the Canadian
Borrower or any of the Borrower’s or the Canadian Borrower’s Affiliates or
Subsidiaries) (each, a “Participant,” and for the avoidance of doubt, in such
capacity not a Canadian Subfacility Participating Lender”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s Canadian Subfacility Risk Participations and its participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Canadian
Borrower, the Canadian Subfacility Agent, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.


 


Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.01 that affects such
Participant.  Subject to subsection (e) of
this Section, the


 


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Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)           Limitation
upon Participant Rights.  A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent and if such consent is given, such Participant will be deemed
to agree to Section 3.06 as though it were a Lender.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)            Certain
Pledges.  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note(s), if
any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


(g)           Electronic
Execution of Assignments.  The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.


 


(h)           Resignation
as L/C Issuer, Swing Line Lender or Canadian Subfacility Funding Fronting
Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
30 days’ notice to the Borrower
and the Lenders, resign as L/C Issuer; (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender
and/or (iii) upon 30 days’
notice to the Canadian Borrower, resign as a Canadian Subfacility Funding
Fronting Lender.  In the event of any
such resignation as L/C Issuer, Swing Line Lender or Canadian Subfacility
Funding Fronting Lender, the Borrower shall be entitled to appoint from among
the Lenders a successor L/C Issuer, Swing Line Lender or Canadian Subfacility
Funding Fronting Lender hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  Notwithstanding anything to the contrary
contained herein, if at any time JPMorgan Chase Bank, NA assigns all of its
Commitment and Loans pursuant to subsection (b) above, JPMorgan Chase
Bank, NA may, upon 30 days’
notice to the Canadian Borrower, resign as a Canadian Subfacility Funding
Fronting Lender.  If Bank of America
resigns as L/C


 


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Issuer,
it shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
If Bank of America or JPMorgan Chase Bank, NA resigns as a Canadian
Subfacility Funding Fronting Lender, it shall retain all the rights of a
Canadian Subfacility Funding Fronting Lender provided for hereunder with
respect Canadian Subfacility Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Canadian
Subfacility Participating Lenders to fund Canadian Subfacility Risk Participations
in outstanding Canadian Subfacility Funding Fronting Loans pursuant to Section 2A02(f).  Upon the appointment of a successor L/C
Issuer and/or Swing Line Lender and/or Canadian Subfacility Funding Fronting
Lender, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer or Swing
Line Lender or Canadian Subfacility Funding Fronting Lender, as the case may
be, and (b) the successor L/C Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangements satisfactory to Bank of America to effectively
assume the obligations of Bank of America with respect to such Letters of
Credit.


 


10.07      Treatment
of Certain Information; Confidentiality. 
Each of the Administrative Agent, Canadian
Subfacility Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating
to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement that affirmatively agrees to be
bound by the provisions of this Section 10.07 or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Borrower and its obligations, (g) with the
consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, Canadian Subfacility Agent,
any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.


 


For purposes of this Section, “Information”
means all information received from the Borrower, the Canadian Borrower or any
Subsidiary relating to the Borrower, the Canadian


 


111





















 


Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, the Canadian Subfacility Agent, any Lender or the L/C
Issuer on a nonconfidential basis prior to disclosure by the Borrower, Canadian
Borrower or any Subsidiary, provided that, in the case of information
received from the Borrower, the Canadian Borrower or any Subsidiary after the
date hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Each of the Administrative Agent, the Canadian
Subfacility Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the
Borrower, the Canadian Borrower or a Subsidiary, as the case may be, (b) it
has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in
accordance with applicable Law, including Federal and state securities Laws.


 


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


 


10.09      Interest
Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”).  If the
Administrative Agent, the Canadian Subfacility Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower or the Canadian Borrower, as
applicable.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent, the
Canadian Subfacility Agent or a Lender exceeds the


 


112





















 


Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize
any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


10.10      Counterparts;
Integration; Effectiveness.  This Agreement and the other Loan Documents may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement and the other Loan
Documents shall become effective when it shall have been executed by the
Administrative Agent and the Canadian Subfacility Agent and when the
Administrative Agent and the Canadian Subfacility Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement and any other
Loan Document by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement and the other Loan Documents.


 


10.11      Survival of
Representations and Warranties.  All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof.  Such representations
and warranties have been or will be relied upon by the Administrative Agent,
the Canadian Subfacility Agent and each Lender, regardless of any investigation
made by the Administrative Agent, the Canadian Subfacility Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent, the
Canadian Subfacility Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.


 


10.12      Severability.  If any provision
of this Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible
to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


10.13      Replacement
of Lenders.  If
any Lender requests compensation under Section 3.04, or if the
Borrower or the Canadian Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01 or if any performance of any Lender hereunder
becomes illegal as described in Section 3.02, or if any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and


 


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delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 10.06), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:


 


(a)           the
Borrower shall have paid to the Administrative Agent the processing and
recording fee specified in Section 10.06(b);


 


(b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);


 


(c)           in the
case of any such assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter;


 


(d)           such
assignment does not conflict with applicable Laws; and


 


(e)           such
assignee must be a Canadian Subfacility Funding Lender or otherwise be approved
by the Canadian Subfacility Funding Fronting Lenders.


 


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


 


10.14      Governing
Law; Jurisdiction; Etc.


 


(a)           GOVERNING
LAW.  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.


 


(b)           SUBMISSION
TO JURISDICTION. 
THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  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 OR IN ANY OTHER LOAN


 


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DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE CANADIAN SUBFACILITY
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER, THE CANADIAN BORROWER AND EACH OTHER LOAN PARTY OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER
OF VENUE. 
THE BORROWER, THE CANADIAN BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION.  EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


 


(d)           SERVICE
OF PROCESS. 
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


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


 


10.16      USA PATRIOT
Act Notice.  Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent and the Canadian Subfacility Agent (each for itself and
not on behalf of any Lender) hereby notifies the Borrower and the Canadian
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it
is required to obtain, verify and record information that identifies the
Borrower and the Canadian Borrower, which information includes the name and
address of the Borrower and the Canadian Borrower and other information that
will allow


 


115





















 


such
Lender or the Administrative Agent or the Canadian Subfacility Agent, as
applicable, to identify the Borrower and the Canadian Borrower in accordance
with the Act.


 


10.17      Judgment
Currency. 
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent or the
Canadian Subfacility Agent could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is
given.  The obligation of the Borrower
and the Canadian Borrower in respect of any such sum due from it to the
Administrative Agent, the Canadian Subfacility Agent or the Lenders hereunder
or under the other Loan Documents shall, notwithstanding any judgment in a
currency (the “Judgment Currency”) other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the
Business Day following receipt by the Administrative Agent or the Canadian Subfacility
Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent or the Canadian Subfacility Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency.  If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Administrative
Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the Administrative
Agent, the Canadian Subfacility Agent or the Person to whom such obligation was
owing against such loss.  If the amount
of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent agrees
to return the amount of any excess to the Borrower (or to any other Person who
may be entitled thereto under applicable law).  If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Canadian
Subfacility Agent from the Canadian Borrower in the Agreement Currency, the
Canadian Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Canadian Subfacility Agent or the Person to whom
such obligation was owing against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Canadian Subfacility Agent in such currency, the
Canadian Subfacility Agent agrees to return the amount of any excess to the Canadian
Borrower (or to any other Person who may be entitled thereto under applicable
law).


 


[Remainder of page intentionally left blank]


 


116





















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.


 


 


	
   

  	
  CERIDIAN CORPORATION, as

  
	
   

  	
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ David B.
  Kuhnau

  	
   

  
	
   

  	
  Name:

  	
      David B. Kuhnau

  	
   

  
	
   

  	
  Title:

  	
      Vice President and
  Treasurer

  	
   

  
						



 


CREDIT
AGREEMENT


Signature Page


 





















 


	
   

  	
  CERIDIAN CANADA LTD., as

  
	
   

  	
  Canadian Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ David B.
  Kuhnau

  	
   

  
	
   

  	
  Name:

  	
      David B. Kuhnau

  	
   

  
	
   

  	
  Title:

  	
      Vice President and
  Treasurer

  	
   

  
						



 





















 


	
   

  	
  BANK OF AMERICA, N.A., as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Mollie
  S. Canup

  	
   

  
	
   

  	
  Name:

  	
   Mollie S. Canup

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  BANK OF AMERICA, N.A., acting through its

  Canada branch, as Canadian Subfacility Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Medina
  Sales de Andrade

  	
   

  
	
   

  	
  Name:

  	
   Medina Sales de Andrade

  	
   

  
	
   

  	
  Title:

  	
    Assistant Vice President

  	
   

  
						



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ W.
  Thomas Barnett

  	
   

  
	
   

  	
  Name:

  	
   W. Thomas Barnett

  	
   

  
	
   

  	
  Title:

  	
     Senior Vice President

  	
   

  
						



 





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Sabir
  A. Hashmy

  	
   

  
	
   

  	
  Name:

  	
   Sabir A. Hashmy

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  TORONTO BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Sabir
  A. Hashmy

  	
   

  
	
   

  	
  Name:

  	
   Sabir A. Hashmy

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ John
  G. Taylor

  	
   

  
	
   

  	
  Name:

  	
    John
  G. Taylor

  	
   

  
	
   

  	
  Title:

  	
    Vice
  President

  	
   

  
						



 





















 


	
   

  	
  PNC BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Philip
  K. Liebscher

  	
   

  
	
   

  	
  Name:

  	
   Philip K. Liebscher

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  WELLS FARGO BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Mark
  Halldorson

  	
   

  
	
   

  	
  Name:

  	
   Mark Halldorson

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Jennifer
  Barrett

  	
   

  
	
   

  	
  Name:

  	
   Jennifer Barrett

  	
   

  
	
   

  	
  Title:

  	
    Vice President & Loan
  Team Manager

  	
   

  
								



 





















 


	
   

  	
  AMSOUTH BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Eric
  Kruse

  	
   

  
	
   

  	
  Name:

  	
   Eric Kruse

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI,
  LTD.,

  CHICAGO BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Tsuguyuki
  Umene

  	
   

  
	
   

  	
  Name:

  	
   Mr. Tsuguyuki Umene

  	
   

  
	
   

  	
  Title:

  	
     Deputy General Manager

  	
   

  
						



 





















 


	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Walter
  C. Parelli

  	
   

  
	
   

  	
  Name:

  	
   Walter C. Parelli

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 





















 


	
   

  	
  MELLON BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Daniel
  J. Lenckos

  	
   

  
	
   

  	
  Name:

  	
   Daniel J. Lenckos

  	
   

  
	
   

  	
  Title:

  	
    First Vice President

  	
   

  
						



 





















 


	
   

  	
  MELLON BANK, N.A., CANADA
  BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Wendy
  B. H. Bocti

  	
   

  
	
   

  	
  Name:

  	
   Wendy B. H. Bocti

  	
   

  
	
   

  	
  Title:

  	
    Principal Officer

  	
   

  
						



 





















 


EXHIBIT A-1


 


FORM OF
REVOLVING LOAN NOTICE


 


Date:
                   ,
        


 


To:          Bank of America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of November    ,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement”; the terms defined therein
being used herein as therein defined), among Ceridian Corporation, a Delaware
corporation (the “Borrower”), Ceridian Canada Ltd., a corporation
organized under the laws of Canada (the “Canadian Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), Bank of America, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer, and Bank of America, N.A., acting
through its Canada branch, as Canadian Subfacility Agent.


 


The undersigned hereby requests (select one):


 


	
  o A Borrowing of Revolving
  Loans

  	
  o A conversion or
  continuation of Loans

  



 


1.             On                                                 
(a Business Day).


 


2.             In the amount of $                             .


 


3.             Comprised of                                                                 .


[Type of
Revolving Loan requested]


 


4.             For Eurocurrency Rate
Loans:  with an Interest Period of                         
months.


 


5.             In                                                                                  .


[US Dollars or
type of Alternative Currency]


 


The
Revolving Borrowing, if any, requested herein complies with the provisos to the
first sentence of Section 2.01 of the Agreement.


 


	
   

  	
  CERIDIAN CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


1





















 


EXHIBIT A-2


 


FORM OF CANADIAN SUBFACILITY LOAN NOTICE


 


 


Date:
                     ,
             


 


To:          Bank of America, N.A., acting through its Canada branch, as Canadian
Subfacility Agent


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of November    ,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement”; the terms defined therein
being used herein as therein defined), among Ceridian Corporation, a Delaware
corporation (the “Borrower”), Ceridian Canada Ltd., a corporation
organized under the laws of Canada (the “Canadian Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), Bank of America, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer, and Bank of America, N.A., acting
through its Canada branch, as Canadian Subfacility Agent.


 


The
undersigned hereby requests (select one):


 


	
  o

  	
   

  	
  A Borrowing of Canadian

  	
  o

  	
  A conversion or continuation of Canadian

  
	
   

  	
   

  	
  Subfacility Loans

  	
   

  	
  Subfacility Loans

  



 


1.             On                                                  
(a Business Day).


 


2.             In the amount of $                            .


 


3.             Comprised of                                                                  .


[Type of
Canadian Subfacility Loan requested]


 


4.             For Eurocurrency Rate
Loans:  with an Interest Period of                        
months.


 


The
Canadian Subfacility Borrowing, if any, requested herein complies with the
provisos to the first sentence of Section 2A.01 of the Agreement.


 


	
   

  	
  CERIDIAN CANADA LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


1





















 


EXHIBIT A-3


 


FORM OF SWING LING LOAN NOTICE


 


Date:
                     ,
         


 


To:          Bank of America, N.A., as Swing Line Lender


Bank of America, N.A., as
Administrative Agent


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of November    ,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement”; the terms defined therein
being used herein as therein defined), among Ceridian Corporation, a Delaware
corporation (the “Borrower”), Ceridian Canada Ltd., a corporation
organized under the laws of Canada (the “Canadian Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), Bank of America, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer, and Bank of America, N.A., acting
through its Canada branch, as Canadian Subfacility Agent.


 


The
undersigned hereby requests a Swing Line Loan:


 


1.             On                              
(a Business Day).


 


2.             In the amount of $                           .


 


The
Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section 2.04(a) of the Agreement.


 


	
   

  	
  CERIDIAN CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


1





















 


EXHIBIT B-1


 


FORM OF NOTE


 


 


FOR
VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay
to                              
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrower under that certain Credit
Agreement, dated as of November     , 2005 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among the Borrower, Ceridian Canada Ltd., a
corporation organized under the laws of Canada (the “Canadian Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), Bank of America, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer, and Bank of America, N.A., acting
through its Canada branch, as Canadian Subfacility Agent.


 


The
Borrower promises to pay interest on the unpaid principal amount of each Loan
from the date of such Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Agreement.  Except as otherwise provided in Section 2.04(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the
Lender in US Dollars in immediately available funds at the Administrative Agent’s
Office.  If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.


 


This
Note is one of the Notes referred to in the Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein.  Upon
the occurrence and continuation of one or more of the Events of Default
specified in the Agreement, all amounts then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement.  Loans made by
the Lender shall be evidenced by one or more loan accounts or records
maintained by the Lender in the ordinary course of business. The Lender may
also attach schedules to this Note and endorse thereon the date, amount and
maturity of its Loans and payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.


 


1





















 


THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


	
   

  	
  CERIDIAN CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2





















 


LOANS
AND PAYMENTS WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan

  Made

  	
   

  	
  Amount of

  Loan

  Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal

  or Interest

  Paid This

  Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3





















 


EXHIBIT B-2


 


FORM OF CANADIAN SUBFACILITY NOTE


 


 


FOR
VALUE RECEIVED, the undersigned (the “Canadian Borrower”) hereby
promises to pay to
                                    
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each
Canadian Subfacility Loan from time to time made by the Lender to the Canadian
Borrower under that certain Credit Agreement, dated as of November    ,
2005 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), among Ceridian Corporation, a Delaware
corporation (the “Borrower”), the Canadian Borrower, each lender from
time to time party hereto (collectively, the “Lenders” and individually,
a “Lender”), Bank of America, N.A., as Administrative Agent, Swingline
Lender and L/C Issuer, and Bank of America, N.A., acting through its Canada
branch, as Canadian Subfacility Agent.


 


The
Canadian Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the
Agreement.  All payments of principal and
interest shall be made to the Canadian Subfacility Agent for the account of the
Canadian Subfacility Funding Lender in Canadian Dollars in immediately
available funds at the Canadian Subfacility Agent’s Office.  If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.


 


This Note is one of the Notes referred to in
the Agreement, is entitled to the benefits thereof and may be prepaid in whole
or in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of
the Guaranty.  Upon the occurrence and
continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the
Agreement.  Canadian Subfacility Loans
made by the Canadian Subfacility Funding Lender shall be evidenced by one or
more loan accounts or records maintained by the Canadian Subfacility Funding
Lender in the ordinary course of business. The Canadian Subfacility Funding
Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Canadian Subfacility Loans and payments with respect
thereto.


 


The Canadian Borrower, for itself, its
successors and assigns, hereby waives diligence, presentment, protest and
demand and notice of protest, demand, dishonor and non-payment of this Note.


 


1





















 


THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


	
   

  	
  CERIDIAN CANADA LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2





















 


CANADIAN
SUBFACILITY LOANS AND PAYMENTS WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Canadian

  Subfacility

  Loan

  Made

  	
   

  	
  Amount of

  Canadian

  Subfacility

  Loan

  Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal

  or Interest

  Paid This

  Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3





















EXHIBIT C


 


FORM OF
COMPLIANCE CERTIFICATE


 


Financial Statement
Date:              


 


To:          Bank of America, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement, dated as of
November    , 2005 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Credit
Agreement”; the terms defined therein being used herein as therein
defined), among Ceridian Corporation, a Delaware corporation (the “Borrower”),
Ceridian Canada Ltd., a corporation organized under the laws of Canada (the “Canadian
Borrower”), each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), Bank of America, N.A., as Administrative
Agent, Swingline Lender and L/C Issuer, and Bank of America, N.A., acting
through its Canada branch, as Canadian Subfacility Agent.


 


The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the
                                                     
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:


 


[Use following for fiscal year-end financial
statements]


 


1.            Attached hereto as Schedule l are
the year-end audited financial statements required by Section 6.01(a) of
the Credit Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of an independent certified public
accountant required by such section.


 


[Use following for fiscal quarter-end
financial statements]


 


1.            Attached hereto as Schedule 1 are
the unaudited financial statements required by Section 6.01(b) of
the Credit Agreement for the fiscal quarter of the Borrower ended as of the above
date. Such financial statements fairly present the financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP as at such date and for such period, subject only to normal year-end
audit adjustments and the absence of footnotes.


 


2.            The undersigned has reviewed and is familiar
with the terms of the Credit Agreement and has made, or has caused to be made
under his/her supervision, a detailed review of the transactions and condition
(financial or otherwise) of the Borrower during the accounting period covered
by the attached financial statements.


 


1





















 


3.            A review of the activities of the Borrower
during such fiscal period has been made under the supervision of the
undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents,
and


 


[select one: ]


 


[to the
best knowledge of the undersigned during such fiscal period, the Borrower
performed and observed each covenant and condition of the Loan Documents
applicable to it.]


 


--or--


 


[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default or Event of Default and its nature and
status:]


 


4.            The financial covenant analyses and information
set forth on Schedule 2 attached hereto are true and accurate on
and as of the date of this Certificate.


 


IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
                                  ,
          .


 


	
   

  	
  CERIDIAN CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2





















 


For the Quarter/Year ended
                      
(“Statement Date”)


 


SCHEDULE 2


to the Compliance Certificate


($ in 000’s)


 


I.             Section 7.09 - Interest
Coverage Ratio.


 


	
  A.

  	
   

  	
   

  	
  Consolidated EBIT for four consecutive
  fiscal quarters ending on above date (“Subject Period”):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Consolidated
  Net Income for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Line A. 1,
  adjusted for extraordinary gains/losses and discontinued operations

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Consolidated
  Interest Expense for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Provision
  for income taxes for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

  	
  Interest
  income for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.

  	
  Consolidated
  EBIT (Lines I.A.1 + 2 + 3 + 4 - 5):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Consolidated
  Interest Expense for Subject Period:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Interest
  Coverage Ratio (Line I.A.6  ̧ Line I.C):

  	
   

  	
                    
  to 1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum required:

  	
   

  	
  2.75 to 1.00

  



 


II.            Section 7.10 - Debt to
Total Capitalization Ratio.


 


	
  A.

  	
   

  	
  Consolidated
  Indebtedness as of Statement Date:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Consolidated
  Net Worth at Statement Date:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Total
  Capitalization (Line II.A + Line II.B):

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Debt to Total
  Capitalization ratio (Line II.A  ̧ Line II.C):

  	
   

  	
                    
  to 1.00

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Maximum permitted:

  	
   

  	
  0.50

  



 


3





















 


EXHIBIT D


 


FORM OF
ASSIGNMENT AND ACCEPTANCE


 


This Assignment and Assumption (this “Assignment
and Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of Assignee]
(the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration, as specified in Schedule 10.06
to the Credit Agreement, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to
the amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including, without limitation, the Letters of Credit, the
Swing Line Loans and the Canadian Subfacility Loans included in such
facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (i) above
(the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above
being referred to herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an Affiliate/Approved Fund of [identify
  Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  Ceridian Corporation, a Delaware corporation

  
	
   

  	
   

  	
  Canadian
  Borrower:

  	
   

  	
  Ceridian Canada Ltd., a
  corporation organized under the laws of Canada

  



 










(1)           Select
as applicable.


 


1





















 


	
  4.

  	
   

  	
  Administrative Agent:

  	
   

  	
  Bank of America, N.A., as the
  administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Canadian Subfacility Agent:

  	
   

  	
  Bank of America, N.A., acting through its
  Canada branch, as Canadian Subfacility Agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit Agreement:

  	
   

  	
  Credit Agreement among Ceridian
  Corporation, a Delaware corporation (the “Borrower”), Ceridian Canada
  Ltd., a corporation organized under the laws of Canada (the “Canadian
  Borrower”), each lender from time to time party hereto (collectively, the
  “Lenders” and individually, a “Lender”), Bank of America, N.A.,
  as Administrative Agent, Swingline Lender and L/C Issuer, and Bank of
  America, N.A., acting through its Canada branch, as Canadian Subfacility
  Agent.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned Interest:

  	
   

  	
   

  



 


	
  Facility

  Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment

  for all Lenders*

  	
   

  	
  Amount
  of

  Commitment/Loans

  Assigned*

  	
   

  	
  Percentage 

  Assigned of

  Commitment(2)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
  _____________

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  _____________

  	
  %

  	
   

  	
   

  



 


[7.           Trade
Date:                                      ](3)


 


Effective Date:
                                    ,
20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this
Assignment and Assumption are hereby agreed to:


 










*                                         Amount to be adjusted by the
counterparties to take into account any payments or prepayments made between
the Trade Date and the Effective Date.


(2)                                  Set forth, to at least 9 decimals,
as a percentage of the Commitment/Loans of all Lenders thereunder.


(3)                                  To be completed if the Assignor and
the Assignee intend that the minimum assignment amount is to be determined as
of the Trade Date.


 


2





















 


	
   

  	
  ASSIGNOR:

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
  [NAME OF
  ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Consented to
  and Accepted:

  
	
   

  
	
  BANK OF
  AMERICA, N.A., as

  Administrative Agent

  
	
   

  
	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
  Consented
  to:

  
	
   

  
	
  CERIDIAN
  CORPORATION

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
  CERIDIAN
  CANADA LTD.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
									



 


3





















 


ANNEX 1 TO ASSIGNMENT AND
ASSUMPTION


 


STANDARD
TERMS AND CONDITIONS FOR


 


ASSIGNMENT
AND ASSUMPTION


 


1.            Representations and
Warranties.


 


1.1.         Assignor.  The Assignor (a) represents
and warrants that (i) it is the legal and beneficial owner of the Assigned
Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.


 


1.2.         Assignee.  The Assignee (a) represents
and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement (subject to receipt of such consents as may
be required under the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as
a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


2.            Payments.  From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but


 


4





















 


excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.


 


3.            General Provisions.  This Assignment and
Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed counterpart
of a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption.  This Assignment and
Assumption shall be governed by, and construed in accordance with, the law of
the State of New York.


 


5





















 


EXHIBIT E


 


FORM GUARANTY


 


GUARANTY AGREEMENT


 


THIS
GUARANTY AGREEMENT (this “Guaranty Agreement”), dated as of November 18, 2005,
is made by CERIDIAN CORPORATION, a Delaware
corporation, (the “Guarantor”), in favor of BANK OF
AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, as administrative agent (in such capacity,
the “Administrative Agent”) for each of the lenders (the “Lenders”
now or hereafter party to the Credit Agreement defined below (collectively with
the Administrative Agent, the “Guaranteed Parties”).  All capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.


 


W I T N E S S E T H:


 


WHEREAS, the Guaranteed Parties have agreed
to provide to the Guarantor and Ceridian Canada Ltd., a corporation organized
under the laws of Canada, (the “Canadian Borrower”) certain credit facilities,
including a revolving credit facility with a letter of credit, swing line and
Canadian subfacility pursuant to the terms of that certain Credit Agreement
dated as of November 18, 2005, among the Guarantor, the Canadian Borrower,
the Administrative Agent and the Lenders (as from time to time amended,
revised, modified, supplemented or amended and restated, the “Credit
Agreement”); and


 


WHEREAS, the Guarantor is the parent of the
Canadian Borrower and will materially benefit from the Canadian Subfacility
Loans made and to be made to the Canadian Borrower under the Credit Agreement;
and


 


WHEREAS, the Guarantor is required to enter
into this Guaranty Agreement pursuant to the terms of the Credit Agreement; and


 


WHEREAS, a material part of the
consideration given in connection with and as an inducement to the execution
and delivery of the Credit Agreement by the Guaranteed Parties was the
obligation of the Guarantor to enter into this Guaranty Agreement, and the
Guaranteed Parties are unwilling to extend and maintain the credit facilities
provided under the Loan Documents unless the Guarantor enters into this
Guaranty Agreement;


 


NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the parties hereto agree as follows:


 


1.            Guaranty. 
The Guarantor hereby unconditionally, absolutely, continually and irrevocably
guarantees to the Administrative Agent for the benefit of the Guaranteed
Parties the payment and performance in full of the Guaranteed Liabilities (as
defined below).  For all purposes of this
Guaranty Agreement, “Guaranteed Liabilities” means:  (a) the Canadian Borrower’s prompt
payment in full, when due or declared due and at all such times, of all of its


 


6





















 


Obligations and all other
amounts owing by it pursuant to the terms of the Credit Agreement, the Canadian
Subfacility Notes, and all other Loan Documents heretofore, now or at any time
or times hereafter owing, arising, due or payable by the Canadian Borrower to
any one or more of the Guaranteed Parties, including principal, interest,
premiums and fees (including, but not limited to, loan fees and reasonable
fees, charges and disbursements of counsel (“Attorney Costs”); and
(b) the Canadian Borrower’s prompt, full and faithful performance,
observance and discharge of each and every agreement, undertaking, covenant and
provision to be performed, observed or discharged by the Canadian Borrower
under the Credit Agreement, the Canadian Subfacility Notes and all other Loan
Documents.  The Guarantor’s obligations
to the Guaranteed Parties under this Guaranty Agreement are hereinafter
referred to as the “Guarantor’s Obligations”.


 


The
Guarantor agrees that it is directly and primarily liable (subject to the
limitation in the immediately preceding paragraph) for the Guaranteed
Liabilities.


 


2.            Payment. 
If the Canadian Borrower shall default in payment or shall fail to
perform any of the Guaranteed Liabilities, whether the payment consists of
principal, interest, premiums, fees (including, but not limited to, loan fees
and Attorney Costs), or otherwise, when and as the same shall become due, and
after expiration of any applicable grace period, whether according to the terms
of the Credit Agreement, by acceleration, or otherwise, or upon the occurrence
and during the continuance of any Event of Default under the Credit Agreement,
then the Guarantor will, upon demand thereof by the Administrative Agent, fully
pay to the Administrative Agent, for the benefit of the Guaranteed Parties,
subject to any restriction on the Guarantor’s Obligations set forth in Section 1
hereof, an amount equal to all the Guaranteed Liabilities then due and owing.


 


3.            Absolute Rights and
Obligations.  This is a guaranty of payment and not of
collection.  The Guarantor’s Obligations under this Guaranty Agreement shall be
absolute and unconditional irrespective of, and the Guarantor hereby
expressly waives, to the extent permitted by law, any defense to its
obligations under this Guaranty Agreement to which it is a party by reason of:


 


(a)          any lack of legality, validity or
enforceability of the Credit Agreement, of any of the Canadian Subfacility
Notes, of any other Loan Document, or of any other agreement or instrument
creating, providing security for, or otherwise relating to any of the
Guarantor’s Obligations, any of the Guaranteed Liabilities, or any other
guaranty of any of the Guaranteed Liabilities (the Loan Documents and all such
other agreements and instruments being collectively referred to as the “Related
Agreements”);


 


(b)          any action taken under any of the
Related Agreements, any exercise of any right or power therein conferred, any
failure or omission to enforce any right conferred thereby, or any waiver of
any covenant or condition therein provided;


 


(c)          any acceleration of the maturity of
any of the Guaranteed Liabilities or of any other obligations or liabilities of
any Person under any of the Related Agreements;


 


7





















 


(d)          any release, exchange,
non-perfection, lapse in perfection, disposal, deterioration in value, or
impairment of any security for any of the Guaranteed Liabilities, for any of
the Guarantor’s Obligations, or for any other obligations or liabilities of any
Person under any of the Related Agreements;


 


(e)          any dissolution of the Canadian
Borrower, the Guarantor, or any other party to a Related Agreement, or the
combination or consolidation of the Canadian Borrower, the Guarantor, or any
other party to a Related Agreement into or with another entity (other than the
Guarantor) or any transfer or disposition of any assets of the Canadian
Borrower, the Guarantor, or any other party to a Related Agreement (other than
a transfer or disposition of all assets of the Canadian Borrower to the
Guarantor);


 


(f)           any extension (including without
limitation extensions of time for payment), renewal, amendment, restructuring
or restatement of, any acceptance of late or partial payments under, or any
change in the amount of any borrowings or any credit facilities available under
the Credit Agreement, any of the Canadian Subfacility Notes, any other Loan
Document, or any other Related Agreement, in whole or in part;


 


(g)          the existence, addition,
modification, termination, reduction or impairment of value, or release of any
other guaranty (or security therefor) of the Guaranteed Liabilities;


 


(h)          any waiver of, forbearance or
indulgence under, or other consent to any change in or departure from any term
or provision contained in the Credit Agreement, any other Loan Document or any
other Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Guaranteed Liabilities or any of the
obligations or liabilities of any party to any other Related Agreement; or


 


(i)           any other circumstance whatsoever
(with or without notice to or knowledge of the Guarantor) which may or might in
any manner or to any extent vary the risks of the Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of, a surety
or a guarantor, including without limitation any right to require or claim that
resort be had to the Canadian Borrower or to any collateral in respect of the
Guaranteed Liabilities or Guarantor’s Obligations.


 


It is the express purpose and
intent of the parties hereto that this Guaranty Agreement and the Guarantor’s
Obligations hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.


 


4.            Currency and Funds of
Payment.  The Guarantor’s Obligations will be paid in
lawful currency of Canada and in immediately available funds, regardless of any
law, regulation or decree now or hereafter in effect that might in any manner
affect the Guaranteed Liabilities, or the rights of any Guaranteed Party with
respect thereto as against the Canadian Borrower, or cause or permit to be
invoked any alteration in the time, amount or manner of payment by the Canadian
Borrower of any or all of the Guaranteed Liabilities.


 


8





















 


5.            Events of Default. 
Without limiting the provisions of Section 2 hereof, in the
event that there shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support for the
Guaranteed Liabilities, at the Administrative Agent’s election and without
notice thereof or demand therefor, the Guarantor’s Obligations shall
immediately be and become due and payable.


 


6.            Suits. 
The Guarantor from time to time shall pay to the Administrative Agent
for the benefit of the Guaranteed Parties, on demand, at the Administrative
Agent’s Office or such other address as the Administrative Agent shall give
notice of to the Guarantor, the Guarantor’s Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Administrative
Agent may proceed to suit against the Guarantor.  At the Administrative Agent’s election, one
or more and successive or concurrent suits may be brought hereon by the
Administrative Agent against the Guarantor, whether or not suit has been
commenced against the Canadian Borrower or any other Person and whether or not
the Guaranteed Parties have taken or failed to take any other action to collect
all or any portion of the Guaranteed Liabilities or have taken or failed to
take any actions against any collateral securing payment or performance of all
or any portion of the Guaranteed Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3 hereof.


 


7.            Set-Off and Waiver. 
The Guarantor waives any right to assert against any Guaranteed Party as
a defense, counterclaim, set-off, recoupment or cross claim in respect of the
Guarantor’s Obligations, any defense (legal or equitable) or other claim which
the Guarantor may now or at any time hereafter have against the Canadian Borrower
or any or all of the Guaranteed Parties without waiving any additional
defenses, set-offs, counterclaims or other claims otherwise available to the
Guarantor.  In addition to any rights and
remedies of the Guaranteed Parties provided by law, upon the occurrence and
during the continuance of any Event of Default, each Guaranteed Party is
authorized at any time and from time to time, without prior notice to the
Guarantor, any such notice being waived by the Guarantor to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Guaranteed Party to or for the credit
or the account of the Guarantor against any and all Guarantor’s Obligations
owing to such Guaranteed Party, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Guaranteed Party shall have
made demand under this Guaranty Agreement or any other Loan Document and
although the Guarantor’s Obligations may be contingent or unmatured or
denominated in a currency other than that of the deposit account.  Each Guaranteed Party agrees promptly to
notify the Guarantor and the Administrative Agent after any such set-off and
application made by such Guaranteed Party; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


8.            Waiver of Notice;
Subrogation.


 


(a)          The Guarantor hereby waives to the
extent permitted by law notice of the following events or occurrences:  (i) acceptance of this Guaranty
Agreement; (ii) the Lenders’ heretofore, now or from time to time
hereafter making Loans and issuing Letters of Credit and otherwise loaning
monies or giving or extending credit to or for the


 


9





















 


benefit
of the Canadian Borrower or any other Loan Party, or otherwise entering into
arrangements with any Loan Party giving rise to Guaranteed Liabilities, whether
pursuant to the Credit Agreement, the Canadian Subfacility Notes, any other
Loan Document, or Related Agreement or any amendments, modifications, or
supplements thereto, or replacements or extensions thereof;
(iii) presentment, demand, default, non-payment, partial payment and
protest; and (iv) any other event, condition, or occurrence described in Section 3
hereof.  The Guarantor agrees that each
Guaranteed Party may heretofore, now or at any time hereafter do any or all of
the foregoing in such manner, upon such terms and at such times as each
Guaranteed Party, in its sole and absolute discretion, deems advisable, without
in any way or respect impairing, affecting, reducing or releasing the Guarantor
from its Guarantor’s Obligations, and the Guarantor hereby consents to each and
all of the foregoing events or occurrences.


 


(b)          The Guarantor hereby agrees that
payment or performance by it of its Guarantor’s Obligations under this Guaranty
Agreement may be enforced by the Administrative Agent on behalf of the
Guaranteed Parties upon demand by the Administrative Agent to the Guarantor
without the Administrative Agent being required, the Guarantor expressly
waiving to the extent permitted by law any right it may have to require the
Administrative Agent, to (i) prosecute collection or seek to enforce or
resort to any remedies against the Canadian Borrower or any other guarantor of
the Guaranteed Liabilities, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances granted
to the Administrative Agent or any Lender or other party to a Related Agreement
by the Canadian Borrower or any other Person on account of the Guaranteed
Liabilities or any guaranty thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT DEMAND UNDER THIS
GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE
FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.


 


(c)          The Guarantor further agrees with
respect to this Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to security
for the Guaranteed Liabilities unless and until 93 days immediately following
the Facility Termination Date (as defined below) shall have elapsed without the
filing or commencement, by or against the Canadian Borrower, of any state or
federal action, suit, petition or proceeding seeking any reorganization, liquidation
or other relief or arrangement in respect of creditors of, or the appointment
of a receiver, liquidator, trustee or conservator in respect to, the Canadian
Borrower or its assets.  This waiver is
expressly intended to prevent the existence of any claim in respect to such
subrogation, reimbursement, contribution or indemnity by the Guarantor against
the estate of the Canadian Borrower within the meaning of Section 101 of
the Bankruptcy Code, in the event of a subsequent case involving the Canadian
Borrower.  If an amount shall be paid to
the Guarantor on account of such rights at any time prior to termination of
this Guaranty Agreement in accordance with the provisions of Section 20
hereof, such amount shall be held in trust for the benefit of the Guaranteed
Parties and shall forthwith


 


10





















 


be paid
to the Administrative Agent, for the benefit of the Guaranteed Parties, to be
credited and applied upon the Guarantor’s Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or otherwise as
the Guaranteed Parties may elect.  The
agreements in this subsection shall survive repayment of the Guarantor’s
Obligations, the termination or expiration of this Guaranty Agreement in any
manner, including but not limited to termination in accordance with Section 20
hereof, and occurrence of the Facility Termination Date.  For purposes of this Guaranty Agreement, “Facility
Termination Date” means the date as of which all of the following shall
have occurred:  (a) the Canadian
Borrower shall have permanently terminated the Canadian Subfacility pursuant to
the Loan Documents by final payment in full of all Outstanding Amounts with
respect thereto, together with all accrued and unpaid interest and fees
thereon; (b) all Commitments with respect to the Canadian Subfacility
shall have terminated or expired; and (c) the Canadian Borrower shall have
fully, finally and irrevocably paid and satisfied in full all of its respective
obligations and liabilities arising under the Loan Documents, including the
Obligations with respect to the Canadian Subfacility (except for future
obligations consisting of continuing indemnities and other contingent
Obligations of the Canadian Borrower or any Loan Party that may be owing to any
of its Related Parties or any Lender pursuant to the Loan Documents and that
expressly survive termination of the Credit Agreement or any other Loan
Document).


 


9.            Effectiveness;
Enforceability.  This Guaranty Agreement shall be effective as
of the date first above written and shall continue in full force and effect
until termination in accordance with Section 20 hereof.  Any claim or claims that the Guaranteed
Parties may at any time hereafter have against the Guarantor under this
Guaranty Agreement may be asserted by the Administrative Agent on behalf of the
Guaranteed Parties by written notice directed to the Guarantor in accordance
with Section 22 hereof.


 


10.          Representations and
Warranties.  The Guarantor warrants and represents to the
Administrative Agent, for the benefit of the Guaranteed Parties, that it is
duly authorized to execute and deliver this Guaranty Agreement, and to perform
its obligations under this Guaranty Agreement, that this Guaranty Agreement has
been duly executed and delivered on behalf of it by its duly authorized
representatives; that this Guaranty Agreement is legal, valid, binding and
enforceable against it in accordance with its terms except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles; and that the Guarantor’s execution, delivery and
performance of this Guaranty Agreement do not violate or constitute a breach of
any of its Organization Documents, any agreement or instrument to which the
Guarantor is a party, or any law, order, regulation, decree or award of any
governmental authority or arbitral body to which it or its properties or
operations is subject.


 


11.          Expenses. 
The Guarantor agrees to be liable for the payment of all reasonable fees
and expenses, including Attorney Costs, incurred by any Guaranteed Party in
connection with the enforcement of this Guaranty Agreement, whether or not suit
be brought.


 


12.          Reinstatement. 
The Guarantor agrees that this Guaranty Agreement shall continue to be
effective or be reinstated, as the case may be, at any time payment received by
any


 


11





















 


Guaranteed Party in respect of
any Guaranteed Liabilities is rescinded or must be restored for any reason, or
is repaid by any Guaranteed Party in whole or in part in good faith settlement
of any pending or threatened avoidance claim.


 


13.          Attorney-in-Fact. 
To the extent permitted by law, the Guarantor hereby appoints the
Administrative Agent, for the benefit of the Guaranteed Parties, as its
attorney-in-fact for the purposes of carrying out the provisions of this
Guaranty Agreement and taking any action and executing any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is coupled with an interest and is irrevocable; provided,
that the Administrative Agent shall have and may exercise rights under this
power of attorney only upon the occurrence and during the continuance of an
Event of Default.


 


14.          Reliance. 
The Guarantor represents and warrants to the Administrative Agent, for
the benefit of the Guaranteed Parties, that: 
(a) it has adequate means to obtain on a continuing basis
(i) from the Canadian Borrower, information concerning its financial
condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement
(“Other Information”), and has full and complete access to the Canadian
Borrower’s books and records and to such Other Information; (b) it is not
relying on any Guaranteed Party or its or their employees, directors, agents or
other representatives or Affiliates, to provide any such information, now or in
the future; (c) it has been furnished with and reviewed the terms of the
Credit Agreement and such other Loan Documents and Related Agreements as it has
requested, is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty Agreement; (d) it has relied solely on the Guarantor’s own
independent investigation, appraisal and analysis of the Canadian Borrower, the
Canadian Borrower’s financial condition and affairs, the “Other Information”,
and such other matters as it deems material in deciding to provide this
Guaranty Agreement and is fully aware of the same; and (e) it has not
depended or relied on any Guaranteed Party or its or their employees,
directors, agents or other representatives or Affiliates, for any information
whatsoever concerning the Canadian Borrower or the Canadian Borrower’s
financial condition and affairs or any other matters material to the
Guarantor’s decision to provide this Guaranty Agreement or for any counseling,
guidance, or special consideration or any promise therefor with respect to such
decision.  The Guarantor agrees that no
Guaranteed Party has any duty or responsibility whatsoever, now or in the
future, to provide to the Guarantor any information concerning the Canadian
Borrower’s financial condition and affairs, or any Other Information, other
than as expressly provided herein, and that, if the Guarantor receives any such
information from any Guaranteed Party or its or their employees, directors,
agents or other representatives or Affiliates, the Guarantor will independently
verify the information and will not rely on any Guaranteed Party or its or
their employees, directors, agents or other representatives or Affiliates, with
respect to such information.


 


15.          Rules of
Interpretation.  The rules of interpretation contained in
Section 1.02 of the Credit Agreement shall be applicable to this
Guaranty Agreement and are hereby incorporated by reference.  All representations and warranties contained
herein shall survive the delivery of documents and any extension of credit
referred to herein or guaranteed hereby.


 


12





















 


16.          Entire Agreement. 
This Guaranty Agreement, together with the Credit Agreement and other
Loan Documents, constitutes and expresses the entire understanding between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior negotiations, agreements, understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein
contained.  The express terms hereof
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof. 
Except as provided in Section 20, neither this Guaranty
Agreement nor any portion or provision hereof may be changed, altered,
modified, supplemented, discharged, canceled, terminated, or amended orally or
in any manner other than as provided in the Credit Agreement.


 


17.          Binding Agreement;
Assignment.  This Guaranty Agreement and the terms,
covenants and conditions hereof shall be binding upon and inure to the benefit
of the parties hereto, and to their respective heirs, legal representatives,
successors and assigns; provided, however, that the Guarantor
shall not be permitted to assign any of its rights, powers, duties or
obligations under this Guaranty Agreement or any other interest herein without
the prior written consent of the Administrative Agent.  Without limiting the generality of the
foregoing sentence of this Section 17, any Lender may assign to one
or more Persons, or grant to one or more Persons participations in or to, all
or any part of its rights and obligations under the Credit Agreement (to the
extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof
(concerning the Administrative Agent) and Section 10.06 thereof
concerning assignments and participations. 
All references herein to the Administrative Agent shall include any
successor thereof.


 


18.          Severability. 
The provisions of this Guaranty Agreement are independent of and
separable from each other.  If any
provision hereof shall for any reason be held invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, but this Guaranty Agreement shall be construed
as if such invalid or unenforceable provision had never been contained herein.


 


19.          Counterparts. 
This Guaranty Agreement may be executed in any number of counterparts
each of which when so executed and delivered shall be deemed an original, and
it shall not be necessary in making proof of this Guaranty Agreement to produce
or account for more than one such counterpart executed by the Guarantor against
whom enforcement is sought.  Without
limiting the foregoing provisions of this Section 19, the
provisions of Section 10.10 of the Credit Agreement shall be
applicable to this Guaranty Agreement.


 


20.          Termination. 
Subject to reinstatement pursuant to Section 12 hereof, this
Guaranty Agreement, and all of the Guarantors’ Obligations hereunder shall
terminate on the Facility Termination Date.


 


21.          Remedies Cumulative; Late
Payments. 
All remedies hereunder are cumulative and are not exclusive of any other
rights and remedies of the Administrative Agent or any other


 


13





















 


Guaranteed Party provided by law
or under the Credit Agreement, the other Loan Documents or other applicable
agreements or instruments.  The making of
the Loans and other credit extensions pursuant to the Credit Agreement and
other Related Agreements shall be conclusively presumed to have been made or
extended, respectively, in reliance upon the Guarantor’s guaranty of the
Guaranteed Liabilities pursuant to the terms hereof.  Any amounts not paid when due under this
Guaranty Agreement shall bear interest at the Default Rate.


 


22.          Notices. 
Any notice required or permitted hereunder shall be given, (a) with
respect to the Guarantor, at the address of the Guarantor indicated in Schedule 10.02
of the Credit Agreement and (b) with respect to the Administrative Agent
or any other Guaranteed Party, at the Administrative Agent’s address indicated
in Schedule 10.02 of the Credit Agreement.  All such addresses may be modified, and all
such notices shall be given and shall be effective, as provided in Section 10.02
of the Credit Agreement for the giving and effectiveness of notices and
modifications of addresses thereunder.


 


23.          Governing Law; Venue;
Waiver of Jury Trial.


 


(a)          THIS GUARANTY AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE.


 


(b)          THE GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL
COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS GUARANTY AGREEMENT, THE
GUARANTOR EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.


 


(c)          THE GUARANTOR AGREES THAT
SERVICE OF PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE
SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS
FOR NOTICES TO THE GUARANTOR IN EFFECT PURSUANT TO SECTION 22
HEREOF, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT IN THE STATE OF NEW YORK.


 


14





















 


(d)          NOTHING CONTAINED IN
SUBSECTIONS (b) or (c) HEREOF SHALL PRECLUDE THE ADMINISTRATIVE AGENT
FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION
WHERE THE GUARANTOR OR ANY OF ITS PROPERTY OR ASSETS MAY BE FOUND OR
LOCATED.  TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE GUARANTOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT
OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH
NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.


 


(e)          IN ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS GUARANTY
AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT
MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE GUARANTOR AND
THE ADMINISTRATIVE AGENT ON BEHALF OF THE GUARANTEED PARTIES HEREBY AGREE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING.


 


(f)           THE GUARANTOR HEREBY
EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE THAT ANY COURT TO WHOSE
JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN INCONVENIENT
FORUM.


 


[Signature page follows.]


 


15





















 


IN WITNESS WHEREOF, the parties hereto have duly
executed and delivered this Guaranty Agreement as of the day and year first
written above.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  CERIDIAN
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David B.
  Kuhnau

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT:

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A., as
Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


1





















 


EXHIBIT F


 


FORM OPINION
OF COUNSEL


 


Preliminary Draft of Excerpts of
Opinion for Counsel to the Loan Parties (Oppenheimer Wolff & Donnelly
LLP)


 


Address to:                                 Bank of America, N.A., as
Administrative Agent and Each of the Lenders Party to the Credit Agreement
Referenced Below


 


Insert address


 


1.            The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of Minnesota and is duly qualified to transact business as a
foreign corporation and is in good standing in the following jurisdictions:
California, Georgia, Kentucky and Pennsylvania, and in each other jurisdiction
in which, in light of the nature of the business transacted by it or the
property owned by it, such qualification is necessary and the failure so to
qualify might impair title to any property material to its operations or its
right to enforce any material contract against others, or expose it to any
substantial liability or impairment of rights or defenses in such jurisdiction.
The Borrower has full corporate power and authority to own its assets and conduct
the businesses in which it is now engaged and as are expressly contemplated by
the Loan Documents, and has full corporate power and authority to enter into
each of the Loan Documents to which it is a party and to perform its
obligations thereunder and consummate the Loans contemplated therein.


 


2.            Each
of the Loan Documents to which the Borrower is a party has been duly authorized
by the Board of Directors of the Borrower (and by any required shareholder
action), has been duly executed and delivered by the Borrower.  Each of the Loan Documents to which the Loan
Parties are party constitutes the legal, valid and binding obligation,
agreement, instrument or conveyance, as the case may be, of such Loan Party,
enforceable against such Loan Party in accordance with its respective terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization and other similar laws relating to or affecting
creditors’ rights generally and by the application of general equitable principles
(whether considered in proceedings at law or in equity).


 


3.            Neither
the execution or delivery of, nor performance by the Borrower of its
obligations under, the Loan Documents (a) does or will conflict with,
violate or constitute a breach of (i) any of the Organization Documents of
the Borrower, (ii) any laws, rules or regulations applicable to the
Borrower, or (iii) any contract, agreement, indenture, lease, instrument,
commitment, judgment, writ, determination, order, decree or arbitral award, of
which we have knowledge after due inquiry of appropriate representatives of the
Borrower, to which the Borrower is a party or by which the Borrower, or any
other Subsidiary or any of their properties is bound, (b) requires the
prior consent of, notice to, license from or filing with any Governmental
Authority which has not been duly obtained or made on or prior to the date
hereof, or (c) does or will result in the creation or imposition of any
lien, pledge, charge or encumbrance of any nature upon or with respect to any
of the properties of the Borrower, or
any Subsidiary, except for the Liens in your favor expressly created
pursuant to the Loan Documents.


 


1





















 


4.            Insofar
as we have knowledge of the operations and affairs of the Loan Parties and upon
due inquiry of appropriate representatives of the Loan Parties, there is no
pending or overtly threatened, action, suit, investigation or proceeding
(including, without limitation, any action, suit, investigation, or proceeding
under any environmental or labor law) before or by any court, or governmental
department, commission, board, bureau, instrumentality, agency or arbitral
authority, (i) which calls into question the validity or enforceability of
any of the Loan Documents, or the titles to their respective offices or
authority of any officers[, members, or partners, as applicable] of the
Borrower or (ii) an adverse result in which could reasonably be expected
to have a Material Adverse Effect.


 


5.            Insofar
as we have knowledge of the operations and affairs of the Borrower and upon due
inquiry of appropriate representatives of the Borrower, there exists no event,
circumstance or condition (except that we express no opinion as to financial
reporting or accounting matters) which, immediately upon giving effect to the
Loan Documents, would constitute a Default or Event of Default under the Loan
Agreement.


 


6.            None
of the transactions contemplated by the Loan Agreement, including, without
limitation, the use of the proceeds of the Loans provided for in the Loan
Documents, will violate or result in a violation of regulations T, U or X of
the Board of Governors of the Federal Reserve System.


 


7.            The
rate or rates of interest provided for in the Loan Documents, including all
late payment charges and the Default Rate provided for therein, do not and will
not violate or conflict with, or give rise to any defense to payment of the
Obligations or to any claim, counterclaim, setoff or recoupment under, any
usury or other law or regulation of the State of New York governing the maximum
rate of interest or amount of other charges that may be charged or incurred in
Loans of the type contemplated under the Loan Documents.


 


Our
opinions contained herein are rendered solely in connection with the
transactions contemplated under the Loan Documents and may not be relied upon
in any manner by any Person other than the addressees hereof, any successor or
assignee of any addressee (including successive assignees) and any Person who
shall acquire a participation interest in the interest of any Lender
(collectively, the “Reliance Parties”), or by any Reliance Party for any other
purpose.  Our opinions herein shall not
be quoted or otherwise included, summarized or referred to in any publication
or document, in whole or in part, for any purpose whatsoever, or furnished to
any Person other than a Reliance Party (or a Person considering whether to
become a Reliance Party), except as may be required of any Reliance Party by
applicable law or regulation or in accordance with any auditing or oversight
function or request of regulatory agencies to which a Reliance Party is
subject.


 


2





















 


Preliminary Draft of Excerpts of
Opinion for Counsel to the Canadian Borrower


 


Address to:          Bank of America, N.A., as Administrative Agent
and


Each of the Lenders Party to the Credit Agreement Referenced Below


Insert address


 


1.            The
Canadian Borrower is a [corporation]
duly organized, validly existing and in good standing under the laws of [                      
(insert province of Canada)] 
The Canadian Borrower has full corporate power and authority to own its
assets and conduct the businesses in which it is now engaged and as are
expressly contemplated by the Loan Documents, and has full corporate power and
authority to enter into each of the Loan Documents to which it is a party and
to perform its obligations thereunder and consummate the Loans contemplated
therein.


 


2.            Each
of the Loan Documents to which the Canadian Borrower is a party has been duly
authorized by the Board of Directors of the Canadian Borrower.


 


3.            Neither
the execution or delivery of, nor performance by the Canadian Borrower of its
obligations under, the Loan Documents (a) does or will conflict with, violate
or constitute a breach of (i) any of the Organization Documents of the
Canadian Borrower, (ii) any laws, rules or regulations applicable to
the Canadian Borrower, or (iii) any contract, agreement, indenture, lease,
instrument, commitment, judgment, writ, determination, order, decree or
arbitral award, of which we have knowledge after due inquiry of appropriate
representatives of the Canadian Borrower, to which the Canadian Borrower is a
party or by which the Canadian Borrower, or any other Subsidiary or any of
their properties is bound, (b) requires the prior consent of, notice to,
license from or filing with any Governmental Authority which has not been duly
obtained or made on or prior to the date hereof, or (c) does or will
result in the creation or imposition of any lien, pledge, charge or encumbrance
of any nature upon or with respect to any of the properties of the Canadian
Borrower, or any Subsidiary,
except for the Liens in your favor expressly created pursuant to the Loan
Documents.


 


4.            Insofar
as we have knowledge of the operations and affairs of the Loan Parties and upon
due inquiry of appropriate representatives of the Loan Parties, there is no
pending or overtly threatened, action, suit, investigation or proceeding
(including, without limitation, any action, suit, investigation, or proceeding
under any environmental or labor law) before or by any court, or governmental
department, commission, board, bureau, instrumentality, agency or arbitral
authority, (i) which calls into question the validity or enforceability of
any of the Loan Documents, or the titles to their respective offices or
authority of any officers[, members, or partners, as applicable] of the
Canadian Borrower or (ii) an adverse result in which could reasonably be
expected to have a Material Adverse Effect.


 


5.            Insofar
as we have knowledge of the operations and affairs of the Canadian Borrower and
upon due inquiry of appropriate representatives of the Canadian Borrower, there
exists no event, circumstance or condition (except that we express no opinion
as to financial reporting or accounting matters) which, immediately upon giving
effect to the Loan Documents, would constitute a Default or Event of Default
under the Loan Agreement.


 


3





















 


6.            None
of the transactions contemplated by the Loan Agreement, including, without
limitation, the use of the proceeds of the Loans provided for in the Loan
Documents, will violate or result in a violation of regulations T, U or X of
the Board of Governors of the Federal Reserve System.


 


7.            The
rate or rates of interest provided for in the Loan Documents, including all
late payment charges and the Default Rate provided for therein, do not and will
not violate or conflict with, or give rise to any defense to payment of the
Obligations or to any claim, counterclaim, setoff or recoupment under, any
usury or other law or regulation of the State of New York governing the maximum
rate of interest or amount of other charges that may be charged or incurred in
Loans of the type contemplated under the Loan Documents.


 


Our
opinions contained herein are rendered solely in connection with the
transactions contemplated under the Loan Documents and may not be relied upon
in any manner by any Person other than the addressees hereof, any successor or
assignee of any addressee (including successive assignees) and any Person who
shall acquire a participation interest in the interest of any Lender
(collectively, the “Reliance Parties”), or by any Reliance Party for any other purpose.  Our opinions herein shall not be quoted or
otherwise included, summarized or referred to in any publication or document,
in whole or in part, for any purpose whatsoever, or furnished to any Person
other than a Reliance Party (or a Person considering whether to become a
Reliance Party), except as may be required of any Reliance Party by applicable
law or regulation or in accordance with any auditing or oversight function or
request of regulatory agencies to which a Reliance Party is subject.


 


4