Exhibit 4.28B


 


AMENDED AND RESTATED


LOAN AND SECURITY AGREEMENT


 


 


by and among


 


 


CREDIT SUISSE,

as Administrative Agent under the LC Facility,


 


BANK OF AMERICA, N.A.,

as Administrative Agent under the Revolving Facility,


 


BANK OF AMERICA, N.A.,

as Syndication Agent under the LC Facility,


 


CREDIT SUISSE,

as Sole Bookrunner under the LC Facility,


 


CREDIT SUISSE and BANC OF AMERICA SECURITIES
LLC,

as Joint Lead Arrangers under the LC Facility,


 


BANC OF AMERICA SECURITIES LLC,

as Sole Arranger under the Revolving Facility,


 


The other financial institutions party hereto

from time to time as Lenders,


 


CLEAN HARBORS, INC. AND THE SUBSIDIARIES
NAMED HEREIN,

as Borrowers,


 


and


 


THE GUARANTORS NAMED HEREIN, 

as Guarantors


 


 


Dated: 
June 30, 2004,

Amended and Restated as of December 1, 2005


 





















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  CREDIT FACILITIES

  	
  43

  
	
  2.1

  	
  Revolving Loans

  	
  43

  
	
  2.2

  	
  Maximum Loans

  	
  43

  
	
  2.3

  	
  Optional Prepayment

  	
  44

  
	
  2.4

  	
  Revolving Letter of Credit
  Accommodations

  	
  45

  
	
  2.5

  	
  Borrower Representative

  	
  49

  
	
  2.6

  	
  LC Facility Letters of Credit

  	
  50

  
	
  2.7

  	
  Credit-Linked Deposit Account

  	
  55

  
	
  2.8

  	
  Optional Reductions of
  Credit-Linked Deposits and Mandatory Cash Collateralization of Uncovered LC
  Facility Letters of Credit Amount

  	
  57

  
	
  2.9

  	
  LC Facility Fees

  	
  60

  
	
  2.10

  	
  Establishment of Term Loans

  	
  61

  
	
  2.11

  	
  Effect on Original Credit
  Agreement; Authorization to Enter into the Amended and Restated Security
  Agreement

  	
  62

  
	
  2.12

  	
  Notes

  	
  63

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REVOLVING FACILITY INTEREST AND
  FEES

  	
  63

  
	
  3.1

  	
  Interest

  	
  63

  
	
  3.2

  	
  [Intentionally Omitted]

  	
  65

  
	
  3.3

  	
  [Intentionally Omitted]

  	
  65

  
	
  3.4

  	
  Unused Line Fee

  	
  65

  
	
  3.5

  	
  Changes in Laws and Increased
  Costs of Loans

  	
  66

  
	
  3.6

  	
  Replacement of Lenders

  	
  66

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS PRECEDENT

  	
  67

  
	
  4.1

  	
  Conditions Precedent to Initial
  LC Facility Letters of Credit, Initial Loans and Letter of Credit
  Accommodations

  	
  67

  
	
  4.2

  	
  Conditions Precedent to All
  Loans, LC Facility Letters of Credit and Revolving Letter of Credit
  Accommodations

  	
  71

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  GRANT AND PERFECTION OF SECURITY
  INTEREST

  	
  73

  
	
  5.1

  	
  Grant of Security Interests in
  Accounts Collateral

  	
  73

  
	
  5.2

  	
  Grant of Security Interests in
  Canadian Accounts Collateral

  	
  74

  
	
  5.3

  	
  Perfection of Security Interests
  in Accounts Collateral

  	
  75

  
	
  5.4

  	
  Perfection of Security Interest
  in Canadian Collateral

  	
  79

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  COLLECTION AND ADMINISTRATION

  	
  82

  
	
  6.1

  	
  US Borrowers’ Loan Account

  	
  82

  
	
  6.2

  	
  Statements

  	
  82

  
	
  6.3

  	
  Collection of Accounts

  	
  83

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Payments Under Revolving
  Facility

  	
  86

  
	
  6.5

  	
  Authorization To Make Revolving
  Loans

  	
  87

  
	
  6.6

  	
  Payment by Revolving Lenders and
  Settlement of Loans

  	
  88

  
	
  6.7

  	
  Use of Proceeds; Use of LC
  Facility Letters of Credit

  	
  89

  
	
  6.8

  	
  Taxes

  	
  89

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  COLLATERAL REPORTING AND
  COLLATERAL COVENANTS

  	
  91

  
	
  7.1

  	
  Collateral Reporting

  	
  91

  
	
  7.2

  	
  Accounts Covenants

  	
  92

  
	
  7.3

  	
  Power of Attorney

  	
  93

  
	
  7.4

  	
  Right to Cure

  	
  95

  
	
  7.5

  	
  Access to Premises

  	
  95

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  96

  
	
  8.1

  	
  Corporate Existence; Power and
  Authority

  	
  96

  
	
  8.2

  	
  Name; State of Organization;
  Chief Executive Office; Collateral Locations

  	
  96

  
	
  8.3

  	
  Financial Statements; No
  Material Adverse Change; Fiscal Year

  	
  97

  
	
  8.4

  	
  Priority of Liens; Title to
  Properties

  	
  97

  
	
  8.5

  	
  Tax Returns

  	
  98

  
	
  8.6

  	
  Litigation

  	
  98

  
	
  8.7

  	
  Compliance with Other Agreements
  and Applicable Laws

  	
  98

  
	
  8.8

  	
  Environmental Matters

  	
  99

  
	
  8.9

  	
  Employee Benefits

  	
  100

  
	
  8.10

  	
  Bank Accounts

  	
  101

  
	
  8.11

  	
  Intellectual Property

  	
  101

  
	
  8.12

  	
  Subsidiaries; Affiliates;
  Capitalization

  	
  101

  
	
  8.13

  	
  Labor Union Matters

  	
  102

  
	
  8.14

  	
  Trade Relations

  	
  102

  
	
  8.15

  	
  Restrictions on Subsidiaries

  	
  102

  
	
  8.16

  	
  Material Contracts

  	
  103

  
	
  8.17

  	
  Payable Practices

  	
  103

  
	
  8.18

  	
  Investment Company

  	
  103

  
	
  8.19

  	
  Interdependent Businesses and
  Operations

  	
  103

  
	
  8.20

  	
  Accuracy and Completeness of
  Information

  	
  103

  
	
  8.21

  	
  Anti-Terrorism Law

  	
  104

  
	
  8.22

  	
  [Intentionally Omitted]

  	
  104

  
	
  8.23

  	
  Properties

  	
  104

  
	
  8.24

  	
  Solvency

  	
  105

  
	
  8.25

  	
  Disclosure

  	
  106

  
	
  8.26

  	
  Projections

  	
  106

  
	
  8.27

  	
  Government Approval, Regulation,
  Etc.

  	
  106

  
	
  8.28

  	
  Validity, Etc.

  	
  106

  
	
  8.29

  	
  Regulations T, U and X

  	
  107

  
	
  8.30

  	
  Survival of Warranties;
  Cumulative

  	
  107

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  AFFIRMATIVE AND NEGATIVE
  COVENANTS

  	
  107

  
	
  9.1

  	
  Maintenance of Existence

  	
  107

  
	
  9.2

  	
  New Collateral Locations

  	
  108

  
	
  9.3

  	
  Compliance with Laws,
  Regulations, Etc.

  	
  108

  
	
  9.4

  	
  Payment of Taxes and Claims

  	
  109

  
	
  9.5

  	
  Insurance

  	
  109

  
	
  9.6

  	
  Financial Statements and Other
  Information

  	
  110

  
	
  9.7

  	
  Sale of Assets, Consolidation,
  Merger, Dissolution, Etc.

  	
  112

  
	
  9.8

  	
  Encumbrances

  	
  112

  
	
  9.9

  	
  Indebtedness

  	
  113

  
	
  9.10

  	
  Loans, Investments, Etc.

  	
  115

  
	
  9.11

  	
  Dividends and Redemptions

  	
  116

  
	
  9.12

  	
  Transactions with Affiliates

  	
  117

  
	
  9.13

  	
  Compliance with ERISA

  	
  117

  
	
  9.14

  	
  End of Fiscal Years; Fiscal
  Quarters

  	
  118

  
	
  9.15

  	
  Change in Business

  	
  118

  
	
  9.16

  	
  Limitation of Restrictions
  Affecting Subsidiaries

  	
  118

  
	
  9.17

  	
  Leverage Ratio

  	
  119

  
	
  9.18

  	
  Interest Coverage Ratio

  	
  119

  
	
  9.19

  	
  Fixed Charge Coverage Ratio

  	
  120

  
	
  9.20

  	
  Limitation on Capital
  Expenditures

  	
  120

  
	
  9.21

  	
  License Agreements

  	
  120

  
	
  9.22

  	
  Inactive Subsidiaries

  	
  121

  
	
  9.23

  	
  Costs and Expenses

  	
  121

  
	
  9.24

  	
  Further Assurances

  	
  122

  
	
  9.25

  	
  Applications Under Insolvency
  Statutes

  	
  122

  
	
  9.26

  	
  Additional Collateral

  	
  122

  
	
  9.27

  	
  Post-Closing Real Property

  	
  123

  
	
  9.28

  	
  Information Regarding Collateral

  	
  124

  
	
  9.29

  	
  Anti-Terrorism Law; Anti-Money
  Laundering

  	
  125

  
	
  9.30

  	
  Embargoed Person

  	
  125

  
	
  9.31

  	
  Maintenance of Rating on LC
  Facility

  	
  126

  
	
  9.32

  	
  Prepayments of Other
  Indebtedness; Modifications of Organizational Documents and Other Documents,
  Etc.

  	
  126

  
	
  9.33

  	
  Sale and Leaseback Transactions

  	
  127

  
	
  9.34

  	
  No Further Negative Pledge

  	
  127

  
	
  9.35

  	
  Application of Proceeds of
  Specified Equity Offering

  	
  127

  
	
  9.36

  	
  Post-Closing Matters

  	
  127

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
  128

  
	
  10.1

  	
  Events of Default

  	
  128

  
	
  10.2

  	
  Remedies

  	
  130

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  JURY TRIAL WAIVER; OTHER WAIVERS
  AND CONSENTS; GOVERNING LAW

  	
  141

  
	
  11.1

  	
  Governing Law; Choice of Forum;
  Service of Process; Jury Trial Waiver

  	
  141

  
	
  11.2

  	
  Waiver of Notices

  	
  143

  
	
  11.3

  	
  Amendments and Waivers

  	
  143

  
	
  11.4

  	
  Waiver of Counterclaims

  	
  146

  
	
  11.5

  	
  Costs and Expenses

  	
  146

  
	
  11.6

  	
  Indemnification

  	
  147

  
	
  11.7

  	
  Currency Indemnity

  	
  147

  
	
  11.8

  	
  Confidential Lender
  Authorizations

  	
  148

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  TERM OF AGREEMENT; MISCELLANEOUS

  	
  148

  
	
  12.1

  	
  Term

  	
  148

  
	
  12.2

  	
  Interpretative Provisions

  	
  149

  
	
  12.3

  	
  Notices

  	
  150

  
	
  12.4

  	
  Partial Invalidity

  	
  152

  
	
  12.5

  	
  Successors

  	
  152

  
	
  12.6

  	
  Assignment by Lenders

  	
  152

  
	
  12.7

  	
  Certain Representations and
  Warranties; Limitations; Covenants

  	
  154

  
	
  12.8

  	
  Register

  	
  155

  
	
  12.9

  	
  Participations

  	
  156

  
	
  12.10

  	
  Assignee or Participant
  Affiliated with Any Credit Party

  	
  156

  
	
  12.11

  	
  Miscellaneous Assignment
  Provisions

  	
  156

  
	
  12.12

  	
  Confidentiality

  	
  157

  
	
  12.13

  	
  Entire Agreement

  	
  157

  
	
  12.14

  	
  Counterparts, Etc.

  	
  158

  
	
  12.15

  	
  Choice of Language

  	
  158

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  THE AGENTS

  	
  158

  
	
  13.1

  	
  Authorization

  	
  158

  
	
  13.2

  	
  Employees and Agents

  	
  160

  
	
  13.3

  	
  No Liability

  	
  160

  
	
  13.4

  	
  No Representations

  	
  160

  
	
  13.5

  	
  Payments

  	
  161

  
	
  13.6

  	
  Holders of Revolving Letter of Credit
  Accommodation Participations

  	
  162

  
	
  13.7

  	
  Holders of LC Facility Letters
  of Credit Participations

  	
  162

  
	
  13.8

  	
  Indemnity

  	
  162

  
	
  13.9

  	
  Agents as Lenders, Etc.

  	
  163

  
	
  13.10

  	
  Resignation; Removal

  	
  163

  
	
  13.11

  	
  Notification of Defaults and
  Events of Default

  	
  163

  
	
  13.12

  	
  Duties in the Case of
  Enforcement

  	
  163

  
	
  13.13

  	
  Field Audit and Examination
  Reports; Disclaimer by Revolving Administrative Agent, Accounts Collateral
  Agent and Revolving Lenders

  	
  164

  



 


iv





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  13.14

  	
  Canadian Collateral Agent as
  Fondé de Pouvoir

  	
  165

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  JOINT AND SEVERAL LIABILITY;
  GUARANTEES

  	
  166

  
	
  14.1

  	
  (a) Joint and Several Liability
  of US Borrowers

  	
  166

  
	
  14.1

  	
  (b) Joint and Several Liability
  of Canadian Borrowers

  	
  166

  
	
  14.2

  	
  Suretyship Waivers and Consents

  	
  166

  
	
  14.3

  	
  Contribution Agreement

  	
  169

  
	
  14.4

  	
  General Limitation on Guarantee
  Obligations

  	
  169

  
	
  14.5

  	
  PREJUDGMENT REMEDIES

  	
  170

  
	
  14.6

  	
  Guaranty

  	
  170

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  USA PATRIOT ACT NOTICE

  	
  171

  
	
  15.1

  	
  USA Patriot Act Notice

  	
  171

  



 


v





















 


INDEX TO EXHIBITS


 


	
  Exhibit A-1

  	
  Perfection Certificate

  	
   

  
	
  Exhibit A-2

  	
  Perfection Certificate Supplement

  	
   

  
	
  Exhibit B

  	
  Compliance Certificate

  	
   

  
	
  Exhibit C-1

  	
  Revolving Loan Note

  	
   

  
	
  Exhibit C-2

  	
  Canadian Revolving Loan Note

  	
   

  
	
  Exhibit C-3

  	
  Term Loan Note

  	
   

  
	
  Exhibit D-1

  	
  Revolving Facility Form of Assignment and
  Acceptance

  	
   

  
	
  Exhibit D-2

  	
  LC Facility Form of Assignment and
  Acceptance

  	
   

  
	
  Exhibit D-3

  	
  Term Loan Form of Assignment and Acceptance

  	
   

  
	
  Exhibit D-4

  	
  Administrative Questionnaire

  	
   

  
	
  Exhibit E

  	
  Form of Solvency Certificate

  	
   

  
	
  Exhibit F-1

  	
  Form of Mortgage

  	
   

  
	
  Exhibit F-2

  	
  Form of Mortgage Amendment

  	
   

  
	
  Exhibit G-1

  	
  Form of US Borrowing Base Certificate

  	
   

  
	
  Exhibit G-2

  	
  Form of Canadian Borrowing Base Certificate

  	
   

  
	
  Exhibit H

  	
  Form of Closing Certificate

  	
   

  



 


INDEX TO SCHEDULES


 


	
  Schedule 1

  	
  Revolving Lenders’ Pro Rata Shares and
  Revolving Loan Commitments

  	
   

  
	
  Schedule 2

  	
  [Reserved]

  	
   

  
	
  Schedule 3

  	
  Inactive Subsidiaries

  	
   

  
	
  Schedule 4.1(y)

  	
  Replaced Letters of Credit

  	
   

  
	
  Schedule 6.5(b)

  	
  Bank Accounts

  	
   

  
	
  Schedule 8.6

  	
  Litigation

  	
   

  
	
  Schedule 8.8

  	
  Environmental Compliance

  	
   

  
	
  Schedule 8.11

  	
  Intellectual Property

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries and Affiliates

  	
   

  
	
  Schedule 8.13

  	
  Labor Union Matters

  	
   

  
	
  Schedule 8.16

  	
  Material Contracts

  	
   

  
	
  Schedule 8.23(b)

  	
  Real Property

  	
   

  
	
  Schedule 9.8

  	
  Existing Liens

  	
   

  
	
  Schedule 9.9

  	
  Indebtedness

  	
   

  
	
  Schedule 9.10(c)

  	
  Investments by Credit Parties in Non-Credit
  Party Subsidiaries

  	
   

  
	
  Schedule 9.10(g)

  	
  Loans by Credit Parties to Non-Credit
  Parties

  	
   

  
	
  Schedule 9.36

  	
  Post-Closing Matters

  	
   

  



 


vi





















 


AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT


 


This Loan and Security Agreement dated June
30, 2004, and amended and restated as of December 1, 2005 (this “Agreement”), is entered into by and among Credit Suisse, as
administrative agent for the LC Facility (as defined below) (in such capacity,
the “LC Facility Administrative Agent”),
Bank of America, N.A. (“BANA”), as
administrative agent for the Revolving Facility (as defined below) (in such
capacity, the “Revolving Administrative Agent”)
and as syndication agent for the LC Facility (in such capacity, the “LC Facility Syndication Agent”), Banc of America Securities
LLC (“BAS”), as sole arranger under the
Revolving Facility (in such capacity, the “Revolving Arranger”),
Credit Suisse, as sole bookrunner under the LC Facility (the “LC Facility Bookrunner”), Credit Suisse and BAS, as joint
lead arrangers under the LC Facility (in such capacity, the “LC Facility Joint Lead Arrangers”), Clean Harbors, Inc., a
Massachusetts corporation (“Parent”), the
Canadian Borrowers (as defined herein), and each of the other Subsidiaries (as
defined herein) of Parent from time to time a party hereto (each such
Subsidiary, together with Parent and Canadian Borrowers, a “Credit Party” and, collectively, “Credit Parties”).


 


W I T N E S S E T H :


 


WHEREAS, this Agreement was originally
entered into on June 30, 2004 and amended on July 20, 2004 (as so amended, the “Original Credit Agreement”) and the parties hereto desire to
amend and restate the Original Credit Agreement as herein set forth;


 


WHEREAS, the Borrowers desire to amend and
restate (the “Amendment and Restatement”) the
Original Credit Agreement upon the terms and conditions set forth in this
Agreement, pursuant to which (a) the LC Facility existing immediately prior to
the occurrence of the Amendment and Restatement Effective Date (the “Original LC Facility”) shall be replaced by the LC Facility
(as defined herein), (b) the US Revolving Maximum Credit shall be
increased from $30.0 million to $70.0 million and (c) the other amendments
to the Original Credit Agreement set forth herein shall be effected;


 


NOW, THEREFORE, in consideration of the
mutual conditions and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:


 


SECTION 1.                            DEFINITIONS.


 


For purposes of this Agreement, the following
terms shall have the respective meanings given to them below:


 


1.1                “Accounts” shall mean all present and future rights of Credit
Parties to payment of a monetary obligation, whether or not earned by
performance, which is not evidenced by Chattel Paper or an Instrument,
(a) for Inventory that has been or is to be sold, leased, licensed,
assigned, or otherwise disposed of, (b) for services rendered or to be
rendered, or (c) arising out of the use of a credit or charge card or
information contained on or for use with the card.


 





















 


1.2                “Accounts Collateral” shall have the meaning given such term
in Section 5.1(a).


 


1.3                “Accounts Collateral Agent” means, (i) prior to the Discharge
of Revolving Obligations, the Revolving Administrative Agent and (ii) on and
following the Discharge of Revolving Obligations, the LC Facility Collateral
Agent.


 


1.4                “Acquisition Consideration” shall mean the purchase
consideration for any Permitted Acquisition and all other payments by Parent or
any of its Subsidiaries in exchange for, or as part of, or in connection with,
any Permitted Acquisition, whether paid in cash or by exchange of Capital Stock
or of properties or otherwise and whether payable at or prior to the consummation
of such Permitted Acquisition or deferred for payment at any future time,
whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price
and any assumptions of Indebtedness, “earn-outs” and other agreements to make
any payment the amount of which is, or the terms of payment of which are, in
any respect subject to or contingent upon the revenues, income, cash flow or
profits (or the like) of any person or business; provided
that any such future payment that is subject to a contingency shall be
considered Acquisition Consideration only to the extent of the reserve, if any,
required under GAAP at the time of such sale to be established in respect
thereof by Parent or any of its Subsidiaries.


 


1.5                “Act” shall have the meaning set forth in Section 15.1.


 


1.6                “Adjusted Eurodollar Rate” shall mean, with respect to each
Interest Period for any Eurodollar Rate Loan, the rate per annum (rounded
upwards, if necessary, to the next one-sixteenth (1/16) of one percent (1%))
determined by dividing (a) the Eurodollar Rate for such Interest Period by (b)
a percentage equal to:  (i) one (1) minus
(ii) the Reserve Percentage.  For purposes
hereof, “Reserve Percentage” shall mean the reserve percentage, expressed as a
decimal, prescribed by any United States or foreign banking authority for determining
the reserve requirement which is or would be applicable to deposits of US
Dollars in a non-United States or an international banking office of Reference
Bank used to fund a Eurodollar Rate Loan or any Eurodollar Rate Loan made with
the proceeds of such deposit, whether or not the Reference Bank actually holds
or has made any such deposits or loans. 
The Adjusted Eurodollar Rate shall be adjusted on and as of the
effective day of any change in the Reserve Percentage.


 


1.7                “Adjusted Net Worth” shall mean as to any Person, at any
time, in accordance with GAAP (except as otherwise specifically set forth
below), on a consolidated basis for such Person and its Subsidiaries (if any),
the amount equal to the difference between: 
(a) the aggregate net book value of all assets of such Person and its
Subsidiaries after deducting from such book values all appropriate reserves in
accordance with GAAP (including all reserves for doubtful receivables,
obsolescence, depreciation and amortization) and (b) the aggregate amount of
the Indebtedness and other liabilities of such Person and its Subsidiaries
(including tax and other proper accruals).


 


1.8                “Administrative Agents” shall mean the collective reference
to the LC Facility Administrative Agent and the Revolving Administrative Agent,
and their respective successors and assigns.


 


2





















 


1.9                “Administrative Questionnaire” shall mean a duly completed
questionnaire in the form of Exhibit D-4 hereto.


 


1.10              “Affiliate” shall mean, with respect to a specified Person,
any other Person (a) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
such specified person; (b) for purposes of Section 9.12 only, which
beneficially owns or holds five percent (5%) or more of any class of the Voting
Stock or other equity interest of such specified person; or (c) for purposes of
Section 9.12 only, of which five percent (5%) or more of the Voting Stock or
other equity interest is beneficially owned or held by such specified person or
a Subsidiary of such specified person. 
For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”) when used with respect to any specified person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of Voting
Stock, by agreement or otherwise.


 


1.11              “Agents” shall mean the collective reference to the
Administrative Agents, Collateral Agents, the LC Facility Syndication Agent,
the LC Facility Issuing Bank, the LC Facility Joint Lead Arrangers and the
Revolving Arranger.


 


1.12              “Agreement” shall have the meaning set forth in the preamble
to this agreement.


 


1.13              “Amended and Restated Security Agreement” shall mean the
Original Security Agreement, as amended and restated as of the Amendment and
Restatement Effective Date in accordance with Section 10.2 thereof, as such
agreement is amended, modified or otherwise changed from time to time in accordance
with the terms hereof and thereof.


 


1.14              “Amendment and Restatement Effective Date” shall mean the
first Business Day on which all conditions precedent set forth in
Section 4 of this Agreement shall be satisfied, but in no event later than
December 16, 2005.


 


1.15              “Anti-Terrorism Laws” shall have the meaning set forth in
Section 8.21.


 


1.16              “Applicable Percentage” shall mean, with respect to any year,
the applicable percentage set forth below opposite the applicable Leverage
Ratio as of the last day of such fiscal year as set forth on the Compliance
Certificate delivered pursuant to Section 9.6 in respect of such year:


 




	
  Leverage Ratio

  	
   

  	
  Applicable
  Percentage

  
	
  >
  2.0:1.0

  	
   

  	
  50%

  
	
  <
  2.0:1.0 and > 1.5:1.0

  	
   

  	
  25%

  
	
  <
  1.5:1.0

  	
   

  	
  0%

  






 


1.17              “Applicable Rate” shall mean one and one half percent (1.50%)
per annum.


 


3





















 


1.18              “Approved Fund” shall mean 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.


 


1.19              “Asset Sale” shall mean (a) any direct or indirect
conveyance, sale, lease, sublease, assignment, transfer or other disposition
(including by way of merger or consolidation and including any Sale and
Leaseback Transaction) of any property excluding sales of inventory and
dispositions of cash equivalents, in each case, in the ordinary course of
business, by Parent or any of its Subsidiaries and (b) any issuance or sale
of any Capital Stock of any Subsidiary of Parent, in each case, to any person
other than Parent or any Credit Party. 
Notwithstanding the foregoing, no sale or disposition permitted by
clauses (b)(i)-(b)(iv) of Section 9.7 shall constitute an Asset Sale.


 


1.20              “Assignment and Acceptance” means an Assignment and
Acceptance between a Lender and an Eligible Assignee in the form of Exhibit D-1
hereto, in the case of an assignment of Revolving Loan Commitments, Revolving
Loans and participations in Revolving Letter of Credit Accommodations, Exhibit D-2
hereto in the case of an assignment of Credit-Linked Deposits and
participations in LC Facility Letters of Credit and Exhibit D-3
hereto in the case of an assignment of Term Loans.


 


1.21              “BANA” shall have the meaning assigned to such term in the
preamble hereof.


 


1.22              “Blocked Accounts” shall mean, collectively, the US Blocked
Accounts and the Canadian Blocked Accounts.


 


1.23              “Borrower Representative” shall have the meaning set forth in
Section 2.5 hereof.


 


1.24              “Borrowers” shall mean, collectively, US Borrowers and
Canadian Borrowers; each sometimes being referred to herein individually as a “Borrower”.


 


1.25              “Borrowing Base” shall mean, as to US Borrowers, the US
Borrowing Base and as to Canadian Borrowers, the Canadian Borrowing Base, and,
for the purposes of the last sentence of Section 2.2 and Section 2.8(b)(v), the
collective reference to the US Borrowing Base and the Canadian Borrowing Base.


 


1.26              “Borrowing Base Certificate” shall mean, collectively, the US
Borrowing Base Certificate and the Canadian Borrowing Base Certificate.


 


1.27              “Business Day” shall mean (a) in connection with any
Canadian Revolving Loans made or provided to a Canadian Borrower, or other
matters related exclusively to a Canadian Borrower, any day (i) other than a
Saturday or Sunday or other day on which commercial banks are authorized or
required to close under the laws of the State of New York, the Commonwealth of
Massachusetts or the Province of Ontario, and (ii) on which Canadian Lender’s
offices and The Toronto-Dominion Bank are open for the transaction of business
and (b) in connection with any LC Facility Letters of Credit, US
Revolving Loans or Revolving Letter of Credit Accommodations made or provided
to any US Borrower, any day other than a Saturday, Sunday, or other day on
which commercial banks are authorized or required to close under the


 


4





















 


laws of the State of New York
or the Commonwealth of Massachusetts and a day on which the Reference Bank and
Administrative Agents are open for the transaction of business, except that if
a determination of a Business Day shall relate to any Eurodollar Rate Loans,
the term Business Day shall also exclude any day on which banks are closed for
dealings in dollar deposits in the London interbank market or other applicable
Eurodollar Rate market.


 


1.28              “Canadian Accounts Collateral” shall have the meaning set
forth in Section 5.2.


 


1.29              “Canadian Agents” shall mean the Canadian Collateral Agent
and the Revolving Administrative Agent acting with respect to the Canadian Revolving
Facility.


 


1.30              “Canadian Blocked Accounts” shall have the meaning set forth
in Section 6.3(e).


 


1.31              “Canadian Borrowers” shall mean, collectively, the following
(together with their respective successors and assigns):  CH Canada Holdings Corp., a Nova Scotia
unlimited liability corporation; CH Canada GP, Inc., a Canadian corporation;
Clean Harbors Canada, Inc., a New Brunswick corporation; Clean Harbors Canada
LP, an Ontario limited partnership; Clean Harbors Mercier, Inc., a Quebec
corporation; Clean Harbors Quebec, Inc., a Quebec corporation; 510127 N.B.
Inc., a New Brunswick corporation; and each other Subsidiary of Parent which
becomes a Canadian Borrower pursuant to Section 9.26(b).


 


1.32              “Canadian Borrowing Base” shall mean, at any time, the amount
for each Canadian Borrower equal to (a) eighty percent (80%) of the Net Amount
of Eligible Accounts of each such Canadian Borrower (including all Municipal
Government Accounts that are Eligible Accounts), plus (b) the lesser of eighty
percent (80%) of the Net Amount of Federal Government Accounts of any such Canadian
Borrower that are Eligible Accounts or C$1,000,000 less (c) any Reserves
attributable to each such Canadian Borrower (including, without limitation,
adjustments with respect to Liens created by applicable law which rank or are
capable of ranking prior or pari passu with
Revolving Administrative Agent’s (or fonde de pourvoir’s, as the case may be)
Lien).


 


1.33              “Canadian Borrowing Base Certificate” shall mean an Officers’
Certificate from Canadian Borrowers substantially in the form of, and
containing the information prescribed by, Exhibit G-2, delivered to
the Revolving Administrative Agent.


 


1.34              “Canadian Collateral Agent” shall mean BABC Global Finance
Inc. (being the successor to Fleet Capital Global Finance Inc.) and its
successors and assigns.


 


1.35              “Canadian Dollar Equivalent” shall mean at any time
(a) as to any amount denominated in Canadian Dollars, the amount thereof
and (b) as to any amount denominated in US Dollars or any other
currency, the equivalent amount in Canadian Dollars calculated by Revolving
Administrative Agent at such time using the then applicable Exchange Rate in
effect on the Business Day of determination.


 


1.36              “Canadian Dollar Loans” shall mean any Loans or portion
thereof which are denominated in Canadian Dollars.


 


5





















 


1.37              “Canadian Dollars” and “C$” shall each
mean the lawful currency of Canada.


 


1.38              “Canadian Lender” shall mean BABC Global Finance Inc. and its
successors and assigns.


 


1.39              “Canadian Maximum Credit” shall mean US$5,300,000.


 


1.40              “Canadian Obligations” shall mean any and all (a) Canadian
Revolving Loans and all other obligations, liabilities and indebtedness of
every kind, nature and description owing by any Canadian Borrower to any Canadian
Secured Party, including principal, interest, charges, fees, costs and
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, arising under this Agreement, any cash management agreement or
under the other Financing Agreements, (b) the due and punctual payment and
performance of all obligations of any Canadian Borrower under each Hedging
Agreement entered into with any counterparty that was an Agent or a Lender or
an Affiliate of a Lender or an Affiliate of an Agent at the time such Hedging
Agreement was entered into and (c) the due and punctual payment and performance
of all overdraft obligations, fees, costs, charges, expenses and other
obligations from time to time owing to the Canadian Secured Party or the Cash
Management Bank by any Canadian Borrower under any cash management agreement,
operating or deposit account or other banking product (including, but not
limited to any corporate purchase cards such as the so-called “P-Card”) from
time to time made available to any Canadian Borrower by any Canadian Secured
Party, the Cash Management Bank or any other Affiliate thereof, in each case
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of this Agreement or after the commencement
of any case with respect to any Canadian Borrower under the United States
Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’
Creditors Arrangement Act (Canada) or any similar statute (including the
payment of interest and other amounts which would accrue and become due but for
the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in such case), whether direct or not direct,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by such
Canadian Secured Party.


 


1.41              “Canadian Payment Account” shall mean a US Dollar account of
Canadian Lender at the Royal Bank of Canada for US Dollars agreed to by
Revolving Administrative Agent and Parent and a Canadian Dollar account of
Canadian Lender at the Royal Bank of Canada for Canadian Dollars agreed to by Revolving
Administrative Agent and Parent or such other account of Canadian Lender as
Revolving Administrative Agent may from time to time designate to Parent as the
Canadian Payment Account for purposes of this Agreement and the other Financing
Agreements.


 


1.42              “Canadian Pension Plan” shall mean any plan, program or
arrangement (other than the Canada/Quebec Pension Plan) that is a pension plan
for the purposes of any applicable pension benefits legislation or any tax laws
of Canada or a Province thereof, whether or not registered under any such laws,
which is maintained or contributed to by, or to which there is or may be an obligation
to contribute by, any Borrower in respect of any Person’s employment in Canada
with such Borrower.


 


6





















 


1.43              “Canadian Prime Rate” shall mean the applicable per annum
rate of interest charged by Canadian Lender for commercial loans made by it in
Canada in Canadian Dollars or US Dollars, as the case may be, as determined by
Canadian Lender based upon various factors including its cost of funds and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans.


 


1.44              “Canadian Prime Rate Loans” shall mean any Canadian Dollar
Loans or US Dollar Loans or portion thereof on which interest is payable based
on the applicable Canadian Prime Rate in accordance with the terms hereof.


 


1.45              “Canadian Revolving Facility” shall mean the Canadian
Revolving Loans provided to or for the benefit of a Canadian Borrower pursuant
to Section 2 hereof.


 


1.46              “Canadian Revolving Loan Note” shall mean a promissory note
in the form of Exhibit C-2, as it may be amended, supplemented or
otherwise modified from time to time.


 


1.47              “Canadian Revolving Loans” shall mean Revolving Loans made by
Canadian Lender pursuant to Section 2.


 


1.48              “Canadian Secured Parties” shall mean, collectively, the
Revolving Administrative Agent (with respect to actions taken to administer the
Canadian Revolving Facility), the Canadian Lender, the Canadian Collateral
Agent and any Person that was a Lender or an Affiliate of a Lender at the time
that such Person entered into a Hedging Agreement with any Canadian Borrower
and their successors and assigns.


 


1.49              “Capital Expenditures” shall mean with respect to any Person
for any period, the sum of (i) the aggregate of all expenditures by such Person
and its Subsidiaries during such period that in accordance with GAAP are or
should be included in “property, plant and equipment” or in a similar fixed
asset account on its balance sheet, whether such expenditures are paid in cash
or financed, and (ii) to the extent not covered by clause (i) above, the
aggregate of all expenditures by such Person and its Subsidiaries during such
period to acquire by purchase or otherwise the business or fixed assets of, or
the Capital Stock of, any other Person; provided that
there shall be excluded from Capital Expenditures the purchase price paid in
any Permitted Acquisition, to the extent such purchase price would have otherwise
constituted Capital Expenditures; provided, further, that any Rolling Stock which is initially accounted
for as a Capital Expenditure at the time of acquisition thereof but which is transferred
to a third party and becomes subject to an operating lease within 60 days after
the date of acquisition thereof which lease would not be required to be treated
as an addition to “property, plant and equipment” or in a similar fixed asset
account on a consolidated balance sheet of Parent and its Subsidiaries prepared
in accordance with GAAP, shall be excluded from Capital Expenditures.


 


1.50              “Capital Leases” shall mean, as applied to any Person, any
lease of (or any agreement conveying the right to use) any property (whether
real, personal or mixed) by such Person as lessee which in accordance with
GAAP, is required to be reflected as a liability on the balance sheet of such
Person.


 


1.51              “Capital Stock” shall mean, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated)
of such Person’s capital stock,


 


7





















 


partnership interests, limited
liability company interests or other equity interests at any time outstanding,
and any and all rights, warrants or options exchangeable for or convertible
into such capital stock or other interests (but excluding any debt security
that is exchangeable for or convertible into such capital stock).


 


1.52              “Cash Collateral Account” shall have the meaning assigned to
such term in Section 2.6(k)(i).


 


1.53              “Cash Equivalents” shall mean, at any time, (a) any evidence
of Indebtedness with a maturity date of one year or less from the date of
acquisition thereof issued or directly and fully guaranteed or insured by the
United States of America, Canada or any agency or instrumentality thereof; (b)
certificates of deposit or bankers’ acceptances with a maturity of ninety (90)
days or less from the date of acquisition thereof of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250,000,000; (c) commercial
paper (including variable rate demand notes) with a maturity of ninety one year
or less from the date of acquisition thereof issued by a corporation (except
any Credit Party or an Affiliate of any Credit Party) organized under the laws
of any State of the United States of America or the District of Columbia or
organized under the laws of any Province of Canada, or the federal laws
applicable therein and rated at least A-1 by Standard & Poor’s Ratings
Service, a division of The McGraw-Hill Companies, Inc. (“S&P”)
or at least P-1 by Moody’s Investors Service, Inc. (“Moody’s”);
(d) marketable direct obligations issued by any State of the United States of
America or any political subdivision or public instrumentality thereof maturing
within one year of the acquisition thereof and having one of the two highest
ratings obtainable from either S&P or Moody’s; (e) debt securities maturing
within one year from the date of acquisition issued by any company organized
under the laws of the United States of America, any State thereof or the District
of Columbia and having a rating of at least A from S&P and A2 from Moody’s;
(f) repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States or Canada or issued by any agency of those countries and backed by
the full faith and credit of the respective country, in each case maturing
within 90 days from the date of acquisition; provided
that the terms of such agreements comply with the guidelines set forth in
Repurchase Agreements of Depository Institutions with Securities Dealers and
Others, as adopted by the Comptroller of the Currency on February 11, 1998; and
(g) investments in money market funds and mutual funds which invest
substantially all of their assets in securities of the types described in
clauses (a) through (f) above.


 


1.54              “Cash Management Bank” shall mean
BANA and its successors and assigns.


 


1.55              “Casualty Event” shall mean any loss of title or any loss of
or damage to or destruction of, or any condemnation or other taking (including
by any Governmental Authority) of, any property of Parent or any of its Subsidiaries.  “Casualty Event” shall include but not be
limited to any taking of all or any part of any Real Property of any person or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, or by reason of the temporary requisition of the use or
occupancy of all or any part of any Real Property of any person or any part
thereof by any Governmental Authority, civil or military, or any settlement in
lieu thereof.


 


8





















 


1.56              “Change of Control” shall mean (a) except as may be expressly
permitted under Section 9.7 hereof, the transfer (in one transaction or a
series of transactions) of all or substantially all of the assets of any Credit
Party to any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act); (b) except as may be expressly permitted under Section 9.7
hereof, the liquidation or dissolution of any Credit Party or the adoption of a
plan by the stockholders of any Credit Party relating to the dissolution or
liquidation of any Credit Party; (c) the acquisition by any Person or group (as
such term is used in Section 13(d)(3) of the Exchange Act), except for one or
more Permitted Holders, of beneficial ownership, directly or indirectly, of
fifty percent (50%) or more of the voting power of the total outstanding Voting
Stock of Parent; (d) during any period of two (2) consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of Parent (together with any new directors who have been appointed by
any Permitted Holder, or whose nomination for election by the stockholders of
Parent, as the case may be, was approved by a vote of at least sixty-six and two-thirds
percent (66 2/3%) of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason (other than death or
cessation of legal capacity) to constitute a majority of the Board of Directors
of Parent then still in office; (e) in the case of any Credit Party other than
Parent, Parent or Credit Parties that own beneficially and of record, Voting
Stock of other Credit Parties on the Amendment and Restatement Effective Date
shall cease to own beneficially and of record, one hundred percent (100%) of
the voting power of the total outstanding Voting Stock of each such other
Credit Party or shall cease to control the appointment of the Board of
Directors of each such Credit Party; (f) the failure of the Permitted Holders
to own more than fifteen percent (15%) of the voting power of the total
outstanding Voting Stock of Parent; or (g) the occurrence of a change of
control under any Material Indebtedness.


 


1.57              “Code” shall mean the Internal Revenue Code of 1986, as the
same now exists or may from time to time hereafter be amended, modified,
recodified or supplemented, together with all rules, regulations and
interpretations thereunder or related thereto.


 


1.58              “Collateral” shall mean, collectively, the Accounts
Collateral, the Non-Accounts Collateral and, prior to the Discharge of
Revolving Obligations, the Canadian Accounts Collateral.


 


1.59              “Collateral Access Agreement” shall mean an agreement in
writing, in form and substance satisfactory to (i) the Accounts Collateral
Agent, to the extent relating to Accounts Collateral and (ii) the Canadian
Collateral Agent, to the extent relating to Canadian Accounts Collateral, from
any lessor of premises to any Credit Party, or any other person to whom any
Accounts Collateral or Canadian Accounts Collateral, as applicable, is
consigned or who has custody, control or possession of any such Collateral or
is otherwise the owner or operator of any premises on which any of such
Collateral is located, pursuant to which such lessor, consignee or other
person, inter alia, acknowledges the first
priority security interest of such Collateral Agent in such Collateral, agrees
to waive any and all claims such lessor, consignee or other person may, at any
time, has against such Collateral, whether for processing, storage or
otherwise, and agrees to permit such Collateral Agent access to, and the right
to remain on, the premises of such lessor, consignee or other person so as to
exercise such Collateral Agent’s rights and remedies and otherwise deal with
such Collateral and, in the case of any consignee or other person who at any
time has custody, control or possession of any Collateral, acknowledges that it
holds and will


 


9





















 


hold possession of such
Collateral for the benefit of such Collateral Agent and agrees to follow all
instructions of such Collateral Agent with respect thereto.


 


1.60              “Collateral Agents” shall mean the collective reference to
the LC Facility Collateral Agent, Accounts Collateral Agent and Canadian
Collateral Agent.


 


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


 


1.62              “Confidential Lender Authorization” shall mean, with respect
to any Original LC Facility Lender, a letter setting forth Original LC Facility
Lender’s (i) approval of the Amendment and Restatement and (ii) LC Facility
Commitment (if any), delivered to and approved by the LC Administrative Agent.


 


1.63              “Consolidated
Current Assets” means, as at any date, the total assets of
Parent and its Subsidiaries on a consolidated basis that may properly be
classified as current assets in conformity with GAAP as of such date, excluding
cash and Cash Equivalents.


 


1.64              “Consolidated
Current Liabilities” means, as at any date, the total
liabilities of Parent and its Subsidiaries on a consolidated basis that may
properly be classified as current liabilities in conformity with GAAP as of
such date, excluding the current portion of long term Indebtedness.


 


1.65              “Consolidated EBITDA” shall mean with respect to any Person
for any period, the Consolidated Net Income of such Person and its Subsidiaries
for such period, plus without duplication, the sum of the following amounts of
such Person and its Subsidiaries for such period, in each case and to the
extent deducted in determining Consolidated Net Income of such Person for such
period:  (A) Consolidated Interest Expense,
(B) accrued income taxes for such period determined on a consolidated
basis in accordance with GAAP, (C) depreciation expense determined on a
consolidated basis in accordance with GAAP, (D) all costs and expenses
attributable to the Specified Equity Offering (if it occurs), the Warrant
Proceeds Redemption (if it occurs) and the Specified Notes Redemption and this
Amendment and Restatement; provided that
(a) Parent provides such support and documentation with respect to such costs
and expenses as either Administrative Agent may reasonably request and (b) each
Administrative Agent is otherwise reasonably satisfied with such costs and expenses,
(E) all write-offs of previously unamortized costs and expenses associated with
the Original Credit Agreement and the issuance on the Original Effective Date
of the Senior Secured Notes (to the extent that (i) such write-offs are not
already included under clause (D) of this definition, (ii) such write-offs do
not exceed $7.9 million in the aggregate and (iii) such write-offs are itemized
in reasonable detail) and (F) amortization expense determined on a consolidated
basis in accordance with GAAP.


 


1.66              “Consolidated Indebtedness” shall mean, as at any date of
determination, the aggregate amount of all Indebtedness of Parent and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.


 


1.67              “Consolidated Interest Expense” shall mean with respect to
any Person for any period, gross interest expense of such Person and its
Subsidiaries for such period determined on a consolidated basis and in
accordance with GAAP (including, without limitation, interest


 


10





















 


expense paid to Affiliates of
such Person and fees and interest expense in connection with the LC Facility),
less, to the extent included therein, (i) gains for such period on Hedging
Agreements plus, to the extent not included therein, (ii) the sum of
(A) losses for such period on Hedging Agreements and (B) the upfront
costs or fees for such period associated with Hedging Agreements, in each case,
determined on a consolidated basis and in accordance with GAAP; provided that any fronting fees accruing under Section
2.9(i) shall be excluded from the calculation of Consolidated Interest Expense.


 


1.68              “Consolidated Net Income” shall mean with respect to any Person
for any period, the net income (loss) of such Person and its Subsidiaries
(other than the Excluded Subsidiary) for such period, determined on a
consolidated basis and in accordance with GAAP, but excluding from the
determination of Consolidated Net Income (without duplication):  (a) any extraordinary gains or losses or
gains or losses from dispositions of assets of such Person and Subsidiaries
(other than Inventory in the ordinary course of business on ordinary business
terms), (b) any accretion expense attributable to Environmental Liabilities; provided that (1) such expense is non-cash and
(2) such expense is determined on a consolidated basis in accordance with
GAAP and (c) non-recurring employee severance costs in an amount not to exceed
$1.2 million in any twelve month period.


 


1.69              “Consolidated
Working Capital” means, as of any date, the excess of
Consolidated Current Assets as of such date over Consolidated Current
Liabilities as of such date.


 


1.70              “Consolidated
Working Capital Adjustment” means, for any period on a consolidated
basis, the amount (which may be a negative number) by which Consolidated Working
Capital as of the beginning of such period exceeds (or is less than) Consolidated
Working Capital as of the end of such period.


 


1.71              “Credit Parties” shall mean US Credit Parties and Canadian
Borrowers.


 


1.72              “Credit-Linked Deposit” shall mean, as to each LC Facility
Lender, the cash deposit made by such LC Facility Lender pursuant to
Section 2.6(d) or adjusted pursuant to Section 2.7(f), as such deposit
may be (1) reduced from time to time pursuant to Section 2.8(a), and
(2) reduced or increased from time to time pursuant to assignments by or
to such LC Facility Lender pursuant to Section 12.6.  The amount of each LC Facility Lender’s
Credit-Linked Deposit as of the Amendment and Restatement Effective Date is set
forth in the Assignment and Acceptance pursuant to which such LC Facility
Lender shall have acquired its Credit-Linked Deposit, as applicable.


 


1.73              “Credit-Linked Deposit Account” shall mean the account
established by the LC Facility Administrative Agent under its sole and
exclusive control maintained at the office of Credit Suisse at Eleven Madison
Avenue, New York, New York 10010-3629, designated as the “Clean Harbors
Credit-Linked Deposit Account”.


 


1.74              “Currency Due” shall have the meaning set forth in Section
11.7 hereof.


 


1.75              “Debt Issuance” shall mean the incurrence by Parent or any of
its Subsidiaries of any Indebtedness after the Amendment and Restatement
Effective Date (other than as


 


11





















 


permitted by Section 9.9) or
the issuance by Parent or any of its Subsidiaries of any Disqualified Capital
Stock.


 


1.76              “Deed of Hypothec” shall mean, collectively, (a) the Deed of
Hypothec executed or to be executed by Clean Harbors Mercier, Inc., a Quebec
corporation, pursuant to which it hypothecates its Canadian Accounts Collateral
in favor of the Canadian Collateral Agent pursuant to the provisions of Article
2692 of the Civil Code of Quebec, and (b) the Deed of Hypothec executed or to
be executed by Clean Harbors Quebec, Inc., a Quebec corporation, pursuant to
which it hypothecates its Canadian Accounts Collateral in favor of the Canadian
Collateral Agent pursuant to the provisions of Article 2692 of the Civil Code
of Quebec, each as amended, restated or modified from time to time.


 


1.77              “Default” shall mean an act, condition or event which is or
with notice or passage of time or both would constitute an Event of Default.


 


1.78              “Default Revolving Loans” shall have the meaning set forth in
Section 10.2(j) hereof.


 


1.79              “Delinquent Revolving Lender” shall have the meaning set
forth in Section 13.5(c) hereof.


 


1.80              “Deposit Account Control Agreement” shall mean an agreement
in writing, in form and substance satisfactory to the applicable Collateral
Agent, by and among such Collateral Agent, a Credit Party, and any bank at
which any Deposit Account of such Credit Party is at any time maintained which
provides that such bank will comply with instructions originated by such
Collateral Agent directing disposition of the funds in the Deposit Account
without further consent by such Credit Party and such other terms and
conditions as such Collateral Agent may require; provided
that each Deposit Account Control Agreement with respect to any Blocked Account
shall provide that all items received or deposited in any Blocked Accounts are
the property of Revolving Administrative Agent, that the bank has no Lien upon,
or right to setoff against, the Blocked Accounts, the items received for
deposit therein, or the funds from time to time on deposit therein and that the
bank will wire, or otherwise transfer, in immediately available funds, on a
daily basis to the Revolving Agent Payment Account (in the case of the US
Credit Parties) and to the Canadian Payment Account (in the case of the
Canadian Borrowers) all available funds received or deposited into the Blocked
Accounts.


 


1.81              “Deposit Accounts” shall mean, collectively, with respect to
any Credit Party, (i) all “deposit accounts” as such term is defined in the UCC
and (ii) all cash, funds, checks, notes and Instruments from time to time on
deposit an any such deposit account.


 


1.82              “Dilution Percentage” shall mean a percentage, calculated at
the end of each field examination with respect to the Accounts Collateral by
the Accounts Collateral Agent, reflecting the amount of dilution of Eligible Accounts
that should (based on the results of such field examination), in the
determination of the Accounts Collateral Agent, be taken into account when
calculating the Borrowing Base; provided that
each such percentage shall be represented by a whole number without decimal
places. The Dilution Percentage shall remain in effect from and after each such
field examination until the completion of a new field examination and the


 


12





















 


determination by the Accounts
Collateral Agent of a new Dilution Percentage, at which time the Dilution
Percentage shall reflect such new field examination and the determination by
the Accounts Collateral Agent of such new Dilution Percentage.


 


1.83              “Dilution Reserve Percentage” shall mean, as of any time, the
Dilution Percentage as of such time minus 9%; provided
that if the Dilution Percentage as of such time is below 11%, then the Dilution
Reserve Percentage as of such time shall be deemed to be 0%.


 


1.84              “Discharge of LC Obligations” shall mean the first date on
which all LC Facility Obligations (other than indemnification obligations with
respect to unasserted claims) have been paid in full in cash.


 


1.85              “Discharge of Revolving Obligations” shall mean the first
date on which all of the Revolving Loan Commitments have terminated and all
Revolving Obligations (other than indemnification obligations with respect to
unasserted claims) have been paid in full in cash and no Revolving Letter of
Credit Accommodations are outstanding.


 


1.86              “Disqualified Capital Stock” shall mean any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of
the Latest Maturity Date, (b) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) debt securities or
(ii) any Capital Stock referred to in (a) above, in each case at any time
on or prior to the first anniversary of the Latest Maturity Date, or
(c) contains any repurchase obligation which may come into effect prior to
payment in full of all Obligations.


 


1.87              “Dollar Equivalent Amount” shall have the meaning set forth
in Section 6.5(b) hereof.


 


1.88              “Eligible Accounts” shall mean Accounts created by Credit
Parties which are and continue to be acceptable to Revolving Administrative
Agent based on the criteria set forth below. 
In general, Accounts shall be Eligible Accounts if:


 


(a)           such Accounts arise
from the actual and bona fide sale and delivery of Inventory by a Credit Party
or rendition of services by a Credit Party in the ordinary course of its
business which transactions are completed in accordance with the terms and
provisions contained in any documents related thereto;


 


(b)           such Accounts are
not unpaid more than the ninety (90) days after the date of the original
invoice for them;


 


(c)           such Accounts comply
with the terms and conditions contained in Section 7.2(b) of this Agreement;


 


13





















 


(d)           such Accounts do not
arise from sales on consignment, guaranteed sale, sale and return, sale on approval,
or other terms under which payment by the account debtor may be conditional or
contingent;


 


(e)           the chief executive
office of the account debtor with respect to such Accounts is located in the
United States of America, Puerto Rico or Canada (provided
that, at any time promptly upon Revolving Administrative Agent’s request,
Credit Parties shall execute and deliver, or cause to be executed and
delivered, such other agreements, documents and instruments as may be required
by Revolving Administrative Agent to perfect the security interests of
Revolving Administrative Agent in those Accounts of an account debtor with its
chief executive office or principal place of business in Puerto Rico or Canada
in accordance with the applicable laws of the Commonwealth of Puerto Rico or
the Province of Canada in which such chief executive office or principal place
of business is located and take or cause to be taken such other and further actions
as Revolving Administrative Agent may request to enable Revolving Administrative
Agent as secured party with respect thereto to collect such Accounts under the
applicable laws of Puerto Rico or Federal or Provincial laws of Canada) or, at
Revolving Administrative Agent’s option, if the chief executive office and
principal place of business of the account debtor with respect to such Accounts
is located other than in the United States of America, Puerto Rico or Canada,
then if:  (i) the account debtor has
delivered to Credit Parties an irrevocable letter of credit issued or confirmed
by a bank satisfactory to Revolving Administrative Agent and payable only in
the United States of America and in US dollars, or with respect to Accounts of
Canadian Borrowers only, payable in Canada and in Canadian Dollars or US
Dollars sufficient to cover such Account, in form and substance satisfactory to
Revolving Administrative Agent and if required by Revolving Administrative
Agent, the original of such letter of credit has been delivered to Revolving
Administrative Agent or Revolving Administrative Agent’s agent and Credit
Parties have complied with the terms of
Section 5.3(f) hereof with respect to the assignment of the proceeds of such
letter of credit to Revolving Administrative Agent or naming Revolving
Administrative Agent (or with respect to Accounts of Canadian Borrowers only,
the Canadian Collateral Agent) as transferee beneficiary thereunder, as Revolving
Administrative Agent may specify, (ii) such Account is subject to credit
insurance payable to Revolving Administrative Agent or the Canadian Collateral
Agent, as the case may be issued by an insurer and on terms and in an amount
acceptable to Revolving Administrative Agent, or (iii) such Account is
otherwise acceptable in all respects to Revolving Administrative Agent (subject
to such lending formula with respect thereto as Revolving Administrative Agent
may determine);


 


(f)            such Accounts do
not consist of progress billings (such that the obligation of the account
debtors with respect to such Accounts is conditioned upon a Credit Party’s satisfactory
completion of any further performance under the agreement giving rise thereto),
bill and hold invoices or retainage invoices, except as to bill and hold
invoices, if Revolving Administrative Agent shall have received an agreement in
writing from the account debtor, in form and substance satisfactory to
Revolving Administrative Agent, confirming the unconditional obligation of the
account debtor to take the goods related thereto and pay such invoice;


 


14





















 


(g)           the account debtor
with respect to such Accounts has not asserted a counterclaim, defense or
dispute and does not have, and does not engage in transactions which may give
rise to any right of setoff or recoupment against such Accounts (but the portion
of the Accounts of such account debtor in excess of the amount at any time and
from time to time owed by any Credit Party to such account debtor or claimed
owed by such account debtor may be deemed Eligible Accounts);


 


(h)           there are no facts,
events or occurrences which would impair the validity, enforceability or collectability
of such Accounts or reduce the amount payable or delay payment thereunder;


 


(i)            such Accounts are
subject to the first priority, valid and perfected security interest of Accounts
Collateral Agent as to Accounts of US Credit Parties and first priority, valid
and perfected security interest, Lien and first ranking hypothec of Canadian
Collateral Agent and, to the extent applicable, in the case of the Deed of
Hypothec, the Canadian Lender, as to Accounts of Canadian Borrowers and any
goods giving rise thereto are not, and were not at the time of the sale
thereof, subject to any claims, Liens, security interest or hypothecs except
those permitted in this Agreement;


 


(j)            neither the account
debtor nor any officer or employee of the account debtor with respect to such
Accounts is an officer, employee, agent or other Affiliate of any Credit Party;


 


(k)           the account debtors
with respect to such Accounts are not any foreign government, the United States
of America, any State, Canada, any Province, political subdivision, department,
agency or instrumentality thereof, unless, upon Revolving Administrative Agent’s
request, if (i) the account debtor is the United States of America, any State,
political subdivision, department, agency or instrumentality thereof, such
Credit Party has assigned its rights to payment of such Account to Revolving Administrative
Agent pursuant to and in accordance with the Federal Assignment of Claims Act
of 1940, as amended, or pursuant to any similar State or local law, regulation
or requirement or (ii) the account debtor is Her Majesty in right of Canada or
any Canadian provincial or local governmental entity, or any ministry, such
Credit Party has assigned its rights to payment of such Account to Revolving
Administrative Agent pursuant to and in accordance with the Financial Administration
Act, R.S.C. 185, c.F-11, as amended, or any similar applicable provincial or local
law, regulation or requirement;


 


(l)            there are no
proceedings or actions which are threatened or pending against the account
debtors with respect to such Accounts which might result in any material
adverse change in any such account debtor’s financial condition;


 


(m)          such Accounts are not
evidenced by or arising under any Instrument or Chattel Paper;


 


(n)           such Accounts of a
single account debtor or its affiliates do not constitute more than twenty
percent (20%) of all otherwise Eligible Accounts (but the portion of the
Accounts not in excess of such percentage may be deemed Eligible Accounts);


 


15





















 


(o)           such Accounts are
not owed by an account debtor who has Accounts unpaid more than ninety (90)
days after the original invoice date for them which constitute more than fifty
percent (50%) of the total Accounts of such account debtor;


 


(p)           the account debtor
is not located in a state requiring the filing of a Notice of Business
Activities Report or similar report in order to permit Credit Parties to seek
judicial enforcement in such State of payment of such Account, unless the
Credit Party doing business with such account debtor has qualified to do
business in such state or has filed a Notice of Business Activities Report or
equivalent report for the then current year or such failure to file and
inability to seek judicial enforcement is capable of being remedied without any
material delay or material cost; and


 


(q)           such Accounts are
owed by account debtors whose total indebtedness to Credit Parties does not
exceed the credit limit with respect to such account debtors as determined by
Credit Parties from time to time and as is reasonably acceptable to Revolving
Administrative Agent (but the portion of the Accounts not in excess of such
credit limit may be deemed Eligible Accounts);


 


provided, however,
that Eligible Accounts shall be reduced by the Borrowers’ deferred
revenue as shown on the balance sheet of the latest financial statements of
Parent and its Subsidiaries delivered pursuant to Section 9.6.


 


The criteria
for Eligible Accounts set forth above may be changed and any new criteria for
Eligible Accounts may be established only by Revolving Administrative Agent in
good faith based on either:  (i) an
event, condition or other circumstance arising after the Original Effective
Date, or (ii) an event, condition or other circumstance existing on the
Original Effective Date to the extent Revolving Administrative Agent has no
written notice thereof from Credit Parties prior to the Original Effective
Date, in either case under clause (i) or (ii) which adversely affects or could
reasonably be expected to adversely affect the Accounts in the good faith
determination of Revolving Administrative Agent.  Any Accounts which are not Eligible Accounts
shall nevertheless be part of the Accounts Collateral or Canadian Accounts Collateral,
as applicable.


 


1.89              “Eligible Assignee” shall mean any of the following:  (i) a commercial bank, insurance company, any
savings and loan association or finance company or a subsidiary thereof organized
under the laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000 or, in the case
of the Canadian Revolving Facility, any Canadian Affiliate thereof; (ii) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, provided
that such bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the OECD;
(iii) the central bank of any country which is a member of the OECD; (iv) an
Approved Fund of any Lender; (v) in the case of the LC Facility and Term Loans
only, an investment or mutual fund or other entity that is an “accredited
investor” (as defined in Regulation D under the Securities Act of 1933, as
amended) that extends credit or invests in bank loans regularly in its
businesses; and (vi) in the case of the Revolving Facility, if and only if an
Event of Default has occurred and is continuing, and in the case of the LC
Facility or any Term Loans, at any time, any


 


16





















 


other bank, insurance company,
finance company or other financial institution or fund approved by the
Revolving Administrative Agent in the case of assignments under the Revolving
Facility or by the LC Facility Administrative Agent and the LC Facility Issuing
Bank in the case of assignments under the LC Facility, in each case in good
faith.


 


1.90              “Embargoed Person” or “Embargoed Persons”
shall have the meaning set forth in Section 9.30.


 


1.91              “Environment” shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources, the workplace or as otherwise defined in
any Environmental Law.


 


1.92              “Environmental Expenditures” shall mean with respect to any
Person for any period, the sum of the aggregate of all expenditures by such
Person and its Subsidiaries for spending incurred with respect to remedial liabilities,
including but not limited to, superfund, remediation, facility closure
remediation, and discontinued operation liabilities.


 


1.93              “Environmental Laws” shall mean all current and future
foreign, Federal, State, Provincial and local laws (including common law),
legislation, rules, codes, licenses, permits (including any conditions imposed
therein), authorizations, judicial or administrative decisions, injunctions or
agreements between any Credit Party and any Governmental Authority, relating to
pollution and the protection, preservation or restoration of the environment
(including air, water vapor, surface water, ground water, drinking water,
drinking water supply, surface land, subsurface land, plant and animal life or
any other natural resource), or to human health or safety, including, without
limitation, those relating to the (a) exposure to, or the use, storage,
recycling, treatment, generation, manufacture, processing, distribution,
transportation, handling, labeling, production, release or disposal, or
threatened release, of Hazardous Materials, or (b) recordkeeping, notification,
disclosure and reporting requirements respecting Hazardous Materials.


 


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


 


1.95              “Equipment” shall mean all of Credit Parties’ now owned and
hereafter acquired equipment, wherever located, including machinery, data
processing and computer equipment and computer hardware and software, whether
owned or licensed, and including embedded software, vehicles, tools, furniture,
fixtures, all attachments, accessions and property now or hereafter affixed
thereto or used in connection therewith, and substitutions and replacements
thereof, wherever located.


 


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1.96              “ERISA” shall mean the United States Employee Retirement
Income Security Act of 1974, together with all rules, regulations and
interpretations thereunder or related thereto.


 


1.97              “ERISA Affiliate” shall mean any person required to be aggregated
with any Borrower or any of its Subsidiaries under Sections 414(b), 414(c),
414(m) or 414(o) of the Code.


 


1.98              “ERISA Event” shall mean (a) any “reportable event”, as
defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan; (b) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA; (c) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Plan or the
failure to make any required contribution to a Multiemployer Plan; (d) the
filing pursuant to Section 412 of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (e) the occurrence of a “prohibited transaction” with respect to which
any Credit Party or any of its Subsidiaries is a “disqualified person” (within
the meaning of Section 4975 of the Code) or with respect to which any Credit
Party or any of its Subsidiaries could otherwise be liable; (f) a complete or
partial withdrawal by any Credit Party
or any ERISA Affiliate from a Multiemployer Plan or a cessation of operations
which is treated as a withdrawal or notification that a Multiemployer Plan is
in reorganization; (g) 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 Pension Benefit Guaranty
Corporation to terminate a Plan; (h) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan;
(i) the imposition of any liability under Title IV of ERISA, other than the
Pension Benefit Guaranty Corporation premiums due but not delinquent under
Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate; and (j)
any other event or condition with respect to a Plan including any Plan subject
to Title IV of ERISA maintained, or contributed to, by any ERISA Affiliate that
could reasonably be expected to result in liability of any Credit Party in excess
of $250,000.00.


 


1.99              “Eurodollar Rate” shall mean with respect to any Interest
Period for a Eurodollar Rate Loan or the LIBID Rate, the rate per annum
determined by the applicable Administrative Agent at approximately
11:00 a.m. (London time) on the date that is two Business Days prior to
the beginning of the relevant Interest Period by reference to the British
Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set
forth by the Bloomberg Information Service or any successor thereto or any
other service selected by such Administrative Agent which has been nominated by
the British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “Eurodollar
Rate” shall be the interest rate per annum determined by the applicable
Administrative Agent to be the average of the rates per annum at which deposits
in Dollars are offered for such relevant Interest Period to major banks in the
London interbank market in London, England by such Administrative Agent at approximately
11:00 a.m. (London time) on the date that is two Business Days prior to
the beginning of such Interest Period.


 


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1.100            “Eurodollar Rate Loans” shall mean any Loans or portion
thereof on which interest is payable based on the Adjusted Eurodollar Rate in
accordance with the terms hereof.


 


1.101            “Event of Default” shall mean the occurrence or existence of
any event or condition described in Section 10.1 hereof.


 


1.102            “Excess Availability” shall mean, at any time:


 


(a)         as
to US Borrowers, the amount, as determined by Revolving Administrative Agent,
equal to the lesser of (i) the US Borrowing Base at such time and (ii) the
US Revolving Maximum Credit at such time, minus the amount of all then outstanding
US Revolving Obligations at such time; and


 


(b)        as
to Canadian Borrowers, the Dollar Equivalent Amount, as determined by Revolving
Administrative Agent, equal to the lesser of (i) the Canadian Borrowing
Base at such time and (ii) the Canadian Maximum Credit at such time, minus
the sum of all then outstanding Canadian Obligations at such time.


 


1.103            “Excess
Cash Flow” means, for any period, an amount (if positive)
equal to: (i) the sum, without duplication, of the amounts for such period
of (a) Consolidated EBITDA, plus (b) the Consolidated Working Capital
Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) voluntary and scheduled
repayments of Indebtedness of the Credit Parties (excluding repayments of
Revolving Loans except to the extent the Revolving Loan Commitments are
permanently reduced in connection with such repayments), (b) Capital
Expenditures (net of any proceeds of (x) any related financings with respect to
such expenditures and (y) any sales of assets used to finance such expenditures),
(c) Consolidated Interest Expense of Parent and its Subsidiaries paid or
payable in cash for such period, (d) provisions for current taxes based on
income of Parent and its Subsidiaries paid or payable in cash with respect to
such period and (e) to the extent not deducted in calculating Consolidated Net
Income or Consolidated EBITDA during such period, Environmental Expenditures
actually made in cash during such period.


 


1.104            “Excess Cash Flow Offer” has the meaning assigned thereto in
the Senior Secured Notes Indenture (as the Senior Secured Notes Indenture is in
effect on the Issue Date).


 


1.105            “Exchange Act” shall mean the Securities Exchange Act of
1934, together with all rules, regulations and interpretations thereunder or
related thereto.


 


1.106            “Exchange Rate” shall mean the prevailing spot rate of
exchange of Reference Bank or such other bank as Revolving Administrative Agent
may reasonably select for the purpose of conversion of one currency to another,
at or around 11:00 a.m. Boston time, on the date on which any such
conversion of currency is to be made under this Agreement.


 


1.107            “Excluded Subsidiary” shall mean Northeast Casualty Retention
Group, Inc.


 


1.108            “Excluded Taxes” shall have the meaning set forth in Section
6.8(a) hereof.


 


1.109            “Executive Orders” shall have the meaning set forth in
Section 9.30.


 


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1.110            “Federal Funds Rate” shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such a rate is not
so published for any day that is a Business Day, the average (rounded upward,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the applicable Administrative Agent from three Federal
funds brokers of recognized standing selected by such Administrative Agent.


 


1.111            “Federal Government Account” shall mean an Account in which
the account debtor with respect to such Account is the United States of America
or Canada or a department, agency or instrumentality thereof.


 


1.112            “Fee Letter” shall mean the Fee Letter dated as of October
31, 2005 by and among Parent, the Administrative Agents and BAS.


 


1.113            “Financing Agreements” shall mean, collectively, this
Agreement and the Amended and Restated Security Agreement and all Notes,
guarantees, security agreements, hypothecs, mortgages, deeds of trust, deeds to
secure debts, deposit account control agreements, intercreditor agreements and
all other agreements, documents and instruments now or at any time hereafter
executed and/or delivered by any Credit Party in connection with this Agreement
and the Amended and Restated Security Agreement.


 


1.114            “First Rate” shall have the meaning set forth in Section
3.1(e) hereof.


 


1.115            “Fixed Charge Coverage Ratio” shall mean with respect to any
Person for any period, the ratio of (i)(A) Consolidated EBITDA of such Person
and its Subsidiaries for such period minus
(B) Capital Expenditures of such Person and its Subsidiaries for such
period (except to the extent otherwise deducted from Consolidated Net Income in
such period), minus (C) Environmental
Expenditures of such Person and its Subsidiaries for such period (except to the
extent deducted from Consolidated Net Income in such period), to (ii) the sum
of (A) all principal of Indebtedness for money borrowed of such Person and its
Subsidiaries scheduled to be paid or prepaid during such period (and in the
case of this Agreement, to the extent there is an equivalent permanent
reduction in the Revolving Maximum Credit and Revolving Loan Commitments hereunder),
other than any Indebtedness paid or prepaid pursuant to Section 9.32(a)(i),
(ii), (iii) or (iv) during such period, plus
(B) Consolidated Interest Expense of such Person and its Subsidiaries paid
or payable in cash for such period, plus
(C) income taxes paid or payable by such Person and its Subsidiaries
during such period, plus
(D) cash dividends or distributions paid by such Person and its
Subsidiaries (other than, in the case of any Credit Party, dividends or
distributions paid by such Credit Party to any other Credit Party) during such
period.  In determining the Fixed Charge
Coverage Ratio for a particular period (w) pro forma effect will be given
to any Permitted Acquisition or disposition (whether by sale, merger or
otherwise) of any property or assets disposed of by such Person and its
Subsidiaries (other than dispositions in the ordinary course of business) since
the first day of such period, as if such Permitted Acquisition or disposition
occurred on the first day of such period and any incurrence, repayment or
retirement of Indebtedness (other than in respect of Revolving Loans) in
connection therewith, as if such Indebtedness had been incurred, repaid or
retired, as the case may be, on the first day of such period;


 


20





















 


(x) interest on
Indebtedness incurred during such period and referred to in clause (w) that
bears a floating interest rate will be computed as if the rate at the time of
computation had been the applicable rate for the entire period; and (y) the
amount of Indebtedness under a revolving credit facility will be computed based
upon the actual daily balance of such Indebtedness during such period.


 


1.116            “Foreign Subsidiary” shall mean any Subsidiary of any Credit Party which is not
organized under the laws of the United States of America or any State thereof
or the District of Columbia.


 


1.117            “Fund” shall mean 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.


 


1.118            “GAAP” shall mean generally accepted accounting principles in
the United States of America as in effect from time to time as set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board which are applicable to the circumstances
as of the date of determination consistently applied, except that, for purposes
of Sections 9.17, 9.18, 9.19 and 9.20 hereof, GAAP shall be determined on the
basis of such principles in effect on the Original Effective Date and
consistent with those used in the preparation of the most recent audited
financial statements delivered to the Lenders prior to the Original Effective
Date.


 


1.119            “Governmental Authority” shall mean any nation or government,
any state, province, or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or controlled,
through stock or capital ownership or otherwise, by any of the foregoing.


 


1.120            “Governmental Real Property Disclosure Requirements” shall
mean any requirement of law of any Governmental Authority requiring
notification of the buyer, lessee, mortgagee, assignee or other transferee of
any Real Property, facility, establishment or business, or notification,
registration or filing to or with any Governmental Authority, in connection
with the sale, lease, mortgage, assignment or other transfer (including any
transfer of control) of any Real Property, facility, establishment or business,
of the actual or threatened presence or Release in or into the Environment, or
the use, disposal or handling of Hazardous Material on, at, under or near the
Real Property, facility, establishment or business to be sold, leased,
mortgaged, assigned or transferred.


 


1.121            “Guarantors” shall mean Clean Harbors of Baltimore, Inc. and
Clean Harbors Laurel, LLC.


 


1.122            “Hazardous Materials” shall mean any pollutant, contaminant
or constituent substances, chemicals, materials and wastes, including
hydrocarbons (including naturally occurring or man-made petroleum and
hydrocarbons), flammable explosives, asbestos, radioactive materials,
biological substances, polychlorinated biphenyls, pesticides, herbicides,
sewage,


 


21





















 


sludge, industrial slag and
solvents that can give rise to liability under or are subject to regulation
under any Environmental Law.


 


1.123            “Hedging Agreements” shall mean any interest rate, foreign
currency, commodity or equity swap, collar, cap, floor or forward rate
agreement, or other agreement or arrangement designed to protect against fluctuations
in interest rates or currency, commodity or equity values (including, without
limitation, any option with respect to any of the foregoing and any combination
of the foregoing agreements or arrangements), and any confirmation executed in
connection with any such agreement or arrangement.


 


1.124            “Inactive Subsidiaries” shall mean the Subsidiaries of the
Credit Parties listed on Schedule 3.


 


1.125            “Indebtedness” shall mean, with respect to any Person, any
liability, whether or not contingent, (a) in respect of borrowed money (whether
or not the recourse of the lender is to the whole of the assets of such Person
or only to a portion thereof) or evidenced by bonds, notes, debentures or
similar instruments; (b) representing the balance deferred and unpaid of the purchase
price of any property or services (except any such balance that constitutes an
account payable to a trade creditor (whether or not an Affiliate) created,
incurred, assumed or guaranteed by such Person in the ordinary course of
business of such Person in connection with obtaining goods, materials or services
that is not overdue by more than one hundred fifty (150) days, unless the trade
payable is being contested in good faith); (c) all obligations as lessee under
leases which have been, or should be, in accordance with GAAP recorded as
Capital Leases; (d) any contractual obligation, contingent or otherwise, of
such Person to pay or be liable for the payment of any indebtedness described
in this definition of another Person, including, without limitation, any such
indebtedness, directly or indirectly guaranteed, or any agreement to purchase,
repurchase, or otherwise acquire such indebtedness, obligation or liability or
any security therefor, or to provide funds for the payment or discharge
thereof, or to maintain solvency, assets, level of income, or other financial
condition; (e) all obligations with respect to redeemable stock and redemption
or repurchase obligations under any Capital Stock or other equity securities
issued by such Person; (f) all reimbursement obligations and other liabilities
of such Person with respect to surety bonds (whether bid, performance or
otherwise), letters of credit, banker’s acceptances or similar documents or
instruments issued for such Person’s account (including any Unreimbursed
Amount); and (g) all indebtedness of such Person in respect of indebtedness of
another Person for borrowed money or indebtedness of another Person otherwise
described in this definition which is secured by any consensual lien, security
interest, collateral assignment, conditional sale, mortgage, deed of trust, or
other encumbrance on any asset of such Person, whether or not such obligations,
liabilities or indebtedness are assumed by or are a personal liability of such
Person, all as of such time.


 


1.126            “Information Memorandum” shall mean the Confidential
Information Memorandum dated as of November 4, 2005 relating to the LC
Facility.


 


1.127            “Intellectual Property” shall mean Credit Parties’ now owned
and hereafter arising or acquired: 
patents, patent rights, patent applications, copyrights, works which are
the subject matter of copyrights, copyright registrations, trademarks, trade
names, trade styles, trademark and service mark applications, and licenses and
rights to use any of the foregoing; all


 


22





















 


extensions, renewals, reissues,
divisions, continuations, and continuations-in-part of any of the foregoing;
all rights to sue for past, present and future infringement of any of the
foregoing; inventions, trade secrets, formulae, processes, compounds, drawings,
designs, blueprints, surveys, reports, manuals, and operating standards;
goodwill (including any goodwill associated with any trademark or the license
of any trademark); customer and other lists in whatever form maintained; and
trade secret rights, copyright rights, rights in works of authorship, domain
names and domain name registrations; software and contract rights relating to
software, in whatever form created or maintained.


 


1.128            “Interest Coverage Ratio” shall mean with respect to any
Person and its Subsidiaries for any period, the ratio of (i) Consolidated
EBITDA of such Person and its Subsidiaries for such period, to
(ii) Consolidated Interest Expense of such Person and its Subsidiaries
paid or payable in cash for such period. 
In determining the Interest Coverage Ratio for a particular period (a)
pro forma effect will be given to any Permitted Acquisition or disposition
(whether by sale, merger or otherwise) of any property or assets disposed of by
such Person and its Subsidiaries (other than dispositions in the ordinary
course of business) since the first day of such period, as if such Permitted
Acquisition or disposition occurred on the first day of such period and any
incurrence, repayment or retirement of Indebtedness (other than in respect of
Revolving Loans) in connection therewith, as if such Indebtedness had been
incurred, repaid or retired, as the case may be, on the first day of such
period; (b) interest on Indebtedness incurred during such period and referred
to in clause (a) that bears a floating interest rate will be computed as if the
rate at the time of computation had been the applicable rate for the entire
period; and (c) the amount of Indebtedness under the Revolving Credit
Facility will be computed based upon the actual daily balance of such Indebtedness
during such period.


 


1.129            “Interest Period” shall mean (i) for any Eurodollar Rate
Loan, a period of approximately one (1), two (2), three (3) or six (6) months
duration as Credit Parties may elect, the exact duration to be determined in
accordance with the customary practice in the applicable Eurodollar Rate
market; provided that Credit Parties may not
elect an Interest Period which would end after the Maturity Date and (ii) for
purposes of calculating the LIBID Rate, the Interest Period on such Eurodollar
Rate Loan shall be (x) the Interest Period in effect immediately prior to
the Amendment and Restatement Effective Date, which shall end on the Amendment
and Restatement Effective Date, (y) a New Interest Period shall begin on the
Amendment and Restatement Effective Date, which shall end on the date that such
Interest Period would have ended under the Original Credit Agreement and (z)
after the end of such Interest Period, each period commencing on and including
the last Business Day of each September, December, March and June and ending on
and excluding the date on which the next succeeding Interest Period begins.


 


1.130            “Interest Rate” shall mean, as to US Prime Rate Loans, a rate
equal to the US Prime Rate, as to Canadian Prime Rate Loans, a rate equal to
the Canadian Prime Rate and as to Eurodollar Rate Loans, equal to the Adjusted
Eurodollar Rate (based on the Eurodollar Rate applicable for the Interest
Period selected by Borrowers as in effect three (3) Business Days after the
date of receipt by Revolving Administrative Agent of the request of Borrowers
for such Eurodollar Rate Loans in accordance with the terms hereof, whether
such rate is higher or lower than any rate previously quoted to Borrowers) plus
the Applicable Rate; provided that,
notwithstanding anything to the contrary contained herein, the Interest Rate
shall mean the rate of two percent (2.00%) per annum in excess of the rate then
applicable as to Prime Rate Loans and the


 


23





















 


rate of two percent (2.00%) per
annum in excess of the rate then applicable as to Eurodollar Rate Loans, at
Revolving Administrative Agent’s option (or as directed by the Majority
Revolving Lenders), without notice, (a) either (i) for the period on and after
the date of termination or non-renewal hereof until such time as all
Obligations are indefeasibly paid and satisfied in full in immediately
available funds, or (ii) for the period from and after the date of the
occurrence of any Event of Default, and for so long as such Event of Default is
continuing as determined by Revolving Administrative Agent and (b) on the
Revolving Loans at any time outstanding in excess of the amounts available to
Borrowers under Section 2 (whether or not such excess(es) arise or are made
with or without Revolving Administrative Agent’s knowledge or consent and
whether made before or after an Event of Default).


 


1.131            “Investment Property Control Agreement” shall mean an
agreement in writing, in form and substance satisfactory to the Accounts
Collateral Agent, to the extent relating to a Securities Account or Commodity
Account constituting Accounts Collateral, the Canadian Collateral Agent, to the
extent relating to a Securities Account or a Commodity Account constituting
Canadian Accounts Collateral or the LC Facility Collateral Agent, in all other
cases, by and among the applicable Collateral Agent, a Credit Party and any
Securities Intermediary, Commodity Intermediary or other person who has
custody, control or possession of any Investment Property of such Credit Party
acknowledging that such Securities Intermediary, Commodity Intermediary or
other person has custody, control or possession of such Investment Property on
behalf of the applicable Collateral Agent, that it will comply with entitlement
orders originated by such Collateral Agent with respect to such Investment
Property, or other instructions of such Collateral Agent, or (as the case may
be) apply any value distributed on account of any commodity contract as
directed by such Collateral Agent, in each case, without the further consent of
such Credit Party and including such other terms and conditions as such
Collateral Agent may require.


 


1.132            “Judgment Currency” shall have the meaning set forth in
Section 11.7 hereof.


 


1.133            “Latest Maturity Date” means the later of (i) the Maturity
Date and (ii) the latest stated maturity date applicable to any Term Loan.


 


1.134            “LC Facility” shall mean the extensions of credit made
hereunder in the form of LC Facility Letters of Credit by the LC Facility
Issuing Bank.


 


1.135            “LC Facility Administrative Agent” shall have the meaning set
forth in the preamble to this Agreement.


 


1.136            “LC Facility Availability Period” shall mean the period from
and after the Amendment and Restatement Effective Date through and excluding
the earliest of (x) the fifth Business Day prior to the Maturity Date,
(y) the date (if any) that the obligation of the LC Facility Issuing Bank
to issue LC Facility Letters of Credit shall be terminated pursuant to Section
10.2(b) and (z) the date (if any) that the Credit-Linked Deposits are
reduced to zero pursuant to Section 2.8(a).


 


1.137            “LC Facility Bookrunner” shall mean the meaning assigned to
such term in the preamble hereto.


 


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1.138            “LC Facility Collateral Agent” means, (i) prior to the
Discharge of LC Obligations, the LC Facility Administrative Agent and (ii) on
and following the Discharge of LC Obligations, the Accounts Collateral Agent.


 


1.139            “LC Facility Commitment” shall mean, as to any Lender, the
amount set forth in the Confidential Lender Authorization of such Lender (or,
in the case of Credit Suisse, in its capacity as a Lender, an amount equal to
$5.0 million), representing the aggregate amount such Lender has agreed to make
as Credit-Linked Deposits on the Amendment and Restatement Effective Date, as
the same may be increased or decreased in accordance with the terms of this
Agreement; provided that in the case of an Original
LC Facility Lender that will also be an LC Facility Lender, the Credit-Linked
Deposit of such LC Facility Lender will be made by such LC Facility Lender on
the Amendment and Restatement Effective Date only to the extent required by Section 2.7(f)(iv).


 


1.140            “LC Facility Issuing Bank” shall mean Credit Suisse, New York
Branch, and any successor thereto that becomes an LC Facility Issuing Bank
pursuant to Section 2.6(j).


 


1.141            “LC Facility Joint Lead Arrangers” shall have the meaning set
forth in the preamble to this Agreement.


 


1.142            “LC Facility Lender” shall mean, collectively, (i) each
Original LC Facility Lender that executes and delivers this Agreement on or
prior to the Amendment and Restatement Effective Date and has an LC Facility
Commitment and (ii) each other Person that (x) has an LC Facility
Commitment or (y) has taken a participation in the LC Facility Letters of
Credit pursuant to an Assignment and Acceptance, other than, in each case, any
LC Facility Lender that has ceased to be a party hereto pursuant to an Assignment
and Acceptance.


 


1.143            “LC Facility LC Disbursement” shall mean a payment or
disbursement made by the LC Facility Issuing Bank pursuant to an LC Facility Letter
of Credit.


 


1.144            “LC Facility LC Exposure” shall mean, at any time, the sum of
(a) the aggregate undrawn amount of all LC Facility Letters of Credit
outstanding at such time, plus (b) the
aggregate amount of all LC Facility LC Disbursements that have not yet been reimbursed
by or on behalf of the US Borrowers at such time, plus
(c) if the US Borrowers reimburse any LC Facility LC Disbursement, for the
period of 91 days following such reimbursement, the amount of such
reimbursement.  The LC Facility LC Exposure
of any LC Facility Lender at any time shall be the Pro Rata Share of such LC
Facility Lender times the total LC Facility LC Exposure at such time.  For the avoidance of doubt, the LC Facility
LC Exposure shall not include any obligations in respect of the Term Loans.


 


1.145            “LC Facility Letters of Credit” shall mean any letter of credit
issued pursuant to Section 2.6, which letter of credit (or similar instrument)
shall have been issued for the purpose of supporting (a) workers’
compensation liabilities of Parent or any of its Subsidiaries, (b) the
obligations of third-party insurers of Parent or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third-party insurers
to obtain such letters of credit, (c) performance, payment, deposit or
surety obligations of Parent or any of its Subsidiaries if required by law or
governmental rule or regulation or in accordance with custom and practice in


 


25





















 


the industry of Credit Parties
or (d) providing credit support in connection with the purchase of
materials, goods or services by Parent or any of its Subsidiaries in the
ordinary course of their businesses.


 


1.146            “LC Facility Obligations” shall mean any and all
reimbursement obligations in respect of LC Facility LC Disbursements, any and
all Term Loans made pursuant to Section 2.10, liabilities, fees and
indebtedness of every kind, nature and description owing by any US Credit Party
to any LC Facility Secured Party (in its capacity as such), including
principal, interest, charges, fees, costs and expenses and obligations to
provide cash collateral, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, arising under this Agreement or under the
other Financing Agreements, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of this
Agreement or after the commencement of any case with respect to any US Credit
Party under the United States Bankruptcy Code or any similar statute (including
the payment of interest and other amounts which would accrue and become due but
for the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by such
LC Facility Secured Party.


 


1.147            “LC Facility Proportion” shall mean, at any time, a fraction,
the numerator of which is the aggregate amount of the Credit-Linked Deposits
outstanding at such time and the denominator of which is the sum of the
aggregate amount of Credit-Linked Deposits outstanding at such time plus the
aggregate principal amount of any Term Loans outstanding at such time.


 


1.148            “LC Facility Register” shall have the meaning set forth in
Section 12.8(b).


 


1.149            “LC Facility Secured Parties” shall mean the LC Facility
Administrative Agent, the LC Facility Collateral Agent, the LC Facility Issuing
Bank, each LC Facility Lender, each Term Loan Lender and each of their successors
and assigns.


 


1.150             “LC Facility Syndication Agent” shall have the meaning set
forth in the preamble to this Agreement.


 


1.151            “Leases” shall mean any and all leases, subleases, tenancies,
options, concession agreements, rental agreements, occupancy agreements,
franchise agreements, access agreements and any other agreements (including all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter
entered into, affecting the use or occupancy of all or any portion of any Real
Property.


 


1.152            “Lenders” shall mean, collectively, LC Facility Lenders,
Revolving Lenders and the Term Loan Lenders (if any).


 


1.153            “Letters of Credit” shall mean, as applicable, the Revolving
Letter of Credit Accommodations and/or the LC Facility Letters of Credit.


 


1.154            “Leverage Ratio” shall mean, with respect to the Parent and
its Subsidiaries (other than the Excluded Subsidiary), at any time, the ratio
of (i) Consolidated Indebtedness of


 


26





















 


Parent and its Subsidiaries at
such time (excluding any amount set forth in clause (f) of the definition of
Indebtedness except to the extent, in accordance with GAAP, such Consolidated
Indebtedness would be required to be shown on a balance sheet prepared in accordance
with GAAP); provided that at any time when there are
no outstanding US Revolving Loans and there are less than the US Dollar
Equivalent of $2.0 million of Canadian Revolving Loans outstanding, such amount
shall be reduced by the lesser of (x) $20.0 million and (y) the amount of unrestricted
cash and Cash Equivalents of Parent and its Subsidiaries at such time in excess
of $10.0 million, to (ii) the Consolidated EBITDA of Parent and its
Subsidiaries for the latest four-quarter period ended prior to such time.  For purposes of calculating Consolidated
EBITDA for a particular period (a) pro forma effect will be given to any Permitted
Acquisition or disposition (whether by sale, merger or otherwise) of any
property or assets disposed of by Parent and its Subsidiaries (other than
dispositions in the ordinary course of business) since the first day of such
period, as if such Permitted Acquisition or disposition occurred on the first
day of such period and any incurrence, repayment or retirement of Indebtedness
(other than in respect of Revolving Loans) in connection therewith, as if such
Indebtedness had been incurred, repaid or retired, as the case may be, on the
first day of such period; (b) interest on Indebtedness incurred during such
period and referred to in clause (a) that bears a floating interest rate will
be computed as if the rate at the time of computation had been the applicable
rate for the entire period; and (c) the amount of Indebtedness under the
Revolving Facility will be computed based upon the actual daily balance of such
Indebtedness during such period.


 


1.155            “LIBID Rate” shall mean for any Interest Period a rate equal
to (A) the Eurodollar Rate for such Interest Period minus (B) 0.10% per annum.


 


1.156            “License Agreements” shall have the meaning set forth in
Section 8.11 hereof.


 


1.157            “Lien” shall mean any lien, mortgage, deed of trust, pledge,
security interest, hypothec, charge or encumbrance of any kind, including any
conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest.


 


1.158            “Loans” shall mean the Revolving Loans (and, if drawn and the
Financing Agreements are amended in accordance with Section 2.10(a)(vi), any
Term Loans).


 


1.159            “Majority LC Facility Lenders” shall mean, as of any date,
Lenders holding in the aggregate a majority or more of the aggregate amount of
(i) the total LC Facility Commitments at such time (or, at any time after the
Amendment and Restatement Effective Date, the Total Credit-Linked Deposits and
participations in LC Facility Letters of Credit at such time) and (ii) the
total Term Loans outstanding at such time.


 


1.160            “Majority Lenders” shall mean, as of any date, the Majority
LC Facility Lenders and the Majority Revolving Lenders.


 


1.161            “Majority Revolving Lenders” shall mean, as of any date,
Revolving Lenders holding in the aggregate a majority or more of the aggregate
Revolving Loan Commitments, participations in Revolving Letter of Credit
Accommodations and Revolving Loans as of such date.


 


1.162            “Material Adverse Effect” shall mean (a) a material
adverse effect on the business, property, results of operations, prospects or
condition, financial or otherwise, or material


 


27





















 


agreements of Parent and its
Subsidiaries, taken as a whole; (b) material impairment of the ability of
the Credit Parties to fully and timely perform any of their obligations under
this Agreement; (c) material impairment of the rights of or benefits or
remedies available to the Lenders or the Collateral Agents under this
Agreement; or (d) a material adverse effect on the Collateral or the Liens
in favor of the Collateral Agents (for their benefit and for the benefit of the
other Secured Parties) on the Collateral or the priority of such Liens.


 


1.163            “Material Contract” shall mean (a) any contract or other
agreement (other than the Financing Agreements), written or oral, of any Credit
Party involving monetary liability of or to any Person in an amount in excess
of $2,500,000 in any fiscal year and (b) any other contract or other agreement
(other than the Financing Agreements), whether written or oral, to which any
Credit Party is a party as to which the breach, non-performance, cancellation
or failure to renew by any party thereto would have a Material Adverse Effect
on the business, assets, condition (financial or otherwise) or results of
operations or prospects of any Credit Party or the validity or enforceability
of this Agreement, any of the other Financing Agreements, or any of the rights
and remedies of Agents or Lenders hereunder or thereunder.


 


1.164            “Material Indebtedness” shall mean any Indebtedness of
Parent or any Subsidiary of Parent under (i) under any instrument (other than
Indebtedness incurred under this Agreement) or (ii) Hedging Agreements, in each
case, in an aggregate outstanding principal amount exceeding $30.0
million.  For purposes of determining
Material Indebtedness, the principal of any Hedging Agreements of any Person at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if the such Hedging Agreement
were terminated at such time.


 


1.165            “Maturity Date” shall mean the fifth anniversary of the
Amendment and Restatement Effective Date; provided that
if such date is not a Business Day, the Maturity Date shall be the Business Day
immediately preceding such date.


 


1.166            “Maximum Drawing Amount” shall mean the maximum aggregate
amount that the beneficiary may at any time draw under an outstanding Letter of
Credit, as such aggregate amount may be reduced from time to time pursuant to
the terms of such Letter of Credit.


 


1.167            “Mortgage” shall mean a mortgage, deed of trust, assignment
of leases and rents, security agreement and fixture filing or leasehold
mortgage or other security document granting a Lien on any Mortgaged Property
to secure the Obligations, including any amendment thereto.  Each Mortgage delivered on or after the
Amendment and Restatement Effective Date shall be substantially in the form of Exhibit F-1
or otherwise satisfactory in form and substance to the LC Facility Collateral
Agent.


 


1.168            “Mortgage Amendment” shall mean an amendment dated the
Amendment and Restatement Effective Date, to each Mortgage existing immediately
prior to the Amendment and Restatement Effective Date, substantially in the
form of Exhibit F-2 or otherwise satisfactory in form and substance to
the LC Facility Collateral Agent and the Administrative Agents.


 


1.169            “Mortgage Policy” shall have the meaning assigned to such
term in Section 4.1(e)(ii).


 


28





















 


1.170            “Mortgaged Property” shall mean, initially, each parcel of
Real Property identified as Mortgaged Property on Schedule 4.1(k) to the
Original Credit Agreement, and each other parcel of Real Property with respect
to which a Mortgage is subsequently granted pursuant to Section 9.24, 9.26 or
9.27.


 


1.171            “Movable Hypothec” shall mean, collectively, (a) the Movable
Hypothec executed or to be executed by Clean Harbors Mercier, Inc., a Quebec
corporation, pursuant to which it pledges the bond issued or to be issued under
the Deed of Hypothec executed or to be executed by it in favor of the Canadian
Collateral Agent, and (b) the Movable Hypothec executed or to be executed by
Clean Harbors Quebec, Inc., a Quebec corporation, pursuant to which it pledges
the bond issued or to be issued under the Deed of Hypothec executed or to be
executed by it in favor of the Canadian Collateral Agent, each as amended,
restated or modified from time to time.


 


1.172            “Multiemployer Plan” shall mean a “multiemployer plan” as
defined in Section 4001(a)(3) of ERISA which is or was at any time during the
current year or the immediately preceding six (6) years contributed to by any
Credit Party or any ERISA Affiliate.


 


1.173            “Municipal Government Account” shall mean an Account in which
the account debtor with respect to such Account is a state, province or a
political subdivision, department, agency or instrumentality thereof.


 


1.174            “Net Amount of Eligible Accounts” shall mean the gross amount
of Eligible Accounts less (a) sales, excise or similar taxes included in the
amount thereof, and (b) returns, rebates, discounts, claims, credits and allowances
of any nature at any time issued, owing, granted, outstanding, available or
claimed with respect thereto.


 


1.175            “Net Amount of Federal Government Accounts” shall mean the
gross amount of Federal Government Accounts less (a) sales, excise or similar
taxes included in the amount thereof, and (b) returns, rebates, discounts
(which may, at the Revolving Administrative Agent’s option, be calculated on
the shortest term), claims, credits and allowances of any nature at any time issued,
owing, granted, outstanding, available or claimed with respect thereto.


 


1.176            “Net Cash Proceeds” shall mean:


 


(a)              with
respect to any Asset Sale (other than any issuance or sale of Capital Stock),
the cash proceeds received by Parent or any of its Subsidiaries (including cash
proceeds subsequently received (as and when received by Parent or any of its
Subsidiaries) in respect of non-cash consideration initially received) net of
(i) selling expenses (including reasonable brokers’ fees or commissions,
legal, accounting and other professional and transactional fees, transfer and
similar taxes and Parent’s good faith estimate of income taxes paid or payable
in connection with such sale); (ii) amounts provided as a reserve, in
accordance with GAAP, against (x) any liabilities under any
indemnification obligations associated with such Asset Sale or (y) any
other liabilities retained by Parent or any of its Subsidiaries associated with
the properties sold in such Asset Sale (provided that,
to the extent and at the time any such amounts are released from such reserve,
such amounts shall constitute Net Cash Proceeds); (iii) Parent’s good
faith estimate of payments required to be made with respect to unassumed liabilities
relating to the properties


 


29





















 


sold within 180 days of such Asset Sale (provided
that, to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 180 days of such Asset Sale, such
cash proceeds shall constitute Net Cash Proceeds); and (iv) the principal
amount, premium or penalty, if any, interest and other amounts on any Indebtedness
for borrowed money which is secured by a Lien on the properties sold in such
Asset Sale (so long as such Lien was permitted to encumber such properties
under the Financing Agreements at the time of such sale) and which is repaid
with such proceeds (other than any such Indebtedness assumed by the purchaser
of such properties);


 


(b)              with
respect to any Debt Issuance or any issuance or sale of Capital Stock by Parent
or any of its Subsidiaries, the cash proceeds thereof, net of customary fees,
commissions, costs and other expenses incurred in connection therewith; and


 


(c)              with
respect to any Casualty Event, the cash insurance proceeds, condemnation awards
and other compensation received in respect thereof, net of all reasonable costs
and expenses incurred in connection with the collection of such proceeds,
awards or other compensation in respect of such Casualty Event.


 


1.177            “New Lending Office” shall have the meaning set forth in
Section 6.8(e) hereof.


 


1.178            “Non-Accounts Collateral” shall mean the “Collateral” as
defined in the Amended and Restated Security Agreement and any other property
of any US Credit Party which has been pledged to secure the Obligations
pursuant to any Security Document, but excluding the Accounts Collateral and
the Canadian Accounts Collateral.


 


1.179            “Non-U.S. Person” shall have the meaning set forth in Section
6.8(e).


 


1.180            “Note” shall mean a Revolving Loan Note, Canadian Revolving
Loan Note or a Term Loan Note.


 


1.181            “Note Redemption Threshold” shall mean $52.5 million minus
the aggregate principal amount of Senior Secured Notes (if any) redeemed pursuant
to the Warrant Proceeds Redemption.


 


1.182            “Notice of Business Activities Report” shall mean filings
required in Minnesota (or any other jurisdiction which adopts a statute or
other requirement with respect to which any Person that obtains business from
within such jurisdiction or is otherwise subject to such jurisdiction’s tax law
must file a “Business Activity Report” (or other applicable report) or make any
other required filings in a timely manner in order to enforce its claims in
such jurisdiction’s courts or arising under such jurisdiction’s laws);
provided, that Accounts which would be Eligible Accounts but for the terms of
clause (p) of the definition of Eligible Accounts shall nonetheless be deemed
to be Eligible Accounts if the applicable Credit Party has filed a “Business
Activity Report” (or other applicable report) with the applicable state office
or is qualified to do business in such jurisdiction and, at the time the
Account was created, was qualified to do business in such jurisdiction or had
on file with the applicable state office a current “Business Activity Report”
(or other applicable report).


 


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1.183            “Obligations” shall mean the US Obligations and the Canadian
Obligations.


 


1.184            “OFAC” shall have the meaning set forth in Section
8.21(b)(v).


 


1.185            “Officers’ Certificate” shall mean a certificate signed on behalf of the Parent by two
officers of the Parent, one of whom must be the principal executive officer,
the chief financial officer or the treasurer of the Parent.


 


1.186            “Opinion of Counsel” shall mean a written opinion from legal counsel who is reasonably
acceptable to the applicable Agent.


 


1.187            “Order” shall have the meaning set forth in Section 8.21(a).


 


1.188            “Organizational Documents” shall mean, with respect to any
person, (i) in the case of any corporation, the certificate of
incorporation and by-laws (or similar documents) of such person, (ii) in
the case of any limited liability company, the certificate of formation and
operating agreement (or similar documents) of such person, (iii) in the
case of any limited partnership, the certificate of formation and limited
partnership agreement (or similar documents) of such person, (iv) in the
case of any general partnership, the partnership agreement (or similar
document) of such person and (v) in any other case, the functional
equivalent of the foregoing.


 


1.189            “Original  Effective Date”
shall mean June 30, 2004.


 


1.190            “Original LC Facility” shall have the meaning assigned to the
term “LC Facility” in this Original Credit Agreement as in effect immediately
prior to the Amendment and Restatement Effective Date.


 


1.191            “Original LC Facility Lender” each Lender under the Original
LC Facility immediately prior to the occurrence of the Amendment and Restatement
Effective Date.


 


1.192            “Original Security Agreement” shall mean the security
agreement, dated as of the Original Effective Date, by and among the US Credit
Parties, the LC Facility Collateral Agent and U.S. Bank National Association.


 


1.193            “Other List” shall have the meaning set forth in Section
9.30.


 


1.194            “Other Taxes” shall mean any and all present or future stamp
or documentary taxes or any other exercise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any of the other Financing Agreements, and any and all interest
and penalties related thereto.


 


1.195            “Parent” shall have the meaning set forth in the preamble to
this Agreement.


 


1.196            “Participation Fees” shall have the meaning set forth in
Section 2.9.


 


1.197            “Perfection Certificate” shall mean the Perfection
Certificate of Credit Parties constituting Exhibit A-1
hereto containing material information with respect to Credit Parties,


 


31





















 


their business and assets
provided by or on behalf of Credit Parties to Administrative Agents in
connection with the preparation of this Agreement and the other Financing
Agreements and the financing arrangements provided for herein as the same shall
be supplemented from time to time by a Perfection Certificate Supplement or
otherwise.


 


1.198            “Perfection Certificate Supplement” shall mean a certificate
supplement in the form of Exhibit A-2 or any other form approved by
Administrative Agents.


 


1.199            “Permitted Acquisition” shall mean any transaction or series
of related transactions for the direct or indirect (i) acquisition of all
or substantially all of the property of any person, or of any business or
division of any person; (ii) acquisition of in excess of 50% of the
Capital Stock of any person, and otherwise causing such person to become a
Subsidiary of such person; or (iii) merger or consolidation or any other
combination with any person, if each of the following conditions is met:


 


(a)              no
Default then exists or would result therefrom;


 


(b)              such
Person shall be organized or incorporated in the United States, any state
thereof, the District of Columbia, Canada or any province thereof;


 


(c)              none
of Parent or any of its Subsidiaries shall, in connection with any such
transaction, assume or remain liable with respect to any Indebtedness or other
liability of the related seller or the business, person or properties acquired,
except to the extent permitted under Section 9.9;


 


(d)              the
person or business to be acquired shall be, or shall be engaged in, a business
of the type that Borrower and the Subsidiaries are permitted to be engaged in
under Section 9.15;


 


(e)              the
Board of Directors of the person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which
opposition has not been publicly withdrawn);


 


(f)               all
transactions in connection therewith shall be consummated in accordance with
all applicable laws of all applicable Governmental Authorities;


 


(g)              at
least 10 Business Days prior to the proposed date of consummation of the
transaction, Borrower shall have delivered to the Agents and the Lenders an
Officers’ Certificate certifying that (A) such transaction complies with
this definition (which shall have attached thereto reasonably detailed backup data
and calculations showing such compliance), and (B) such transaction could
not reasonably be expected to result in a Material Adverse Effect;


 


(h)              as
of the last day of the most recent period for which a Compliance Certificate
was required to be delivered pursuant to Section 9.6(a), after giving pro forma
effect to such Permitted Acquisition and any Indebtedness incurred in
connection therewith (including, without limitation, any Subordinated
Indebtedness and any Term Loans) as if such Permitted Acquisition was made and
any such Indebtedness was incurred on the


 


32





















 


first day of such most recent period, Credit Parties shall be in compliance
with Sections 9.17, 9.18 and 9.19 (assuming, in the case of Section 9.17, the
Leverage Ratio is required to be at least 0.25 “turns” less than the Leverage
Ratio was required to be under Section 9.17 as of such last day) (and the
Borrowers shall provide to the Administrative Agents a reasonably detailed
Officers’ Certificate to such effect); and


 


(i)               after
giving pro forma effect to the consummation of such Permitted Acquisition, the
Excess Availability shall not be less than $15.0 million.


 


1.200            “Permitted Holders” means (i) any of Alan S. McKim, his
spouse, ancestors, siblings, descendants (including children or grandchildren
by adoption) and the descendants of any of his siblings; (ii) in the event of
the incompetence or death of any of the Persons described in clause (i), such
Person’s estate, executor, administrator, committee or other personal representative,
in each case who at any particular date shall beneficially own or have the
right to acquire, directly or indirectly, Capital Stock of Parent; (iii) any
trust created for the benefit of the Persons described in clause (i) or (ii) or
any trust for the benefit of any such trust; or (iv) any Person controlled by
any of the Persons described in clause (i), (ii) or (iii).  For purposes of this definition, “control,”
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities or by
contract or otherwise.


 


1.201            “Person” or “person” shall
mean any individual, sole proprietorship, partnership, corporation (including
any corporation which elects subchapter S status under the Code), limited
liability company, limited liability partnership, business trust, unincorporated
association, joint stock corporation, trust, joint venture or other entity or
any government or any agency or instrumentality or political subdivision
thereof.


 


1.202            “Plan” shall mean an employee benefit plan, as defined in
Section 3(3) of 

ERISA, (other than a Multiemployer Plan) to which any Credit Party or any ERISA
Affiliate may have liability, including any liability by reason of having been
a substantial employer within the meaning of Section 4603 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a contributing
sponsor under Section 4069 of ERISA.


 


1.203            “PPSA” shall mean the Personal Property Security Act as in
effect in the Province of Ontario, the Civil Code of Quebec as in effect in the
Province of Quebec, the Personal Property Security Act as in effect in the
Province of New Brunswick or any other Canadian Federal or Provincial statute
pertaining to the granting, perfecting, priority or ranking of security
interests, Liens, hypothecs on personal property, and any successor statutes,
together with any regulations thereunder, in each case as in effect from time
to time.  References to sections of the
PPSA shall be construed to also refer to any successor sections.


 


1.204            “Prime Rate Loans” shall mean US Prime Rate Loans and
Canadian Prime Rate Loans.


 


1.205            “Priority Payables” shall mean, as to any Canadian Borrower
at any time, (a) the full amount of the liabilities of such Canadian
Borrower at such time which (i) have a trust imposed to provide for payment or
a security interest, pledge, Lien or charge ranking or capable


 


33





















 


of ranking senior to or pari
passu with security interests, Liens or charges securing the Obligations on any
of the Eligible Accounts of such Canadian Borrower under Federal, Provincial,
State, county, district, municipal, or local law, or (ii) have a right imposed
to provide for payment ranking or capable of ranking senior to or pari passu
with the Obligations under local or national law, regulation or directive,
including, but not limited to, claims for unremitted and/or accelerated rents,
taxes, wages, withholding taxes, VAT and other amounts payable to an insolvency
administrator, employee withholdings or deductions and vacation pay, workers’
compensation obligations, government royalties or pension fund obligations in
each case to the extent such trust, or security interest, Lien or charge has
been or may be imposed.


 


1.206            “Pro Rata Share” shall mean (i) with respect to any US
Revolving Lender at any time, such Revolving Lender’s percentage of the US
Revolving Facility or Canadian Revolving Facility, as applicable, as set forth
on Schedule 1 hereto or in the Assignment and Acceptance by which
such Lender took its Revolving Commitment, (ii) with respect to any LC Facility
Lender at any time, the amount of such LC Facility Lender’s Credit-Linked
Deposit and participations in LC Facility Letters of Credit at such time
expressed as a percentage of the Total Credit-Linked Deposits and participations
in LC Facility Letters of Credit at such time and (iii) with respect to any
Term Loan Lender at any time, the aggregate principal amount of such Term Loan
Lender’s Term Loans outstanding at such time expressed as a percentage of the
aggregate principal amount of all Term Loans outstanding at such time.


 


1.207            “Projected Financial Statements” shall have the meaning set
forth in 8.26.


 


1.208            “Proportionate Share” shall have the meaning set forth in
Section 14.3 hereof.


 


1.209            “Quebec Borrower” shall mean any Canadian Borrower
incorporated under the laws of or having its principal office in the province
of Quebec.


 


1.210            “Real Property” shall mean all right, title and interest in
and to any and all now owned and hereafter acquired real property of Credit
Parties, including leasehold interests, together with all buildings,
structures, and other improvements located thereon and all licenses, easements
and appurtenances relating thereto, wherever located.


 


1.211            “Receivables” shall mean all of the following now owned or
hereafter arising or acquired property of Credit Parties:  (a) all Accounts; (b) all amounts at any time
payable to Credit Parties in respect of the sale or other disposition by Credit
Parties of any Account; (c) all interest. fees, late charges, penalties,
collection fees and other amounts due or to become due or otherwise payable in
connection with any Account; (d) all payment intangibles of Credit Parties and
other contract rights, Chattel Paper, Instruments, notes, and other forms of
obligations owing to Credit Parties, whether from the sale and lease of
Inventory, licensing of Inventory, or the rendition of services or otherwise
associated with any Accounts of any Credit Party (including, without
limitation, choses in action, causes of action, rights and claims against
carriers and shippers, rights to indemnification, life insurance on employees
of Credit Parties’ and proceeds thereof, casualty or any similar types of insurance,
in each case relating to Accounts Collateral or Canadian Accounts Collateral,
as applicable, and any Proceeds thereof).


 


1.212            “Receiver” shall have the meaning set forth in Section
10.2(m) hereof.


 


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1.213            “Records” shall mean all of Credit Parties’ present and
future books of account of every kind or nature, purchase and sale agreements,
invoices, ledger cards, bills of lading and other shipping evidence,
statements, correspondence, memoranda, credit files and other data relating to
the Collateral or any account debtor, together with the tapes, disks, diskettes
and other data and software storage media and devices, file cabinets or
containers in or on which the foregoing are stored (including any rights of
Credit Parties with respect to the foregoing maintained with or by any other
person).


 


1.214            “Reference Bank” shall mean, with respect to US Dollar Loans,
BANA, and, with respect to Canadian Dollar Loans, the Canadian Lender and their
respective successors and assigns, or such other bank as Administrative Agents
may from time to time designate.


 


1.215            “Refunded Revolving Obligations” shall have the meaning set
forth in Section 10.2(j) hereof


 


1.216            “Release” shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of any
Hazardous Material in, into, onto or through the Environment.


 


1.217            “Replaced Letters of Credit” shall mean the LC Facility
Letters of Credit identified as being replaced on Schedule 4.1(y).


 


1.218            “Report” shall have the meaning set forth in Section 13.13
hereof.


 


1.219            “Reserves” shall mean as of any date of determination, such
amounts as Revolving Administrative Agent may from time to time establish and
revise in good faith reducing the amount of Revolving Loans and Revolving
Letter of Credit Accommodations which would otherwise be available to Borrowers
under the lending formula(s) provided for herein:  (a) to reflect events, conditions,
contingencies or risks which, as determined by Revolving Administrative Agent in
good faith, adversely affect, or would have a reasonable likelihood of
adversely affecting, either (i) the Accounts Collateral or Canadian Accounts
Collateral, or any other property which is security for the Revolving
Obligations or its value, (ii) the assets, business or prospects of any Credit
Party, or (iii) the security interests and other rights of the applicable
Collateral Agent in the Accounts Collateral or Canadian Accounts Collateral
(including the enforceability, perfection and priority thereof); or (b) to
reflect Revolving Administrative Agent’s good faith belief that any collateral
report or financial information furnished by or on behalf of any Credit Party
to Revolving Administrative Agent is or may have been incomplete, inaccurate or
misleading in any material respect; or (c) to reflect outstanding Revolving
Letter of Credit Accommodations as provided in Section 2.4 hereof; or
(d) in respect of any state of facts which Revolving Administrative Agent
determines in good faith constitutes a Default or an Event of Default; or (e)
to reflect the amounts of the Priority Payables; or (f) to reflect Revolving
Administrative Agent’s good faith estimate of the amount necessary to reflect
changes in applicable currency exchange rates or currency exchange markets; or
(g) to reflect the Dilution Reserve Percentage.  To the extent Revolving Administrative Agent
may revise the lending formulas used to determine any Borrowing Base or
establish new criteria or revise existing criteria for Eligible Accounts so as
to address any circumstances, condition, event or contingency in a manner satisfactory


 


35





















 


to Revolving Administrative
Agent, Revolving Administrative Agent shall not establish a Reserve for the
same purpose.  The amount of any Reserve
established by Revolving Administrative Agent shall have a reasonable relationship
to the event, condition or other matter which is the basis for such reserve as
determined by Revolving Administrative Agent in good faith.


 


1.220            “Returned Amount” shall have the meaning set forth in Section
10.2(o).


 


1.221            “Revolving Administrative Agent” shall have the meaning set
forth in the preamble to this Agreement.


 


1.222            “Revolving Agent Payment Account” shall mean an account of
the Revolving Administrative Agent at BANA or such other account as the
Revolving Administrative Agent may from time to time designate to Borrowers as
the Revolving Agent Payment Account for purposes of this Agreement.


 


1.223            “Revolving Arranger” shall have the meaning set forth in the
preamble to this Agreement.


 


1.224            “Revolving Facility” shall mean the extensions of credit made
by the Revolving Lenders in respect of the Revolving Loans and Revolving Letter
of Credit Accommodations.


 


1.225            “Revolving Facility Availability Period” shall mean the
period from and after the Amendment and Restatement Effective Date to and
excluding the earlier of (x) the Maturity Date, and (y) the date (if any) that
the Revolving Administrative Agent shall determine to cease making Revolving
Loans pursuant to Section 10.2.


 


1.226            “Revolving LC Participant” shall have the meaning set forth
in Section 2.4(k) hereof.


 


1.227            “Revolving Lenders” shall mean, collectively, US Revolving
Lenders and Canadian Lender.


 


1.228            “Revolving Letter of Credit Accommodations” shall mean,
collectively, the letters of credit, merchandise purchase or other guaranties
which are from time to time either: 
(a) issued or opened by BANA or any other Affiliate of Revolving
Administrative Agent or any Revolving Lender for the account of any Credit
Party, or (b) with respect to which Revolving Administrative Agent or Revolving
Lenders have agreed to indemnify the issuer or guaranteed to the issuer
including, without limitation, the Reference Bank or Canadian Lender, as
applicable, the performance by any Credit Party of its obligations to such
issuer; sometimes being referred to herein individually as a “Revolving Letter
of Credit Accommodation”.


 


1.229            “Revolving Loan Commitment” shall mean, with respect to each
US Revolving Lender at any time, the amount set forth on Schedule 1
hereto representing the aggregate amount such US Revolving Lender has agreed to
make in US Revolving Loans and to participate in US Revolving Letter of Credit
Accommodations under the US Revolving Facility hereunder and with respect to
Canadian Lender, at any time, the amount set forth on Schedule 1
hereto representing the aggregate amount Canadian Lender has agreed to make in
Canadian Revolving Loans under the Canadian Revolving Facility.


 


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1.230            “Revolving Loan Note” shall mean a promissory note in the
form of Exhibit C-1, as it may be amended, supplemented or otherwise
modified from time to time.


 


1.231            “Revolving Loans” shall mean the loans now or hereafter made
by Revolving Lenders to or for the benefit of Borrowers on a revolving basis
(involving advances, repayments and readvances) as set forth in Section 2.1
hereof; provided that Canadian Dollar Loans
shall be made only to the Canadian Borrowers.


 


1.232            “Revolving Maximum Credit” shall mean the amount of
$70,000,000.


 


1.233            “Revolving Obligations” shall mean the Canadian Obligations
and the US Revolving Obligations.


 


1.234            “Revolving Register” shall have the meaning set forth in
Section 12.8(a) hereof.


 


1.235            “Revolving Secured Parties” shall mean the Canadian Secured
Parties and the US Revolving Secured Parties.


 


1.236            “Rolling Stock” shall mean all trucks, trailers, tractors, service vehicles,
automobiles and other registered mobile equipment.


 


1.237            “Sale and Leaseback Transaction” shall have the meaning set
forth in Section 9.33 hereof.


 


1.238            “SDN List” shall have the meaning set forth in Section 9.30.


 


1.239            “Secured Parties” shall mean, collectively, the Revolving
Secured Parties and the LC Facility Secured Parties.


 


1.240            “Securities Act” shall mean the Securities Act of 1933, as
amended.


 


1.241            “Security Documents” shall mean this Agreement, the Amended
and Restated Security Agreement, the Mortgages and the Perfection Certificate
executed by the Credit Parties and the applicable Collateral Agent and each
other security agreement or other instrument or document executed and delivered
pursuant to Article IV or V or Section 9.24, 9.26, or 9.27 to secure
any of the Obligations.


 


1.242            “Senior Secured Notes” shall mean $150.0 million aggregate
principal amount of 111⁄4% Senior Secured Notes issued on the Original Effective
Date pursuant to the Senior Secured Notes Indenture.


 


1.243            “Senior Secured Notes Indenture” shall mean the indenture dated
as of the Original Effective Date among Parent, the guarantors party thereto
and U.S. Bank National Association, as Trustee.


 


1.244            “Series B Preferred Stock” means the Series B Convertible
Preferred Stock of Parent (as in effect on the Amendment and Restatement Effective
Date).


 


37





















 


1.245            “Significant Subsidiary” shall mean any Subsidiary of Parent
that would be a “significant subsidiary” as defined in Regulation S-X
promulgated pursuant to the Securities Act as such Regulation is in effect on
the Amendment and Restatement Effective Date.


 


1.246            “Specified Equity Offering” shall mean an offering of common
stock of Parent consummated on or prior to the date which is six months
following the Amendment and Restatement Effective Date, the proceeds of which,
when taken together with the Warrant Proceeds, are sufficient to fund the
Specified Notes Redemption and any fees, premiums and expenses related thereto.


 


1.247            “Specified Notes Redemption” shall mean the redemption, not
later than 30 days following the consummation of the Specified Equity Offering,
of not less than the Note Redemption Threshold in principal amount of Senior
Secured Notes in accordance with the Senior Secured Notes Indenture with the
Net Cash Proceeds of the Specified Equity Offering.


 


1.248            “Subject Property” has the meaning assigned to such term in
Section 9.27.


 


1.249            “Subordinated Indebtedness” shall mean unsecured Indebtedness
of any Credit Party that is by its terms expressly subordinated, on terms
acceptable to Administrative Agents, in right of payment to the Obligations; provided that (i) the terms of such Indebtedness may allow
for payment of regularly scheduled payments of interest so long as no Event of
Default shall have occurred and be continuing at the time such payment is made,
(ii) the final maturity of such Indebtedness is at least one year after the
Latest Maturity Date, (iii) the terms of such Indebtedness provide that no payments
of principal shall or may occur prior to the payment in full of the Obligations,
(iv) the covenants and events of default applicable thereto shall be at
least as favorable to Parent and its Subsidiaries in all material respects as
those contained herein, but in any event no financial maintenance covenants
shall be applicable thereto and no such Indebtedness shall contain a
cross-default to the Indebtedness under the Financing Agreements for a
non-payment default and (v) the remedies with respect thereto shall be
subject to customary standstill provisions acceptable to the Administrative
Agents; provided  further that
the terms of such Indebtedness may provide for payments of principal or require
the issuer thereof to redeem or repurchase such Indebtedness upon the
occurrence of a change in control or asset sale occurring prior to maturity if
such terms provide that the issuer thereof will not make any such payments or
redeem or repurchase any such Indebtedness pursuant to such provisions prior to
the repayment in full in cash of the Obligations.


 


1.250            “Subsidiary” or “subsidiary”
shall mean, with respect to any Person, any corporation, limited liability
company, limited liability partnership or other limited or general partnership,
trust, association or other business entity of which an aggregate of at least a
majority of the outstanding Capital Stock or other interests entitled to vote
in the election of the board of directors of such corporation (irrespective of
whether, at the time, Capital Stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency), managers, trustees or other controlling persons, or an
equivalent controlling interest therein, of such Person is, at the time,
directly or indirectly, owned by such Person and/or one or more subsidiaries of
such Person.


 


38





















 


1.251            “Supplemental Collateral Agent” and “Supplemental
Collateral Agents” shall have the meanings assigned thereto in
Section 13.1(e).


 


1.252            “Survey” shall mean a survey of any Mortgaged Property (and
all improvements thereon) which is (a) (i) prepared by a surveyor or engineer
licensed to perform surveys in the state where such Mortgaged Property is located,
(ii) dated (or redated) not earlier than six months prior to the date of
delivery thereof unless there shall have occurred within six months prior to
such date of delivery any exterior construction on the site of such Mortgaged
Property or any easement, right of way or other interest in the Mortgaged Property
has been granted or become effective through operation of law or otherwise with
respect to such Mortgaged Property which, in either case, can be depicted on a
survey, in which events, as applicable, such survey shall be dated (or redated)
after the completion of such construction or if such construction shall not
have been completed as of such date of delivery, not earlier than 20 days prior
to such date of delivery, or after the grant or effectiveness of any such
easement, right of way or other interest in the Mortgaged Property, (iii)
certified by the surveyor (in a manner reasonably acceptable to the LC Facility
Administrative Agent) to the LC Facility Administrative Agent, the LC Facility
Collateral Agent and the Title Company, (iv) complying in all respects with the
minimum detail requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such survey and (v)
sufficient for the Title Company to remove all standard survey exceptions from
the title insurance policy (or commitment) relating to such Mortgaged Property
and issue the endorsements of the type required by Section 4.1(h)(ii) or (b)
otherwise acceptable to the LC Facility Collateral Agent.


 


1.253            “Term Loan Borrowing Date” shall have the meaning assigned to
such term in Section 2.10(a)(i).


 


1.254            “Term Loan Lender” shall mean any Person reasonably
acceptable to the LC Facility Administrative Agent that would otherwise be an
Eligible Assignee under the LC Facility and that shall agree to make Term Loans
pursuant to Section 2.10; provided that
any Agent or existing Lender shall be deemed to be acceptable to the LC
Facility Administrative Agent.


 


1.255            “Term Loan Note” shall mean a promissory note in the form of
Exhibit C-3, as it may be amended, supplemented or otherwise modified from
time to time


 


1.256            “Term Loan Proportion” shall mean, at any time, 1 (one) minus the LC Facility Proportion at such time.


 


1.257            “Term Loan Register” shall have the meaning assigned to such
term in Section 12.8(c).


 


1.258            “Term Loans” shall have the meaning assigned to such term in
Section 2.10(a).


 


1.259            “Taxes” shall mean any and all future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority and any and all interest and penalties related thereto.


 


1.260            “Title Company” shall mean any title insurance company as
shall be retained by the Credit Parties and reasonably acceptable to the
Agents.


 


39





















 


1.261            “Title Insurance Policy” has the meaning assigned to such
term in Section 4.1(h)(ii).


 


1.262            “Total Credit-Linked Deposits” shall mean, at any time, the
sum of all the LC Facility Lenders’ Credit-Linked Deposits, as the same may be
reduced from time to time pursuant to Section 2.8(a).


 


1.263            “Transferee” shall have the meaning set forth in Section
6.8(a) hereof.


 


1.264            “UCC” shall mean the Uniform Commercial Code as in effect in
The State of New York, and any successor statute, as in effect from time to
time (except that terms used herein which are defined in the Uniform Commercial
Code as in effect in The State of New York on the Original Effective Date shall
continue to have the same meaning notwithstanding any replacement or amendment
of such statute except as the Administrative Agents may otherwise determine).


 


1.265            “Unbilled Eligible Accounts” shall mean Eligible Accounts
(a) in respect of which invoices have not been sent to the applicable
account debtors, but in respect of which applicable account debtors have received
the services provided by Credit Parties and (b) which are less than
30 days from the last day of the month in which the services giving rise
to such Eligible Accounts were rendered.


 


1.266            “Uncovered LC Facility LC Amount” shall mean, as of any date
of determination, the amount by which the aggregate LC Facility LC Exposure
exceeds ninety-five percent (95%) of the total cash and Cash Equivalents on
deposit in the Cash Collateral Account.


 


1.267            “Unreimbursed Amount” shall have the meaning set forth in Section 2.6(f)(ii).


 


1.268            “US Blocked Accounts” shall have the meaning set forth in
Section 6.3(a) hereof.


 


1.269            “US Borrowers” shall mean Parent, each of its Subsidiaries
(other than Foreign Subsidiaries, the Guarantors, the Excluded Subsidiary and Inactive
Subsidiaries) and each of their successors and assigns.


 


1.270            “US Borrowing Base” shall mean, at any time, as to US Credit
Parties, the amount equal to (a) eighty percent
(80%) of the Net Amount of Eligible Accounts of US Credit Parties (including
all Municipal Government Accounts of US Credit Parties that are Eligible
Accounts), plus (b) the lesser of eighty percent (80%) of the Net Amount of
Federal Government Accounts of US Borrowers that are Eligible Accounts or
$5,000,000, plus (c) the lesser of (x) Unbilled Eligible Accounts at such
time or (y) $12,000,000 less (d) any Reserves attributable to US Credit Parties.


 


1.271            “US Borrowing Base Certificate” shall mean an Officers’
Certificate from US Borrowers substantially in the form of, and containing the
information prescribed by, Exhibit G-1, delivered to the Revolving
Administrative Agent.


 


1.272            “US Credit Parties” shall mean the US Borrowers and the
Guarantors.


 


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1.273            “US Dollar Equivalent” shall mean at any time (a) as to any
amount denominated in US Dollars, the amount thereof at such time, and (b) as
to any amount denominated in any other currency, the equivalent amount in US
Dollars calculated by Revolving Administrative Agent in good faith at such time
using the Exchange Rate in effect on the Business Day of determination.


 


1.274            “US Dollar Loans” shall mean any Loans or portion thereof
which are denominated in US Dollars.


 


1.275            “US Dollars”, “US$” and “$” shall each mean lawful currency of the United States of
America.


 


1.276            “US Lenders” shall mean, collectively, all Lenders other than
Canadian Lender.


 


1.277            “US Obligations” shall mean the LC Facility Obligations and
the US Revolving Obligations.


 


1.278            “US Prime Rate” shall mean the rate from time to time
publicly announced by Reference Bank, or its successors, as its prime rate,
whether or not such announced rate is the best rate available at such bank.


 


1.279            “US Prime Rate Loans” shall mean any US Dollar Loans or
portion thereof on which interest is payable based on the US Prime Rate in accordance
with the terms thereof.


 


1.280            “US Revolving Facility” shall mean the US Loans and Revolving
Letter of Credit Accommodations provided to or for the benefit of US Borrowers
pursuant to Section 2.1 through Section 2.4 hereof.


 


1.281            “US Revolving Lenders” shall mean, collectively, all of the
Lenders listed on Schedule 1 attached hereto or any Lender that
purchases an interest in any of such Lenders’ interests in the Revolving
Facility pursuant to any Assignment and Acceptance.


 


1.282            “US Revolving Letter of Credit Accommodations” shall have the
meaning set forth in Section 2.4(a).


 


1.283            “US Revolving Loans” shall mean Revolving Loans made by US
Revolving Lenders under the US Revolving Facility.


 


1.284            “US Revolving Maximum Credit” shall mean the Revolving
Maximum Amount less the aggregate principal amount, measured at the Dollar
Equivalent Amount, then outstanding under the Canadian Revolving Facility.


 


1.285            “US Revolving Obligations” shall mean any and all (a) US
Revolving Loans, US Revolving Letter of Credit Accommodations and all other
obligations, liabilities and indebtedness of every kind, nature and description
owing by any US Credit Party to any US Revolving Secured Party in its capacity as
such, including principal, interest, charges, fees, costs and expenses and
obligations to provide cash collateral, however evidenced, whether as principal,


 


41





















 


surety, endorser, guarantor or
otherwise, arising under this Agreement, any cash management agreement or under
the other Financing Agreements, (b) the due and punctual payment and
performance of all obligations of any US Credit Party under each Hedging Agreement
entered into with any counterparty that was an Agent or a Lender or an
Affiliate of a Lender or an Affiliate of an Agent at the time such Hedging
Agreement was entered into and (c) the due and punctual payment and performance
of all overdraft obligations, fees, costs, charges, expenses and other
obligations from time to time owing to the US Revolving Secured Parties or the
Cash Management Bank by any US Credit Party under any cash management
agreement, operating or deposit account or other banking product (including,
but not limited to any corporate purchase cards such as the so-called “P-Card”)
from time to time made available to any US Credit Party by any US Revolving
Secured Party, the Cash Management Bank or any other Affiliate thereof, in each
case whether now existing or hereafter arising, whether arising before, during
or after the initial or any renewal term of this Agreement or after the
commencement of any case with respect to any US Credit Party under the United
States Bankruptcy Code or any similar statute (including the payment of interest
and other amounts which would accrue and become due but for the commencement of
such case, whether or not such amounts are allowed or allowable in whole or in
part in such case), whether direct or indirect, absolute or contingent, joint
or several, due or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, and however acquired by such US Revolving Secured Party.


 


1.286            “US Revolving Secured Parties” shall mean, collectively, the
Revolving Administrative Agent (with respect to actions taken to administer the
US Revolving Facility), the US Revolving Lenders, the Accounts Collateral
Agent, any issuer of a US Revolving Letter of Credit Accommodation and any
Person that was a Lender or an Affiliate of a Lender at the time that such
Person entered into a Hedging Agreement with any US Credit Party, and their
successors and assigns.


 


1.287            “Voting Stock” shall mean with respect to any Person,
(a) one (1) or more classes of Capital Stock of such Person having
general voting powers to elect at least a majority of the board of directors,
managers or trustees of such Person, irrespective of whether at the time Capital
Stock of any other class or classes have or might have voting power by reason
of the happening of any contingency, and (b) any Capital Stock of such
Person convertible or exchangeable without restriction at the option of the
holder thereof into Capital Stock of such Person described in clause (a)
of this definition.


 


1.288            “Warrant Proceeds” shall mean the proceeds received by Parent
during the period from and including September 30, 2005 from the exercise
of common stock purchase warrants of Parent.


 


1.289            “Warrant Proceeds  Redemption”
shall mean the redemption of the Senior Secured Notes made with all or a portion
of the Warrant Proceeds in accordance with the Senior Secured Notes Indenture,
so long as such redemption occurs on or prior to the date that is seven months
following the Amendment and Restatement Effective Date.


 


1.290            The terms “Chattel Paper”; “Commercial Tort Claims”;
“Commodity Account”; “Commodity Intermediary”; “Document”;
“Electronic Chattel Paper”; “General Intangible”; “Goods”; “Instrument”; “Inventory”; “Investment Property”; “Letter of


 


42





















 


Credit”;
“Letter of Credit Rights”; “Proceeds”; “Securities Account”;
“Securities Intermediary”; and “Supporting Obligations” shall have the meanings given such
terms in the UCC.


 


SECTION 2.                            CREDIT
FACILITIES.


 


2.1           Revolving Loans.


 


(a)           Subject to and upon the terms and
conditions contained herein, each of the US Revolving Lenders severally, but
not jointly, agrees to, during the Revolving Facility Availability Period, make
Revolving Loans to US Borrowers from time to time in amounts requested by US
Borrowers up to the aggregate amount for all US Borrowers equal to the lesser
of such US Revolving Lender’s (i) Pro Rata Share of the US Borrowing Base or
(ii) such US Revolving Lender’s Revolving Loan Commitment.  On the Amendment and Restatement Effective
Date, no Revolving Loans shall be outstanding; provided
that the Revolving Letter of Credit Accommodations referred to on Schedule
4.1(y) may be outstanding.


 


(b)           Subject to and upon the terms and
conditions contained herein, Canadian Lender agrees to, during the Revolving Facility
Availability Period, make Revolving Loans to each Canadian Borrower from time
to time in amounts requested by each such Canadian Borrower up to the aggregate
amount for all Canadian Borrowers equal to the lesser of (i) the Canadian
Borrowing Base or (ii) the Canadian Lender’s Revolving Loan Commitment.


 


(c)           Revolving Administrative Agent may,
in its discretion (and shall, upon the direction of the Majority Revolving
Lenders), from time to time, upon not less than five (5) days prior notice to
Parent with respect to the US Revolving Facility or Canadian Revolving
Facility, as applicable, (i) reduce the lending formula with respect to
Eligible Accounts to the extent that Revolving Administrative Agent determines
in good faith that:  (A) the dilution with
respect to the Accounts for any period (based on the ratio of (1) the aggregate
amount of reductions in Accounts other than as a result of payments in cash to
(2) the aggregate amount of total sales) has increased or may be reasonably
anticipated to increase in any material respect above historical levels, or (B)
the general creditworthiness of account debtors has declined in any material respect.  The amount of any decrease in the lending
formulas shall have a reasonable relationship to the event, condition or
circumstance which is the basis for such decrease as determined by Revolving
Administrative Agent in good faith.  In
determining whether to reduce the lending formula(s), Revolving Administrative
Agent and Majority Revolving Lenders may consider events, conditions,
contingencies or risks which are also considered in determining Eligible
Accounts or in establishing Reserves.


 


2.2           Maximum Loans. (a) The
aggregate amount of the US Revolving Loans and the US Revolving Letter of
Credit Accommodations outstanding at any time shall not exceed the US Revolving
Maximum Credit; (b) the aggregate amount of the Canadian Revolving Loans shall
not exceed the Canadian Maximum Credit and (c) the aggregate US Dollar
Equivalent of the Revolving Loans and Revolving Letter of Credit Accommodations
shall not exceed the Revolving Maximum Credit. 
In the event that the outstanding amount of any component of the US
Revolving Loans or Canadian Revolving Loans, as applicable, and US Revolving
Letter of Credit Accommodations exceed the amounts available pursuant to the
applicable Borrowing Base, the sublimits for US Revolving Letter of Credit
Accommodations and as set forth in Section 2.4(f), or


 


43





















 


the US Revolving Maximum Credit
or Canadian Maximum Credit, as applicable, such event shall not limit, waive or
otherwise affect any rights of Revolving Administrative Agent and Revolving
Lenders in that circumstance or on any future occasions and the applicable Borrowers
shall, upon demand by Revolving Administrative Agent, which may be made at any
time or from time to time, immediately repay to Revolving Administrative Agent
for the benefit of the relevant Revolving Lenders the entire amount of any such
excess(es) for which payment is demanded. 
In addition, if at any time the aggregate Dollar Equivalent of Revolving
Loans and Revolving Letter of Credit Accommodations at such time plus the
aggregate principal amount of the outstanding LC Facility Commitments at such
time exceed the sum of (x) the aggregate amount of accounts receivable of Parent
and its Subsidiaries as shown on the balance sheet of the latest financial
statements delivered pursuant to Section 9.6 plus (y) $35 million, Parent shall
notify the Administrative Agents thereof and immediately repay the entire
amount of such excess to the Revolving Agent for the benefit of the Revolving
Lenders (and, to the extent such excess is greater than the amount of then
outstanding Revolving Loans, cash collateralize Revolving Letter of Credit
Accommodations on terms satisfactory to the Revolving Administrative Agent).


 


2.3           Optional Prepayment.  The Borrowers may, upon notice from the
Borrowers to the Revolving Administrative Agent, at any time or from time to
time voluntarily prepay the Revolving Loans in whole or in part without premium
or penalty; provided that in the case of the
Eurodollar Rate Loans the Borrowers may prepay a Eurodollar Rate Loan only upon
at least three (3) Business Days prior written notice to Lender (which notice shall
be irrevocable), and any such prepayment shall occur only on the last day of
the Interest Period for such Eurodollar Rate Loan. The Borrowers shall pay to
the Revolving Lenders, upon request of the Revolving Lenders, such amount or
amounts as shall be sufficient (in the reasonable opinion of the Revolving
Lenders) to compensate the Revolving Lenders for any loss, cost, or expense
incurred as a result of:  (i) any payment
of a Eurodollar Rate Loan on a date other than the last day of the Interest Period
for such Loan; (ii) any failure by the Borrowers to borrow an Eurodollar Rate
Loan on the date specified by the Borrowers’ written notice; or (iii) any
failure by the Borrowers to pay an Eurodollar Rate Loan on the date for payment
specified in the Borrowers’ written notice. 
Without limiting the foregoing, the Borrowers shall pay to the Revolving
Lenders a “yield maintenance fee” in an amount computed as follows:  the current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond
equivalent) with a maturity date closest to the Interest Period chosen pursuant
to the Eurodollar Rate Loan as to which the prepayment is made, shall be
subtracted from the Eurodollar Rate in effect at the time of prepayment.  If the result is zero or a negative number,
there shall be no yield maintenance fee. 
If the result is a positive number, then the resulting percentage shall
be multiplied by the amount of the principal balance being prepaid.  The resulting amount shall be divided by 360
and multiplied by the number of days remaining in the Interest Period chosen
pursuant to the Eurodollar Rate Loan as to which the prepayment is made.  Said amount shall be reduced to present value
calculated by using the above referenced United States Treasury securities rate
and the number of days remaining in the term chosen pursuant to the Eurodollar
Rate Loan as to which prepayment is made. 
The resulting amount shall be the yield maintenance fee due to the
Revolving Lender upon the prepayment of an Eurodollar Rate Loan.  If by reason of an Event of Default, the
Revolving Lenders elect to declare the Obligations to be immediately due and
payable, then any yield maintenance fee with respect to an Eurodollar Rate Loan
shall become due and payable in the same manner as though the Borrowers had
exercised such right of prepayment.


 


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2.4           Revolving Letter of Credit
Accommodations.


 


(a)           Subject to and upon the terms and
conditions contained herein, at the request of US Borrowers, Revolving Administrative
Agent agrees to, during the Revolving Facility Availability Period, provide or
arrange for Revolving Letter of Credit Accommodations for the account of US
Borrowers (“US Revolving Letter of Credit Accommodations”)
containing terms and conditions acceptable to Revolving Administrative Agent
and the issuer thereof.  Any payments
made by Revolving Administrative Agent to any issuer thereof and/or related
parties in connection with the US Revolving Letter of Credit Accommodations
shall constitute additional US Revolving Loans by US Revolving Lenders to US
Borrowers pursuant to this Section 2.


 


(b)           Borrowers shall pay to the Revolving
Administrative Agent, for the account of any issuing bank in respect of the Revolving
Letter of Credit Accommodations, a fronting fee, which fronting fee shall
accrue at the rate of 0.30% per annum on the average outstanding Maximum
Drawing Amount of the Revolving Letter of Credit Accommodations.  Accrued fronting fees under this Section
2.4(b) shall be due and payable on the last Business Day of each March, June,
September and December, commencing on the first such date to occur after the
Amendment and Restatement Effective Date; provided that
any such fees accruing after the Maturity Date shall be payable on demand.  All fronting fees under this Section 2.4(b)
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 


(c)           In addition to the customary issuing,
administrative, issuance, amendment, payment, negotiation fees and other fees
or expenses charged by any bank or issuer in connection with the Revolving
Letter of Credit Accommodations, the applicable Borrowers shall pay to Revolving
Administrative Agent for the ratable benefit of the applicable US Revolving
Lenders a letter of credit fee at a rate per annum equal to the Applicable Rate
on the average outstanding Maximum Drawing Amount of the US Revolving Letter of
Credit Accommodations for the immediately preceding month (or part thereof),
payable in arrears as of the first day of each succeeding month, except that
such US Borrowers shall pay to Revolving Administrative Agent for the ratable
benefit of the US Revolving Lenders with participations in such US Revolving
Letter of Credit Accommodations such letter of credit fee, at Revolving
Administrative Agent’s option (or at the direction of Majority Revolving
Lenders or Canadian Lender, as applicable), without notice, at a rate equal to
two percent (2%) per annum above the Applicable Rate on such average
outstanding Maximum Drawing Amount for: 
(i) the period from and after the date of termination or
non-renewal of the Revolving Commitments until the Discharge of Revolving Obligations
(notwithstanding entry of a judgment against any Borrower) and (ii) the
period from and after the date of the occurrence of an Event of Default for so
long as such Event of Default is continuing as determined by Revolving Administrative
Agent.  Such letter of credit fee shall
be calculated on the basis of a three hundred sixty (360) day year and actual
days elapsed and the obligation of US Borrowers to pay such fee shall survive
the termination or non-renewal of this Agreement.


 


(d)           Each US Revolving Letter of Credit
Accommodation issued, extended, amended or renewed hereunder shall, among other
things, (i) provide for the payment of drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by the
documents described therein, and (ii) have, in the case of (y) a standby
US Revolving


 


45





















 


Letter of Credit Accommodation,
an original expiry date no later than three hundred sixty-five (365) days from
the date of issuance and (z) a commercial or documentary US Revolving Letter of
Credit Accommodation, an expiry date no later than one hundred eighty (180)
days from the date of issuance, and a final expiry date no later than the date
which is five (5) Business Days prior to the Maturity Date.


 


(e)           US Borrowers shall give Revolving
Administrative Agent two (2) Business Days’ prior written notice of US Borrowers’
request for the issuance of a US Revolving Letter of Credit Accommodation.  Such notice shall be irrevocable and shall
specify the original Maximum Drawing Amount of the US Revolving Letter of
Credit Accommodation requested, the effective date (which date shall be a
Business Day) of issuance of such requested US Revolving Letter of Credit
Accommodation, whether such US Revolving Letter of Credit Accommodation may be
drawn in a single or in partial draws, the date on which such requested US
Revolving Letter of Credit Accommodation is to expire (which date shall be a
Business Day), the purpose for which such US Revolving Letter of Credit
Accommodation is to be issued, and the beneficiary of the requested US
Revolving Letter of Credit Accommodation. 
US Borrowers shall attach to such notice the proposed form of the US
Revolving Letter of Credit Accommodation.


 


(f)            In addition to being subject to the
satisfaction of the applicable conditions precedent contained in Section 4
hereof and the other terms and conditions contained herein, no US Revolving
Letter of Credit Accommodations shall be available unless each of the following
conditions precedent have been satisfied in a manner satisfactory to Revolving
Administrative Agent:  (i) US Borrowers
shall have delivered to the proposed issuer of such US Revolving Letter of
Credit Accommodation at such times and in such manner as such proposed issuer
may require, an application in form and substance satisfactory to such proposed
issuer and Revolving Administrative Agent for the issuance of the US Revolving
Letter of Credit Accommodation and such other documents as may be required pursuant
to the terms thereof, and the form and terms of the proposed US Revolving
Letter of Credit Accommodation shall be satisfactory to Revolving Administrative
Agent and such proposed issuer, (ii) as of the date of issuance, no order of
any court, arbitrator or other Governmental Authority shall purport by its
terms to enjoin or restrain money center banks generally from issuing letters
of credit of the type and in the amount of the proposed US Revolving Letter of
Credit Accommodation, and no law, rule or regulation applicable to money center
banks generally and no request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over money center banks
generally shall prohibit, or request that the proposed issuer of such US
Revolving Letter of Credit Accommodation refrain from, the issuance of letters
of credit generally or the issuance of such US Revolving Letter of Credit
Accommodations; and (iii) the applicable Excess Availability, prior to giving
effect to any Reserves with respect to such US Revolving Letter of Credit
Accommodations, on the date of the proposed issuance of any US Revolving Letter
of Credit Accommodations, shall be equal to or greater than an amount equal to
one hundred percent (100%) of the Maximum Drawing Amount thereof and all other
commitments and obligations made or incurred by Revolving Administrative Agent
with respect thereto.  Effective on the
issuance of each US Revolving Letter of Credit Accommodation, a Reserve shall
be established in the amount set forth in this Section 2.4(f).


 


46





















 


(g)           Except in Revolving Administrative
Agent’s and Majority Revolving Lenders’ discretion, the aggregate Maximum
Drawing Amount of all outstanding US Revolving Letter of Credit Accommodations
and all other commitments and obligations made or incurred by Revolving
Administrative Agent, the US Revolving Lenders or any issuer of US Revolving
Letter of Credit Accommodations in connection therewith shall not at any time exceed
$50,000,000.


 


(h)           Each US Borrower shall indemnify and
hold Revolving Administrative Agent and each US Revolving Lender harmless from
and against any and all losses, claims, damages, liabilities, costs and
expenses which Revolving Administrative Agent or any US Revolving Lender may
suffer or incur in connection with any US Revolving Letter of Credit Accommodations
and any documents, drafts or acceptances relating thereto, including any
losses, claims, damages, liabilities, costs and expenses due to any action
taken by any issuer or correspondent with respect to any US Revolving Letter of
Credit Accommodation.  Each US Borrower
assumes all risks with respect to the acts or omissions of the drawer under or
beneficiary of any US Revolving Letter of Credit Accommodation and for such
purposes the drawer or beneficiary shall be deemed such US Borrower’s Revolving
Administrative Agent.  Each US Borrower
assumes all risks for, and agrees to pay, all foreign, Federal, State,
Provincial and local taxes, duties and levies relating to any goods subject to
any US Revolving Letter of Credit Accommodations or any documents, drafts or
acceptances thereunder.  Each US Borrower
hereby releases and holds Revolving Administrative Agent and each US Revolving
Lender harmless from and against any acts, waivers, errors, delays or
omissions, whether caused by any US Borrower, by any issuer or correspondent or
otherwise with respect to or relating to any US Revolving Letter of Credit Accommodation,
except for the gross negligence or willful misconduct of Revolving
Administrative Agent as determined pursuant to a final, non-appealable order of
a court of competent jurisdiction.  The
provisions of this Section 2.4 shall survive the Discharge of Revolving Obligations
and the termination or non-renewal of this Agreement.


 


(i)            Each US Borrower hereby irrevocably
authorizes and directs any issuer of a US Revolving Letter of Credit Accommodation
to name any of the US Borrowers as the account party therein and to deliver to
Revolving Administrative Agent all instruments, documents and other writings
and property received by issuer pursuant to the US Revolving Letter of Credit
Accommodations and to accept and rely upon Revolving Administrative Agent’s
instructions and agreements with respect to all matters arising in connection
with the US Revolving Letter of Credit Accommodations or the applications
therefor.  Nothing contained herein shall
be deemed or construed to grant any US Borrower any right or authority to
pledge the credit of Revolving Administrative Agent or any US Revolving Lender
in any manner.  The Revolving
Administrative Agent shall not have any liability of any kind with respect to
any US Revolving Letter of Credit Accommodation provided by an issuer other
than Revolving Administrative Agent unless Revolving Administrative Agent has
duly executed and delivered to such issuer the application or a guarantee or
indemnification in writing with respect to such US Revolving Letter of Credit
Accommodation.  US Borrowers shall be
bound by any interpretation made in good faith by Revolving Administrative
Agent or any other issuer or correspondent under or in connection with any US Revolving
Letter of Credit Accommodation or any documents, drafts or acceptances
thereunder, notwithstanding that such interpretation may be inconsistent with
any instructions of US Borrowers. 
Revolving Administrative Agent shall have the sole and exclusive right
and authority to, and US Borrowers shall not: 
(i) at any time an Event of Default exists or has occurred


 


47





















 


and is continuing, (A) approve
or resolve any questions of non-compliance of documents, (B) give any
instructions as to acceptance or rejection of any documents or goods, or (C)
execute any and all applications for steamship or airway guaranties,
indemnities or delivery orders; and (ii) at all times, (A) grant any extensions
of the maturity of, time of payment for, or time of presentation of, any
drafts, acceptances, or documents, and (B) agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or conditions
of any of the applications, US Revolving Letter of Credit Accommodations, or
documents, drafts or acceptances thereunder or any letters of credit included
in the Accounts Collateral.  Revolving
Administrative Agent may take such actions either in its own name or in any US
Borrower’s name.


 


(j)            Any rights, remedies, duties or
obligations granted or undertaken by US Borrowers to any issuer or correspondent
in any application for any US Revolving Letter of Credit Accommodation, or any
other agreement in favor of any issuer or correspondent relating to any US
Revolving Letter of Credit Accommodation, shall be deemed to have been granted
or undertaken by US Borrowers to Revolving Administrative Agent.  Any duties or obligations undertaken by Revolving
Administrative Agent to any issuer or correspondent in any application for any
US Revolving Letter of Credit Accommodation, or any other agreement by Revolving
Administrative Agent in favor of any issuer or correspondent relating to any US
Revolving Letter of Credit Accommodation, shall be deemed to have been undertaken
by US Borrowers to Revolving Administrative Agent and to apply in all respects
to US Borrowers.


 


(k)           To induce Revolving Administrative
Agent to issue or cause to be issued US Revolving Letter of Credit Accommodations,
each US Revolving Lender (a “Revolving  LC Participant”) irrevocably agrees to accept and purchase
and hereby accepts and purchases, on the terms and conditions hereinafter
stated, for such Revolving LC Participant’s own account and risk, an undivided
interest and participation equal to such Revolving LC Participant’s Pro Rata
Share in the Revolving Administrative Agent’s obligations and rights under each
US Revolving Letter of Credit Accommodation. 
Each Revolving LC Participant unconditionally and irrevocably agrees
with the Revolving Administrative Agent, that it shall be directly and
unconditionally obligated to the Revolving Administrative Agent to reimburse
the Revolving Administrative Agent upon demand and without setoff or deduction
of any kind or nature, for making any payment under any US Revolving Letter of
Credit Accommodation, in an amount equal to such Revolving LC Participant’s Pro
Rata Share multiplied by the amount of such payment made by the Revolving
Administrative Agent, as applicable, under such Revolving Letter of Credit
Accommodation.  If any amount required to
be paid by any Revolving LC Participant to the Revolving Administrative Agent
pursuant hereto in respect of any payment made by the Revolving Administrative
Agent under any US Revolving Letter of Credit Accommodation is not paid to Revolving
Administrative Agent on the date such payment is due from such Revolving LC
Participant, such Revolving LC Participant shall pay to the Revolving
Administrative Agent, on demand an amount equal to the product of (i) such
amount, times (ii) (A) the Federal Funds Rate during the period from and
including the date such payment is required to and including the third day
after such payment is required and (B) thereafter, the Interest Rate applicable
to Prime Rate Loans to the date on which such payment is immediately available
to the Revolving Administrative Agent, times (iii) a fraction the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360.  A certificate of the
Revolving Administrative Agent, as applicable, submitted to any Revolving LC
Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. 
Whenever, at any time after


 


48





















 


the Revolving Administrative
Agent, as applicable, has made payment under any US Revolving Letter of Credit
Accommodation and has received from any Revolving LC Participant its pro rata
share of such payment in accordance herewith, and the Revolving Administrative
Agent receives any payment from the Borrowers on account of such payment under
such US Revolving Letter of Credit Accommodation (whether directly from the Borrowers
or otherwise, including by way of setoff or proceeds of collateral applied
thereto by the Revolving Administrative Agent), or any payment of interest on account
thereof, the Revolving Administrative Agent shall distribute to such Revolving
LC Participant its pro rata share thereof; provided, however, that in the event that any such payment received by
the Revolving Administrative Agent shall be required to be returned by the
Revolving Administrative Agent, such Revolving LC Participant shall return to
the Revolving Administrative Agent the portion thereof previously distributed
by the Revolving Administrative Agent to it. 
The obligations of each Revolving LC Participant to make payments to the
Revolving Administrative Agent with respect to its participation in any US
Revolving Letter of Credit Accommodation shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which any Lender or any Borrower may have or have had
against the Revolving Administrative Agent, the issuing bank or any beneficiary
of a US Revolving Letter of Credit Accommodation.


 


2.5           Borrower Representative.  Each Credit Party hereby irrevocably
designates Parent as its representative and agent on its behalf (the “Borrower Representative”) for the purpose of
(i) requesting on such Borrower’s behalf borrowings of US Revolving Loans
or Canadian Revolving Loans, as applicable, (ii) the continuation and/or
conversion of US Revolving Loans or Canadian Revolving Loans, as applicable,
(iii) giving instructions with respect to the disbursement of the proceeds
of US Revolving Loans or Canadian Revolving Loans, as applicable, to be made to
US Borrowers or Canadian Borrowers, as applicable, (iv) selecting interest
rate options for US Borrowers or Canadian Borrowers, as applicable,
(v) requesting US Revolving Letter of Credit Accommodations or LC Facility
Letters of Credit, as applicable, for the account of US Borrowers or Canadian
Borrowers, as applicable, and (vi) giving and receiving on Credit Parties’
behalf all other notices and consents hereunder or under any of the other Financing
Agreements and taking all other actions (including in respect of compliance
with covenants) on behalf of Borrowers under the
Financing Agreements.  The Borrower
Representative hereby accepts such appointment. 
Each Agent and each Lender may regard any notice or other communication
pursuant to any Financing Agreement from the Borrower Representative as a
notice or communication from the applicable Borrowers, and may give any notice
or communication required or permitted to be given to any Credit Party or
Credit Parties hereunder to the Borrower Representative on behalf of such
Credit Party or Credit Parties.  Each
Credit Party agrees that each notice, election, representation and warranty,
covenant, agreement and undertaking made on its behalf by the Borrower Representative
shall be deemed for all purposes to have been made by such Credit Party and
shall be binding upon and enforceable against such Credit Party to the same
extent as if the same had been made directly by such Credit Party.  This appointment of Parent as Borrower
Representative may not be terminated, rescinded or changed without the prior
written consent of each Agent, provided that
upon any Agent’s request, the Credit Parties shall designate an alternative
Borrower Representative satisfactory to such Agent.


 


49





















 


2.6           LC Facility Letters of Credit.


 


(a)           Issuance and Amendment.  Subject to the terms and conditions hereof,
any US Borrower may request the issuance of, and the LC Facility Issuing Bank
agrees to issue, one or more LC Facility Letters of Credit, in a form
reasonably acceptable to the LC Facility Issuing Bank, at any time and from
time to time during the LC Facility Availability Period; provided
that all LC Facility Letters of Credit shall expire no later than five Business
Days prior to the Maturity Date.  This
Section 2.6 shall not be construed to impose an obligation upon the LC Facility
Issuing Bank to issue any LC Facility Letter of Credit that is inconsistent
with the terms and conditions of this Agreement.  In order to request the issuance of an LC
Facility Letter of Credit, the requesting US Borrower shall hand deliver or
telecopy to the LC Facility Issuing Bank and the LC Facility Administrative
Agent (reasonably in advance of the requested date of issuance) a notice
requesting the issuance of an LC Facility Letter of Credit and setting forth
the date of issuance, the date on which such LC Facility Letter of Credit is to
expire (which shall comply with paragraph (c) below), the amount of such LC
Facility Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare such LC Facility Letter
of Credit.  If requested by the LC Facility
Issuing Bank, the applicable US Borrower shall submit a letter of credit
application on the LC Facility’s Issuing Bank’s standard form in connection
with the issuance of any LC Facility Letter of Credit to be issued by the LC
Facility Issuing Bank.  In the event of
any inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by any US Borrower to, or entered into by such US Borrower with, the
LC Facility Issuing Bank relating to any LC Facility Letter of Credit, the
terms and conditions of this Agreement shall control.  Any LC Facility Letter of Credit may be
amended by the LC Facility Issuing Bank at the request of such US Borrower; provided that no such amendment shall increase the stated
amount of an LC Facility Letter of Credit or extend the expiration date thereof
beyond the last permissible date referred to in paragraph (c) below.  To request an amendment to an outstanding LC
Facility Letter of Credit, the applicable US Borrower shall hand deliver or
telecopy to the LC Facility Issuing Bank and the LC Facility Administrative
Agent (reasonably in advance of the requested date of amendment) a notice
identifying the LC Facility Letter of Credit to be amended and specifying the
date of amendment (which shall be a Business Day), the amount of such LC Facility
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to amend such LC Facility Letter of
Credit.  All LC Facility Letters of
Credit under this Agreement shall be conclusively presumed to have been made
to, and at the request of and for the benefit of, US Borrowers when
established.


 


(b)           Limitation of Amount; No Default.  An LC Facility Letter of Credit shall be
issued, amended or extended only if (and upon issuance, amendment or extension
of each LC Facility Letter of Credit, the US Borrower requesting such LC Facility
Letter of Credit shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment or extension, (1) no Default or Event
of Default has occurred and is then continuing and (2) the LC Facility LC
Exposure, after giving effect thereto, will not exceed the Total Credit-Linked
Deposits at such time.


 


(c)           Expiration Date.  Each LC Facility Letter of Credit shall
expire at or prior to the close of business on the earlier of (A) the date
one year after the date of the issuance of such LC Facility Letter of Credit
or, in the case of any renewal or extension thereof, one year


 


50





















 


after such renewal or
extension; provided that if the Borrowers and the
LC Facility Issuing Bank so agree, any LC Facility Letter of Credit may provide
for the automatic renewal of such LC Facility Letter of Credit for successive
one year terms and (B) the date that is five Business Days prior to the
Maturity Date.  If at any time any LC
Facility Letter of Credit contains provisions providing for automatic renewal,
(i) without limitation of the Borrowers’ obligations under Section 9.6(b), the
Borrowers will immediately upon becoming aware of any Default notify the LC
Facility Administrative Agent and the LC Facility Issuing Bank of the
occurrence and continuance of such Default during any period during which the
LC Facility Issuing Bank has the option to provide notice of non-renewal under
any LC Facility Letter of Credit and (ii) the LC Facility Lenders hereby
authorize the LC Facility Issuing Bank to permit such automatic renewal,
whether or not a Default then exists, unless the LC Facility Issuing Bank has
received a notice (which may be by telephone or in writing) on or before the
day that is five (5) Business Days prior to the notice date to prevent
automatic renewal from the LC Facility Administrative Agent and the Majority LC
Facility Lenders that one or more applicable conditions is not then satisfied
and directing it to give notice to prevent such automatic renewals in the
future.


 


(d)           Participations of Lenders.  On the date of issuance of each LC Facility
Letter of Credit, without any further action on the part of the LC Facility
Issuing Bank or any LC Facility Lender, the LC Facility Issuing Bank hereby
grants to each LC Facility Lender, and each LC Facility Lender hereby acquires
from the LC Facility Issuing Bank, a participation in each such LC Facility
Letter of Credit equal to such LC Facility Lender’s Pro Rata Share of the aggregate
maximum amount available to be drawn under such LC Facility Letter of
Credit.  The aggregate purchase price for
the participations of each LC Facility Lender in all LC Facility Letters of
Credit shall equal the amount of the Credit-Linked Deposit of such LC Facility
Lender. Each LC Facility Lender shall deposit with the LC Facility
Administrative Agent its Credit-Linked Deposit in the full amount of its LC
Facility Commitment on the Amendment and Restatement Effective Date; provided that the Credit-Linked Deposits of LC Facility
Lenders that were Original LC Facility Lenders shall remain in the
Credit-Linked Deposit Account on and following the Amendment and Restatement
Effective Date, subject to any adjustments required by Section 2.7(f).  Except as expressly provided for herein, such
deposits shall be irrevocable and no LC Facility Lender shall have any right to
withdraw any of its Credit-Linked Deposit. 
Each LC Facility Lender hereby absolutely and unconditionally agrees
that if the LC Facility Issuing Bank makes a LC Facility LC Disbursement which
is not reimbursed by the US Borrowers when due as provided in (f)(i) of this
Section 2.6 or is required to refund any reimbursement payment in respect of a
LC Facility LC Disbursement to any US Borrower for any reason, the LC Facility
Administrative Agent shall reimburse the LC Facility Issuing Bank for such LC
Facility Lender’s Pro Rata Share of the amount of such LC Facility LC Disbursement
from such LC Facility Lender’s Credit-Linked Deposit on deposit in the
Credit-Linked Deposit Account.


 


(e)           Obligations Unconditional.  Each LC Facility Lender acknowledges and
agrees that its obligation to acquire and fund participations in respect of LC
Facility Letters of Credit pursuant to the preceding clause (d) is absolute,
unconditional and irrevocable and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any LC Facility
Letter of Credit or the occurrence and continuance of a Default or Event of
Default or any return of the Credit-Linked Deposits, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Without limiting the foregoing,


 


51





















 


each LC Facility Lender
irrevocably authorizes the LC Facility Administrative Agent to apply amounts of
its Credit-Linked Deposit as provided in Section 2.6(d).


 


(f)            Reimbursement.  (i)  If
the LC Facility Issuing Bank shall make any LC Facility LC Disbursement in respect
of a LC Facility Letter of Credit, the LC Facility Issuing Bank will promptly
give notice to US Borrowers and the LC Facility Administrative Agent.  The US Borrowers shall reimburse such LC Facility
LC Disbursement by paying to the LC Facility Administrative Agent to the
account specified by the LC Facility Administrative Agent an amount equal to
such LC Facility LC Disbursement not later than 3:00 p.m., New York City
time, on the date such LC Facility LC Disbursement is made, if US Borrowers
shall have received notice of such LC Facility LC Disbursement prior to
11:00 a.m., New York City time, on the date of such LC Facility LC Disbursement,
or, if such notice has not been received by US Borrowers prior to such time on
the date of such LC Facility LC Disbursement, then not later than
1:00 p.m., New York City time, on the Business Day immediately following
the day that US Borrowers receives such notice, in each case together with
interest accrued on such LC Facility LC Disbursement from the date such LC
Facility LC Disbursement is made to the date of reimbursement at the rate set
forth in Section 2.6(i) below.


 


(ii)           If
the US Borrowers fail to make any payment due under subparagraph (i) of this
Section 2.6(f) with respect to an LC Facility LC Disbursement, the LC Facility
Administrative Agent shall notify each LC Facility Lender of the amount of the
applicable unreimbursed LC Facility LC Disbursement (an “Unreimbursed
Amount”) and such LC Facility Lender’s Pro Rata Share thereof, and
the LC Facility Administrative Agent shall pay to the LC Facility Issuing Bank
each LC Facility’s Lender’s Pro Rata Share of such Unreimbursed Amount from
such LC Facility Lender’s Credit-Linked Deposit prior to 1:00 p.m. New
York City time on the Business Day immediately following the date such payment
was due.  Promptly following receipt by
the LC Facility Administrative Agent of any payment pursuant to subparagraph
(i) of this Section 2.6(f) in respect of any LC Facility LC Disbursement, the
LC Facility Administrative Agent shall distribute such payment to the LC Facility
Issuing Bank.


 


(iii)          Notwithstanding
the foregoing, to the extent any funds are on deposit in the Cash Collateral
Account pursuant to Section 2.6(k)(i), upon receipt by the LC Facility
Administrative Agent of notice of any LC Facility LC Disbursement, the LC
Facility Administrative Agent shall (A) notify each LC Facility Lender of the
applicable LC Facility LC Disbursement and such LC Facility Lender’s Pro Rata
Share thereof, (B) promptly pay to the LC Facility Issuing Bank each LC
Facility Lender’s Pro Rata Share of such LC Facility LC Disbursement from such
LC Facility Lender’s Credit-Linked Deposit by 1:00 p.m. on the date such
payment is due and (C) promptly pay to each LC Facility Lender such LC Facility
Lender’s Pro Rata Share of such LC Facility LC Disbursement from amounts on
deposit in the Cash Collateral Account, in each case solely up to the amount
then on deposit in the Cash Collateral Account pursuant to Section 2.6(k)(i).


 


(g)           Obligations Absolute.  The US Borrowers’ obligation to reimburse LC
Facility LC Disbursements as provided in Section 2.6(f)(i) shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any LC Facility
Letter of Credit or this Agreement, or any term or provision therein or herein,


 


52





















 


(ii) any draft or other
document presented under an LC Facility Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the LC Facility Issuing Bank under
an LC Facility Letter of Credit against presentation of a draft or other
document that does not comply with the terms of such LC Facility Letter of
Credit, or (iv) any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.6, constitute a legal or equitable discharge of, or provide a right of setoff
against, the US Borrowers’ obligations hereunder.  None of the LC Facility Administrative Agent,
the LC Facility Lenders, the LC Facility Issuing Bank or any of their
Affiliates, and their respective directors, trustees, officers, employees,
agents and attorneys-in-fact, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any LC Facility
Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any LC Facility Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the LC Facility Issuing Bank; provided that the foregoing shall not be construed to excuse
the LC Facility Issuing Bank from liability to the US Borrowers to the extent
of any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the US Borrowers to the extent permitted by applicable
law) suffered by the US Borrowers that are caused by the LC Facility Issuing
Bank’s failure to exercise care when determining whether drafts and other
documents presented under an LC Facility Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that, in the absence of gross negligence, bad faith or willful misconduct
on the part of the LC Facility Issuing Bank (as finally determined by a court
of competent jurisdiction), the LC Facility Issuing Bank shall be deemed to
have exercised care in each such determination. 
In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of an LC
Facility Letter of Credit, the LC Facility Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents
are not in strict compliance with the terms of such LC Facility Letter of
Credit.


 


(h)           Disbursement Procedures.  The LC Facility Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under an LC Facility Letter of Credit.  The LC Facility Issuing Bank shall promptly
notify the LC Facility Administrative Agent and Parent by telephone (confirmed
by telecopy) of such demand for payment and whether LC Facility Issuing Bank
has made or will make an LC Facility LC Disbursement thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the US Borrowers of their obligation to reimburse the
LC Facility Issuing Bank and the LC Facility Lenders with respect to any such
LC Facility LC Disbursement nor the LC Facility Lenders’ obligations to
participate in such LC Facility Letter of Credit.


 


(i)            Interim Interest.  If the LC Facility Issuing Bank shall make
any LC Facility LC Disbursement, then, unless the US Borrowers shall reimburse
such LC Facility LC Disbursement in full on the date such LC Facility LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Facility LC Disbursement


 


53





















 


is made to but excluding the date
that the US Borrowers reimburse such LC Facility LC Disbursement, at the LIBID
Rate plus the sum of (i) the Participation Fee (as then in effect) and (ii) 2%
per annum.  Interest accrued pursuant to
this paragraph shall be paid to the account specified by the LC Facility
Administrative Agent for the account of the LC Facility Issuing Bank, except
that interest accrued on and after the date of payment from the Credit-Linked Deposit
of any LC Facility Lender to reimburse the LC Facility Issuing Bank shall be
for the account of such LC Facility Lender to the extent of such payment.


 


(j)            Replacement of the LC Facility
Issuing Bank.  The LC Facility
Issuing Bank may be replaced at any time by written agreement among Parent, a
new LC Facility Issuing Bank and the LC Facility Administrative Agent (with
notice to such replaced LC Facility Issuing Bank); provided,
however, that, if the replaced LC
Facility Issuing Bank so requests, any LC Facility Letters of Credit issued by
such LC Facility Issuing Bank shall be replaced and cancelled prior to the
removal of such LC Facility Issuing Bank and all fees and other amounts owed to
such removed LC Facility Issuing Bank shall be paid to it.  From and after the effective date of any such
replacement, (i) the successor LC Facility Issuing Bank shall have all the
rights and obligations of the LC Facility Issuing Bank under this Agreement
(and its LC Facility Letters of Credit to be issued by it on such effective
date or thereafter) and (ii) references herein to the term “LC Facility Issuing
Bank” shall be deemed to refer to such successor or to any previous LC Facility
Issuing Bank, or to such successor and all previous LC Facility Issuing Banks,
as the context shall require.


 


(k)           Cash Collateralization.  (i)  If
(x) any Event of Default shall occur and be continuing and Parent receives (or
is deemed to have received) a demand to cash collateralize the Uncovered LC
Facility LC Amount pursuant to Section 10.2(b) from the LC Facility
Administrative Agent or the Majority LC Facility Lenders specifying the amount
of the Uncovered LC Facility LC Amount, or (y) the US Borrowers are required to
cash collateralize the aggregate Uncovered LC Facility LC Amount pursuant to
Section 2.8(b), then the US Borrowers shall deposit in an account (the “Cash Collateral Account”) with the LC Facility Collateral
Agent, for the benefit of the LC Facility Lenders, an amount in cash equal to
the aggregate Uncovered LC Facility LC Amount on the date specified in such
demand or the date specified in Section 2.8(b), as applicable.


 


(ii)           All
such deposits shall be held by the LC Facility Collateral Agent as Non-Accounts
Collateral for the payment and performance of the LC Facility Obligations
(other than any LC Facility Obligations in respect of Term Loans).  The LC Facility Collateral Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over the Cash Collateral Account.  Other
than any interest earned on the investment of such deposits in Cash
Equivalents, which investments shall be made at the option and sole discretion
of the LC Facility Collateral Agent, such deposits shall not bear interest; provided, however, that
so long as no Event of Default shall have occurred and be continuing, the LC
Facility Collateral Agent shall invest such deposits in Cash Equivalents as
directed by Parent in writing and as reasonably approved by LC Facility Administrative
Agent (in no event shall the LC Facility Collateral Agent be liable for the
selection of Cash Equivalents or for investment losses, if any, incurred
thereon, including losses incurred as a result of the liquidation of any Cash
Equivalents prior to stated maturity (including, without limitation, any early
withdrawal or liquidation penalty); any and all commissions, broker fees or
other charges, penalties, fees or expenses incurred in connection


 


54





















 


with the investment in, or
liquidation of any Cash Equivalents shall be solely for the account of the Borrowers,
and shall be debited against the cash balance in the Cash Collateral
Account)).  Interest or profits, if any,
on such investments shall accumulate in the Cash Collateral Account and be held
as additional collateral for the LC Facility Obligations (other than LC
Facility Obligations in respect of Term Loans). 
Moneys in such account shall be applied in the order specified in the
Amended and Restated Security Agreement. 
If the US Borrowers are required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned, together with all
earnings thereon, to Parent within three Business Days after all Events of Default
if any, have been cured or waived (or, following such cure or waiver, at the maturity
of such Cash Equivalents in the case of any such Cash Equivalents that the LC
Facility Administrative Agent is unable to liquidate in the ordinary course
prior to maturity).  If the US Borrowers
are required to provide an amount of cash collateral hereunder pursuant to
Section 2.8(b), such amount (to the extent not applied as aforesaid) shall be
returned to Parent, together with all earnings thereon, if any, within three
(3) Business Days after the cancellation or other termination of an LC Facility
Letter of Credit up to the undrawn amount of such LC Facility Letter of Credit.


 


(l)            Reporting Requirements of LC
Facility Issuing Bank.  Within two
(2) Business Days following the last day of each calendar month, the LC Facility
Issuing Bank shall deliver to the LC Facility Administrative Agent a report
detailing all activity during the preceding calendar month with respect to all
LC Facility Letters of Credit issued by the LC Facility Issuing Bank, including
the Maximum Drawing Amount, the account party, the beneficiary and the
expiration date of each such LC Facility Letter of Credit and any other information
with respect thereto as may be requested by the LC Facility Administrative
Agent.


 


2.7           Credit-Linked Deposit Account.


 


(a)           The Credit-Linked Deposits shall be
held by the LC Facility Administrative Agent in the Credit-Linked Deposit
Account, and no party other than the LC Facility Administrative Agent shall
have a right of withdrawal from the Credit-Linked Deposit Account or any other
right or power with respect to the Credit-Linked Deposits.  Notwithstanding anything herein to the
contrary, the funding obligation of each LC Facility Lender in respect of its
participation in LC Facility Letters of Credit shall be satisfied in full upon
the funding of its Credit-Linked Deposit.


 


(b)           Each of the LC Facility
Administrative Agent, the LC Facility Issuing Bank and each LC Facility Lender
hereby acknowledges and agrees that each LC Facility Lender is funding (or has
funded) its Credit-Linked Deposit to the LC Facility Administrative Agent for
application in the manner contemplated by Section 2.6(d) and that the LC Facility
Administrative Agent has agreed to invest the Credit-Linked Deposits which are
on deposit in the Credit-Linked Deposit Account from time to time so as to earn
a return (subject to clause (e) below) for the LC Facility Lenders equal to the
LIBID Rate for the applicable period. 
Each LC Facility Lender’s Pro Rata Share of such interest will be paid
to such LC Facility Lender by the LC Facility Administrative Agent in arrears
on the last Business Day of each March, June, September and December and on
each other day (including, as set forth in the second proviso in
Section 2.9, on the Amendment and Restatement Effective Date)
Participation Fees are paid pursuant to Section 2.9.


 


55





















 


(c)           The Borrowers shall have no right,
title or interest in or to the Credit-Linked Deposits and no obligations with respect
thereto, it being acknowledged and agreed by the parties hereto that the making
of the Credit-Linked Deposits by the LC Facility Lenders, the provisions of
this Section 2.7 and the application of the Credit-Linked Deposits in the
manner contemplated by Section 2.6(d) constitute agreements among the LC
Facility Administrative Agent, the LC Facility Issuing Bank and each LC
Facility Lender with respect to the funding obligations of each Lender in
respect of its participation in LC Facility Letters of Credit and do not constitute
any loan or extension of credit to any Borrower.


 


(d)           Subject to Section 2.8(a), each LC
Facility Lender’s Pro Rata Share of any amount of Credit-Linked Deposits remaining
on deposit in the Credit-Linked Deposit Account will be returned to such LC
Facility Lender on the first date on or after the Maturity Date on which the LC
Facility LC Exposure has been reduced to zero.


 


(e)           If, for any date of determination of
the LIBID Rate the LC Facility Administrative Agent, shall have determined
(which determination shall be conclusive and binding on each LC Facility
Lender) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the LIBID Rate, the
LC Facility Administrative Agent shall give notice thereof to the LC Facility
Lenders and until such notice has been withdrawn, the Credit-Linked Deposits on
deposit in the Credit-Linked Deposit Account shall be invested so as to earn a
return equal to the greater of the Federal Funds Rate and a rate determined by
the LC Facility Administrative Agent in accordance with banking industry rules
on interbank compensation.


 


(f)            (i) 
The Original LC Facility shall be deemed to be extinguished and the LC
Facility shall be deemed to be established, in each case as of the Amendment
and Restatement Effective Date.


 


(ii)           Each
Original LC Facility Lender that has an LC Facility Commitment and that has
executed a counterpart to this Agreement severally agrees to exchange, as of
the Amendment and Restatement Effective Date, its participation in the Original
LC Facility for a participation in the LC Facility equal to its LC Facility
Commitment and the Credit-Linked Deposit of each such LC Facility Lender shall
remain in the Credit-Linked Deposit Account, subject to adjustment as set forth
in Sections 2.7(f)(iv) and (v).


 


(iii)          Each
LC Facility Lender that was not an Original LC Facility Lender shall fund a
Credit-Linked Deposit in an amount equal to its LC Facility Commitment into the
Credit-Linked Deposit Account on the Amendment and Restatement Effective Date.


 


(iv)          To
the extent that the LC Facility Commitment of any LC Facility Lender exceeds
the Credit-Linked Deposit (if any) of such LC Facility Lender immediately prior
to the occurrence of the Amendment and Restatement Effective Date, such excess
will be deposited by such LC Facility Lender in the form of Credit-Linked
Deposits into the Credit-Linked Deposit Account on the Amendment and
Restatement Effective Date.


 


(v)           To
the extent that the Credit-Linked Deposit (if any) of any LC Facility Lender
immediately prior to the occurrence of the Amendment and Restatement Effective
Date


 


56





















 


exceeds the LC Facility Commitment
of such LC Facility Lender, such excess shall be returned by the LC Facility
Administrative Agent to such LC Facility Lender on the Amendment and
Restatement Effective Date.  Any Original
LC Facility Lender that shall not become an LC Facility Lender as of the
Amendment and Restatement Effective Date shall have the full amount of its
Credit-Linked Deposit returned to such Original LC Facility Lender on the
Amendment and Restatement Effective Date.


 


(vi)          On
the Amendment and Restatement Effective Date, the US Borrowers shall pay to
each LC Facility Lender and, without duplication, each Original LC Facility
Lender, all accrued and unpaid Participation Fees through but excluding the
Amendment and Restatement Effective Date to such LC Facility Lender or Original
LC Facility Lender, as the case may be, under Section 2.9.


 


(vii)         On
the Amendment and Restatement Effective Date, the LC Facility Administrative
Agent shall pay to each LC Facility Lender and, without duplication, each
Original LC Facility Lender, all accrued and unpaid interest through but excluding
the Amendment and Restatement Effective Date owing to such LC Facility Lender
or Original LC Facility Lender, as the case may be, under the second sentence
of Section 2.7(b).


 


(viii)        It
is understood and agreed by all parties hereto that, except for the Replaced LC
Facility Letters of Credit, all LC Facility Letters of Credit issued and
outstanding under the Original LC Facility immediately prior to the occurrence
of the Amendment and Restatement Effective Date shall be deemed to be issued
and outstanding under the LC Facility from and after the occurrence of the
Amendment and Restatement Effective Date and shall be deemed to be LC Facility
Letters of Credit for purposes of the Financing Agreements and that no
notification to or consent from any beneficiary under any LC Facility Letter of
Credit shall be required in connection therewith.


 


(ix)           All
returns of Credit-Linked Deposits referred to in this Section 2.7(f) shall be
effected on the Amendment and Restatement Effective Date without regard to any
notice requirement, minimum principal amount or pro rata allocation provision
otherwise applicable thereto hereunder.


 


2.8           Optional Reductions of
Credit-Linked Deposits and Mandatory Cash Collateralization of Uncovered LC
Facility Letters of Credit Amount.


 


(a)           Optional Reduction.  The US Borrowers may,
at any time, direct the LC Facility Administrative Agent to reduce the Total
Credit-Linked Deposits, in whole or in part, upon at least three Business Days’
irrevocable written notice, to the LC Facility Administrative Agent specifying
the date and amount of such reduction; provided that
(i) if any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein; (ii) any such reduction
shall be in an aggregate principal amount of $2,500,000 or a whole multiple of
$500,000 in excess thereof; (iii) no such reduction shall be permitted if,
after giving effect to such reduction, the LC Facility LC Exposure would exceed
the Total Credit-Linked Deposits; and (iv) US Borrowers shall pay, for the
pro rata benefit of each LC Facility Lender, a premium equal to 1% of the
amount of any such reduction which is made prior to the first anniversary of the
Amendment and Restatement Effective Date, which premium shall be payable at the
time of


 


57





















 


such reduction.  For the avoidance of doubt, the US Borrowers
shall not direct the LC Facility Administrative Agent to reduce the Total
Credit-Linked Deposits if, after giving effect to such reduction, the aggregate
LC Facility LC Exposure would exceed the aggregate Total Credit-Linked
Deposits.  In the event the Credit-Linked
Deposits shall be reduced in accordance with the foregoing, the LC Facility Administrative
Agent will return all amounts in the Credit-Linked Deposit Account in excess of
the reduced Credit-Linked Deposits to the Lenders, ratably in accordance with
their Pro Rata Shares of the Total Credit-Linked Deposits.


 


(b)           Mandatory Cash Collateralization.


 


(i)            Asset
Sales.  Not later than one Business
Day following the receipt of any Net Cash Proceeds of any Asset Sale by Parent
or any of its Subsidiaries, Parent shall (subject to the provisions of clause
(vii) below) apply an amount equal to 100% of such Net Cash Proceeds to cash
collateralize the Uncovered LC Facility Letter of Credit Amount in accordance
with Section 2.6(k); provided that


 


(1)           so
long as no Default shall then exist or arise therefrom, no such cash
collateralization shall be required with respect to (A) any Asset Sale
permitted by Section 9.7 (other than Section 9.7(b)(v)), (B) the disposition
of property which constitutes a Casualty Event, or (C) Asset Sales for
fair market value resulting in no more than $100,000 in Net Cash Proceeds per
Asset Sale (or series of related Asset Sales) and less than $1,000,000 in Net
Cash Proceeds in any fiscal year; provided that
clause (C) shall not apply in the case of any Asset Sale described in clause (b)
of the definition thereof; and


 


(2)           so
long as no Default shall then exist or would arise therefrom and the aggregate
of such Net Cash Proceeds of Asset Sales pursuant to Section 9.7(b)(v) shall
not exceed $20,000,000 in any fiscal year of Parent, such Net Cash Proceeds
shall not be required to be applied pursuant to Section 2.6(k) to the extent
that (A) Parent shall have delivered an Officers’ Certificate to the LC
Facility Administrative Agent on or prior to such date stating that such Net
Cash Proceeds are expected to be reinvested in fixed or capital assets within
365 days following the date of such Asset Sale (which Officers’ Certificate
shall set forth the estimates of the proceeds to be so expended); and
(B) if all or any portion of such Net Cash Proceeds is not so reinvested
within such 365-day period, such unused portion shall be applied on the last
day of such period as a mandatory prepayment as provided in this Section 2.8(b);
and provided, further,
that if the property subject to such Asset Sale constituted Non-Accounts
Collateral, then all property purchased with the Net Cash Proceeds thereof
pursuant to this subsection shall be Non-Accounts Collateral.


 


(ii)           Debt
Issuance.  Not later than one
Business Day following the receipt of any Net Cash Proceeds of any Debt Issuance
by Parent or any of its Subsidiaries, Parent shall cash collateralize the
Uncovered LC Facility Letter of Credit Amount in accordance with Section 2.6(k)
in an aggregate principal amount equal to 100% of such Net Cash Proceeds.


 


(iii)          [Reserved].


 


58





















 


(iv)          Casualty
Events.  Not later than one Business
Day following the receipt of any Net Cash Proceeds from a Casualty Event of
Parent or any of its Subsidiaries, Parent shall (subject to the provisions of
clause (vii) below) cash collateralize the Uncovered LC Facility Letter of
Credit Amount in accordance with Section 2.6(k) in an aggregate principal
amount equal to 100% of such Net Cash Proceeds; provided
that:


 


(1)           so
long as no Default shall then exist or arise therefrom, such proceeds shall not
be required to be so applied on such date to the extent that (A) in the
event such Net Cash Proceeds shall not exceed $5.0 million, Parent shall have
delivered an Officers’ Certificate to the LC Facility Administrative Agent on
or prior to such date stating that such proceeds are expected to be used, or
(B) in the event that such Net Cash Proceeds exceed $5.0 million, the LC
Facility Administrative Agent has elected by notice to Parent on or prior to
the date of receipt of such Net Cash Proceeds to require such Net Cash Proceeds
to be used, in each case, to repair, replace or restore any property in respect
of which such Net Cash Proceeds were received or to reinvest in other fixed or capital
assets, no later than 365 days following the date of receipt of such Net
Cash Proceeds; provided that if the property
subject to such Casualty Event constituted Non-Accounts Collateral, then all
property purchased with the Net Cash Proceeds thereof shall be Non-Accounts
Collateral; and


 


(2)           if
any portion of such Net Cash Proceeds shall not be so applied within such
365-day period, such unused portion shall be applied on the last day of such
period to cash collateralize the Uncovered LC Facility LC Amount.


 


(v)           Borrowing
Base.  If at any time the aggregate
Dollar Equivalent of Revolving Loans and Revolving Letter of Credit
Accommodations at such time plus the aggregate principal amount of the outstanding
LC Facility Commitments at such time exceed the sum of (x) the aggregate amount
of accounts receivable of Parent and its Subsidiaries as shown on the balance
sheet of the latest financial statements delivered pursuant to Section 9.6 plus
(y) $35 million, Parent shall notify the Administrative Agent thereof and first,
comply with the last sentence of Section 2.2 and second, to the extent
any of such excess remains after application in accordance with the last sentence
of Section 2.2, cash collateralize the Uncovered LC Facility Letter of Credit
Amount in accordance with Section 2.6(k) in an aggregate principal amount equal
to 100% of such remaining excess.


 


(vi)          Excess
Cash Flow.  If the initial Term Loan
Borrowing Date shall occur (x) on or prior to June 30 in any year, beginning
with such year and (y) after June 30 of any year, beginning with the year
following such year, not later than five Business Days following the date that
financial statements for such year are required to be delivered under Section
9.6(a)(iii), if there shall be any Excess Cash Flow during any such year,
Parent shall prepay Term Loans in an aggregate principal amount equal to the
Applicable Percentage of such Excess Cash Flow (and to the extent that all outstanding
Term Loans have been repaid by operation of this Section 2.8(vi), any remaining
Excess Cash Flow may be used for any other purpose not prohibited by the
Financing Agreements).


 


(vii)         At
any time that any Term Loans shall be outstanding, any Net Cash Proceeds
required to be applied toward cash collateralization of the Uncovered LC
Facility Amount


 


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under clause (i), (ii) or (iv)
of this Section 2.8(b) shall be applied as follows: (A) the LC Facility
Proportion at such time of such Net Cash Proceeds shall be applied toward such
cash collateralization and (B) the sum of (1) the Term Loan Proportion at such
time of such Net Cash Proceeds plus (2) the amount (if any) by which the LC
Facility Portion of such Net Cash Proceeds, exceeds the Uncovered LC Facility
Amount at such time shall be applied to make prepayments of the Term Loans on a
pro rata basis.


 


(viii)        On
the Amendment and Restatement Effective Date, the LC Facility Administrative
Agent is hereby authorized to release to Parent any Warrant Proceeds being held
in the Cash Collateral Account immediately prior to the Amendment and
Restatement Effective Date.


 


2.9           LC Facility Fees.  The US Borrowers agree to pay (i) to LC
Facility Administrative Agent for the account of each LC Facility Lender a
participation fee (a “Participation Fee”)
with respect to its agreement to participate in LC Facility Letters of Credit,
which Participation Fee shall accrue (subject to any adjustments which may be
made in accordance with 11.3 or the last sentence of this Section 2.9) at the
rate of 3.10% per annum, on the average daily amount of such LC Facility Lender’s
Credit-Linked Deposit during the period from and including the Amendment and
Restatement Effective Date to but excluding any date on which such Lender’s
Credit-Linked Deposit is returned to it and (ii) to the LC Facility
Issuing Bank a fronting fee, which shall accrue at the rate of 0.30% per annum
on the average daily aggregate Maximum Drawing Amount of the outstanding LC
Facility Letters of Credit of such LC Facility Issuing Bank, as well as such LC
Facility Issuing Bank’s standard fees with respect to the issuance, amendment,
renewal or extension of any LC Facility Letter of Credit or processing of
drawings thereunder.  Accrued
Participation Fees and fronting fees shall be due and payable in respect of
Credit-Linked Deposits relating to the LC Facility on the last Business Day of
each March, June, September and December, commencing on the first such date to
occur after the Amendment and Restatement Effective Date; provided
that all such fees shall be payable on the date on which the Credit-Linked
Deposits are returned to the LC Facility Lenders and any such fees accruing
after the date on which the Credit-Linked Deposits are returned to the Lenders
shall be payable on demand; provided further
that all Participation Fees that shall have accrued and not been paid under the
Original Credit Agreement shall be paid on the Amendment and Restatement
Effective Date.  Any other fees payable
to LC Facility Issuing Bank pursuant to this paragraph shall be payable within
ten (10) days after demand.  All
Participation Fees and fronting fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).  Additionally, the US Borrowers agree to pay
(i) to LC Facility Administrative Agent, for its own account, the administrative
fees set forth in the Fee Letter and (ii) if the Participation Fee is decreased
pursuant to the provisions of Section 11.3 prior to the first anniversary of
the Amendment and Restatement Effective Date, then the US Borrowers shall pay
to each LC Facility Lender (other than a non-consenting LC Facility Lender with
respect to any such decrease, which non-consenting LC Facility Lender shall
receive a fee of 1% of its Credit-Linked Deposits pursuant to Section 11.3(f))
a fee equal to 1% of its Credit-Linked Deposits on the date such decrease becomes
effective.  So long as no Event of
Default shall have occurred and be continuing, it is understood and agreed that
the Participation Fee shall be reduced (without the payment of any fee pursuant
to the previous sentence or otherwise) to 2.85% per annum from and after the
occurrence of the Specified Notes Redemption.


 


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All fees payable under this Section 2.9
shall be paid on the dates due, in immediately available funds, to the LC
Facility Administrative Agent for the benefit of the parties entitled
thereto.  Fees paid shall not be
refundable under any circumstances.


 


2.10               Establishment
of Term Loans.


 


(a)           (i)  The funding of each Term Loan shall occur on
a date agreed by the LC Facility Administrative Agent, the Term Loan Lenders
participating in such Term Loan and Parent (each, a “Term Loan Borrowing
Date”), but in no event shall any Term Loan Borrowing Date occur
prior to the time that each condition in Section 2.10(b) shall be satisfied
with respect to such Term Loan Borrowing Date; provided that
all Term Loans borrowed on any Term Loan Borrowing Date must aggregate to no
less than $15.0 million in principal amount (or increments of $1.0 million in excess
thereof) and the aggregate principal amount of all Term Loans borrowed on all
Term Loan Borrowing Dates shall not exceed $60.0 million.


 


(ii)           The Net Cash
Proceeds of each Term Loan shall solely be used, substantially
contemporaneously with the borrowing of such Term Loan, to pay the
consideration for one or more Permitted Acquisitions (including repaying Indebtedness
of any Person acquired in such Permitted Acquisition or Permitted Acquisitions)
and/or pay fees and expenses in connection therewith.


 


(iii)          No Term Loan shall
(x) mature any earlier than the Maturity Date or (y) have a weighted average
life to maturity that is shorter than the weighted average life to maturity of
either the LC Facility or the Revolving Facility.


 


(iv)          If the interest rate
on any Term Loan (such interest rate to be determined by the LC Facility Administrative
Agent, in consultation with Parent, consistent with generally accepted
financial practice, after giving effect to margins, upfront or similar fees or
original issue discount shared with all lenders or holders thereof, but
excluding the effect of any arrangement, structuring, syndication or other fees
payable in connection therewith that are not shared with all lenders or holders
thereof) made on any Term Loan Borrowing Date is, as of such Term Loan
Borrowing Date, more than 25 basis points greater than the LIBID Rate in effect
as of the Term Loan Borrowing Date plus the Participation Fee, then the
Participation Fee shall be automatically increased as of such Term Loan
Borrowing Date to eliminate such excess.


 


(v)           The Term Loans shall
constitute part of LC Facility Obligations and the Term Loan Lenders shall be LC
Facility Secured Parties, in each case in accordance with the definition
thereof, and accordingly shall be secured on a pari passu basis by the
Collateral securing the LC Facility, and shall be guaranteed by the Guarantors
to the same extent as the LC Facility.


 


(vi)          The LC Facility
Administrative Agent, the LC Facility Collateral Agent, the Revolving Administrative
Agent and the applicable Credit Parties shall amend, modify or supplement the Financing
Agreements on or prior to each Term Loan Borrowing Date to reflect the terms of
the Term Loans being made on such date and the collateral related


 


61





















 


thereto.  The Lenders hereby authorize the making of
such amendments and any other conforming and technical amendments,
modifications and/or supplements that are, in the determination of the LC
Facility Administrative Agent, necessary or desirable in connection therewith
(including the making of any filings of any Security Documents to be made in
connection therewith) and agree that no consent of any Lender or any other
Secured Party shall be required to make such amendments or filings.


 


(vii)         The LC Facility
Administrative Agent shall act as administrative agent for the Term Loan
Lenders and the LC Facility Collateral Agent shall act as collateral agent for
the Term Loan Lenders.


 


(viii)        Parent may (but
shall not be required to) seek commitments from Agents or existing Lenders with
respect to the Term Loans, and each such Agent or existing Lender may agree or
decline to participate in any Term Loan in its sole discretion.


 


(b)           Conditions.  On each Term Loan Borrowing Date, the
following conditions shall be satisfied:


 


(i)            each of the
conditions set forth in Sections 4.2(b) and (c) shall be satisfied as if each
Term Loan were a “Revolving Loan” under such Section;


 


(ii)           no Default shall
have occurred and be continuing or would result from the borrowings to be made
on such Term Loan Borrowing Date;


 


(iii)          the Borrowers shall
be in compliance with the terms of the definition of Permitted Acquisition with
respect to each Permitted Acquisition the Term Loans are being used to fund on
such Term Loan Borrowing Date; and


 


(iv)          Parent shall deliver
or cause to be delivered any legal opinions and other documents and certificates
reasonably requested by the LC Facility Administrative Agent in connection with
the borrowing of Term Loans to occur on such Term Loan Borrowing Date.


 


2.11               Effect
on Original Credit Agreement; Authorization to Enter into the Amended and
Restated Security Agreement.  Upon
the execution and delivery by the parties hereto of this Agreement and the
satisfaction of the conditions set forth in Section 4, (i) this
Agreement shall, except to the extent explicitly provided herein, be deemed to
amend, restate and supersede the Original Credit Agreement; provided that the obligations of the Credit Parties (party
hereto) under the Original Credit Agreement and the grant of security interest
in the Accounts Collateral and the Canadian Accounts Collateral by the Credit
Parties (party hereto) under the Original Credit Agreement shall continue under
this Agreement, and shall not in any event be terminated, extinguished or annulled,
but shall hereafter be governed by this Agreement, (ii) all Obligations
under the Original Credit Agreement and the other Financing Agreements shall
continue to be outstanding except as expressly modified by this Agreement and
shall be governed in all respects by this Agreement and the other Financing
Agreements, it being agreed and understood that this Agreement does not constitute
a novation, satisfaction, payment or reborrowing of any Obligation under the
Original Credit Agreement or any other Financing Agreement except as expressly
modified by this Agreement, nor does it operate as a waiver of any right, power
or remedy of any


 


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Lender under any Financing
Agreement and (iii) all references to the Original Credit Agreement in any
Financing Agreement (other than references to the “Original Credit Agreement”
in this Agreement) or other document or instrument delivered in connection
therewith shall be deemed to refer to this Agreement and the provisions
hereof.  Furthermore, the Borrowers and
the Majority LC Facility Lenders, by their approval of this Amendment and
Restatement, hereby approve the amendments being made to the Original Security
Agreement as of the Amendment and Restatement Effective Date and hereby
authorize the LC Facility Collateral Agent to enter into the Amended and
Restated Security Agreement on the Amendment and Restatement Effective Date.


 


2.12               Notes.  If so requested by any Revolving Lender or
Term Loan Lender by written notice to the Borrowers (with a copy to
Administrative Agents) at least two Business Days prior to the Amendment and
Restatement Effective Date, or at any time thereafter, US Borrowers or Canadian
Borrowers, as applicable, shall execute and deliver to such Lender (and/or, if
applicable and if so specified in such notice, to any Person who is an assignee
of such Lender pursuant to Section 12.6) on the Amendment and Restatement
Effective Date (or, if such notice is delivered after the Amendment and
Restatement Effective Date, promptly after Borrowers’ receipt of such notice) a
Note or Notes to evidence such Lender’s Revolving Loan, Canadian Revolving Loan
or Term Loan, as the case may be.


 


SECTION 3.         REVOLVING FACILITY INTEREST AND FEES.


 


3.1           Interest.


 


(a)           US Borrowers shall pay to Revolving
Administrative Agent for the ratable benefit of US Revolving Lenders, and Canadian
Borrowers shall pay to Canadian Collateral Agent for the benefit of Canadian
Lender, interest on the outstanding principal amount of the applicable
Revolving Loans at the applicable Interest Rate.  All interest shall be payable solely in the
currency in which the underlying Revolving Loan is made.  All interest accruing hereunder on and after
the date of any Event of Default or termination of the Revolving Loan
Commitments shall be payable on demand.


 


(b)           With respect to US Revolving Loans,
Borrower Representative may from time to time request Eurodollar Rate Loans or
may request that Prime Rate Loans be converted to Eurodollar Rate Loans or that
any existing Eurodollar Rate Loans continue for an additional Interest Period.  Such request from Borrower Representative
shall be in writing on such form or forms as Revolving Administrative Agent may
require and shall specify, without limitation, the amount of the Eurodollar
Rate Loans or the amount of the Prime Rate Loans to be converted to Eurodollar
Rate Loans or the amount of the Eurodollar Rate Loans to be continued (subject
to the limits set forth below) and the Interest Period to be applicable to such
Eurodollar Rate Loans.  Subject to the
terms and conditions contained herein, three (3) Business Days after receipt by
Revolving Administrative Agent of such a request from Borrower Representative,
such Prime Rate Loans shall be converted to Eurodollar Rate Loans or such
Eurodollar Rate Loans shall continue, as the case may be, provided
that (i) no Default or Event of Default shall exist or have occurred and be
continuing, (ii) no party hereto shall have sent any notice of termination
or non-renewal of this Agreement, (iii) Borrowers shall have complied with
such customary procedures as are established by Revolving Administrative Agent
and specified by Revolving Administrative Agent to Borrowers from time to time
for requests by Borrowers for Eurodollar Rate Loans,


 


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(iv) no more than six (6)
Interest Periods may be in effect at any one time, (v) the aggregate amount of
the Eurodollar Rate Loans must be in an amount not less than $3,000,000 or an
integral multiple of $1,000,000 in excess thereof, and (vi) Revolving
Administrative Agent shall have determined that the Interest Period or Adjusted
Eurodollar Rate is available to Revolving Lenders and Reference Bank and can be
readily determined as of the date of the request for such Eurodollar Rate Loan
by Borrowers.  Any request by Borrower
Representative for Eurodollar Rate Loans or to convert Prime Rate Loans to
Eurodollar Rate Loans or to continue any existing Eurodollar Rate Loans shall
be irrevocable.  Notwithstanding anything
to the contrary contained herein, Lenders and Reference Bank shall not be
required to purchase United States Dollar deposits in the London interbank
market or other applicable Eurodollar Rate market to fund any Eurodollar Rate
Loans, but the provisions hereof shall be deemed to apply as if Lenders and
Reference Bank had purchased such deposits to fund the Eurodollar Rate Loans.


 


(c)           Any Eurodollar Rate Loans shall
automatically convert to US Prime Rate Loans upon the last day of the applicable
Interest Period, unless Revolving Administrative Agent has received and
approved a request to continue such Eurodollar Rate Loans at least three (3)
Business Days prior to such last day in accordance with the terms hereof.  Any Eurodollar Rate Loans shall, at Revolving
Administrative Agent’s option, upon notice by Revolving Administrative Agent to
Borrowers, convert to US Prime Rate Loans in the case of US Dollar Loans in the
event that this Agreement shall terminate or not be renewed.  US Borrowers shall pay to Revolving
Administrative Agent for the benefit of US Revolving Lenders upon demand by any
Revolving Lender (or Revolving Administrative Agent or any such Revolving
Lender may, at its option, charge any loan account of Borrower) any amounts required
to compensate such Revolving Lender, the Reference Bank or any participant with
any such Revolving Lender for any loss (including loss of anticipated profits),
cost or expense incurred by such person, as a result of the conversion of Eurodollar
Rate Loans to Prime Rate Loans pursuant to any of the foregoing.


 


(d)           Interest shall be payable by US Borrowers
to Revolving Administrative Agent for the account of US Revolving Lenders and
by Canadian Borrowers to Canadian Collateral Agent for the account of Canadian
Lender, monthly in arrears not later than the first day of each calendar month
and shall be calculated on the basis of (i) a three hundred sixty-five (365)
day year in the case of Canadian Dollar Loans and (ii) a three hundred sixty
(360) day year in the case of US Dollar Loans and in each case based on actual
days elapsed.  The interest rate on non-contingent
US Revolving Obligations (other than Eurodollar Rate Loans) shall increase or decrease
by an amount equal to each increase or decrease in the Prime Rate effective on
the first day of the month after any change in such Prime Rate is announced based
on the Prime Rate in effect on the last day of the month in which any such
change occurs.  In no event shall charges
constituting interest payable by Borrowers to Revolving Administrative Agent,
Canadian Collateral Agent or to Revolving Lenders exceed the maximum amount or
the rate permitted under any applicable law or regulation, and if any such part
or provision of this Agreement is in contravention of any such law or
regulation, such part or provision shall be deemed amended to conform thereto.


 


(e)           For purposes of disclosure under the
Interest Act (Canada), where interest is calculated pursuant thereto at a rate
based upon a three hundred sixty (360) day year or three hundred sixty-five
(365) day year (the “First Rate”),
the rate or percentage of interest on a


 


64





















 


yearly basis is equivalent to
such First Rate multiplied by the actual number of days in the year divided by
three hundred sixty (360) or three hundred sixty-five (365), as applicable.


 


(f)            Notwithstanding the provisions of
this Section 3 or any other provision of this Agreement, in no event shall the
aggregate “interest” (as that term is defined in Section 347 of the Criminal
Code (Canada)) with respect to any Canadian Revolving Loans by or on behalf of
Canadian Lender exceed the effective annual rate of interest on the “credit
advanced” (as defined therein) lawfully permitted under Section 347 of the
Criminal Code (Canada).  The effective
annual rate of interest for such purpose shall be determined in accordance with
generally accepted actuarial practices and principles over the term of the
applicable Canadian Revolving Loan by or on behalf of Canadian Lender, and in
the event of a dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by Revolving Administrative Agent will be conclusive for
the purposes of such determination.


 


(g)           A certificate of an authorized
signing officer of Revolving Administrative Agent as to each rate of interest
payable hereunder from time to time absent manifest error shall be conclusive
evidence of such rate.


 


(h)           For greater certainty, unless
otherwise specified in this Agreement or any of the other Financing Agreements,
as applicable, whenever any amount is payable under this Agreement or any of
the other Financing Agreements by Borrowers as interest or as a fee which
requires the calculation of an amount using a percentage per annum, each party
to this Agreement acknowledges and agrees that such amount shall be calculated
as of the date payment is due without application of the “deemed reinvestment
principle” or the “effective yield method.” 
As an example, when interest is calculated and payable monthly, the rate
of interest payable per month is one-twelfth (1/12) of the stated rate of
interest per annum.


 


3.2           [Intentionally Omitted].


 


3.3           [Intentionally Omitted].


 


3.4           Unused Line Fee.   US Borrowers shall pay to Revolving
Administrative Agent for the ratable benefit of US Revolving Lenders monthly an
unused line fee at a rate equal to one-eighth of one percent (0.125%) per annum
calculated upon the amount by which the US Revolving Loan Commitment exceeds
the average daily principal balance of the outstanding US Revolving Loans and
US Revolving Letter of Credit Accommodations during the immediately preceding
month (or part thereof) while this Agreement is in effect and for so long
thereafter as any of the US Revolving Loan Commitments are outstanding, which
fee shall be payable on the first day of each month in arrears.  Canadian Borrowers shall pay to Revolving
Administrative Agent for the benefit of Canadian Lender monthly an unused line
fee at a rate equal to one eighth of one percent (0.125%) per annum calculated
upon the amount by which the Canadian Revolving Loan Commitment exceeds the
average daily principal balance of the outstanding Canadian Revolving Loans
during the immediately preceding month (or part thereof) while this Agreement
is in effect and for so long thereafter as any of the Canadian Revolving Loan
Commitments are outstanding, which fee shall be payable on the first day of
each month in arrears.


 


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3.5           Changes in Laws and Increased
Costs of Loans.


 


(a)           Notwithstanding anything to the
contrary contained herein, the Eurodollar Rate Loans made by a Revolving Lender
shall, upon notice by such Revolving Lender to Borrowers, convert to Prime Rate
Loans in the event that (i) any change in applicable law or regulation (or the
interpretation or administration thereof) shall (A) make it unlawful for such
Revolving Lender, or any participant with such Revolving Lender or Reference
Bank to make or maintain Eurodollar Rate Loans or to comply with the terms
hereof in connection with the Eurodollar Rate Loans, or (B) shall result in the
increase in the costs to such Revolving Lender or any participant with such
Revolving Lender or Reference Bank of making or maintaining any Eurodollar Rate
Loans by an amount deemed by such Revolving Lender to be material, or (C)
reduce the amounts received or receivable by such Revolving Lender in respect
thereof, by an amount deemed by such Revolving Lender to be material; or (ii)
the cost to such Revolving Lender, or any participant with such Revolving
Lender or Reference Bank of making or maintaining any Eurodollar Rate Loans
shall otherwise increase by an amount deemed by such Revolving Lender to be
material.  Borrowers shall pay to such
Revolving Lender, upon demand by such Revolving Lender (or such Revolving
Lender may, at its option, charge any loan account of Borrowers) any amounts
required to compensate such Revolving Lender or any participant with such
Revolving Lender or Reference Bank for any loss (including loss of anticipated
profits), cost or expense incurred by such person as a result of the foregoing,
including, without limitation, any such loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such person to make or maintain the Eurodollar Rate Loans or any portion
thereof.  A certificate of such Revolving
Lender setting forth the basis for the determination of such amount necessary
to compensate such Revolving Lender as aforesaid shall be delivered to
Borrowers and shall be conclusive, absent manifest error.


 


(b)           If any payments or prepayments in
respect of the Eurodollar Rate Loans are received by Revolving Lenders other
than on the last day of the applicable Interest Period (whether pursuant to
acceleration, upon maturity or otherwise), including any payments pursuant to
the application of collections under Section 6.3 or any other payments made
with the proceeds of Collateral, Borrowers shall pay to Revolving Lenders upon
demand by Revolving Administrative Agent (or Revolving Administrative Agent or
any Revolving Lender may, at their option, charge any loan account of Borrowers)
any amounts required to compensate Lenders, the Reference Bank or any
participant with any Revolving Lender for any additional loss (including loss
of anticipated profits), cost or expense incurred by such person as a result of
such prepayment or payment, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such person to make or maintain such Eurodollar Rate
Loans or any portion thereof.


 


3.6           Replacement of Lenders.


 


(a)           If any Lender requests compensation
under Section 3.5, or if Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.5, then Parent may, at its sole expense and
effort, upon notice to such Lender and the applicable Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by,
Section 11.3), all of its interests, rights and obligations under this


 


66





















 


Agreement and the other
Financing Agreements to an Eligible Assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that:


 


(i)      such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and/or Credit-Linked Deposits and all Unreimbursed Amounts, accrued interest
thereon (including, without limitation, under Sections 2.7(b), 2.6(i) and 3.1,
as the case may be), accrued Participation Fees and others fees and all other
amounts payable to it hereunder and under the other Financing Agreements, from the
assignee (to the extent of such outstanding principal and accrued interest, Participation
Fees and fees) or Parent (in the case of all other amounts); and


 


(ii)     such assignment does not
conflict with applicable law.


 


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


 


SECTION 4.         CONDITIONS PRECEDENT.


 


4.1           Conditions Precedent to Initial LC
Facility Letters of Credit, Initial Loans and Letter of Credit Accommodations.  Each of the following is a condition
precedent to Administrative Agents and the LC Facility Lenders providing the LC
Facility and the LC Facility Issuing Bank issuing the LC Facility Letters of
Credit, and the Revolving Facility Lenders, making the initial Revolving Loans
and providing the initial Revolving Letter of Credit Accommodations hereunder:


 


(a)              the Amendment and Restatement
shall have been approved by the Administrative Agents, Revolving Lenders and
the Majority LC Facility Lenders under the Original Credit Agreement, which
approval shall be evidenced by (i) in the case of the Administrative Agents and
the Revolving Lenders, their delivery of executed counterparts hereof and (ii)
in the case of the Majority LC Facility Lenders, the delivery of a fully
executed Confidential Lender Authorization;


 


(b)              all requisite corporate action and
proceedings in connection with this Agreement and the other Financing
Agreements shall be satisfactory in form and substance to each Administrative
Agent, and each such Agent shall have received all information and copies of
all documents, including records of requisite corporate action and proceedings
which such Agent may have requested in connection therewith, such documents
where requested by such Agent or its counsel to be certified by appropriate
corporate officers or Governmental Authority (and including a copy of the
certificate of incorporation or formation of each Credit Party certified by the
Secretary of State (or equivalent Governmental Authority) which shall set forth
the same complete corporate or limited liability company name of each Credit
Party as is set forth herein and such document as shall set forth the
organizational identification number of each Borrower, if one is issued in its
jurisdiction of incorporation or formation);


 


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(c)              no material adverse change shall
have occurred in the assets, business or prospects of any Credit Party since
December 31, 2004 and no change or event shall have occurred which would impair
the ability of any Credit Party to perform its obligations hereunder or under
any of the other Financing Agreements to which it is a party or of any
Collateral Agent or Lenders to enforce the Obligations or realize upon any
Collateral


 


(d)              each Collateral Agent shall have
received, in form and substance satisfactory to such Collateral Agent, all
consents, waivers, acknowledgments and other agreements from third persons
which such Collateral Agent may deem necessary or desirable in order to permit,
protect and perfect its security interests in and Liens upon the Collateral
granted to such Collateral Agent or to effectuate the provisions or purposes of
this Agreement and the other Financing Agreements, including, without limitation,
unless the Revolving Administrative Agent shall have otherwise consented,
Collateral Access Agreements for each location where books and records are
held, the hypothecs, the security interests and Liens of the Canadian
Collateral Agent upon the Canadian Accounts Collateral;


 


(e)              except for those blocked accounts
listed on Schedule 9.36, Canadian Collateral Agent shall have received,
in form and substance satisfactory to Canadian Collateral Agent, a Deposit
Account Control Agreement by and among Canadian Collateral Agent, Canadian
Borrowers and each bank at which any Canadian Blocked Account is maintained, in
each case, duly authorized, executed and delivered by such bank and such
Borrower (or shall be the bank’s customer with
respect to such Canadian Blocked Accounts as Canadian Collateral Agent shall
specify);


 


(f)               with respect to the LC Facility
Issuing Bank only, the Credit-Linked Deposits from the LC Facility Lenders to
be made on the Amendment and Restatement Effective Date under Section 2.7(f)
shall have been deposited with the LC Facility Administrative Agent;


 


(g)              LC Facility Administrative Agent
shall have received a copy of, or a certificate as to coverage under, the
insurance policies required by Section 9.5 (except that, with respect to
flood insurance, the LC Facility Administrative Agent shall have received
evidence that application has been made for such insurance and that the initial
premiums required with respect thereto have been paid), each of which shall be
endorsed or otherwise amended to include a “standard” or “New York” lender’s
loss payable or mortgagee endorsement (as applicable) and shall name the LC Facility
Collateral Agent, on behalf of each Secured Party, as additional insured, in
form and substance satisfactory to the LC Facility Collateral Agent;


 


(h)              the LC Facility Collateral Agent
shall have received:


 


(i)            with respect to each Mortgage
encumbering any Real Property, a mortgage amendment (a “Mortgage
Amendment”) duly executed and acknowledged by the applicable Credit
Party, and in form for recording in the recording office where each such
Mortgage was recorded, together with such certificates, affidavits, questionnaires
or returns as shall be required in connection with the recording


 


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or filing thereof under applicable law, in
each case in form and substance reasonably satisfactory to the LC Facility
Collateral Agent;


 


(ii)           with respect to each Mortgage
Amendment, an endorsement with respect to the existing mortgage title insurance
policy (collectively, the “Title Insurance Policy”)
relating to the Mortgage encumbering such Real Property assuring the LC
Facility Collateral Agent that the Mortgage, as amended by the Mortgage Amendment,
is a valid and enforceable first priority lien on such Real Property in favor
of the LC Facility Collateral Agent for the benefit of the Secured Parties free
and clear of all defects and encumbrances and liens except Permitted Encumbrances
and Permitted Liens (as defined in the applicable Mortgage), and such Mortgage
Policy shall otherwise be in form and substance reasonably satisfactory to the
LC Facility Collateral Agent; and


 


(iii)          with respect to each Mortgage
Amendment, opinions of local counsel to the Credit Parties, which opinions
(x) shall be addressed to the LC Facility Collateral Agent and each of the
Lenders, (y) shall cover the enforceability of the respective Mortgage as
amended by the Mortgage Amendment and such other matters incident to the
transactions contemplated herein as the LC Facility Collateral Agent may
reasonably request and (z) shall be in form and substance reasonably
satisfactory to the LC Facility Collateral Agent;


 


(i)               the Administrative Agents shall
have received, in form and substance satisfactory to such Agents, such opinion
letters of counsel to Credit Parties with respect to the Financing Agreements
and such other matters as such Agents may request;


 


(j)               the other Financing Agreements
and all instruments and documents hereunder and thereunder shall have been duly
executed and delivered to the Administrative Agents, in form and substance
satisfactory to such Agents;


 


(k)              after giving pro forma effect to
the Amendment and Restatement, the Credit Parties shall have no outstanding
Indebtedness or Disqualified Capital Stock other than (a) the Loans and other
extensions of credit hereunder, (b) the Senior Secured Notes in an aggregate
principal amount not to exceed $150.0 million, and (c) other Indebtedness
permitted by clauses (f), (g), (h) and (k) of Section 9.9;


 


(l)               the Administrative Agents shall
have received and shall be satisfied with the form and substance of audited
consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of Parent and its Subsidiaries for the 2002, 2003 and 2004 fiscal years and
unaudited consolidated and consolidating balance sheets and related statements
of income, stockholders’ equity and cash flows of Parent for (i) the
fiscal quarters ended March 31, 2005, June 30, 2005 and September 30,
2005, compared to the fiscal quarter ended March 31, 2004, June 30,
2004 and September 30, 2004, respectively (with respect to which the
independent public accountants of Parent shall have performed a PCAOB AU 722 review)
and (ii) each fiscal month after the most recent fiscal quarter for which
financial statements were received by the Administrative Agents pursuant to the
immediately preceding clause (i) and ended 30 days before the Amendment


 


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and
Restatement Effective Date, which financial statements shall not be materially
inconsistent with the financial statements or forecasts previously provided to
the Administrative Agents;


 


(m)             the Administrative Agents shall
have received a pro forma consolidated balance sheet and related pro forma
consolidated statements of income and cash flows of the Parent as of and for
the twelve-month period ending September
30, 2005, prepared after giving effect to the Amendment and Restatement
as if the Amendment and Restatement had occurred as of such date (in the case
of such balance sheet) or at the beginning of such period (in the case of such
other financial statements), which financial statements shall not be materially
inconsistent with the forecasts previously provided to the Administrative
Agents;


 


(n)              the Administrative Agents shall be
satisfied that Parent’s Consolidated EBITDA for the period of four consecutive
fiscal quarters ended September 30, 2005 shall not be less than $85.0 million;


 


(o)              the Administrative Agents shall be
satisfied that Parent’s ratio of Consolidated Indebtedness (excluding
capitalized environmental liabilities) as of the Amendment and Restatement
Effective Date to Consolidated EBITDA for the period of four consecutive fiscal
quarters ended September 30, 2005 shall be no more than 1.85 to 1.0;


 


(p)              the Administrative Agents shall
have received a solvency certificate in the form of Exhibit E,
dated the Amendment and Restatement Effective Date and signed by the chief
financial officer of Parent;


 


(q)              the Administrative Agents shall be
satisfied that all requisite governmental authorities and third parties shall
have approved or consented to the Amendment and Restatement and the other
transactions contemplated hereby to the extent required, all applicable appeal
periods shall have expired and there shall be no litigation, governmental,
administrative or judicial action, actual or threatened, that could reasonably
be expected to restrain, prevent or impose burdensome conditions on the
Amendment and Restatement or the other transactions contemplated hereby;


 


(r)               the Agents shall have received
all documentation and other information requested by them under applicable “know
your customer” and anti-money laundering rules and regulations, including
without limitation the Act;


 


(s)              the Agents shall have received all
fees and other amounts due and payable on or prior to the Amendment and
Restatement Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses (including the legal fees and expenses of
Cahill Gordon & Reindel LLP, special counsel to the LC Facility
Administrative Agent, and Bingham McCutchen LLP, special counsel to BANA and
Revolving Administrative Agent, and the fees and expenses of any local counsel,
foreign counsel, appraisers, consultants and other advisors to any Agent)
required to be reimbursed or paid by Parent hereunder or any other Financing
Agreements;


 


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(t)               the Amended and Restated Security
Agreement shall be in form and substance satisfactory to the Joint Lead
Arrangers and the Administrative Agents and have been duly executed and
delivered by all parties thereto and such further amendments or modifications
to the Security Documents as are reasonably requested by the Administrative
Agents to reflect the Amendment and Restatement shall have been fully executed
and delivered to the Collateral Agents;


 


(u)              each Collateral Agent shall have
perfected, first priority Liens on and security interests in all Collateral
(subject to Liens permitted by Section 9.8) in which such Collateral Agent has
been granted a security interest;


 


(v)              each Collateral Agent shall have
received the Perfection Certificate dated the Amendment and Restatement
Effective Date and signed by an executive officer or chief financial officer of
each Credit Party, together with all attachments contemplated thereby,
including (where applicable) the results of a search of the UCC judgment, tax
and bankruptcy (or equivalent) filings and the PPSA filings made with respect
to the Credit Parties in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to each
Collateral Agent, as applicable, that the Liens indicated by such financing
statements (or similar documents) are permitted under Section 9.8 or
arrangements satisfactory to the Collateral Agents have been made for the release
or discharge thereof;


 


(w)             each Administrative Agent shall
have received from Parent a Closing Certificate in the form of Exhibit H
attached hereto, dated the Amendment and Restatement Effective Date and signed
by the chief financial officer of Parent;


 


(x)               the Borrowers shall deliver to
the Administrative Agents a fully completed Borrowing Base Certificate (the
information therein to be as current as of October 31, 2005); and


 


(y)              the Replaced LC Facility Letters of
Credit shall have been returned to the LC Facility Issuing Bank and replaced by
(i) new LC Facility Letters of Credit and (ii) letters of credit issued
pursuant to the Revolving Letter of Credit Accommodations as described in
Schedule 4.1(y).


 


4.2           Conditions Precedent to All Loans,
LC Facility Letters of Credit and Revolving Letter of Credit Accommodations.  Each of the following is an additional
condition precedent to (a) Revolving Administrative Agent and Revolving
Lenders making Revolving Loans and/or providing Revolving Letter of Credit
Accommodations to Borrowers, including the initial Revolving Loans and
Revolving Letter of Credit Accommodations, and any future Revolving Loans and
Revolving Letter of Credit Accommodations, and (b) LC Facility Administrative
Agent and LC Facility Lender issuing LC Facility Letters of Credit to US
Borrowers, including the initial LC Facility Letters of Credit, and Revolving
Letter of Credit Accommodations and any future LC Facility Letters of Credit
(and including any amendment, extension or renewal thereof):


 


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(a)              (1) the Revolving Administrative
Agent shall have received a borrowing request (i) in form satisfactory to
Revolving Administrative Agent if Revolving Loans are being requested which
borrowing request shall certify that the last sentence of Section 2.2 shall not
be contravened thereby or (ii) as required by Section 2.4(d) in the case
of the issuance, amendment, extension or renewal of a Revolving Letter of Credit
Accommodation, or (2) in the case of the issuance, amendment, extension or
renewal of a LC Facility Letter of Credit, the LC Facility Administrative Agent
and the LC Facility Issuing Bank shall have received a notice requesting the
issuance, amendment, extension or renewal of such LC Facility Letter of Credit
as required by Section 2.6 and approval thereof by the LC Facility Administrative
Agent;


 


(b)              all representations and warranties
contained herein and in the other Financing Agreements shall be true and
correct with the same effect as though such representations and warranties had
been made on and as of the date of the making of each such Revolving Loan, or
the issuance, extension or amendment of any LC Facility Letter of Credit or
Revolving Letter of Credit Accommodation and after giving effect thereto,
except to the extent that such representations and warranties expressly relate
solely to an earlier date (in which case such representations and warranties
shall have been true and accurate on and as of such earlier date);


 


(c)              no law, regulation, order,
judgment or decree of any Governmental Authority shall exist, and no action,
suit, investigation, litigation or proceeding shall be pending or threatened in
any court or before any arbitrator or Governmental Authority, which (i)
purports to enjoin, prohibit, restrain or otherwise affect (A) the making of
the Loans, the provision of each such LC Facility Letter of Credit or the
provision of the Revolving Letter of Credit Accommodations, or (B) the consummation
of the transactions contemplated pursuant to the terms hereof or the other
Financing Agreements; or (ii) has or could reasonably be expected to have a
Material Adverse Effect on the assets, business or prospects of any Credit
Party or would impair the ability of any Credit Party to perform its
obligations hereunder or under any of the other Financing Agreements or of
Agents and Lenders to enforce any Obligations or realize upon any of the Collateral;


 


(d)              no Default or Event of Default
shall exist or have occurred and be continuing on and as of the date of the
making of such Loan, providing each such LC Facility Letter of Credit or
providing each such Revolving Letter of Credit Accommodation and after giving
effect thereto;


 


(e)              after giving effect to such
Revolving Loan, Revolving Letter of Credit Accommodation, or issuance,
amendment or extension of such LC Facility Letter of Credit, Parent shall be in
compliance with the Senior Secured Notes Indenture; and


 


(f)               in addition to the other
conditions precedent to Revolving Administrative Agent and Revolving Lenders
making Loans and/or providing Revolving Letter of Credit Accommodations to
Borrowers, the conditions to Loans and Revolving Letter of Credit
Accommodations by or on behalf of Canadian Lender in favor of Canadian Borrowers
shall also include that no requirement of the Minister of National Revenue for
payment pursuant to Section 224, or any successor section, of the Income Tax
Act (Canada) or


 


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Section 317,
or any successor section of the Excise Act (Canada) or any comparable provision
of similar legislation shall have been received by Revolving Administrative
Agent, Canadian Lender or any other Person in respect of a Canadian Borrower or
otherwise issued in respect of a Canadian Borrower.


 


SECTION 5.         GRANT AND PERFECTION OF SECURITY
INTEREST.


 


5.1           Grant of Security Interests in
Accounts Collateral.  To secure
payment and performance of all Obligations, each US Credit Party hereby
confirms the grant to the Accounts Collateral Agent for the benefit of itself
and each other Secured Party pursuant to the Original Credit Agreement and in
furtherance thereof hereby grants to the Accounts Collateral Agent for the
benefit of itself and each other Secured Party, a continuing security interest
in, a Lien upon, and a right of set off against, all right, title and interest
of the US Credit Parties in all of the following property, whether now owned or
hereafter acquired or existing, and wherever located (the “Accounts Collateral”):


 


(i)      all Accounts;


 


(ii)     all General Intangibles
that arise from, relate to, or constitute proceeds of, Accounts;


 


(iii)    all Chattel Paper
(including all tangible and Electronic Chattel Paper) that arise from, relate
to, or constitute proceeds of Accounts;


 


(iv)    all Instruments (including
all promissory notes) that arise from, relate to, or constitute proceeds of Accounts;


 


(v)     all Documents that arise
from, relate to, or constitute proceeds of Accounts;


 


(vi)    all US Blocked Accounts;


 


(vii)   all letters of credit,
banker’s acceptances and similar instruments and including all Letter-of-Credit
Rights that arise from, relate to, or constitute proceeds of Accounts;


 


(viii)  all Supporting Obligations
to and in respect of Receivables, including (i) rights and remedies under
or relating to guaranties, contracts of suretyship, Letters of Credit and
credit and other insurance related to Receivables, (ii) rights of stoppage
in transit, replevin, repossession, reclamation and other rights and remedies
of an unpaid vendor, lien or secured party, (iii) Goods described in invoices,
documents, contracts or instruments with respect to, or otherwise representing
or evidencing, Receivables, including returned, repossessed and reclaimed
goods, and (iv) deposits by and property of account debtors or other
persons securing the obligations of account debtors;


 


(ix)    all Investment Property
(including securities, whether certificated or uncertificated, Securities
Accounts, security entitlements, Commodity Contracts or Commodity Accounts) and
all monies, credit balances, deposits and other property of any


 


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Credit Party
now or hereafter held or received by or in transit to any US Revolving Secured
Party or their Affiliates or at any other depository or other institution from
or for the account of any US Credit Party, whether for safekeeping, pledge,
custody, transmission, collection or otherwise, in each case, that arise from,
relate to, or constitute proceeds of Accounts;


 


(x)     all Commercial Tort Claims
relating to Accounts or Receivables;


 


(xi)    to the extent not
otherwise described above, all Receivables; and


 


(xii)   all products and Proceeds
of the foregoing, in any form, including insurance proceeds and all claims
against third parties for loss or damage to or destruction of or other
involuntary conversion of any kind or nature of any or all of the Accounts Collateral.


 


Notwithstanding the foregoing, the “Accounts
Collateral” shall not extend to or include any cash or cash equivalents
released from any US Blocked Account to Borrowers in accordance with Section
6.3.


 


5.2           Grant of Security Interests in
Canadian Accounts Collateral.  To
secure payment and performance of all Canadian Obligations, (a) each Canadian
Borrower hereby confirms the grant to the Canadian Collateral Agent for the
benefit of itself and each other Canadian Secured Party pursuant to the
Original Credit Agreement, of a continuing security interest in, a Lien upon,
and a right of set off against, all right, title and interest of the Canadian
Borrowers in all of the following property to which the PPSA applies, whether
now owned or hereafter acquired or existing, and wherever located (the “Canadian Accounts Collateral”):


 


(i)      all Accounts;


 


(ii)     all General Intangibles
that arise from, relate to, or constitute proceeds of, Accounts;


 


(iii)    all Chattel Paper
(including all tangible and Electronic Chattel Paper) that arise from, relate
to, or constitute proceeds of Accounts;


 


(iv)    all Instruments (including
all promissory notes) that arise from, relate to, or constitute proceeds of Accounts;


 


(v)     all Documents that arise
from, relate to, or constitute proceeds of Accounts;


 


(vi)    all Canadian Blocked
Accounts;


 


(vii)   all letters of credit,
banker’s acceptances and similar instruments and including all Letter-of-Credit
Rights that arise from, relate to, or constitute proceeds of Accounts;


 


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(viii)  all Supporting Obligations
to and in respect of Receivables, including (i) rights and remedies under
or relating to guaranties, contracts of suretyship, Letters of Credit and
credit and other insurance related to Receivables, (ii) rights of stoppage
in transit, replevin, repossession, reclamation and other rights and remedies
of an unpaid vendor, lien or secured party, (iii) Goods described in invoices,
documents, contracts or instruments with respect to, or otherwise representing
or evidencing, Receivables, including returned, repossessed and reclaimed
goods, and (iv) deposits by and property of account debtors or other
persons securing the obligations of account debtors;


 


(ix)    all Investment Property
(including securities, whether certificated or uncertificated, Securities
Accounts, security entitlements, Commodity Contracts or Commodity Accounts) and
all monies, credit balances, deposits and other property of any Canadian
Borrower now or hereafter held or received by or in transit to any Canadian
Secured Party or their Affiliates or at any other depository or other institution
from or for the account of any Canadian Borrower, whether for safekeeping,
pledge, custody, transmission, collection or otherwise, in each case, that
arise from, relate to, or constitute proceeds of Accounts;


 


(x)     all Commercial Tort Claims
relating to Accounts or Receivables;


 


(xi)    to the extent not
otherwise described above, all Receivables; and


 


(xii)   all products and Proceeds
of the foregoing, in any form, including insurance proceeds and all claims
against third parties for loss or damage to or destruction of or other
involuntary conversion of any kind or nature of any or all of the Canadian
Accounts Collateral; and


 


(b)     each Quebec Borrower has
executed the Deed of Hypothec and the Moveable Hypothec.


 


Notwithstanding the foregoing, the “Canadian
Accounts Collateral” shall not extend to or include any cash or cash equivalents
released from any Canadian Blocked Account to Borrowers in accordance with
Section 6.3.


 


5.3           Perfection of Security Interests
in Accounts Collateral.


 


(a)     Each US Credit Party irrevocably and
unconditionally authorizes the Accounts Collateral Agent (or its agents) to
file at any time and from time to time such financing statements with respect
to the Accounts Collateral naming the Accounts Collateral Agent or its designee
as the secured party and each such US Credit Party as debtor, as the Accounts
Collateral Agent may require, and including any other information with respect
to each such US Credit Party or otherwise required by part 5 of Article 9 of
the Uniform Commercial Code of such jurisdiction as the Accounts Collateral
Agent may determine, together with any amendments and continuations with respect
thereto, which authorization shall apply to all financing statements filed on,
prior to or after the Original Effective Date. 
Each US Credit Party hereby ratifies and approves all financing
statements naming the Accounts Collateral Agent or its designee as secured
party and each such US Credit Party as debtor (and any amendments with respect
to such financing statements) filed by or on behalf of the Accounts Collateral
Agent prior to the Original


 


75





















 


Effective Date and ratifies and
confirms the authorization of the Accounts Collateral Agent to file such
financing statements (and amendments, if any). 
Each US Credit Party hereby authorizes the Accounts Collateral Agent or
its designee to adopt on behalf of each such US Credit Party any symbol
required for authenticating any electronic filing.  In no event shall any US Credit Party at any
time file, or permit or cause to be filed, any correction statement or
termination statement with respect to any financing statement (or amendment or
continuation with respect thereto) without the prior consent of the Accounts
Collateral Agent.


 


(b)           US Credit Parties do not have any
Chattel Paper (whether tangible or electronic) or Instruments as of the Amendment
and Restatement Effective Date, except as set forth in the Perfection
Certificate.  In the event that any US
Credit Party shall be entitled to or shall receive any Chattel Paper or Instrument
after the Amendment and Restatement Effective Date constituting Accounts
Collateral, US Credit Parties shall promptly notify the Accounts Collateral
Agent.  Promptly upon the receipt thereof
by or on behalf of any US Credit Party (including by any agent or
representative), US Credit Parties shall deliver, or cause to be delivered, to
the Accounts Collateral Agent, all tangible Chattel Paper and Instruments that
any US Credit Party may at any time acquire, accompanied by such instruments of
transfer or assignment duly executed in blank as the Accounts Collateral Agent
may from time to time specify.


 


(c)           In the event that any US Credit Party
shall at any time hold or acquire an interest in any Electronic Chattel Paper
or any “transferable record” (as such term is defined in Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or in Section
16 of the Uniform Electronic Transactions Act as in effect in any relevant
jurisdiction) constituting Accounts Collateral, US Credit Parties shall
promptly notify the Accounts Collateral Agent. 
Promptly upon the Accounts Collateral Agent’s request, US Credit Parties
shall take, or cause to be taken, such actions as the Accounts Collateral Agent
may reasonably request to give the Accounts Collateral Agent control of such
Electronic Chattel Paper under Section 9-105 of the UCC and control of such
transferable record under Section 201 of the Federal Electronic Signatures in
Global and National Commerce Act or, as the case may be, Section 16 of the
Uniform Electronic Transactions Act, as in effect in such jurisdiction.


 


(d)           US Credit Parties do not have any
Deposit Accounts as of the Amendment and Restatement Effective Date, except as
set forth in the Perfection Certificate. 
US Credit Parties shall not, directly or indirectly, after the Amendment
and Restatement Effective Date open, establish or maintain any Deposit Account
constituting Accounts Collateral unless each of the following conditions is satisfied:  (i) the Accounts Collateral Agent shall have
received not less than five (5) Business Days prior written notice of the
intention of any US Credit Party to open or establish such Deposit Account
which notice shall specify in reasonable detail and specificity acceptable to
the Accounts Collateral Agent, the name of the Deposit Account, the owner of
the Deposit Account, the name and address of the bank or other financial
institution at which such Deposit Account is to be opened or established, the
individual at such bank or other financial institution with whom such US


 


76





















 


Credit Party is dealing and the
purpose of the account, (ii) the bank or other financial institution where such
account is opened or maintained shall be acceptable to the Accounts Collateral
Agent, and (iii) on or before the opening of such Deposit Account, such US
Credit Party shall, as the Accounts Collateral Agent shall specify with respect
to any Blocked Account, either (A) deliver to the Accounts Collateral Agent a
Deposit Account Control Agreement with respect to such Deposit Account duly
authorized, executed and delivered by such US Credit Party and the bank at
which such Deposit Account is opened and maintained, or (B) arrange for the Accounts
Collateral Agent to become the customer of the bank with respect to the Deposit
Account on terms and conditions acceptable to the Accounts Collateral
Agent.  The terms of this subsection (d)
shall not apply to Deposit Accounts specifically and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for
the benefit of US Credit Parties’ salaried employees.


 


(e)           US Credit Parties do not own or hold,
directly or indirectly, beneficially or as record owner or both, any Investment
Property, as of the Amendment and Restatement Effective Date, or have any Securities
Account, Commodity Account or other similar account with any bank or other
financial institution or other Securities Intermediary or Commodity
Intermediary as of the Amendment and Restatement Effective Date, in each case
except as set forth in the Perfection Certificate.


 


(i)            In the event that
any US Credit Party shall be entitled to or shall at any time after the
Amendment and Restatement Effective Date hold or acquire any certificated
securities constituting Accounts Collateral, such US Credit Party shall
promptly endorse, assign and deliver the same to Accounts Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed in
blank as the Accounts Collateral Agent may from time to time specify.  If any securities constituting Accounts Collateral,
now or hereafter acquired by any US Credit Party, are uncertificated and are
issued to such US Credit Party or its nominee directly by the issuer thereof,
such US Credit Party shall immediately notify Accounts Collateral Agent thereof
and shall, as the Accounts Collateral Agent may specify, either (A) cause the
issuer to agree to comply with instructions from the Accounts Collateral Agent
as to such securities, without further consent of such US Credit Party or such
nominee, or (B) arrange for the Accounts Collateral Agent to become the
registered owner of the securities.


 


(ii)           US Credit Parties
shall not, directly or indirectly, after the Amendment and Restatement
Effective Date open, establish or maintain any Securities Account or Commodity
Account constituting Accounts Collateral with any Securities Intermediary or
Commodity Intermediary unless each of the following conditions is
satisfied:  (A) the Accounts Collateral
Agent shall have received not less than five (5) Business Days prior written
notice of the intention of a US Credit Party to open or establish such account
which notice shall specify in reasonable detail and specificity acceptable to
the Accounts Collateral Agent the name of the account, the owner of the
account, the name and address of the Securities Intermediary or Commodity
Intermediary at which such account is to be opened or established, the individual
at such intermediary with whom such US Credit Party is dealing and the purpose
of the account, (B) the Securities Intermediary or Commodity Intermediary (as
the case may be) where such account is opened or maintained shall be acceptable
to the Accounts Collateral Agent, and (C) on or before the opening of such
Securities Account or Commodity Account, such US Credit Party shall, as the
Accounts Collateral Agent may specify, either (1) execute and deliver, and
cause to be executed and delivered to the Accounts Collateral Agent, an
Investment Property Control Agreement with respect thereto duly authorized,
executed and delivered by such US Credit Party and such Securities Intermediary
or Commodity Intermediary, or (2) arrange for the Accounts Collateral Agent to
become the entitlement holder with respect to such


 


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Investment
Property on terms and conditions acceptable to the Accounts Collateral Agent.


 


(f)            No US Credit Party is the
beneficiary or otherwise entitled to any right to payment under any letter of
credit, banker’s acceptance or similar instrument as of the Amendment and
Restatement Effective Date, except as set forth in the Perfection Certificate.  In the event that any US Credit Party shall
be entitled to or shall receive any right to payment under any letter of
credit, banker’s acceptance or any similar instrument constituting Accounts
Collateral, whether as beneficiary thereof or otherwise after the Amendment and
Restatement Effective Date, such US Credit Party shall promptly notify the
Accounts Collateral Agent.  Each US
Credit Party shall immediately, as the Accounts Collateral Agent may specify,
either (i) deliver, or cause to be delivered to the Accounts Collateral Agent,
with respect to any such letter of credit, banker’s acceptance or similar
instrument, the written agreement of the issuer and any other nominated person
obligated to make any payment in respect thereof (including any confirming or
negotiating bank), in form and substance satisfactory to the Accounts
Collateral Agent, consenting to the assignment of the proceeds of the letter of
credit to the Accounts Collateral Agent by such US Credit Party and agreeing to
make all payments thereon directly to the Accounts Collateral Agent or as such
Collateral Agent may otherwise direct, or (ii) cause the Accounts Collateral
Agent to become, at US Credit Parties’ expense, the transferee beneficiary of
the Letter of Credit, banker’s acceptance or similar instrument (as the case
may be).


 


(g)           No US Credit Party has Commercial
Tort Claims as of the Amendment and Restatement Effective Date, except as set
forth in the Perfection Certificate.  In
the event that any US Credit Party shall at any time after the Amendment and Restatement
Effective Date acquire any Commercial Tort Claim constituting Accounts
Collateral, such US Credit Party shall promptly notify the Accounts Collateral
Agent, which notice shall (i) set forth in reasonable detail the basis for and
nature of such Commercial Tort Claim, and (ii) include the express grant by
such US Credit Party to the Accounts Collateral Agent of a security interest in
such Commercial Tort Claim.  In the event
that such notice does not include such grant of a security interest, the
sending thereof by such US Credit Party to the Accounts Collateral Agent shall
be deemed to constitute such grant to the Accounts Collateral Agent.  Upon the sending of such notice, any
Commercial Tort Claim described therein shall constitute part of the Accounts
Collateral and shall be deemed included therein.  Without limiting the authorization the
Accounts Collateral Agent provided in Section 5.3(a) and (b) hereof or
otherwise arising by the execution by US Credit Parties of this Agreement, the
Accounts Collateral Agent is hereby irrevocably authorized from time to time
and at any time to file such financing statements naming the Accounts
Collateral Agent or its designee as secured party and each US Credit Party as
debtor, or any amendments to any financing statements, covering any such Commercial
Tort Claim as Accounts Collateral.  In
addition, US Credit Parties shall promptly upon the Accounts Collateral Agent’s
request, execute and deliver, or cause to be executed and delivered, to the
Accounts Collateral Agent such other agreements, documents and instruments as
the Accounts Collateral Agent may require in connection with such Commercial
Tort Claim.


 


(h)           US Credit Parties shall take any
other actions reasonably requested by the Accounts Collateral Agent from time
to time to cause the attachment, perfection and first priority of, and the
ability of the Accounts Collateral Agent to enforce, the security interest of
the Accounts Collateral Agent in any and all of the Accounts Collateral,
including, without limitation,


 


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(i) executing, delivering and,
where appropriate, filing financing statements and amendments relating thereto
under the UCC, the PPSA or other applicable law, to the extent, if any, that a
US Credit Party’s signature thereon is required therefor, (ii) complying with
any provision of any statute, regulation or treaty of the United States or
Canada as to any applicable portion of the Accounts Collateral if compliance
with such provision is a condition to attachment, perfection or priority of, or
ability of the Accounts Collateral Agent to enforce, its security interest in
such Accounts Collateral, or (iii) obtaining the consents and approvals of any
Governmental Authority or third party, including, without limitation, any
consent of any licensor, lessor or other person obligated on the Accounts
Collateral, and taking all actions required by any earlier versions of the UCC
or by other law, as applicable in any relevant jurisdiction.


 


5.4           Perfection of Security Interest in
Canadian Collateral.


 


(a)           Each Canadian Borrower irrevocably
and unconditionally authorizes the Canadian Collateral Agent to file at any
time and from time to time such financing statements and financing change statements
with respect to the Canadian Accounts Collateral naming the Canadian Collateral
Agent or its designee as the secured party and each Canadian Borrower as
debtor, as Canadian Collateral Agent may require, which authorization shall
apply to all financing statements filed on, prior to or after the Original
Effective Date.  Each Canadian Borrower
hereby ratifies and approves all financing statements naming the Canadian
Collateral Agent or its designee as secured party and each Canadian Borrower as
debtor (and any amendments with respect to such financing statements) filed by
or on behalf of Canadian Collateral Agent prior to the Original Effective Date
and ratifies and confirms the authorization of Canadian Collateral Agent to
file such financing statements (and amendments, if any).  In no event shall any Canadian Borrower at
any time file, or permit or cause to be filed, 
any financing change statement, discharge or termination statement with
respect to any financing statement (or amendment or continuation with respect
thereto) without the prior consent of the Canadian Collateral Agent.


 


(b)           Canadian Borrowers do not have any
Chattel Paper (whether tangible or electronic) or Instruments as of the
Amendment and Restatement Effective Date, except as set forth in the Perfection
Certificate.  In the event that any
Canadian Borrower shall be entitled to or shall receive any Chattel Paper or
Instrument after the Amendment and Restatement Effective Date, Canadian
Borrowers shall promptly notify the Canadian Collateral Agent.  Promptly upon the receipt thereof by or on
behalf of any Canadian Borrowers (including by any agent or representative),
Canadian Borrowers shall deliver, or cause to be delivered to the Canadian Collateral
Agent, all tangible Chattel Paper and Instruments that any Canadian Borrower
may at any time acquire, accompanied by such instruments of transfer or assignment
duly executed in blank as the Canadian Collateral Agent may from time to time
specify.


 


(c)           Canadian Borrowers do not have any
Deposit Accounts as of the Amendment and Restatement Effective Date, except as
set forth in the Perfection Certificate. 
Canadian Borrowers shall not, directly or indirectly, after the
Amendment and Restatement Effective Date open, establish or maintain any
Deposit Account unless each of the following conditions is satisfied:  (i) Canadian Collateral Agent shall have
received not less than five (5) Business Days prior written notice of the
intention of any Canadian Borrower to open or establish such Deposit Account
which notice shall specify in reasonable detail and specificity acceptable to
the Canadian Collateral Agent, the name of the Deposit Account, the owner of
the Deposit Account, the name


 


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and address of the bank or
other financial institution at which such Deposit Account is to be opened or
established, the individual at such bank or other financial institution with
whom such Canadian Borrower is dealing and the purpose of the account, (ii) the
bank or other financial institution where such account is opened or maintained
shall be acceptable to the Canadian Collateral Agent, and (iii) on or before
the opening of such Deposit Account, such Canadian Borrower shall, as the
Canadian Collateral Agent shall specify with respect to any Blocked Account,
either (A) deliver to Canadian Collateral Agent a Deposit Account Control
Agreement with respect to such Deposit Account duly authorized, executed and
delivered by such Canadian Borrower and the bank at which such deposit account
is opened and maintained, or (B) arrange for the Canadian Collateral Agent to
become the customer of the bank with respect to the Deposit Account on terms
and conditions acceptable to Canadian Collateral Agent.  The terms of this subsection (d) shall not apply
to Deposit Accounts specifically and exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of
Canadian Borrowers’ salaried employees.


 


(d)           Canadian Borrowers do not own or
hold, directly or indirectly, beneficially or as record owner or both, any Investment
Property, as of the Amendment and Restatement Effective Date, or have any
Securities Account, Commodity Account or other similar account with any bank or
other financial institution or other Securities Intermediary or Commodity Intermediary
as of the Amendment and Restatement Effective Date, in each case except as set
forth in the Perfection Certificate. 
Canadian Borrowers shall not, directly or indirectly, after the
Amendment and Restatement Effective Date open, establish or maintain any Securities
Account or Commodity Account constituting Canadian Accounts Collateral with any
Securities Intermediary or Commodity Intermediary unless each of the following
conditions is satisfied:  (A) Canadian
Collateral Agent shall have received not less than five (5) Business Days prior
written notice of the intention of a Canadian Borrower to open or establish
such account which notice shall specify in reasonable detail and specificity
acceptable to Canadian Collateral Agent the name of the account, the owner of
the account, the name and address of the securities intermediary or commodity
intermediary at which such account is to be opened or established, the
individual at such intermediary with whom such Canadian Borrower is dealing and
the purpose of the account, (B) the Securities Intermediary or Commodity
Intermediary (as the case may be) where such account is opened or maintained
shall be acceptable to the Canadian Collateral Agent, and (C) on or before the
opening of such Securities Account or Commodity Account, such Canadian Borrower
shall, as the Canadian Collateral Agent may specify, either (1) execute and
deliver, and cause to be executed and delivered to the Canadian Collateral
Agent, an Investment Property Control Agreement with respect thereto duly
authorized, executed and delivered by such Canadian Borrower and such
securities intermediary or commodity intermediary, or (2) arrange for Canadian
Collateral Agent to become the entitlement holder with respect to such
Investment Property on terms and conditions acceptable to Canadian Collateral
Agent.


 


(e)           No Canadian Borrower is the
beneficiary or otherwise entitled to any right to payment under any letter of
credit, banker’s acceptance or similar instrument as of the Amendment and
Restatement Effective Date, except as set forth in the Perfection Certificate.  In the event that any Canadian Borrower shall
be entitled to or shall receive any right to payment under any letter of
credit, banker’s acceptance or any similar instrument, whether as beneficiary
thereof or otherwise after the Amendment and Restatement Effective Date, such
Canadian Borrower shall promptly notify Canadian Collateral Agent.  Each Canadian Borrower shall immediately,


 


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as the Canadian Collateral
Agent may specify, either (i) deliver, or cause to be delivered to Canadian Collateral
Agent, with respect to any such letter of credit, banker’s acceptance or
similar instrument, the written agreement of the issuer and any other nominated
person obligated to make any payment in respect thereof (including any
confirming or negotiating bank), in form and substance satisfactory to Canadian
Collateral Agent, consenting to the assignment of the proceeds of the letter of
credit to Canadian Collateral Agent by such Canadian Borrower and agreeing to
make all payments thereon directly to Canadian Collateral Agent or as Canadian
Collateral Agent may otherwise direct, or (ii) cause Canadian Collateral Agent
to become, at Canadian Borrowers’ expense, the transferee beneficiary of the
Letter of Credit, banker’s acceptance or similar instrument (as the case may
be).


 


(f)            No Canadian Borrower has Commercial
Tort Claims as of the Amendment and Restatement Effective Date, except as set
forth in the Perfection Certificate.  In
the event that any Canadian Borrower shall at any time after the Amendment and
Restatement Effective Date acquire any Commercial Tort Claim, such Canadian
Borrower shall promptly notify the Canadian Collateral Agent thereof in writing,
which notice shall (i) set forth in reasonable detail the basis for and nature
of such Commercial Tort Claim, and (ii) include the express grant by such
Canadian Borrower to Canadian Collateral Agent of a security interest in such
Commercial Tort Claim.  In the event that
such notice does not include such grant of a security interest, the sending
thereof by such Canadian Borrower to Canadian Collateral Agent shall be deemed
to constitute such grant to Canadian Collateral Agent.  Upon the sending of such notice, any
Commercial Tort Claim described therein shall constitute part of the Collateral
and shall be deemed included therein. 
Without limiting the authorization of Canadian Collateral Agent provided
in Section 5.2(a) and (b) hereof or otherwise arising by the execution by
Canadian Borrowers of this Agreement, Canadian Collateral Agent is hereby
irrevocably authorized from time to time and at any time to file such financing
statements naming Canadian Collateral Agent or its designee as secured party
and each Canadian Borrower as debtor, or any amendments to any financing statements,
covering any such Commercial Tort Claim as Collateral.  In addition, Canadian Borrowers shall
promptly upon Canadian Collateral Agent’s request, execute and deliver, or
cause to be executed and delivered, to Canadian Collateral Agent such other
agreements, documents and instruments as Canadian Collateral Agent may require
in connection with such Commercial Tort Claim.


 


(g)           Canadian Borrowers shall take any
other actions reasonably requested by the Canadian Collateral Agent from time
to time to cause the attachment, perfection and first priority of, and the
ability of Canadian Collateral Agent to enforce, the security interest of
Canadian Collateral Agent in any and all of the Collateral which has been
pledged to Canadian Collateral Agent, including, without limitation, (i)
executing, delivering and, where appropriate, filing financing statements and
amendments relating thereto under the UCC, the PPSA or other applicable law, to
the extent, if any, that a Canadian Borrower’s signature thereon is required
therefor, (ii) complying with any provision of any statute, regulation or
treaty of the United States or Canada as to any applicable portion of the
Collateral if compliance with such provision is a condition to attachment,
perfection or priority of, or ability of Canadian Collateral Agent to enforce,
the security interest of Canadian Collateral Agent in such Collateral, or (iii)
obtaining the consents and approvals of any Governmental Authority or third
party, including, without limitation, any consent of any licensor, lessor or
other person obligated on such Collateral, and taking all actions


 


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required by any earlier
versions of the PPSA, UCC or by other law, as applicable in any relevant
jurisdiction.


 


SECTION 6.         COLLECTION AND ADMINISTRATION.


 


6.1           US Borrowers’ Loan Account.


 


(a)           Revolving Administrative Agent shall
maintain one or more loan account(s) on its books in which shall be recorded
(i) all US Revolving Loans, Revolving Letter of Credit Accommodations and other
US Revolving Obligations, (ii) all payments made by or on behalf of US
Borrowers in respect thereof, and (iii) all other appropriate debits and
credits as provided in this Agreement, including fees, charges, costs, expenses
and interest in respect of the US Revolving Obligations.  All entries in the loan account(s) shall be
made in accordance with Revolving Administrative Agent’s customary practices as
in effect from time to time.


 


(b)           Canadian Collateral Agent shall
maintain one or more loan account(s) on its books in which shall be recorded
(i) all Canadian Revolving Loans and other Canadian Obligations, (ii) all
payments made by or on behalf of Canadian Borrowers in respect thereof, and
(iii) all other appropriate debits and credits as provided in this Agreement, including
fees, charges, costs, expenses and interest. 
All entries in the loan account(s) shall be made in accordance with
Canadian Collateral Agent’s customary practices as in effect from time to time.


 


6.2           Statements.


 


(a)           Revolving Administrative Agent shall
render to US Borrowers each month a statement setting forth the balance in the
US Borrowers’ loan account(s) maintained by Revolving Administrative Agent for
Borrowers pursuant to the provisions of this Agreement, including principal,
interest, fees, costs and expenses.  Each
such statement shall be subject to subsequent adjustment by Revolving
Administrative Agent but shall, absent manifest errors or omissions, be
considered correct and deemed accepted by US Borrowers and conclusively binding
upon US Borrowers as an account stated except to the extent that Revolving Administrative
Agent receives a written notice from US Borrowers of any specific exceptions of
US Borrower thereto within thirty (30) days after the date such statement has
been mailed by Revolving Administrative Agent. 
Until such time as Revolving Administrative Agent shall have rendered to
US Borrowers a written statement as provided above, the balance in US Borrowers’
loan account(s) shall be presumptive evidence of the amounts due and owing to
Revolving Administrative Agent and US Revolving Lenders by US Borrowers.


 


(b)           US Borrowers shall deliver or cause
to be delivered (at the expense of US Borrowers) to the Revolving Administrative
Agent and the LC Facility Administrative Agent (i) each month so long as Excess
Availability is at least $15.0 million, or (ii) weekly or daily, in the sole
discretion of the Revolving Administrative Agent if the Excess Availability is
less than $15.0 million, a US Borrowing Base Certificate accompanied by a
calculation of the amount applicable to payables and held checks, together with
such supporting detail and documentation as shall be requested by the Revolving
Administrative Agent in its reasonable credit judgment.


 


The delivery
of each certificate and report or any other information delivered pursuant to
this Section 6.2(b) shall constitute a representation and warranty by US
Borrowers that


 


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the statements and information
contained therein are true and correct in all material respects on and as of
such date.


 


(c)           The Canadian Collateral Agent shall
render to Canadian Borrowers and the Revolving Administrative Agent each month
a statement setting forth the balance in the Canadian Borrowers’ loan account(s)
maintained by Canadian Collateral Agent for Canadian Borrowers pursuant to the
provisions of this Agreement, including principal, interest, fees, costs and
expenses.  Each such statement shall be
subject to subsequent adjustment by Canadian Collateral Agent but shall, absent
manifest errors or omissions, be considered correct and deemed accepted by
Canadian Borrowers and conclusively binding upon Canadian Borrowers as an
account stated except to the extent that Canadian Collateral Agent receives a
written notice from Canadian Borrowers of any specific exceptions of Canadian
Borrowers thereto within thirty (30) days after the date such statement has
been mailed by Canadian Collateral Agent. 
Until such time as Canadian Collateral Agent shall have rendered to
Canadian Borrowers a written statement as provided above, the balance in
Canadian Borrowers’ loan account(s) shall be presumptive evidence of the amounts
due and owing to Canadian Collateral Agent and Canadian Lender by Canadian Borrowers.


 


(d)           Canadian Borrowers shall deliver or
cause to be delivered (at the expense of Canadian Borrowers) to the Revolving
Administrative Agent, the Canadian Collateral Agent and the LC Facility
Collateral Agent (i) each month, so long as Excess Availability is at least
$15.0 million, or (ii) weekly or daily, in the sole discretion of the Revolving
Administrative Agent if Excess Availability is less than $15.0 million, a Canadian
Borrowing Base Certificate accompanied by a calculation of the amount applicable
to payables and held checks, together with such supporting detail and
documentation as shall be requested by the Revolving Administrative Agent in
its reasonable credit judgment.


 


The delivery
of each certificate and report or any other information delivered pursuant to
this Section 6.2(d) shall constitute a representation and warranty by
Canadian Borrowers that the statements and information contained therein are
true and correct in all material respects on and as of such date.


 


6.3           Collection of Accounts.


 


This Section
6.3 shall only apply prior to the Discharge of Revolving Obligations.


 


(a)           US Credit Parties shall establish and
maintain, at their expense, blocked accounts or lockboxes and related blocked
accounts (in either case, “US Blocked Accounts”),
as the Accounts Collateral Agent may specify, with such banks as are acceptable
to Accounts Collateral Agent into which US Credit Parties shall promptly
deposit and direct their account debtors to directly remit all payments on
Receivables (except that any Deposit Accounts into which payments on
Receivables are deposited shall not be required to be maintained as US Blocked
Accounts to the extent that no more than $50,000 in the aggregate is maintained
in all such Deposit Accounts that are not US Blocked Accounts at any time),
whether by cash, check or other manner. 
US Credit Parties shall deliver, or cause to be delivered to Accounts
Collateral Agent, a Depository Account Control Agreement duly authorized, executed
and delivered by each bank where a US Blocked Account is maintained as provided
in Section 5.3 hereof or at any time and


 


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from time to time Accounts
Collateral Agent may become bank’s customer with respect to the US Blocked
Accounts and promptly upon Accounts Collateral Agent’s request, US Credit
Parties shall execute and deliver such agreements or documents as Accounts
Collateral Agent may require in connection therewith.  Prior to the Discharge of Revolving
Obligations, US Credit Parties agree that all payments made to such US Blocked
Accounts or other funds received and collected by Revolving Administrative
Agent, whether in respect of the Receivables or otherwise shall be treated as
payments to Revolving Administrative Agent for the benefit of US Revolving
Secured Parties in respect of the US Revolving Obligations and therefore shall
constitute the property of the Revolving Secured Parties to the extent of the
then outstanding US Revolving Obligations.


 


(b)           For purposes of calculating the
amount of the US Revolving Loans available to US Borrowers, (i) if there are outstanding
US Revolving Loans, such payments will be applied (conditional upon final
collection) to the US Revolving Obligations on the Business Day of receipt by
Revolving Administrative Agent of immediately available funds in the Revolving
Agent Payment Account provided such payments and notice thereof are received in
accordance with Revolving Administrative Agent’s usual and customary practices
as in effect from time to time and within sufficient time to credit US Borrowers’
loan account(s) on such day, and if not, then on the next Business Day, or (ii)
if no US Revolving Loans are outstanding, such amount shall be transferred to
an account agreed to by Revolving Administrative Agent and Parent unless an
Event of Default shall have occurred and is continuing.


 


(c)           Each US Credit Party and its
shareholders, directors, employees, agents, Subsidiaries or other Affiliates
shall, acting as trustee for US Revolving Secured Parties, receive, as the
property of US Revolving Secured Parties, any monies, checks, notes, drafts or
any other payment relating to and/or proceeds of Accounts which come into their
possession or under their control and immediately upon receipt thereof, shall
deposit or cause the same to be deposited in the US Blocked Accounts, or remit
the same or cause the same to be remitted, in kind, to Revolving Administrative
Agent for the benefit of itself and the other US Revolving Secured Parties
..  In no event shall the same be
commingled with any US Credit Party’s own funds.  Each US Credit Party agrees to reimburse
Revolving Administrative Agent and the other US Revolving Secured Parties on demand
for any amounts owed or paid to any bank at which a US Blocked Account is established
or any other bank or person involved in the transfer of funds to or from the US
Blocked Accounts arising out of Revolving Administrative Agent’s or any other
US Revolving Secured Party’s payments to or indemnification of such bank or
person.  The obligation of US Credit
Parties to reimburse Revolving Administrative Agent and the other US Revolving
Secured Parties for such amounts pursuant to this Section 6.3 shall survive the
termination or non-renewal of this Agreement.


 


(d)           No US Credit Party shall permit any
payment relating to or constituting proceeds of Collateral other than Accounts
Collateral to be deposited into any US Blocked Account or the Revolving Agent Payment
Account.  All payments relating to or constituting
proceeds of Collateral other than Accounts Collateral shall instead be
deposited into (i) a Canadian Blocked Account, to the extent constituting
proceeds of Canadian Accounts Collateral or (ii) in all other cases, a
Deposit Account which is subject to a Deposit Account Control Agreement in
favor of LC Facility Collateral Agent for the benefit of the Secured
Parties.  US Credit Parties


 


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shall immediately notify each
Administrative Agent if any payment or deposit is made contrary to this provision.


 


(e)           Canadian Borrowers shall establish
and maintain, at their expense, blocked accounts or lockboxes and related
blocked accounts (in either case, “Canadian Blocked Accounts”),
as the Canadian Collateral Agent may specify, with such banks as are acceptable
to Canadian Collateral Agent into which Canadian Borrowers shall promptly
deposit and direct their account debtors to directly remit all payments on
Receivables, whether by cash, check or other manner.  Canadian Borrowers shall deliver, or cause to
be delivered to Canadian Collateral Agent, a Depository Account Control
Agreement duly authorized, executed and delivered by each bank where a Canadian
Blocked Account is maintained as provided in Section 5.4 hereof or at any time
and from time to time Canadian Collateral Agent may become bank’s customer with
respect to the Canadian Blocked Accounts and promptly upon Canadian Collateral
Agent’s request, Canadian Borrowers shall execute and deliver such agreements
or documents as Canadian Collateral Agent may require in connection
therewith.  Canadian Borrowers agree that
all payments made to such Canadian Blocked Accounts or other funds received and
collected by Revolving Administrative Agent or Canadian Collateral Agent, as
the case may be, whether in respect of the Receivables or otherwise shall be
treated as payments to Canadian Collateral Agent for the benefit of Canadian
Secured Parties in respect of the Canadian Obligations and therefore shall
constitute the property of the Canadian Secured Parties to the extent of the
then outstanding Canadian Obligations.


 


(f)            For purposes of calculating the
amount of the Canadian Revolving Loans available to Canadian Borrowers, (i) if
there are outstanding Canadian Revolving Loans, such payments will be applied
(conditional upon final collection) to the Canadian Obligations on the Business
Day of receipt by Revolving Administrative Agent or Canadian Collateral Agent,
as the case may be, of immediately available funds in the Canadian Payment
Account provided such payments and notice thereof are received in accordance
with Canadian Collateral Agent’s usual and customary practices as in effect
from time to time and within sufficient time to credit Canadian Borrowers’ loan
account(s) on such day, and if not, then on the next Business Day, or (ii) if
no Canadian Revolving Loans are outstanding, such amount shall be transferred
to a Canadian Blocked Account agreed to by Revolving Administrative Agent and
Parent unless an Event of Default shall have occurred and is continuing.


 


(g)           Each Canadian Borrower and its
shareholders, directors, employees, agents, Subsidiaries or other Affiliates
shall, acting as trustee for Canadian Secured Parties, receive, as the property
of Canadian Secured Parties, any monies, checks, notes, drafts or any other
payment relating to and/or proceeds of Accounts which come into their
possession or under their control and immediately upon receipt thereof, shall deposit
or cause the same to be deposited in the Canadian Blocked Accounts, or remit
the same or cause the same to be remitted, in kind, to Canadian Collateral
Agent for the benefit of itself and the other Canadian Secured Parties.  In no event shall the same be commingled with
any Canadian Borrower’s own funds.  Each
Canadian Borrower agrees to reimburse Canadian Collateral Agent and the other
Canadian Secured Parties on demand for any amounts owed or paid to any bank at
which a Canadian Blocked Account is established or any other bank or person
involved in the transfer of funds to or from the Canadian Blocked Accounts
arising out of Canadian Collateral Agent’s or any other Canadian Secured Party’s
payments to or indemnification of such bank or person.  The obligation of Canadian Borrowers


 


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to reimburse Canadian
Collateral Agent and the other Canadian Secured Parties for such amounts
pursuant to this Section 6.3 shall survive the termination or non-renewal of
this Agreement.


 


6.4           Payments Under Revolving Facility.


 


(a)           All Revolving Obligations of US
Borrowers shall be payable to the Revolving Agent Payment Account as provided
in Section 6.3 and all Canadian Obligations of Canadian Borrowers shall be payable
to the Canadian Payment Account or, in each case such other place as Revolving
Administrative Agent or the Canadian Collateral Agent, as applicable, may
designate from time to time.  Revolving
Administrative Agent shall apply payments received or collected from US
Borrowers or for the account of US Borrowers in respect of Accounts Collateral
as follows:  first, to pay any fees,
indemnities or expense reimbursements then due to Revolving Administrative
Agent or US Revolving Lenders from Borrowers; second, to pay interest due in
respect of any US Revolving Loans; third, to pay principal due on any US
Revolving Loans made by Revolving Administrative Agent pursuant to Section 6.6
thereof; fourth, to pay principal due in respect of the US Revolving Loans;
fifth, to pay or prepay any other Obligations whether or not then due, in such
order and manner as set forth in Section 10.2(i).  Canadian Collateral Agent shall apply
payments received or collected from Canadian Borrowers or for the account of
Canadian Borrowers in respect of Canadian Accounts Collateral as follows:  first, to pay any fees, indemnities or
expense reimbursements then due to Canadian Collateral Agent or Canadian Lender
from Canadian Borrowers; second, to pay interest due in respect of any Canadian
Revolving Loans; third, to pay principal due on any Canadian Revolving Loans;
fourth, to pay or prepay any other Canadian Obligations whether or not then
due, in such order and manner as set forth in Section 10.2(k).  Notwithstanding anything to the contrary
contained in this Agreement, unless so directed by Borrowers, or unless a
Default or an Event of Default shall exist or have occurred and be continuing,
Revolving Lenders shall not apply any payments which they receive to any
Eurodollar Rate Loans, except (A) on the expiration date of the Interest Period
applicable to any such Eurodollar Rate Loans, or (B) in the event that there
are no outstanding Prime Rate Loans.


 


(b)           At Revolving Administrative Agent’s
option, all principal, interest and fees provided for in this Agreement or the
other Financing Agreements may be charged directly to the loan account(s) of Borrowers.  Except for such payments charged directly to
the loan account(s) of Borrowers, Borrowers agree to pay all amounts due to be
paid by them in accordance with this Agreement (including all costs and
expenses)  within ten days after receipt
of an invoice therefore from Revolving Administrative Agent.  Borrowers shall make all payments to Secured
Parties on the Obligations free and clear of, and without deduction or withholding
for or on account of, any setoff, counterclaim, defense, duties, taxes, levies,
imposts, fees, deductions, withholding, restrictions or conditions of any
kind.  If after receipt of any payment
of, or proceeds of Collateral applied to the payment of, any of the
Obligations, any Secured Party is required to surrender or return such payment
or proceeds to any Person for any reason, then the Obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and this
Agreement shall continue in full force and effect as if such payment or proceeds
had not been received.  US Borrowers
shall be liable to pay to Secured Parties, and each US Borrower does hereby
indemnify and hold each Secured Party harmless for the amount of any payments
or proceeds surrendered or returned. 
Canadian Borrowers shall be liable to pay to Canadian Secured


 


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Parties, and each Canadian Borrower does hereby indemnify and hold each
Canadian Secured Party harmless for the amount of any payments or proceeds
surrendered or returned.  This Section
6.4 shall remain effective notwithstanding any contrary action which may be
taken by Lender in reliance upon such payment or proceeds.  This Section 6.4 shall survive the payment of
the Obligations and the termination or non-renewal of this Agreement.


 


(c)           No payment to the
Revolving Administrative Agent or any Revolving Lender shall discharge the
Obligation in respect of which it was made unless and until the Revolving
Administrative Agent or such Revolving Lender shall have received payment in
full in the currency in which such Obligation was incurred, and to the extent
that the amount of any such payment shall, on actual conversion into such
currency, fall short of such Obligation actual or contingent expressed in that
currency, the applicable Borrowers jointly and severally agree to reimburse,
indemnify and hold harmless the Revolving Administrative Agent or any Revolving
Lender, as the case may be, with respect to the amount of the shortfall, with
such indemnity surviving the termination of this Agreement.


 


(d)           All valuations or
computations of monetary amounts set forth in this Agreement shall include the
US Dollar Equivalent of amounts in Canadian Dollars.  In connection with all Dollar amounts set
forth in this Agreement, and the Borrowing Base, US Borrowing Base and Canadian
Borrowing Base calculations, all Canadian Dollars shall be marked to market on
a (i) monthly basis as long as the Excess Availability with respect to Canadian
Loans equals or exceeds US$5,000,000, (ii) weekly basis as long as the Excess
Availability with respect to Canadian Loans exceeds US$2,000,000 but is less
than US$5,000,000, and (iii) daily basis as long as the Excess Availability
with respect to Canadian Loans is less than or equal to US$2,000,000, taking
into account in each case the Dollar Equivalent of all Revolving Loans
outstanding in Canadian Dollars.


 


6.5           Authorization To Make Revolving
Loans.


 


(a)           Each Agent and Lenders are authorized
to make the Revolving Loans and provide the Revolving Letter of Credit
Accommodations based upon telephonic or other instructions received from anyone
purporting to be an authorized officer of Borrower Representative or other
authorized person at the discretion of such Agent, if such Revolving Loans are
necessary to satisfy any Obligations. 
All requests for Revolving Loans or Revolving Letter of Credit Accommodations
hereunder shall be made to the Revolving Administrative Agent and shall specify
the date on which the requested advance is to be made or Revolving Letter of
Credit Accommodations established (which day shall be a Business Day) and the
amount of the requested Revolving Loan. 
Requests received after 12:00 noon Boston, Massachusetts time on any day
shall be deemed to have been made as of the opening of business on the
immediately following Business Day.  All
Revolving Loans and Revolving Letter of Credit Accommodations under this Agreement
shall be conclusively presumed to have been made to, and at the request of and
for the benefit of, Credit Parties when deposited to the credit of Borrowers or
otherwise disbursed or established in accordance with the instructions of any
Borrower or in accordance with the terms and conditions of this Agreement.


 


(b)           All Loans provided to US Borrowers
shall be in or denominated in US Dollars and shall be disbursed only to bank
accounts in the United States of America. 
All Loans


 


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provided to Canadian Borrowers shall be in or denominated in either
Canadian Dollars or US Dollars as Canadian Borrowers may specify and shall be
disbursed only to bank accounts in Canada; provided, however, that in connection with any Loans denominated in
Canadian Dollars, the Revolving Administrative Agent shall determine, in
accordance with the Exchange Rate in effect on the date of the making of any
such Loan, the US Dollar equivalent of such Loan (the “Dollar
Equivalent Amount”).  Set
forth on Schedule 6.5(b) are the bank accounts of each Borrower
used by such Borrower for making payments of its Indebtedness and other obligations
to which, as of the Amendment and Restatement Effective Date, proceeds of Loans
may be disbursed.


 


6.6           Payment by Revolving Lenders and
Settlement of Loans.  Each US
Revolving Lender shall, not later than 12:00 noon (Boston time) on any
requested borrowing date, wire to a bank designated by Revolving Administrative
Agent the amount of that US Revolving Lender’s Pro Rata Share of the requested
US Revolving Loan.  The failure of any US
Revolving Lender to make the Revolving Loans required to be made by it shall
not release any other Revolving Lender of its obligations hereunder to make its
Revolving Loan.  Neither Revolving
Administrative Agent nor any other Revolving Lender shall be responsible for
the failure of any other Revolving Lender to make the Revolving Loan to be made
by such other Revolving Lender.  Unless
the Revolving Administrative Agent has received notice from a Revolving Lender
that such Revolving Lender does not intend to fund a Revolving Loan and the basis
for such action prior to 12:00 noon on the Business Day prior to the date any
Revolving Loan is to be made, Revolving Administrative Agent shall be entitled
to assume that all Revolving Lenders will make Revolving Loans as required
hereunder and to make such Revolving Loans to the US Borrowers.  The foregoing notwithstanding, Revolving
Administrative Agent, in its sole discretion, may from time to time make
Revolving Loans on behalf of any or all Revolving Lenders including, without
limitation, Revolving Loans with respect to Revolving Letter of Credit
Accommodations that may be drawn.  In
such event, the Revolving Lenders on behalf of whom Revolving Administrative
Agent made the Revolving Loans, shall reimburse Revolving Administrative Agent
for the amount of such Revolving Loan made on its behalf, on a weekly (or more
frequent, as determined by Revolving Administrative Agent in its sole discretion)
basis.  Settlements shall continue to
occur during the continuance of a Default or an Event of Default and whether or
not the applicable conditions precedent in Section 4 have been satisfied.  On each such settlement date, each such Revolving
Lender shall pay to Revolving Administrative Agent, the net amount owing to
Revolving Administrative Agent in connection with such settlement, as
determined by Revolving Administrative Agent, including without limitation,
amounts relating to Loans, fees, interest and other amounts payable
hereunder.  If a Revolving Lender fails
to pay the settlement amount due to Revolving Administrative Agent on the
settlement date specified by Revolving Administrative Agent, such Revolving
Lender shall pay to Revolving Administrative Agent on demand an amount equal to
the product of (i) such amount times (ii)(A) the Federal Funds Rate during the
period from and including the third day after such payment is required to be
made, and (B) thereafter, the Interest Rate applicable to Prime Rate Loans to
the date on which such payment is immediately available to Revolving
Administrative Agent, times (iii) a fraction, the numerator of which is the
number of days that elapsed from and including such settlement date to the date
such settlement amount is immediately available to Revolving Administrative
Agent and the denominator is 360.  In
addition to the foregoing, if the amount of any such Revolving Lender’s Pro
Rata Share of such Revolving Loans is not made available to Revolving
Administrative Agent on any settlement date, the Revolving Administrative Agent
shall be entitled to recover


 


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such amount from the applicable Borrowers upon demand with interest
thereon at the Interest Rate applicable to Prime Rate Loans.


 


6.7           Use of Proceeds; Use of LC
Facility Letters of Credit.  All
Revolving Loans made or Revolving Letter of Credit Accommodations provided by
Revolving Administrative Agent, Revolving Lenders and Reference Bank to
Borrowers pursuant to the provisions hereof shall be used by Borrowers only for
general operating, working capital and other proper corporate purposes of
Borrowers not otherwise prohibited by the terms hereof.   None of the proceeds will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin security or
for the purposes of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose
which might cause any extension of credit hereunder to be considered a “purpose
credit” within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System, as amended.


 


6.8           Taxes.


 


(a)           Any and all payments by or on behalf
of any Borrower hereunder and under any other Financing Agreement shall be made
free and clear of and without deduction for any and all Taxes, excluding the
following (collectively, “Excluded Taxes”):  (i) income taxes imposed on the net income of
any Agent or any Lender (or any transferee or assignee of such Lender, including
any Participant, any such transferee or assignee being referred to as a “Transferee”) in the jurisdiction of such Agent’s or such
Lender’s or such Transferee’s applicable lending office or jurisdiction of
organization or any political subdivision thereof, and (ii) franchise or
similar taxes imposed on or determined by reference to the net income of Agents
or any Lender (or Transferee), in each case by the jurisdiction under the laws
of which such Lender (or Transferee) (A) is organized or any political
subdivision thereof, (B) has its applicable lending office located or (C) is otherwise
doing business.  In addition, Borrowers
agree to pay to the relevant Governmental Authority in accordance with applicable
law any Other Taxes.


 


(b)           If a Borrower shall be required by
law to deduct or withhold in respect of any Taxes or Other Taxes (other than
Excluded Taxes) from or in respect of any sum payable hereunder to Agents any
Lender or any Transferee, then:


 


(i)            the sum payable
shall be increased as necessary so that after making all required deductions
and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 6.8) such Lender, Agent or Transferee
(or such Agent on behalf of such Lender or itself, as the case may be) receives
an amount equal to the sum it would have received had no such deductions or
withholdings been made;


 


(ii)           such Borrower shall
make such deductions and withholdings;


 


(iii)          such Borrower shall
pay the full amount deducted or withheld to the relevant taxing authority or
other authority in accordance with applicable law; and


 


(iv)          to the extent not
paid to Agents, Lenders or Transferees pursuant to clause (i) above, the applicable
Borrowers shall also pay to any Agent, Lender or Transferee, at the time
interest is paid, all additional amounts which any Agent, Lender or Transferee


 


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specifies as
necessary to preserve the after-tax yield such Agent or Lender would have
received if such Taxes or Other Taxes had not been imposed.


 


(c)           Within thirty (30) days after the
date of any payment by a Borrower of Taxes or Other Taxes, such Borrower shall
furnish to the appropriate Administrative Agent the original or a certified
copy of a receipt evidencing payment thereof, or other evidence of payment reasonably
satisfactory to such Agent.


 


(d)           Borrowers will indemnify each Agent
and each Lender (or Transferee) for the full amount of Taxes and Other Taxes
paid by such Agent or such Lender (or Transferee, as the case may be) whether
or not such Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant taxing authority.  If such
Agent or such Lender (or Transferee) determines in its sole discretion that it
has received a refund in respect of any Taxes or Other Taxes for which such
Agent or such Lender (or Transferee) has received payment from a Borrower
hereunder, so long as no Default or Event of Default shall exist or have
occurred and be continuing and Excess Availability in excess of such refund
exists, such Agent or such Lender or Transferee (as the case may be) shall
credit to the loan account of the applicable Borrower the amount of such refund
(but only to the extent of indemnity payments made, or additional amounts paid,
by or on behalf of such Borrower under this Section 6.8 with respect to the
Taxes or Other Taxes giving rise to such refund) net of all out-of-pocket
expenses of such Agent, Lender or Transferee (including any applicable Taxes as
determined by such Agent, Lender or Transferee in its sole discretion) and
without interest other than any interest paid by the relevant taxing authority
with respect to such refund; provided, however, that such Borrower, upon the request of such Agent
or such Lender (or Transferee), agrees to repay as soon as reasonably
practicable the amount paid over to such Borrower (plus any penalties, interest
or other charges imposed by the relevant taxing authority) to such Agent or
such Lender (or Transferee) in the event such Agent or such Lender (or
Transferee) is required to repay such refund to such taxing authority.  This Section 6.8 shall not be construed to
require any Agent or any Lender (or Transferee) to make available its Tax
returns (or any other information relating to its Taxes which it deems
confidential) to the Borrowers or any other person.  The indemnity provided for herein shall
survive the payment of the Obligations and the termination of this
Agreement.  A certificate as to the
amount of such payment or liability and setting forth in reasonable detail the
calculation and basis for such payment or liability delivered to Parent by a
Lender or by an Agent on its own behalf or on behalf of a Lender, shall be conclusive,
absent manifest error.


 


(e)           Each Transferee of a US Lender or an
Agent that is not a United States person within the meaning of Section
7701(a)(30) of the Code and that is a US Lender or claims indemnification or
additional amounts under this Section 6.8 (a “Non-U.S.
Person”) shall deliver to Parent and the applicable Administrative
Agent two (2) copies of the applicable United States Internal Revenue Service
Form W-8 wherein such Transferee claims entitlement to a complete exemption
from U.S. federal income withholding tax on all payments by or on behalf of
Parent under this Agreement and the other Financing Agreements.  Such forms shall be delivered by any Non-U.S.
Person receiving payments by or on behalf of Parent on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a
Participant, on or before the date such Participant becomes a Transferee
hereunder) and on or before the date, if any, such Non-U.S. Person changes its
applicable lending office by designating a different lending office (a “New Lending Office”). 
In addition, a Non-U.S. Person shall upon written notice


 


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from Parent promptly deliver such new forms as are required by the
relevant Governmental Authority to claim exemption from, or reduction in the
rate of, U.S. Federal income withholding tax upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Person.  Each Lender and Agent that is a United States
Person (other than a Lender or Agent that is a corporation or otherwise exempt
from United States backup withholding Tax) shall deliver at the time(s) and in
the manner(s) if and to the extent such delivery is required under applicable
law, to Parent and the applicable Administrative Agent, a properly completed
and duly executed United States Internal Revenue From W-9 or any successor
form, certifying that such Person is exempt from United States backup
withholding Tax on payments made by Parent hereunder.  Notwithstanding any other provision of this
Section 6.8(e), no Non-U.S. Person, Agent or Lender shall be required to deliver
any form pursuant to this Section 6.8(e) that such Non-U.S. Person, Agent or
Lender is not legally able to deliver.


 


(f)            Borrowers shall not be required to
indemnify any Person or to pay any additional amounts to any Person pursuant to
subsections (b) or (d) above to the extent that (i) the Tax was applicable on
the date such Person became a party to this Agreement (or, in the case of a
Transferee that is a Participant, on the date such Participant became a Transferee
hereunder) or, with respect to payments to a New Lending Office, the date such
Person designated such New Lending Office with respect to a Loan, provided that this subsection (f) shall not apply (A) to any
Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation
made at the request or with the approval of any Borrower, and (B) to the extent
the indemnity payment or additional amounts any Transferee, or New Lending
Office would be entitled to receive (without regard to this subsection (f)) do
not exceed the indemnity payment or additional amounts that the person making
the assignment, participation or transfer to such Transferee or New Lending
Office would have been entitled to receive in the absence of such assignment,
participation, transfer or designation; or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Person to
comply with the provisions of subsection (e) above or the gross negligence or
willful misconduct of such Person as determined pursuant to a final, non-appealable
order of a court of competent jurisdiction.


 


(g)           The provisions of this Section 6.8
shall survive the termination of this Agreement and the repayment of the Obligations.


 


SECTION 7.         COLLATERAL
REPORTING AND COLLATERAL COVENANTS.


 


7.1           Collateral Reporting.


 


(a)           Credit Parties shall provide each
Collateral Agent (with, upon such Collateral Agent’s request, sufficient copies
for the Lenders) with the following documents in a form satisfactory to such
Collateral Agent, provided that if any such document
is posted to an electronic data service available to each Collateral Agent and
the Lenders at or before the time it is otherwise required to be delivered to
each Collateral Agent, such document shall be deemed to have been provided for
the purposes of this Section 7.1:


 


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(i)            on a regular basis
as required by such Collateral Agent, a schedule of sales made, credits issued
and cash received;


 


(ii)           as soon as possible
after the end of each month (but in any event within fifteen (15) days after
the end thereof), on a monthly basis or more frequently as such Collateral
Agent may request, (A) agings of accounts payable (and including information
indicating the status of payments to owners and lessors of the leased premises
of such Credit Parties) and (B) agings of accounts receivable (together with a
reconciliation to the previous month’s aging and general ledger);


 


(iii)          upon such
Collateral Agent’s request, (A) copies of customer statements and credit memos,
remittance advices and reports, and copies of deposit slips and bank statements,
(B) copies of shipping and delivery documents, (C) copies of purchase orders,
invoices and delivery documents for Inventory and Equipment acquired by Credit
Parties, and (D) copies of Material Contracts entered into after the Original
Effective Date; and


 


(iv)          such other reports
as to the Collateral as such Collateral Agent, Majority Revolving Lenders or
Majority LC Facility Lenders shall request from time to time.


 


(b)           If any of Credit Parties’ records or
reports of the Collateral are prepared or maintained by an accounting service,
contractor, shipper or other agent, each Credit Party hereby irrevocably
authorizes such service, contractor, shipper or agent to deliver such records,
reports, and related documents to either Collateral Agent and to follow such
Collateral Agent’s instructions with respect to further services at any time
that an Event of Default exists or has occurred and is continuing.


 


(c)           Accounts Collateral Agent shall be
entitled to perform field examinations of all or any portion of the Accounts
Collateral as frequently as it shall reasonably deem necessary; provided that so long as no Default or Event of Default has
occurred and is continuing (x) if Excess Availability is less than $15,000,000,
such examinations shall not be more frequent than once per fiscal quarter (or 4
times per fiscal year) and (y) if the Excess Availability is equal to or
greater than $15,000,000, such examinations shall be no more frequent than
twice per fiscal year.


 


7.2           Accounts Covenants.


 


(a)           Each US Credit Party shall notify the
Accounts Collateral Agent and each Canadian Borrower shall notify the Canadian
Collateral Agent promptly of: 
(i) any material delay in such Credit Party’s performance of any of
its obligations to any account debtor or the assertion of any claims, offsets,
defenses or counterclaims by any account debtor, or any disputes with account
debtors, or any settlement, adjustment or compromise thereof, (ii) all
material adverse information relating to the financial condition of any account
debtor, and (iii) any event or circumstance which, to such Credit Party’s
knowledge would cause the Revolving Administrative Agent to consider any then
existing Accounts as no longer constituting Eligible Accounts.  No credit, discount, allowance or extension
or agreement for any of the foregoing shall be granted to any account debtor
without Revolving Administrative Agent’s consent, except in the ordinary course
of Credit Parties’ business in accordance with practices and policies
previously disclosed in writing to Agent and except as set forth in the
schedules delivered to Revolving Collateral


 


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Agent pursuant to Section 7.1(a) above. 
So long as no Event of Default exists or has occurred and is continuing,
Credit Parties shall settle, adjust or compromise any claim, offset,
counterclaim or dispute with any account debtor.  At any time that an Event of Default exists
or has occurred and is continuing, Revolving Administrative Agent shall, at its
option, have the exclusive right to settle, adjust or compromise any claim,
offset, counterclaim or dispute with account debtors or grant any credits,
discounts or allowances.


 


(b)           With respect to each Account:  (i) the amounts shown on any invoice delivered
to any Revolving Lender or schedule thereof delivered to the Revolving
Administrative Agent shall be true and complete, (ii) no payments shall be made
thereon except payments immediately delivered to any Revolving Lender pursuant
to the terms of this Agreement, (iii) no credit, discount, allowance or extension
or agreement for any of the foregoing shall be granted to any account debtor,
(iv) there shall be no setoffs, deductions, contras, defenses, counterclaims or
disputes existing or asserted with respect thereto except as reported to
Revolving Administrative Agent in accordance with the terms of this Agreement,
and (v) none of the transactions giving rise thereto will violate any
applicable foreign, Federal, State, Provincial or local laws or regulations,
all documentation relating thereto will be legally sufficient under such laws
and regulations, and all such documentation will be legally enforceable in
accordance with its terms.


 


(c)           The Accounts Collateral Agent shall
have the right at any time or times, to verify the validity, amount or any
other matter relating to any Collateral, by mail, telephone, facsimile
transmission or otherwise.


 


7.3           Power of Attorney.


 


(a)           Each US Credit Party hereby
irrevocably designates and appoints the Accounts Collateral Agent (and all
persons designated by the Accounts Collateral Agent) as such Credit Party’s
true and lawful attorney-in-fact, and authorizes the Accounts Collateral Agent,
in any US Credit Party’s or the Accounts Collateral Agent’s name, to:  (a) at any time an Event of Default exists or
has occurred and is continuing (i) demand payment on Receivables or other
Accounts Collateral, (ii) enforce payment of Receivables by legal proceedings
or otherwise, (iii) exercise all of each US Credit Party’s rights and
remedies to collect any Receivable or other Accounts Collateral, (iv) sell or
assign any Receivable upon such terms, for such amount and at such time or
times as the Accounts Collateral Agent deems advisable, (v) settle, adjust,
compromise, extend or renew an Account, (vi) discharge and release any
Receivable, (vii) prepare, file and sign any such US Credit Party’s name on any
proof of claim in bankruptcy or other similar document against an account
debtor or other obligor in respect of any Receivables or other Non-Accounts
Collateral, (viii) notify the post office authorities to change the address for
delivery of remittances from account


 


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debtors or other obligors in respect of Receivables or other proceeds
of Accounts Collateral to an address designated by the Accounts Collateral
Agent, and open and dispose of all mail addressed to any such US Credit Party
and handle and store all mail relating to the Accounts Collateral; and (ix) do
all acts and things which are necessary, in the Accounts Collateral Agent’s
determination, to fulfill US Credit Party’s obligations under this Agreement
and the other Financing Agreements, and (b) at any time to (i) take
control in any manner of any item of payment in respect of Receivables or
constituting Accounts Collateral or otherwise received in or for deposit in the
US Blocked Accounts or otherwise received by the Accounts Collateral Agent,
(ii) have access to any lockbox or postal box into which remittances from
account debtors or other obligors in respect of Receivables or other proceeds
of Accounts Collateral are sent or received, (iii) endorse any such US Credit
Party’s name upon any items of payment in respect of Receivables or
constituting Accounts Collateral or otherwise received by Accounts Collateral
Agent and deposit the same in Accounts Collateral Agent’s account for
application to the LC Facility Obligations, (iv) endorse any such US Credit
Party’s name upon any chattel paper, document, instrument, invoice, or similar
document or agreement relating to any Receivable or any goods pertaining
thereto or any other Accounts Collateral, including any warehouse or other
receipts, or bills of lading and other negotiable or non-negotiable documents,
(v) clear Inventory the purchase of which was financed with Revolving Letter of
Credit Accommodations through US Customs or foreign export control authorities
in any US Credit Party’s name, the Accounts Collateral Agent’s name or the name
of the Accounts Collateral Agent’s designee, and to sign and deliver to customs
officials powers of attorney in any US Credit Party’s name for such purpose,
and to complete in any US Credit Party’s or the Accounts Collateral Agent’s
name, any order, sale or transaction, obtain the necessary documents in connection
therewith and collect the proceeds thereof, and (vi) sign any US Credit Party’s
name on any verification of Receivables and notices thereof to account debtors
or any secondary obligors or other obligors in respect thereof.  Each US Credit Party hereby releases Accounts
Collateral Agent and their respective officers, employees and designees from
any liabilities arising from any act or acts under this power of attorney and
in furtherance thereof, whether of omission or commission, except as a result
of Accounts Collateral Agent’s own gross negligence or willful misconduct as
determined pursuant to a final non-appealable order of a court of competent
jurisdiction.


 


(b)           Each Canadian Borrower hereby
irrevocably designates and appoints the Canadian Collateral Agent (and all persons
designated by the Canadian Collateral Agent) as such Canadian Borrower’s true
and lawful attorney-in-fact, and authorizes the Canadian Collateral Agent, in
any Canadian Borrower’s or the Canadian Collateral Agent’s name, to:  (a) at any time an Event of Default exists or
has occurred and is continuing (i) demand payment on Receivables or other
Canadian Accounts Collateral, (ii) enforce payment of Receivables by legal
proceedings or otherwise, (iii) exercise all of each Canadian Borrower’s
rights and remedies to collect any Receivable or other Canadian Accounts
Collateral, (iv) sell or assign any Receivable upon such terms, for such amount
and at such time or times as the Canadian Collateral Agent deems advisable, (v)
settle, adjust, compromise, extend or renew an Account, (vi) discharge and
release any Receivable, (vii) prepare, file and sign any such Canadian Borrower’s
name on any proof of claim in bankruptcy or other similar document against an
account debtor or other obligor in respect of any Receivables or other Canadian
Accounts Collateral, (viii) notify the post office authorities to change the
address for delivery of remittances from account debtors or other obligors in
respect of Receivables or other proceeds of Canadian Accounts Collateral to an
address designated by the Canadian Collateral Agent, and open and dispose of
all mail addressed to any such Canadian Borrower and handle and store all mail
relating to the Canadian Accounts Collateral; and (ix) do all acts and things
which are necessary, in the Canadian Collateral Agent’s determination, to
fulfill Canadian Borrowers’ obligations under this Agreement and the other
Financing Agreements, and (b) at any time to (i) take control in any
manner of any item of payment in respect of Receivables or constituting
Canadian Accounts Collateral or otherwise received in or for deposit in the
Canadian Blocked Accounts or otherwise received by the Canadian Collateral
Agent, (ii) have access to any lockbox or postal box into which remittances
from account debtors or other obligors in respect of Receivables or other
proceeds of Canadian Accounts Collateral are sent or received, (iii) endorse
any such Canadian Borrower’s name upon any items of payment in


 


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respect of Receivables or constituting Canadian Accounts Collateral or
otherwise received by Canadian Collateral Agent and deposit the same in
Canadian Collateral Agent’s account for application to the Canadian
Obligations, (iv) endorse any such Canadian Borrower’s name upon any Chattel
Paper, Document, Instrument, invoice, or similar document or agreement relating
to any Receivable or any goods pertaining thereto or any other Canadian
Accounts Collateral, including any warehouse or other receipts, or bills of
lading and other negotiable or non-negotiable documents, and (v) sign any
Canadian Borrower’s name on any verification of Receivables and notices thereof
to account debtors or any secondary obligors or other obligors in respect
thereof.  Each Canadian Borrower hereby
releases Canadian Collateral Agent and its officers, employees and designees
from any liabilities arising from any act or acts under this power of attorney
and in furtherance thereof, whether of omission or commission, except as a
result of such Canadian Collateral Agent’s own gross negligence or willful
misconduct as determined pursuant to a final non-appealable order of a court of
competent jurisdiction.


 


7.4           Right to Cure.  Any Collateral Agent may, at its option, (a)
upon notice to Parent, cure any default by any Credit Party under any agreement
with a third party constituting part of the Collateral pledged to such
Collateral Agent, their value or the ability of such Collateral Agent to
collect, sell or otherwise dispose of the Collateral pledged to such Collateral
Agent or the rights and remedies of such Collateral Agent therein or the
ability of Borrowers to perform their obligations hereunder or under the other
Financing Agreements, (b) pay or bond on appeal any judgment entered against
any Credit Party, (c) discharge taxes, Liens, security interests or other encumbrances
at any time levied on or existing with respect to the Collateral pledged to
such Collateral Agent, and (d) pay any amount, incur any expense or perform any
act which, in such Collateral Agent’s judgment, is necessary or appropriate to
preserve, protect, insure or maintain the Collateral pledged to such Collateral
Agent and the rights of such Collateral Agent with respect thereto.  Each Collateral Agent may add any amounts so
expended to the applicable Obligations and charge the applicable Borrowers’
account(s) therefor, such amounts to be repayable by the applicable Borrowers
or on demand.  No Collateral Agent shall
be under any obligation to effect such cure, payment or bonding and shall not,
by doing so, be deemed to have assumed any obligation or liability of any
Borrower.  Any payment made or other
action taken by any Collateral Agent under this Section 7.4 shall be without
prejudice to any right to assert an Event of Default hereunder and to proceed
accordingly.


 


7.5           Access to Premises.  From time to time as requested by any
Collateral Agent, at the cost and expense of the applicable Credit Parties, (a)
such Collateral Agent or its designees shall have complete access to all of
such Credit Party’s premises during normal business hours and after notice to
Credit Parties, for the purposes of inspecting, verifying and auditing the Collateral
pledged to such Collateral Agent and all of such Credit Party’s books and
records, including the Records, and (b) Credit Parties shall promptly furnish
to any Collateral Agent such copies of such books and records or extracts
therefrom as such Collateral Agent may request, and (c) such Collateral Agent
or its designee may use during normal business hours such of such Credit Party’s
personnel, equipment, supplies and premises as may be reasonably necessary for
the foregoing and if an Event of Default exists or has occurred and is
continuing for the realization of Collateral pledged to such Collateral Agent.


 


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SECTION 8.         REPRESENTATIONS
AND WARRANTIES.


 


Each Credit Party hereby represents and
warrants to Secured Parties the following (which shall survive the execution
and delivery of this Agreement), the truth and accuracy of which are a
continuing condition of the making of Revolving Loans, providing LC Facility Letters
of Credit and providing Revolving Letter of Credit Accommodations by Lenders to
Credit Parties:


 


8.1           Corporate Existence; Power and
Authority.  Each Credit Party is a
corporation, limited liability company, limited partnership or business trust
duly organized and in good standing under the laws of its jurisdiction of
incorporation or organization and is duly qualified as a foreign corporation,
limited liability company, limited partnership or business trust and in good
standing in all states, provinces or other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a Material Adverse Effect on any Credit Party’s financial
condition, results of operation or business or the rights of Secured Parties in
or to any of the Collateral.  The
execution, delivery and performance of this Agreement, the other Financing
Agreements and the transactions contemplated hereunder and thereunder (a) are
all within each Credit Party’s corporate, limited liability company, partnership
or trust powers, (b) have been duly authorized, (c) are not in contravention of
law or the terms of such Credit Party’s certificate of incorporation, certificate
of formation or certificate of limited partnership, by-laws, operating
agreement, partnership agreement or declaration of trust, or other
organizational documentation, or any indenture, agreement or undertaking to
which any Credit Party is a party or by which any Credit Party or its property
are bound, and (d) will not result in the creation or imposition of, or require
or give rise to any obligation to grant, any Lien, security interest, charge or
other encumbrance upon any property of any Credit Party (other than Liens on
the Collateral created by the Financing Agreements).  This Agreement and the other Financing Agreements
constitute legal, valid and binding obligations of each Credit Party
enforceable in accordance with their respective terms.


 


8.2           Name; State of Organization; Chief
Executive Office; Collateral Locations.


 


(a)           The exact legal name of each Credit
Party is as set forth on the signature page of this Agreement and in the Perfection
Certificate.  No Credit Party has, during
the past five years, been known by or used by any other corporate or fictitious
name or been a party to any merger or consolidation, or acquired all or
substantially all of the assets of any Person, or acquired any of its property
or assets, except as set forth in the Perfection Certificate.


 


(b)           Each Credit Party is an organization
of the type and organized in the jurisdiction set forth in the Perfection
Certificate.  The Perfection Certificate
accurately sets forth the organizational identification number of each Credit
Party or accurately states that a Credit Party has none and accurately sets
forth the federal employer identification number of each Credit Party.


 


(c)           The chief executive office and
mailing address of each Credit Party and each Credit Party’s books and records
concerning the Collateral are located only at the address identified as such in
Schedule 2(a) or (b) to the Perfection Certificate and its only
other places of business and the only other locations of Collateral, if any,
are the addresses set forth in Schedule 2(e)


 


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to the Perfection Certificate, subject to the right of Credit Parties
to establish new locations in accordance with Section 9.2 below.  The Perfection Certificate correctly
identifies any of such locations which are not owned by Credit Parties and sets
forth the owners and/or operators thereof.


 


8.3           Financial Statements; No Material
Adverse Change; Fiscal Year.


 


(a)           All financial statements relating to
Credit Parties which have been or may hereafter be delivered by Credit Parties
to any Secured Party have been prepared in accordance with GAAP (except as to
any interim financial statements, to the extent such statements are subject to
normal year-end adjustments and do not include any notes) and fairly present
the financial condition and the results of operation of Credit Parties as at
the dates and for the periods set forth therein.  Except as disclosed in any interim financial
statements furnished by Credit Parties to Secured Parties prior to the
Amendment and Restatement Effective Date, there has been no material adverse
change in the assets, liabilities, properties and condition, financial or
otherwise, of Credit Parties, since the date of the most recent audited
financial statements furnished by Credit Parties to Secured Parties prior to
the Amendment and Restatement Effective Date.


 


(b)           The fiscal year of each Borrower and
its Subsidiaries ends on December 31 of each year.


 


8.4           Priority of Liens; Title to
Properties.


 


(a)           The security interests and Liens
granted (and the confirmation as of the Amendment and Restatement Effective
Date of the grant made on the Original Effective Date) to Accounts Collateral
Agent under this Agreement and the other Financing Agreements constitute valid
and perfected first priority Liens and security interests in and upon the
Accounts Collateral subject only to Liens permitted under Section 9.8 hereof.


 


(b)           The security interests, hypothecs and
Liens granted (and the confirmation as of the Amendment and Restatement
Effective Date of the grant made on the Original Effective Date) to Canadian Collateral
Agent under this Agreement and the other Financing Agreements constitute valid
and perfected first priority Liens and security interests and first ranking
hypothecs in and upon the Canadian Accounts Collateral subject only to Liens
permitted under Section 9.8 hereof.


 


(c)           The security interests and Liens
granted to LC Facility Collateral Agent under the Amended and Restated Security
Agreement and the other Financing Agreements constitute valid and perfected
first priority Liens and security interests in and upon the Non-Accounts
Collateral subject only to Liens permitted under Section 9.8 hereof.


 


(d)           Each Credit Party has good and
marketable fee simple title to or valid leasehold interests in all of its Real
Property and good, valid and merchantable title to all of its other properties
and assets subject to no Liens, mortgages, pledges, security interests,
encumbrances or charges of any kind, except those granted to LC Facility
Collateral Agent and such others as are permitted under Section 9.8 hereof.


 


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(e)           Each Credit Party hereby (i)
expressly acknowledges the terms of this Agreement, (ii) ratifies and affirms
its obligations under the Financing Agreements (including guarantees and
security agreements) executed by such Credit Party and (iii) acknowledges,
renews and extends its continued liability under all Financing Agreements and
agrees such Financing Agreements remain in full force and effect, including
with respect to the obligations of the Borrowers as modified by this Agreement
and the Amended and Restated Security Agreement.  Each Credit Party further represents and
warrants to each Agent and each Lender that after giving effect to this
Agreement and the Amended and Restated Security Agreement, neither the
modification of the Original Credit Agreement or the Original Security
Agreement effected pursuant to this Agreement, nor the execution, delivery,
performance or effectiveness of this Agreement or the Amended and Restated
Security Agreement (a) impairs the validity, effectiveness or priority of the
Liens granted hereunder or pursuant to any Financing Agreement, and such Liens
continue unimpaired with the same priority to secure repayment of all Obligations,
whether heretofore or hereafter incurred, or (b) requires that any new filings
be made or other action taken to perfect or to maintain the perfection of such
Liens other than the actions required by Section 4.1.


 


8.5           Tax Returns.  Each Credit Party has filed, or caused to be
filed, in a timely manner all Tax returns, reports and declarations which are
required to be filed by it.  All
information in such Tax returns, reports and declarations is complete and accurate
in all material respects.  Each Credit
Party and each of its Subsidiaries has paid or caused to be paid all Taxes due
and payable or claimed due and payable in any assessment received by it, except
Taxes the validity of which are being contested in good faith by appropriate
proceedings diligently pursued and available to Credit Parties (or their
Subsidiaries) with respect to which adequate reserves have been set aside on
its books.  Adequate provision has been
made for the payment of all accrued and unpaid Federal, State, Provincial,
county, local, foreign and other Taxes whether or not yet due and payable and
whether or not disputed.


 


8.6           Litigation.  Except as set forth in Schedule 8.6,
there is no present investigation by any Governmental Authority pending, or to
the best of any Credit Party’s knowledge threatened, against or affecting any
Credit Party, its assets or business and there is no action, suit, proceeding
or claim by any Person pending, or to the best of any Credit Party’s knowledge
threatened, against any Credit Party or its assets or goodwill, or against or
affecting any transactions contemplated by this Agreement, which if adversely
determined against any Credit Party would result in any material adverse change
in the assets, business or prospects of any Credit Party or would impair the
ability of any Credit Party to perform its obligations hereunder or under any
of the other Financing Agreements to which it is a party or of Agent or Lenders
to enforce any Obligations or realize upon any Collateral.


 


8.7           Compliance with Other Agreements
and Applicable Laws.  No Credit Party
is in default in any material respect under, or in violation in any material
respect of any of the terms of, any agreement, contract, instrument, lease or
other commitment to which it is a party or by which it or any of its assets are
bound and each Credit Party is in compliance in all material respects with all
applicable provisions of laws, rules, regulations, licenses, permits, approvals
and orders of any foreign, Federal, State, Provincial or local Governmental
Authority.


 


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8.8           Environmental Matters.  Except as shown or reflected in the financial
statements of Credit Parties previously furnished to each Administrative Agent
and Lenders and to be furnished to each Administrative Agent and Lenders under Section
9.6 or as set forth on Schedule 8.6 or 8.8, unless such matters
would not have a Material Adverse Effect upon the business, assets or prospects
of the Credit Parties on a consolidated basis or on the Collateral:


 


(a)           No Credit Party or
any Subsidiary has generated, used, stored, treated, transported, manufactured,
handled, produced or disposed of any Hazardous Materials, on or off its
premises (whether or not owned by it) in any manner which at any time violates
any applicable Environmental Law or any license, permit, certificate, approval
or similar authorization thereunder and the operations of Credit Parties and
their Subsidiaries comply with all Environmental Laws and all orders, licenses,
permits, certificates, approvals and similar authorizations thereunder.


 


(b)           There is no
investigation, proceeding, complaint, order, directive, claim, citation or
notice by any Governmental Authority or any other person pending, or to the
best of Credit Parties’ knowledge threatened, any non-compliance with or violation
of any Environmental Law by Credit Parties and their Subsidiaries or the
release, spill or discharge, threatened or actual, of any Hazardous Material at
any properties at which or from which Credit Parties or their Subsidiaries has
transported, stored or disposed of any Hazardous Materials, and all
transportation, handling, processing and disposal of Hazardous Materials by
Credit Parties and their Subsidiaries has been conducted in compliance with all
applicable Environmental Laws.


 


(c)           Credit Parties and
their Subsidiaries have no material liability (contingent or otherwise) in
connection with (i) a release, spill or discharge, threatened or actual, of any
Hazardous Materials, (ii) the generation, use, storage, treatment, transportation,
manufacture, handling, production, processing or disposal of any Hazardous
Materials or (iii) any service or remediation performed by Credit Parties or
their Subsidiaries at any location.


 


(d)           Credit Parties and
their Subsidiaries have all licenses, permits, certificates, approvals or
similar authorizations required to be obtained or filed in connection with the
operations of Credit Parties and their Subsidiaries under any Environmental Law
and all of such licenses, permits, certificates, approvals or similar authorizations
are valid and in full force and effect.


 


(e)           No liens have been
recorded with respect to any Collateral under any Environmental Law.


 


(f)            No Borrower or any
Subsidiary is conducting any investigation, remediation, response or corrective
action at any location pursuant to any Environmental Law.


 


(g)           There are no past or
present occurrences, conditions, activities or events that could reasonably be
expected to prevent Borrower or any Subsidiary from compliance with, or result
in liability under, any applicable Environmental Law.


 


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8.9           Employee Benefits.


 


(a)           Each Plan is in compliance with the
applicable provisions of ERISA, the Code and other federal or state law.  Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from
the Internal Revenue Service and to the best of Credit Parties’ knowledge,
nothing has occurred which would cause the loss of such qualification.  Each Credit Party and its ERISA Affiliates
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
of Credit Parties’ knowledge, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan.  There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan.


 


(c)           (i) No ERISA Event has occurred or is
reasonably expected to occur; (ii) the current value of each Plan’s assets
(determined in accordance with the assumptions used for funding such Plan
pursuant to Section 412 of the Code) are not less than such Plan’s liabilities
under Section 4001(a)(16) of ERISA; (iii) Credit Parties and their ERISA
Affiliates have not incurred and do not reasonably expect to incur, any
liability under Title IV of ERISA with respect to any Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) Credit Parties
and their ERISA Affiliates have not incurred and do not reasonably expect 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 (v) Credit Parties and
their ERISA Affiliates have not engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.


 


(d)           With respect to any Canadian Pension
Plan, if and to the extent that any such Canadian Pension Plan exists or has
not been terminated, (i) the Canadian Pension Plans are duly registered under
all applicable Federal and Provincial pension benefits legislation, (ii) all
obligations of any Credit Party (including fiduciary, funding, investment and
administration obligations) required to be performed in connection with the
Canadian Pension Plans or the funding agreements therefor have been performed
in a timely fashion and there are no outstanding disputes concerning the assets
held pursuant to any such funding agreement, (iii) all contributions or premiums
required to be made by any Credit Party to the Canadian Pension Plans have been
made in a timely fashion in accordance with the terms of the Canadian Pension
Plans and applicable laws and regulations, (iv) all employee contributions to
the Canadian Pension Plans required to be made by way of authorized payroll
deduction have been properly withheld by any Credit Party and fully paid into
the Canadian Pension Plans in a timely fashion, (v) all reports and disclosures
relating to the Canadian Pension Plans required by any applicable laws or
regulations have been filed or distributed in a timely fashion, (vi) there have
been no improper withdrawals, or applications of, the assets of any of the Canadian
Pension Plans, (vii) no amount is owing by any of the Canadian Pension Plans
under the Income Tax Act (Canada) or any provincial taxation statute, (viii)
the Canadian Pension Plans are fully funded both on an ongoing basis and on a
solvency basis (using actuarial assumptions and methods which are consistent
with the valuations last filed with the applicable governmental authorities and
which are consistent with


 


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generally accepted actuarial principles), and (ix) to the best of the
knowledge of each Credit Party none of the Canadian Pension Plans is the
subject of an investigation, any other proceeding, an action or a claim and
there exists no state of facts which after notice or lapse of time or both
could reasonably be expected to give rise to any such proceeding, action or
claim.


 


8.10         Bank Accounts.  All of the Deposit Accounts, investment
accounts or other accounts in the name of or used by any Credit Party maintained
at any bank or other financial institution are set forth in the Perfection
Certificate, subject to the right of Credit Parties to establish new accounts
in accordance with Section 5.3 hereof and Section 5.4 hereof and the Amended
and Restated Security Agreement.


 


8.11         Intellectual Property.  Each Credit Party owns or licenses or
otherwise has the right to use all Intellectual Property necessary for the
operation of its business as presently conducted or proposed to be
conducted.  As of the Amendment and Restatement
Effective Date, no Credit Party has any Intellectual Property registered, or
subject to pending applications, in the United States Patent and Trademark Office,
the Canadian Intellectual Property Office or any similar office or agency in
the United States, or Canada, any State or Province thereof, any political
subdivision thereof or in any other country, other than those described in Schedule
8.11 hereto and has not granted any licenses with respect thereto other
than as set forth in Schedule 8.11. 
No event has occurred which permits or would permit after notice or
passage of time or both, the revocation, suspension or termination of such
rights.  To the best of Credit Parties’
knowledge, no slogan or other advertising device, product, process, method,
substance or other Intellectual Property or goods bearing or using any
Intellectual Property presently contemplated to be sold by or employed by any
Credit Party infringes any patent, trademark, servicemark, tradename, copyright,
license or other Intellectual Property owned by any other Person presently and
no claim or litigation is pending or threatened against or affecting any Credit
Party contesting its right to sell or use any such Intellectual Property.  Schedule 8.11 sets forth all of the
agreements or other arrangements of Credit Parties pursuant to which any Credit
Party has a license or other right to use any trademarks, logos, designs,
representations or other Intellectual Property owned by another person as in
effect on the Amendment and Restatement Effective Date and the dates of the
expiration of such agreements or other arrangements of any Credit Party as in
effect on the Amendment and Restatement Effective Date (collectively, together
with such agreements or other arrangements as may be entered into by any Credit
Party after the Amendment and Restatement Effective Date, collectively, the “License Agreements” and individually, a “License Agreement”).  No trademark, servicemark or other Intellectual
Property at any time used by any Credit Party which is owned by another person,
or owned by any Credit Party subject to any security interest, Lien, collateral
assignment, pledge or other encumbrance in favor of any person other than a
Lender, is affixed to any Inventory, except to the extent permitted under the
term of the License Agreements listed on Schedule 8.11.


 


8.12         Subsidiaries; Affiliates;
Capitalization.


 


(a)           No Credit Party has any direct or
indirect Subsidiaries or Affiliates and is engaged in any joint venture or
partnership except as set forth in Schedule 8.12, subject to the right
of the Credit Parties to form or acquire Subsidiaries in accordance with
Section 9.10 hereof.


 


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(b)           Credit Parties are the record and
beneficial owners of all of the issued and outstanding shares of Capital Stock
of the each of the Subsidiaries listed on Schedule 8.12 as being owned
by Credit Parties and there are no proxies, irrevocable or otherwise, with
respect to such shares and no equity securities of any of the Subsidiaries are
or may become required to be issued by reason of any options, warrants, rights
to subscribe to, calls or commitments of any kind or nature and there are no
contracts, commitments, understandings or arrangements by which any Subsidiary
is or may become bound to issue additional shares of it Capital Stock or
securities convertible into or exchangeable for such shares.


 


(c)           The issued and outstanding shares of
Capital Stock of each Credit Party are directly and beneficially owned and held
by the persons indicated in the Perfection Certificate, and in each case all of
such shares have been duly authorized and are fully paid and non-assessable, free
and clear of all claims, Liens, pledges and encumbrances of any kind, except
(i) Liens permitted by Section 9.8, and (ii) to the extent that the laws of the
jurisdictions in which certain of the Foreign Subsidiaries are organized
provide that such shares of Capital Stock are assessable under certain
circumstances.


 


8.13         Labor Union Matters.


 


(a)           Set forth on Schedule 8.13 is
a list (including dates of termination) of all collective bargaining or similar
agreements between or applicable to any Credit Party and any union, labor
organization or other bargaining agent in respect of the employees of any
Credit Party on the Amendment and Restatement Effective Date.


 


(b)           There is (i) no significant unfair
labor practice complaint pending against any Credit Party or, to the best of
Credit Parties’ knowledge, threatened against any Credit Party, before the
National Labor Relations Board, (ii) no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is pending on the Amendment and Restatement Effective Date against
any Credit Party or, to best of Credit Parties’ knowledge, threatened against
any Credit Party, and (iii) no significant strike, labor dispute, slowdown or
stoppage is pending against any Credit Party or, to the best of Credit Parties’
knowledge, threatened against any Credit Party.


 


8.14         Trade Relations.  There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship between any Credit Party or any of its Subsidiaries
and any customer or any group of customers whose purchases individually or in
the aggregate are material to the business of any Credit Party or any of its
Subsidiaries, or with any material supplier, and there exists no present
condition or state of facts or circumstances which would materially affect
adversely any Credit Party or any of its Subsidiaries or prevent any Credit
Party or any of its Subsidiaries from conducting such business after the consummation
of the transaction contemplated by this Agreement in substantially the same
manner in which it has heretofore been conducted.


 


8.15         Restrictions on Subsidiaries.  Except for restrictions contained in this
Agreement or any other agreement with respect to Indebtedness of Credit Parties
permitted hereunder as in effect on the Amendment and Restatement Effective
Date, there are no contractual or consensual restrictions on any Credit Party
or any of their Subsidiaries which prohibit or otherwise restrict


 


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(a) the transfer of cash or other assets (i) between any Credit Party
and any of its Subsidiaries or (ii) between any Subsidiaries of Credit Parties
or (b) the ability of any Credit Party or any of their Subsidiaries to incur
Indebtedness or grant security interests to Lender in the Collateral.


 


8.16         Material Contracts.  Schedule 8.16 sets forth all Material
Contracts to which any Credit Party is a party or is bound as of the Amendment
and Restatement Effective Date.  Credit
Parties have delivered true, correct and complete copies of such Material Contracts
to Agent on or before the Amendment and Restatement Effective Date.  Except as would not have a Material Adverse
Effect, Credit Parties are not in breach of or in default under any Material
Contract and have not received any notice of the intention of any other party
thereto to terminate any Material Contract. 
No amendment to, or modification or waiver of, any provision of the
Senior Secured Notes Indenture has occurred at any time from and after the
Original Effective Date to and including the Amendment and Restatement Effective
Date.


 


8.17         Payable Practices.  Credit Parties have not made any material
change in the historical accounts payable practices from those in effect immediately
prior to the Amendment and Restatement Effective Date.


 


8.18         Investment Company.  None of the Credit Parties or any Subsidiary
(i) is a “holding company,” or a “subsidiary company” of a “holding company,”
or an “affiliate of a “holding company” or of a “subsidiary company” of a “holding
company,” within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.


 


8.19         Interdependent Businesses and
Operations.  Each of the operations
and businesses of each Credit Party is interdependent with the other Credit
Parties and each Credit Party substantially relies on the other Credit Parties
in its operations and business.  Each
Credit Party will de rive substantial direct and indirect benefits from the
Loans, Revolving Letter of Credit Accommodations and LC Facility Letters of
Credit made and to be made by Administrative Agents and Lenders hereunder.  Each Credit Party’s access to the financing
provided hereunder significantly enhances its own financial condition and
business prospects and the Credit Parties acknowledge that the financing
provided hereunder would only be available on a joint and several basis among
all the Credit Parties to the extent provided in Section 14 hereof.


 


8.20         Accuracy and Completeness of
Information.  All information
furnished by or on behalf of Credit Parties in writing to Agents and/or Lenders
in connection with this Agreement or any of the other Financing Agreements or
any transaction contemplated hereby or thereby, including all information on
the Perfection Certificate is true and correct in all material respects on the
date as of which such information is dated or certified and does not omit any
material fact necessary in order to make such information not misleading.  No event or circumstance has occurred which
has had or could reasonably be expected to have a Material Adverse Effect on
the business, assets or prospects of any Credit Party, which has not been fully
and accurately disclosed to Agents and Lenders in writing.


 


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8.21         Anti-Terrorism Law.


 


(a)           No Credit Party and, to the knowledge
of the Credit Parties, none of their Affiliates is in violation of any laws relating
to terrorism or money laundering (“Anti-Terrorism Laws”),
including Executive Order No. 13224 on Terrorist Financing, effective September
24, 2001 (the “Order”), and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56.


 


(b)           No Credit Party and to the knowledge
of the Credit Parties, no Affiliate or broker or other agent of any Credit
Party acting or benefiting in any capacity in connection with the Loans, the
Revolving Letter of Credit Accommodations or the LC Facility Letters of Credit
is any of the following:


 


(i)            a person that is
listed in the annex to, or is otherwise subject to the provisions of, the
Order;


 


(ii)           a person owned or
controlled by, or acting for or on behalf of, any person that is listed in the
annex to, or is otherwise subject to the provisions of, the Order;


 


(iii)          a person with which
any Secured Party is prohibited from dealing or otherwise engaging in any transaction
by any Anti-Terrorism Law;


 


(iv)          a person that
commits, threatens or conspires to commit or supports “terrorism” as defined in
the Order; or


 


(v)           a person that is
named as a “specially designated national and blocked person” on the most
current list published by the U.S. Treasury Department Office of Foreign Assets
Control (“OFAC”) at its official website or any
replacement website or other replacement official publication of such list.


 


(c)           No Credit Party and, to the knowledge
of the Credit Parties, no broker or other agent of any Credit Party acting in
any capacity in connection with the Loans, the Revolving Letter of Credit Accommodations
or LC Facility Letters of Credit (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the
benefit of any person described in paragraph (b) above, (ii) deals
in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to the Order, or (iii) engages in
or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.


 


8.22         [Intentionally Omitted].


 


8.23         Properties.


 


(a)           Each Credit Party has good title to,
or valid leasehold interests in, all its property material to its business,
free and clear of all Liens except for Liens permitted by Section 9.8 and
minor irregularities or deficiencies in title that, individually or in the
aggregate, do not interfere with its ability to conduct its business as
currently conducted or to utilize such property


 


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for its intended purpose.  The
property of the Credit Parties, taken as a whole, (i) is in good operating
order, condition and repair (ordinary wear and tear excepted), except to the
extent that the failure to be in such condition could not reasonably be
expected to result in a Material Adverse Effect, and (ii) constitutes all
the property which is required for the business and operations of the Credit
Parties as presently conducted.


 


(b)           Schedule 8.23(b) contains
a true and complete list of each interest in Real Property (i) owned by
any Credit Party as of the Amendment and Restatement Effective Date and
describes the type of interest therein held by such Credit Party and
(ii) leased, subleased or otherwise occupied or utilized by any Credit
Party, as lessee, sublessee, franchisee or licensee, as of the Amendment and Restatement
Effective Date and describes the type of interest therein held by such Credit
Party and whether such lease, sublease or other instrument requires the consent
of the landlord thereunder or other parties thereto to the Transactions.


 


(c)           No Credit Party has received any
notice of, nor has any knowledge of, the occurrence or pendency or contemplation
of any Casualty Event affecting all or any portion of its property.  No mortgage encumbers improved Real Property
that is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards within the meaning
of the National Flood Insurance Act of 1968 unless flood insurance available
under such Act has been obtained in accordance with Section 9.5.


 


(d)           Each Credit Party owns or has rights
to use all of the Collateral, other property and all rights with respect to any
of the foregoing used in, necessary for or material to such Credit Party’s
business as currently conducted.  The use
by each Credit Party of such Collateral, other property and all such rights
with respect to the foregoing do not infringe on the rights of any person other
than such infringement which could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.  No claim has been made and remains
outstanding that any Credit Party’s use of any Collateral or other property
does or may violate the rights of any third party that could, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect.


 


8.24         Solvency.  Immediately after the Amendment and
Restatement and the Specified Equity Offering and, upon the time it is
consummated (if at all), the Specified Notes Redemption, and on and immediately
following the making of each Loan and after giving effect to the application of
the proceeds of each Loan, (a) the fair value of the properties of each
Credit Party (individually and on a consolidated basis with its Subsidiaries)
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of each Credit Party
(individually and on a consolidated basis with its Subsidiaries) will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Credit
Party (individually and on a consolidated basis with its Subsidiaries) will be
able to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (d) each
Credit Party (individually and on a consolidated basis with its Subsidiaries)
will not have unreasonably small capital with which to conduct its business in
which it is engaged as such business is now conducted and is proposed to be
conducted following the Amendment and Restatement Effective Date.


 


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8.25         Disclosure.  Neither this Agreement nor any other
document, certificate or statement furnished to any Secured Party by or on
behalf of any Credit Party in connection herewith (including, without
limitation, the Information Memorandum) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make
the statements contained herein and therein not misleading, in light of the
circumstances under which they were made; provided that
to the extent this or any such document, certificate or statement (including
without limitation the Information Memorandum) was based upon or constitutes a
forecast or projection, the Credit Parties represent only that they acted in
good faith and utilized reasonable assumptions and due care in the preparation
of such document, certificate or statement.


 


8.26         Projections.  The Credit Parties have furnished to the
Agents and the Lenders prior to the Amendment and Restatement Effective Date
pro forma consolidated income statement projections for Parent, pro forma
consolidated balance sheet projections for Parent and pro forma consolidated
cash flow projections for Parent, all for the fiscal years ending 2005 through
2010, inclusive (the “Projected Financial
Statements”), which give effect to the Amendment and Restatement and
all Indebtedness and Liens incurred or created in connection with the Amendment
and Restatement.  The assumptions made in
preparing the Projected Financial Statements are reasonable as of the date of
such projections and all material assumptions with respect to the Projected
Financial Statements are set forth therein. 
The Projected Financial Statements present a good faith estimate of the
consolidated financial information contained therein at the date thereof.


 


8.27         Government Approval, Regulation, Etc.  No consent, authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Credit Parties of this Agreement or by any Credit Party of
any other Financing Agreement, the issuance of LC Facility Letters of Credit
hereunder, the borrowing of the Loans, the use of the proceeds thereof, the
issuance of Revolving Letter of Credit Accommodations hereunder, the borrowing of
the Canadian Revolving Loans, the use of the proceeds thereof, except such as
have been obtained or made and are in full force and effect and except filings
and registrations necessary to perfect Liens under the Security Documents.  No Credit Party or Secured Party is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or a “holding company”, or a “subsidiary company” of a “holding company”, or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company”, within the meaning of the Public Utility Holding Company Act of 1935,
as amended.


 


8.28         Validity, Etc.  This Agreement has been duly executed and
delivered by the Credit Parties and upon execution and delivery of the other Financing
Agreements to which any Credit Party is a party, such Financing Agreements will
have been duly executed and delivered by such Credit Party.  This Agreement constitutes, and each other
Financing Agreement to which any Credit Party is to be a party will, upon the
due execution and delivery thereof and assuming the due execution and delivery
of this Agreement by each of the other parties hereto, constitute, the legal,
valid and binding obligation of each Credit Party that is a party hereto or
thereto, enforceable in accordance with the respective terms hereof and
thereof, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of creditors’ rights
generally and to general principles of equity.


 


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8.29         Regulations T, U and X.  The Loans, the use of the proceeds thereof,
this Agreement and the transactions contemplated hereby will not result in a
violation of or be inconsistent with any provision of Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board or to violate the Exchange
Act.


 


8.30         Survival of Warranties; Cumulative.  All representations and warranties contained in
this Agreement or any of the other Financing Agreements shall survive the
execution and delivery of this Agreement and shall be deemed to have been made
again to Lender on the date of each additional borrowing or other credit
accommodation hereunder and shall be conclusively presumed to have been relied
on by Agents and Lenders regardless of any investigation made or information
possessed by Agents or Lenders.  The
representations and warranties set forth herein shall be cumulative and in addition
to any other representations or warranties which Credit Parties shall now or
hereafter give, or cause to be given, to any Agent.


 


SECTION 9.         AFFIRMATIVE
AND NEGATIVE COVENANTS.


 


9.1           Maintenance of Existence.


 


(a)           Credit Parties shall at all times
preserve, renew and keep in full, force and effect their corporate, limited liability
company, partnership or business trust, as the case may be, existence and all
rights and franchises with respect thereto and maintain in full force and
effect all permits, licenses, trademarks, tradenames, approvals,
authorizations, leases and contracts necessary to carry on the businesses as
presently or proposed to be conducted by Credit Parties.


 


(b)           No Credit Party shall change its name
unless each of the following conditions is satisfied:  (i) each Administrative Agent shall have
received not less than thirty (30) days’ prior written notice from a Credit
Party of such proposed change in its name, which notice shall accurately set
forth the new name; and (ii) prior to the filing thereof, each Administrative
Agent shall have received a copy of the proposed amendment to the certificate
of incorporation, certificate of formation or certificate of limited
partnership or equivalent document, as the case may be, of such Credit Party providing
for the name change and once the filing has been made, each Administrative
Agent shall receive a copy of such amendment to the certificate of
incorporation, certificate of formation or certificate of limited partnership
or equivalent document, as the case may be, of such Credit Party certified by
the Secretary of State of the jurisdiction of incorporation or organization of
such Credit Party as soon as it is available.


 


(c)           No Credit Party shall change its
chief executive office or its mailing address or organizational identification
number (or if it does not have one, shall not acquire one) unless each
Collateral Agent (except that the Canadian Borrowers shall only be required to
provide notice to the Canadian Collateral Agent) shall have received not less
than thirty (30) days’ prior written notice (or such shorter period as the
Collateral Agents may consent to) from Credit Parties of such proposed change,
which notice shall set forth such information with respect thereto as such
Collateral Agents may require and such Collateral Agents shall have received
such agreements as such Collateral Agents may reasonably require in connection
therewith in order to preserve and protect their respective Liens on the
Collateral.  No Credit Party shall change
its type of organization, jurisdiction of organization or other legal structure.


 


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9.2           New Collateral Locations.  Credit Parties may only open any new location
within the continental United States or Canada provided Credit Parties (a) give
each Collateral Agent thirty (30) days prior written notice (or such shorter
notice as may be consented to by each Collateral Agent and except that the
Canadian Borrowers shall only be required to provide notice to the Canadian Collateral
Agent) from Credit Parties of the intended opening of any such new location,
and (b) execute and deliver, or causes to be executed and delivered, to each
Collateral Agent such agreements, documents, and instruments as such Collateral
Agent may deem necessary or desirable to protect its respective interests in
the Collateral at such location.


 


9.3           Compliance with Laws, Regulations,
Etc.


 


(a)           Credit Parties shall, and shall cause
their Subsidiaries to, at all times, comply in all material respects with all
laws, rules, regulations, licenses, permits, approvals and orders applicable to
it and duly observe all requirements of any foreign, Federal, State, Provincial
or local Governmental Authority, including ERISA, the Code, the Fair Labor
Standards Act of 1938, as amended, and all Environmental Laws if the failure to
so comply could result in the imposition of material fines or penalties or
result in the revocation or termination of any material license, permit, order
or approval of any Governmental Authority or could otherwise materially and
adversely affect the business, assets or prospects of Credit Parties on a
consolidated basis.


 


(b)           Credit Parties shall give written
notice to each Administrative Agent immediately upon any Credit Party’s receipt
of any notice of, or any Credit Party’s otherwise obtaining knowledge of, any
of the following which could result in the imposition of material fines or
penalties or the revocation or termination of any material license, permit,
order or approval of any Governmental Authority or could otherwise materially
and adversely affect the business, assets or prospects of Credit Parties on a
consolidated basis, (i) the occurrence of any event involving the release,
spill or discharge, threatened or actual, of any Hazardous Material or (ii) any
investigation, proceeding, complaint, order, directive, claims, citation or
notice with respect to:  (A) any
non-compliance with, violation of or liability under any applicable Environmental
Law by any Credit Party or (B) the release, spill or discharge, threatened or
actual, of any Hazardous Material. 
Credit Parties shall take prompt and appropriate action to respond to
any such non-compliance or potential liability with any Environmental Laws and
shall regularly report to each Administrative Agent on such response.  Copies of all environmental surveys, audits,
assessments, feasibility studies, results of remedial investigations and other
related information reasonably requested by either Administrative Agent shall
be promptly furnished, or caused to be furnished, by Credit Parties to each
Administrative Agent.


 


(c)           Without limiting the generality of
the foregoing, whenever either Administrative Agent reasonably determines that
there is non-compliance, or any condition which requires any action by or on
behalf of Credit Parties in order to avoid any non-compliance with or liability
under any Environmental Law which, in either case, could reasonably be expected
to have a Material Adverse Effect, Credit Parties shall, at such Administrative
Agent’s request and Credit Parties’ expense: 
(i) cause an independent environmental consultant acceptable to such
Administrative Agent to conduct such assessments and tests of the property
and/or facility where Credit Parties’ non-compliance or alleged non-compliance
has occurred or conditions exist as deemed necessary to evaluate the nature,
extent and costs to address the matter and prepare and deliver to such
Administrative Agent a report setting forth the results and a proposed plan for


 


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response or corrective action, and an estimate of the costs thereof,
and (ii) provide to such Administrative Agent a supplemental report
whenever the scope of the matter, or Credit Parties’ response thereto or the
estimated costs thereof, shall change in any material respect.


 


(d)           Credit Parties shall indemnify and
hold harmless each Secured Party, and each of their respective directors, officers,
employees, agents, invitees, representatives, successors and assigns, from and
against any and all losses, claims, damages, liabilities, costs, and expenses
(including reasonable attorneys’ fees and legal expenses) arising out of or
attributable to the use, generation, manufacture, handling, recycling, storage,
treatment, release, threatened release, spill, discharge, disposal or presence
of a Hazardous Material, including the costs of any required or necessary
repair, cleanup or other remedial work, on, at, under or from current or former
facility or property owned or operated by Credit Parties and the preparation
and implementation of any closure, remedial or other required plans unless and
only if the result of the gross negligence or willful misconduct of the
indemnified party.  This indemnification
shall survive the payment of the Obligations and the termination or non-renewal
of this Agreement.


 


9.4           Payment of Taxes and Claims.  Credit Parties shall, and shall cause any
Subsidiary to, duly pay and discharge all taxes, assessments, contributions and
governmental charges upon or against it or its properties or assets, except for
taxes the validity of which are being contested in good faith by appropriate
proceedings diligently pursued and available to Credit Parties or such Subsidiary,
as the case may be, and with respect to which adequate reserves have been set
aside on its books.  Credit Parties shall
be liable for any tax or penalties withheld from or imposed on any Secured
Party as a result of the financing arrangements provided for herein and Credit
Parties agree to indemnify and hold each Secured Party harmless with respect to
the foregoing, and to repay to each Secured Party on demand the amount thereof,
and until paid by Credit Parties such amount shall be added and deemed part of
the Obligations.  The foregoing indemnity
shall survive the payment of the Obligations and the termination or non-renewal
of this Agreement.


 


9.5           Insurance.  Credit Parties shall, and shall cause each
Subsidiary of any Credit Party to, at all times, maintain with financially
sound and reputable insurers insurance with respect to the Collateral against
loss or damage and all other insurance of the kinds and in the amounts
customarily insured against or carried by corporations of established
reputation engaged in the same or similar businesses and similarly
situated.  Said policies of insurance
shall be satisfactory to each Collateral Agent as to form, amount and
insurer.  Credit Parties shall furnish
certificates, policies or endorsements to each Collateral Agent as such
Collateral Agent shall require as proof of such insurance, and, if Credit
Parties fail to do so, such Collateral Agent is authorized, but not required,
to obtain such insurance at the expense of Credit Parties.  All policies shall provide for at least
thirty (30) days prior written notice to each Collateral Agent of any
cancellation or reduction of coverage and that such Collateral Agent may act as
attorney for Credit Parties in obtaining, and at any time a Default or an Event
of Default exists or has occurred and is continuing, adjusting, settling,
amending and canceling such insurance. 
Credit Parties shall cause (i) the LC Facility Collateral Agent to be
named as a loss payee and an additional insured with respect to the
Non-Accounts Collateral, (ii) the Accounts Collateral Agent to be named as loss
payee and an additional insured with respect to the Accounts Collateral and
(iii) the Canadian Collateral Agent to be named as loss payee and an additional
insured with respect to Canadian Accounts Collateral (each without any liability
for any premiums) under such insurance


 


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policies and Credit Parties shall obtain non-contributory lender’s loss
payable endorsements to all insurance policies in form and substance
satisfactory to such Collateral Agent. 
Such lender’s loss payable endorsements shall specify that the proceeds
of such insurance shall be payable to such Collateral Agent as its interests
may appear and further specify that such Collateral Agent shall be paid
regardless of any act or omission by a Credit Party or any of its
Affiliates.  At its option, such
Collateral Agent may apply any insurance proceeds received by such Collateral
Agent at any time to the cost of repairs or replacement of Collateral and/or to
payment of the Obligations, whether or not then due, in any order and in such
manner as such Collateral Agent may determine or hold such proceeds as cash
collateral for the Obligations.


 


9.6           Financial Statements and Other
Information.


 


(a)           Credit Parties shall, and shall cause
each Subsidiary of any Credit Party to, keep proper books and records in which
true and complete entries shall be made of all dealings or transactions of or
in relation to the Collateral and the business of Credit Parties and their
Subsidiaries in accordance with GAAP. 
Credit Parties shall promptly furnish to each Administrative Agent and
Lenders all such financial and other information as such Administrative Agent
shall reasonably request relating to the Collateral and the assets, business
and operations of Credit Parties, and to notify the auditors and accountants of
Parent that such Administrative Agent is authorized to obtain such information
directly from them.  Without limiting the
foregoing, Credit Parties shall furnish or cause to be furnished to each Administrative
Agent and each Lender, the following: 
(i) within thirty (30) days after the end of each fiscal month of the
first two months of each fiscal quarter, monthly unaudited consolidated
financial statements (including in each case balance sheets and statements of
income and loss), all in reasonable detail, fairly presenting the financial
position and the results of the operations of Parent and its Subsidiaries as of
the end of and through such fiscal month, certified to be correct by the chief
financial officer of Parent, subject to normal year-end adjustments, (ii)
within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year, quarterly unaudited consolidated financial statements
(including in each case balance sheets, statements of income and loss, and
statements of cash flow), all in reasonable detail, fairly presenting the
financial position and the results of operations of Parent and its Subsidiaries
as of the end of and through such fiscal quarter, certified to be correct by
the chief financial officer of Parent, subject to normal year-end adjustments
and accompanied by a Compliance Certificate together with a schedule in form reasonably
satisfactory to such Administrative Agent of the calculations used in
determining whether Parent was in compliance with the covenants set forth in
Sections 9.17, 9.18, 9.19 and 9.20 of this Agreement as of the end of such
fiscal quarter; (iii) within ninety (90) days after the end of each fiscal
year, audited consolidated financial statements of Parent and its Subsidiaries
(including in each case balance sheets, statements of income and loss, statements
of cash flow and statements of shareholders’ equity), and the accompanying
notes thereto, all in reasonable detail, fairly presenting the financial
position and the results of the operations of Parent and its Subsidiaries as of
the end of and for such fiscal year, together with the unqualified opinion of
independent certified public accountants, which accountants shall be an
independent accounting firm selected by Parent and reasonably acceptable to
such Administrative Agent, that such financial statements have been prepared in
accordance with GAAP, and present fairly the results of operations and
financial condition of Parent, and its Subsidiaries as of the end of and for
the fiscal year then ended, together with a Compliance Certificate together
with a schedule in form reasonably satisfactory to such Administrative Agent of
the calculations used in determining whether Parent was in compliance


 


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with the covenants set forth in Sections 9.17, 9.18, 9.19 and 9.20 of
this Agreement as of the end of such fiscal year.


 


(b)           Credit Parties shall promptly notify
each Administrative Agent in writing of the details of (i) any loss, damage, investigation,
action, suit, proceeding or claim relating to the Collateral or any other
property which is security for the Obligations or which would result in any
material adverse change in any Credit Party’s business, properties, assets,
goodwill or condition, financial or otherwise, (ii) any Material Contract of
any Credit Party being terminated or amended or any new Material Contract entered
into (in which event Credit Parties shall provide such Administrative Agent
with a copy of such Material Contract), (iii) any order, judgment or decree in
excess of $500,000 in any one case or in the aggregate shall have been entered
against any Credit Party or any of its properties or assets, (iv) any notification
of violation of laws or regulations received by any Credit Party, (v) any ERISA
Event, and (vi) the occurrence of any Default or Event of Default.


 


(c)           Credit Parties shall promptly after
the sending or filing thereof furnish or cause to be furnished to Lender copies
of all reports which Parent sends to its stockholders generally and copies of
all reports and registration statements which Parent files with the Securities
and Exchange Commission, any national securities exchange or the National
Association of Securities Dealers, Inc.


 


(d)           Credit Parties shall furnish or cause
to be furnished to each Administrative Agent and Lenders prior to January 31 of
each fiscal year of Parent, a budget of Parent and its Subsidiaries in form
reasonably satisfactory to such Administrative Agent (including a projected
consolidated balance sheet, income statement and statement of cash flows) for
such fiscal year, prepared in summary form and on a quarterly basis, in each
case with appropriate presentation and discussion of the principal assumptions
upon which such budgets are based, accompanied by the statement of a financial
officer of Parent to the effect that the budget is a reasonable estimate for
the period covered thereby and such other budgets, forecasts, projections and
other information respecting the Collateral and the business of Credit Parties,
as such Administrative Agent may, from time to time, reasonably request.  Each Administrative Agent and each Lender are
hereby authorized to deliver a copy of any financial statement or any other
information relating to the business of Credit Parties to any court or other
Governmental Authority or to any participant or assignee or prospective
participant or assignee of any Lender. 
At any time that either Administrative Agent reasonably requests the
Credit Parties shall deliver, at their expense, copies of the financial
statements of Credit Parties and any reports or management letters prepared by
the accountants or auditors to the Credit Parties and to deliver to such
Administrative Agent and to each Lender such information as may reasonably be requested.  Credit Parties shall permit the Revolving
Lenders, through the Revolving Administrative Agent or any of the Revolving
Lenders’ other designated representatives, to visit and inspect any of the
properties of the Credit Parties or any of their Subsidiaries, to examine the
books of account of the Credit Parties and their Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the affairs, finances
and accounts of the Credit Party and its Subsidiaries with, and to be advised
as to the same by, its and their officers, and to conduct examinations and
verifications (whether by internal commercial finance examiners or independent
auditors) of all components included in the Borrowing Base, all at such
reasonable times and intervals as the Revolving Administrative Agent or any
Revolving Lender may reasonably request.


 


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9.7           Sale of Assets, Consolidation,
Merger, Dissolution, Etc.  Credit
Parties shall not, and shall not permit any Subsidiary to, directly or indirectly,


 


(a)           merge into or
consolidate or amalgamate with any other Person or permit any other Person to
merge into or consolidate with it (except that any Credit Party (other than the
Parent) may be merged into, consolidated with, or amalgamated with any other
Credit Party and any wholly-owned Subsidiary of any Credit Party may be merged
into such Credit Party); or


 


(b)           sell, assign, issue,
lease, transfer, abandon or otherwise dispose of any Capital Stock or
Indebtedness to any other Person or any of its assets to any other Person,
except for (i) sales of Inventory in the ordinary course of business,
(ii) the disposition of obsolete or worn-out Equipment (other than any
item of Rolling Stock then having a book value in excess of $10,000) in the
ordinary course of business, (iii) the issuance and sale by Parent of Capital
Stock (other than Disqualified Stock) of Parent on and after the Amendment and
Restatement Effective Date, (iv) leases of real or personal property in
the ordinary course of business in accordance with past practice and in
accordance with the Financing Agreements; and (v) other Asset Sales not to
exceed $20.0 million in any twelve-month period; provided
that the consideration received in any such Asset Sale is at least 80% in the
form of cash and Cash Equivalents;


 


(c)           wind up, liquidate
or dissolve (except in the case of the Inactive Subsidiaries); or


 


(d)           agree to do any of
the foregoing.


 


To the extent
any Collateral is sold as permitted by this Section 9.7, such Collateral
(unless sold to Parent or a Subsidiary of Parent) shall be sold free and clear
of the Liens created by the Financing Agreements, and each Collateral Agent
shall take all actions they deem appropriate in order to effect the foregoing.


 


9.8           Encumbrances.  Credit Parties shall not, and shall not
permit any Subsidiary of any Credit Party to, create, incur, assume, suffer or
permit to exist any security interest, mortgage, pledge, Lien, charge or other
encumbrance of any nature whatsoever on any of its assets or properties, including
the Collateral, except (a) the security interests, hypothecs and Liens of the
Collateral Agents pursuant to the Financing Agreements; (b) Liens securing
the payment of taxes, either not yet overdue or the validity of which are being
contested in good faith by appropriate proceedings diligently pursued and
available to Credit Parties or any Subsidiary, and in each case prior to the
commencement of a foreclosure or other similar proceeding and with respect to
which adequate reserves have been set aside on its books; (c) non-consensual
statutory Liens (other than Liens securing the payment of taxes) arising in the
ordinary course of Credit Parties’ or such Subsidiary’s business to the extent:  (i) such Liens secure Indebtedness which is
not overdue or (ii) such Liens secure Indebtedness relating to claims or liabilities
which are fully insured and being defended at the sole cost and expense and at
the sole risk of the insurer or being contested in good faith by appropriate
proceedings diligently pursued and available to Credit Parties or any
Subsidiary, in each case prior to the commencement of foreclosure or other
similar proceedings and with respect to which adequate reserves have been set
aside on its books;


 


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(d) zoning restrictions, easements, licenses, covenants and other
restrictions affecting the use of Real Property which do not, individually or
in the aggregate, interfere in any material respect with the use of such Real
Property or ordinary conduct of the business of Credit Parties or any
Subsidiary of any Credit Party as presently conducted thereon or materially
impair the value of the Real Property which may be subject thereto and which do
not secure Indebtedness; (e) purchase money security interests in Equipment
(including Capital Leases) and purchase money mortgages on Real Property to
secure Indebtedness permitted under Section 9.9(b) hereof; (f) Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money); (g) the security interests and Liens set forth on Schedule
9.8; (h) Liens on Non-Accounts Collateral pursuant to the Security
Documents (other than the Mortgages); (i) second lien mortgages encumbering
Mortgaged Properties which secure the Senior Secured Notes, so long as such
Liens expressly rank junior to the Liens securing the Obligations; and (j)
encumbrances shown on the title commitments for Title Insurance Policies delivered
to the LC Facility Collateral Agent.


 


9.9           Indebtedness.  Credit Parties shall not, and shall not
permit any Subsidiary of any Credit Party to, incur, create, assume, become or
be liable in any manner with respect to, suffer or permit to exist, any Indebtedness
or guarantee, assume, endorse, or otherwise become responsible for (directly or
indirectly) the performance, dividends or other obligations of any Person, except:


 


(a)           the Obligations;


 


(b)           purchase money
Indebtedness (including Capital Leases) arising after the Original Effective
Date to the extent secured by purchase money security interests in Equipment
(including Capital Leases) and purchase money mortgages on Real Property not to
exceed $20.0 million in the aggregate at any time outstanding so long as such
security interests and mortgages do not apply to any property of Credit Parties
other than the Equipment or Real Property so acquired, and the Indebtedness
secured thereby does not exceed the cost of the Equipment or Real Property so acquired,
as the case may be;


 


(c)           guarantees by any
Subsidiaries of Credit Parties of the Obligations in favor of any Agent and
Lenders;


 


(d)           Indebtedness owed by
a Credit Party to any other Credit Party which Indebtedness (x) is hereby
subordinated to the prior indefeasible payment in full in cash of the
Obligations and (y) shall be represented by an Instrument in form
satisfactory to the LC Facility Collateral Agent and delivered to the LC
Facility Collateral Agent pursuant to the Amended and Restated Security Agreement;


 


(e)           the Senior Secured
Notes and guaranties thereof by any Credit Party; provided
that (i) Credit Parties shall not, directly or indirectly, amend, modify,
alter or change the terms of such Indebtedness or any agreement, document or instrument
related


 


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thereto as in effect on the Original Effective Date or, subject to
Section 9.32, prepay or defease such Indebtedness prior to the Maturity
Date and (ii) Credit Parties shall furnish to each Administrative Agent all
notices or demands in connection with the Senior Secured Notes either received
by any Credit Party or on its behalf, promptly after the receipt thereof, or
sent by any Credit Party or on its behalf, concurrently with the sending thereof,
as the case may be;


 


(f)            Indebtedness of the
Credit Parties in respect of performance bonds, bankers’ acceptances, workers’
compensation claims, surety or appeal bonds, payment obligations in connection
with self-insurance or similar obligations, and in the ordinary course of business;


 


(g)           the Indebtedness set
forth on Schedule 9.9 attached hereto; provided
that (i) Credit Parties may only make regularly scheduled payments of principal
and interest in respect of such Indebtedness in accordance with the terms of
the agreement or instrument evidencing or giving rise to such Indebtedness as
in effect on the Amendment and Restatement Effective Date, (ii) Credit Parties
shall not, directly or indirectly, (A) amend, modify, alter or change the terms
of such Indebtedness or any agreement, document or instrument related thereto
as in effect on the Amendment and Restatement Effective Date except that Credit
Parties may, after prior written notice to Lenders, amend, modify, alter or
change the terms thereof so as to extend the maturity thereof, or defer the
timing of any payments in respect thereof, or to forgive or cancel any portion
of such Indebtedness (other than pursuant to payments thereof), or to reduce
the interest rate or any fees in connection therewith, or (B) redeem, retire,
defease, purchase or otherwise acquire such Indebtedness, or set aside or
otherwise deposit or invest any sums for such purpose, and (iii) Credit Parties
shall furnish to each Administrative Agent all notices or demands in connection
with such Indebtedness either received by any Credit Party or on its behalf,
promptly after the receipt thereof, or sent by any Credit Party or on its
behalf, concurrently with the sending thereof, as the case may be;


 


(h)           Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within five Business Days of incurrence;


 


(i)            other unsecured
Indebtedness of the Credit Parties in an aggregate amount not to exceed $20.0
million at any time outstanding;


 


(j)            so long as no
Default exists immediately prior to or after giving effect to the incurrence
thereof, Subordinated Indebtedness, to the extent that the Net Cash Proceeds of
such Subordinated Indebtedness are used to pay, substantially contemporaneously
with the incurrence thereof, consideration for one or more Permitted
Acquisitions, Indebtedness of any Person(s) acquired in such Permitted
Acquisition or Permitted Acquisitions or any fees or expenses incurred in
connection therewith and any such Permitted Acquisition is made in compliance
with the requirements set forth in the definition thereof; and


 


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(k)           the Series B
Preferred Stock outstanding on the Amendment and Restatement Effective Date.


 


9.10         Loans, Investments, Etc.  Credit Parties shall not, and shall not permit
any Subsidiary of any Credit Party to, directly or indirectly, make, or suffer
or permit to exist, any loans or advance money or property to any person, or
any investment in (by capital contribution, dividend or otherwise) or purchase
or repurchase the Capital Stock or Indebtedness or all or a substantial part of
the assets or property of any person, or form or acquire any Subsidiaries, or
agree to do any of the foregoing (all of the foregoing, collectively, “Investments”), except:


 


(a)           the endorsement of
instruments for collection or deposit in the ordinary course of business;


 


(b)           Investments in cash
or Cash Equivalents, provided that
(i) not more than $5.0 million aggregate principal amount of Revolving Loans
are then outstanding and (ii) the terms and conditions of Section 5.3 or 5.4,
if applicable, hereof shall have been satisfied with respect to the Deposit
Account or Investment Account in which such cash or Cash Equivalents are held;


 


(c)           (1) the existing
Investments of the Credit Parties in their respective Subsidiaries which are
Credit Parties, (2) the existing Investments of Credit Parties in Subsidiaries
which are not Credit Parties as of the Amendment and Restatement Effective Date
set forth on Schedule 9.10(c), (3) additional Investments made by Parent
or any other Credit Party after the Amendment and Restatement Effective Date in
or to US Credit Parties in the ordinary course of business, and (4) additional
Investments in the ordinary course of business by the Parent or any other
Credit Party in or to its respective wholly-owned Subsidiaries organized
outside of the United States; provided that
the aggregate amount of all such additional Investments by any Credit Party in
any such Subsidiaries organized outside of the United States (exclusive of
Investments incurred in connection with arranging financial assurances required
under applicable Environmental Laws) shall not exceed $25.0 million in the case
of Subsidiaries organized under the laws of Canada or a Canadian province or
$1.0 million in the case of any other Subsidiary organized outside of the
United States, in each case at any time outstanding; provided
further that, after giving effect to any Investment made pursuant to
this Section 9.10(c)(4) in Subsidiaries organized under the laws of Canada or a
Canadian province, the Leverage Ratio, as of the last day of the most recent
period for which a Compliance Certificate was required to be delivered pursuant
to Section 9.6(a), on a pro forma basis after giving effect to such Investment
as if it had been made on the first day of such most recent period, shall be at
least 0.25 “turns” less than the Leverage Ratio was required to be as of such
last day under Section 9.17 (and the Borrowers shall provide to the
Administrative Agents a reasonably detailed Officers’ Certificate to such
effect) and (y) the Excess Availability on a pro forma basis after giving
effect to such Investment shall be no less than $15.0 million;


 


(d)           any Credit Party may
make a Permitted Acquisition;


 


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(e)           stock or obligations
issued to Credit Parties by any Person (or the representative of such Person)
in respect of Indebtedness of such Person owing to Credit Parties in connection
with the insolvency, bankruptcy, receivership or reorganization of such Person
or a composition or readjustment of the debts of such Person; provided that the original of any such stock or instrument
evidencing such obligations shall be promptly delivered to the applicable
Collateral Agent, upon the applicable Collateral Agent’s request, together with
such stock power, assignment or endorsement by Credit Parties as the applicable
Collateral Agent may request;


 


(f)            obligations of
account debtors to Credit Parties arising from Accounts which are past due
evidenced by a promissory note made by such account debtor payable to Credit
Parties; provided that promptly upon the receipt
of the original of any such promissory note by Credit Parties, such promissory
note shall be endorsed to the order of Accounts Collateral Agent or Canadian
Collateral Agent, as applicable, by Credit Parties and promptly delivered to
Accounts Collateral Agent as so endorsed;


 


(g)           other loans and
advances set forth on Schedule 9.10(g) attached hereto; provided that as to such loans and advances, (i) Credit
Parties shall not, directly or indirectly, amend, modify, alter or change the
terms of such loans and advances or any agreement, document or instrument
related thereto, and (ii) Credit Parties shall furnish to each Administrative
Agent all notices or demands in connection with such loans and advances either
received by any Credit Party or on its behalf, promptly after the receipt
thereof, or sent by any Credit Party or on its behalf, concurrently with the
sending thereof, as the case may be;


 


(h)           Investments in
auction rate securities that are (i) fully insured, (ii) have a rating of at
least AAA from S&P and Aaa from Moody’s and (iii) are put up for re-auction
not less than every 35 days; provided that
the aggregate amount of such Investments do not exceed $15.0 million at any
time; and


 


(i)            other Investments
that do not exceed $5.0 million in the aggregate at any one time outstanding.


 


9.11         Dividends and Redemptions.  Credit Parties shall not, directly or
indirectly, declare or pay any dividends on account of any shares of class of
Capital Stock of any Credit Party now or hereafter outstanding, or set aside or
otherwise deposit or invest any sums for such purpose, or redeem, retire,
defease, purchase or otherwise acquire any shares of any class of Capital Stock
(or set aside or otherwise deposit or invest any sums for such purpose) for any
consideration or apply or set apart any sum, or make any other distribution (by
reduction of capital or otherwise) in respect of any such shares or agree to do
any of the foregoing, except in any case in the form of shares of Capital Stock
consisting of common stock; provided, however, that (a) any Credit Party may pay dividends to the
Parent, (b) any Subsidiary of any Credit Party may pay dividends to such Credit
Party or any other Credit Party which is a wholly-owned Subsidiary of the
Parent, (c) the Parent may pay cash dividends at an annual rate of $4.00 per
share on up to 70,000 shares of the Series B Preferred Stock that are outstanding
as of the Amendment and Restatement Date; provided that,
in the case of dividends authorized by clause (c) above, no such payment shall
be made if either (i) an Event of Default shall have occurred and be continuing
or


 


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would result from the making of such payment
or (ii) immediately before or after giving effect to any such payment, the
Excess Availability shall be less than $10.0 million and (d) redeem or
repurchase Series B Preferred Stock having an aggregate liquidation preference
not exceeding $3.5 million at a redemption or purchase price not greater than
100% of the liquidation preference thereof plus accrued and unpaid dividends
thereon, so long as immediately after giving pro forma effect to any such
repurchase or redemption (x) no Default shall have occurred and be continuing
(or would result therefrom), (y) the Excess Availability shall be no less than
$20.0 million and (z) the Leverage Ratio, as of the last day of the most recent
period for which a Compliance Certificate was required to be delivered pursuant
to Section 9.6(a), assuming such redemption or repurchase had been made on the
first day of such most recent period, shall be at least 0.25 “turns” less than
the Leverage Ratio was required to be as of such last day under Section 9.17
(and the Borrowers shall provide to the Administrative Agents a reasonably
detailed Officers’ Certificate to such effect).


 


9.12               Transactions
with Affiliates.  Credit Parties
shall not, directly or indirectly, (a) purchase, acquire or lease any property
from, or sell, transfer or lease any property to, or enter into any other
transaction with or for the benefit of any Affiliate of any Credit Party or any
officer, director, agent or any Credit Party, except in the ordinary course of
and pursuant to the reasonable requirements of any Credit Party’s business and
upon fair and reasonable terms no less favorable to such Credit Party than such
Credit Party would obtain in a comparable arm’s length transaction with an
unaffiliated person, or (b) make any payments of management, consulting or
other fees for management or similar services, or of any Indebtedness owing to
any officer, employee, shareholder, director or other Affiliate of any Credit
Party except reasonable compensation to officers, employees and directors for
services rendered to Credit Parties in the ordinary course of business.


 


9.13               Compliance
with ERISA.


 


(a)           Credit Parties shall and shall cause
each of their ERISA Affiliates to:  (i)
maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal and State law; (ii) cause each
Plan which is qualified under Section 401(a) of the Code to maintain such
qualification; (iii) not terminate any of such Plans so as to incur any
liability to the Pension Benefit Guaranty Corporation; (iv) not allow or suffer
to exist any prohibited transaction involving any of such Plans or any trust created
thereunder which would subject Credit Party or such ERISA Affiliate to a tax or
penalty or other liability on prohibited transactions imposed under Section
4975 of the Code or ERISA; (v) make all required contributions to any Plan or
Multiemployer Plan which it is obligated to pay under Section 302 of ERISA,
Section 412 of the Code or the terms of such Plan or an applicable collective
bargaining agreement; (vi) not allow or suffer to exist any accumulated funding
deficiency, whether or not waived, with respect to any such Plan; and (vii) not
allow or suffer to exist any occurrence of a reportable event or any other
event or condition which presents a material risk of termination by the Pension
Benefit Guaranty Corporation of any such Plan, which termination could result
in any liability to the Pension Benefit Guaranty Corporation.


 


(b)           Credit Parties shall cause the
Canadian Pension Plan to be administered in accordance with the requirements of
the applicable pension plan texts, funding agreements, the Income Tax Act
(Canada) and applicable provincial pension benefits legislation.  Upon either


 


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Canadian Collateral Agent’s
request, Credit Parties shall use their best efforts to deliver to such Administrative
Agent an undertaking of the funding agent for the Canadian Pension Plan stating
that the funding agent will notify such Administrative Agent within seven (7)
days of the failure of any Credit Party to make any required contribution to
the Canadian Pension Plan.  Credit
Parties shall not accept payment of any amount from the Canadian Pension Plan
(other than amounts on account of expenses reasonably incurred in connection
with the operations of such Canadian Pension Plan) without the prior written
consent of such Administrative Agent. 
Without the prior written consent of Canadian Collateral Agent, Credit
Parties shall not terminate, or cause to be terminated, the Canadian Pension
Plan, if such plan would have a solvency deficiency on termination.  Credit Parties shall promptly provide
Canadian Collateral Agent with any documentation relating to the Canadian
Pension Plan as Canadian Collateral Agent may reasonably request.  Credit Parties shall notify Canadian
Collateral Agent within thirty (30) days of (i) a material increase in the
liabilities of the Canadian Pension Plan or (ii) the establishment of a new
registered pension plan or (iii) commencing payment of contributions to the
Canadian Pension Plan to which any Credit Party had not previously been contributing.


 


9.14               End of Fiscal Years; Fiscal
Quarters .  Each Credit Party shall,
for financial reporting purposes, cause its, and each of its Subsidiaries’ (a)
fiscal years to end on December 31st of each year and (b) fiscal quarters to
end on March 31st, June 30th, September 30th and December 31st of each year.


 


9.15               Change in Business .  Credit Parties shall not engage in any
business other than the business of Credit Parties on the Amendment and
Restatement Effective Date and any business reasonably related, ancillary or
complementary to the business in which Credit Parties are engaged on the Amendment
and Restatement Effective Date.


 


9.16               Limitation of Restrictions
Affecting Subsidiaries .  Credit
Parties shall not, directly, or indirectly, create or otherwise cause or suffer
to exist any encumbrance or restriction which prohibits or limits the ability
of any Subsidiary of any Credit Party to (a) pay dividends or make other
distributions or pay any Indebtedness owed to Credit Parties or any Subsidiary
of any Credit Party; (b) make loans or advances to any Credit Party or any
Subsidiary of any Credit Party; (c) transfer any of its properties or assets to
any Credit Party or any Subsidiary of any Credit Party; or (d) create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than encumbrances and
restrictions arising under (i) applicable law, (ii) this Agreement, (iii)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of any Credit Party or any of its Subsidiaries,
(iv) customary restrictions on dispositions of real property interests found in
reciprocal easement agreements of any Credit Party or its Subsidiaries, (v) any
agreement relating to permitted Indebtedness incurred by a Subsidiary of any
Credit Party prior to the date on which such Subsidiary was acquired by any
Credit Party and outstanding on such acquisition date, (vi) the extension or
continuation of contractual obligations in existence on the Amendment and
Restatement Effective Date, and (vii) Liens permitted by Section 9.8, provided that any such encumbrances or restrictions
contained in such extension or continuation are no less favorable to the
Administrative Agents and Lenders than those encumbrances and restrictions
under or pursuant to the contractual obligations so extended or continued.


 


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9.17               Leverage
Ratio .  Credit Parties shall not
permit the Leverage Ratio of Parent and its Subsidiaries for each period of
four (4) consecutive fiscal quarters of Parent and its Subsidiaries for which
the last fiscal quarter ends on a date set forth below to be more than the
amount set forth opposite such date:


 




	
  Fiscal Quarter End

  	
   

  	
  Leverage Ratio

  
	
  December 31, 2005

  	
   

  	
  2.50 to 1.0

  
	
  March 31, 2006

  	
   

  	
  2.50 to 1.0

  
	
  June 30, 2006

  	
   

  	
  2.45 to 1.0

  
	
  September 30, 2006

  	
   

  	
  2.40 to 1.0

  
	
  December 31, 2006

  	
   

  	
  2.40 to 1.0

  
	
  March 31, 2007

  	
   

  	
  2.35 to 1.0

  
	
  June 30, 2007

  	
   

  	
  2.35 to 1.0

  
	
  September 30, 2007

  	
   

  	
  2.35 to 1.0

  
	
  December 31, 2007

  	
   

  	
  2.35 to 1.0

  
	
  March 31, 2008

  	
   

  	
  2.30 to 1.0

  
	
  June 30, 2008

  	
   

  	
  2.30 to 1.0

  
	
  September 30, 2008

  	
   

  	
  2.30 to 1.0

  
	
  December 31, 2008

  	
   

  	
  2.30 to 1.0

  
	
  March 31, 2009 and the last day of each fiscal quarter ending thereafter

  	
   

  	
  2.25 to 1.0

  






 


9.18               Interest
Coverage Ratio.  Credit Parties shall
not permit the Interest Coverage Ratio of Parent and its Subsidiaries for each
period of four (4) consecutive fiscal quarters of Parent and its Subsidiaries
for which the last quarter ends on a date set forth below to be less than the
amount set forth opposite such date:


 




	
  Fiscal Quarter End

  	
   

  	
  Interest Coverage Ratio

  
	
  December 31, 2005

  	
   

  	
  2.70 to 1.0

  
	
  March 31, 2006

  	
   

  	
  2.75 to 1.0

  
	
  June 30, 2006

  	
   

  	
  2.80 to 1.0

  
	
  September 30, 2006

  	
   

  	
  2.80 to 1.0

  
	
  December 31, 2006

  	
   

  	
  2.85 to 1.0

  
	
  March 31, 2007

  	
   

  	
  2.85 to 1.0

  
	
  June 30, 2007

  	
   

  	
  2.85 to 1.0

  






 


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  September 30, 2007

  	
   

  	
  2.85 to 1.0

  
	
  December 31, 2007

  	
   

  	
  2.85 to 1.0

  
	
  March 31, 2008 and the last

  day of each fiscal quarter

  ending thereafter

  	
   

  	
  3.00 to 1.0

  






 


9.19               Fixed
Charge Coverage Ratio .  Credit
Parties shall not permit the Fixed Charge Coverage Ratio of Parent and its Subsidiaries
for each period of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries (a “Fixed Charge Period”) measured as of the end of each
quarter (a “Fixed Charge Test Date”) commencing with the quarter ending
December 31, 2005 to be less than 1.0 to 1.0; provided
that Credit Parties shall not be required to comply with this Section 9.19 on
any Fixed Charge Test Date so long as the aggregate amount of outstanding
Revolving Loans, as of such Fixed Charge Test Date, is not greater than $5.0
million (with all Revolving Loans denominated in Canadian Dollars being
converted to United States dollars at the Dollar Equivalent Amount).


 


9.20               Limitation
on Capital Expenditures .  Credit
Parties shall not permit the aggregate amount of Capital Expenditures made in
any fiscal year of Parent to exceed $35.0 million; provided,
however, that (x) if the aggregate
amount of Capital Expenditures made in any fiscal year shall be less than the
maximum amount of Capital Expenditures permitted under this Section 9.20
for such fiscal year (before giving effect to any carryover), then an amount of
such shortfall not exceeding 50% of such maximum amount (without giving effect
to clause (y) below) may be added to the amount of Capital Expenditures
permitted under this Section 9.20 for the immediately succeeding (but not
any other) fiscal year, and (y) in determining whether any amount is available
for carryover, the amount expended in any fiscal year shall first be deemed to
be from the amount allocated to such fiscal year (before giving effect to any
carryover).


 


9.21               License
Agreements.


 


(a)           Credit Parties shall
(i) promptly and faithfully observe and perform all of the material terms,
covenants, conditions and provisions of the material License Agreements to be observed
and performed by it, at the times set forth therein, if any, (ii) not do, permit,
suffer or refrain from doing anything that could reasonably be expected to
result in a default under or breach of any of the terms of any material License
Agreement, (iii) not cancel, surrender, modify, amend, waive or release any
material License Agreement in any material respect or any term, provision or
right of the licensee thereunder in any material respect, or consent to or
permit to occur any of the foregoing; except that, subject to Section 9.21(b),
Credit Parties may cancel, surrender or release any material License Agreement
in the ordinary course of the business of Credit Party; provided
that Credit Parties shall give each Administrative Agent not less than thirty
(30) days prior written notice of their intention to so cancel, surrender and
release any such material License Agreement, (iv) give each Administrative
Agent prompt written notice of any material License Agreement entered into by
any Credit Party after the Amendment and Restatement Effective Date, together
with a true, correct and complete copy thereof and such other information with
respect thereto as such Administrative Agent may request, (v) give each


 


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Administrative Agent prompt written notice of
any material breach of any obligation, or any default, by any party under any
material License Agreement, and deliver to such Administrative Agent (promptly
upon the receipt thereof by Credit Party in the case of a notice to any Credit
Party, and concurrently with the sending thereof in the case of a notice from
any Credit Party) a copy of each notice of default and every other notice and
other communication received or delivered by any Credit Party in connection
with any material License Agreement which relates to the right of a Credit
Party to continue to use the property subject to such License Agreement, and
(vi) furnish to each Administrative Agent, promptly upon the request of such
Administrative Agent, such information and evidence as such Administrative
Agent may require from time to time concerning the observance, performance and
compliance by any Credit Party or the other party or parties thereto with the
terms, covenants or provisions of any material License Agreement.


 


(b)           Credit Parties will
either exercise any option to renew or extend the term of each material License
Agreement in such manner as will cause the term of such material License
Agreement to be effectively renewed or extended for the period provided by such
option and give prompt written notice thereof to each Administrative Agent or
give such Administrative Agent prior written notice that Credit Parties do not
intend to renew or extend the term of any such material License Agreement or
that the term thereof shall otherwise be expiring, not less than sixty (60)
days prior to the date of any such non-renewal or expiration.  In the event of the failure of Credit Parties
to extend or renew any material License Agreement, each Administrative Agent
shall have, and is hereby granted, the irrevocable right and authority, at its
option, to renew or extend the term of such material License Agreement, whether
in its own name and behalf, or in the name and behalf of a designee or nominee
of such Administrative Agent or in the name and behalf of such Credit Party, as
such Administrative Agent shall determine at any time that an Event of Default
shall exist or have occurred and be continuing. 
Each Administrative Agent may, but shall not be required to, perform any
or all of such obligations of any Credit Party under any of the License
Agreements, including, but not limited to, the payment of any or all sums due
from Credit Party thereunder.  Any sums
so paid by any Agent shall constitute part of the Obligations.


 


9.22               Inactive
Subsidiaries .  Credit Parties shall
not permit any Inactive Subsidiary to (a) become an active company having
operations or conduct business, or (b) own any assets other than assets with a
fair market value not in excess of $25,000 in the aggregate for all Inactive
Subsidiaries.


 


9.23               Costs
and Expenses .  Credit Parties shall
pay to each Agent on demand all costs, expenses, filing fees and taxes paid or
payable in connection with the preparation, negotiation, execution, delivery,
recording, administration, collection, liquidation, enforcement and defense of
the applicable Obligations, Secured Parties’ rights in the Collateral, this
Agreement, the other Financing Agreements and all other documents related
hereto or thereto, including any amendments, supplements or consents which may
hereafter be contemplated (whether or not executed) or entered into in respect
hereof and thereof, including:  (a) all
costs and expenses of filing or recording (including Uniform Commercial Code financing
statement filing taxes and fees, documentary taxes, intangibles taxes and
mortgage recording taxes and fees, if applicable); (b) costs and expenses and
fees for insurance premiums, environmental audits, surveys, assessments, engineering
reports and inspections, appraisal fees and search fees, costs and expenses of
remitting loan proceeds, collecting checks and other items of payment, and
establishing and maintaining


 


121





















 


the Blocked Accounts, together with such Agent’s customary charges and
fees with respect thereto; (c) charges, fees or expenses charged by any bank or
issuer in connection with the Revolving Letter of Credit Accommodations; (d)
costs and expenses of preserving and protecting the Collateral; (e) costs and
expenses paid or incurred by Secured Parties in connection with obtaining
payment of the Obligations, enforcing the security interests and Liens of
Collateral Agents, selling or otherwise realizing upon the Collateral, and
otherwise enforcing the provisions of this Agreement and the other Financing
Agreements or defending any claims made or threatened against such Agent or any
Lender arising out of the transactions contemplated hereby and thereby
(including preparations for and consultations concerning any such matters); (f)
all out-of-pocket expenses and costs heretofore and from time to time hereafter
incurred by either Collateral Agent during the course of periodic field
examinations of the Collateral and Credit Parties’ operations, plus a per diem
charge at the rate of $750 per person per day for such Collateral Agent’s
examiners in the field and office; and (g) the fees and disbursements of
counsel (including legal assistants) to such Agent and, if an Event of Default
under Section 10(a)(i) has occurred and is continuing, Lenders, in connection
with any of the foregoing.


 


9.24               Further
Assurances .  At the request of any
Collateral Agent at any time and from time to time, Credit Parties shall, at
their expense, duly execute and deliver, or cause to be duly executed and
delivered, such further agreements, documents and instruments, and do or cause
to be done such further acts as may be necessary or proper to evidence,
perfect, maintain and enforce the security interests and the priority thereof
in the Collateral and to otherwise effectuate the provisions or purposes of
this Agreement or any of the other Financing Agreements, including but not
limited to obtaining written releases of prior security interests in the Collateral
and obtaining documents which demonstrate Credit Parties’ current ownership of
the Collateral.  Any Administrative Agent
may at any time and from time to time request a certificate from an officer of
Credit Parties representing that all conditions precedent to the making of
Loans providing Revolving Letter of Credit Accommodations and LC Facility
Letters of Credit contained herein are satisfied.  In the event of such request by an
Administrative Agent, Lenders may, at their option, cease to make any further
Loans and such Administrative Agent may, at its option, cease to provide any
further Revolving Letter of Credit Accommodations until such Administrative
Agent has received such certificate and, in addition, such Administrative Agent
has determined that such conditions are satisfied.


 


9.25               Applications
Under Insolvency Statutes .  Each
Credit Party acknowledges that its business and financial relationships with
Agent and Lenders are unique from its relationship with any other of its
creditors, and agrees that it shall not file any plan of arrangement under the
Companies’ Creditors Arrangement Act (Canada) or make any proposal under the
Bankruptcy and Insolvency Act (Canada) which provides for, or would permit
directly or indirectly, Agent or any Lender to be classified with any other
creditor for purposes of such plan or proposal or otherwise.


 


9.26               Additional
Collateral.


 


(a)           US Credit Parties
shall cause each Subsidiary of any US Credit Party not in existence on the
Original Effective Date (other than any Foreign Subsidiary) to execute and
deliver to any or all of the Revolving Administrative Agent, LC Facility
Administrative Agent, Accounts Collateral Agent and/or the LC Facility
Collateral Agent (as specified below) promptly


 


122





















 


and in any event within 3 days after the
formation, acquisition or change in status thereof (A) a signed counterpart of
this Agreement as a US Borrower and a signed counterpart of the Amended and
Restated Security Agreement as an Assignor, (B) an Opinion of Counsel in form
and substance satisfactory to each Administrative Agent as to the due execution
and delivery of this Agreement and the Amended and Restated Security Agreement,
the ability of such Subsidiary to perform all of its obligations hereunder and
thereunder and perfection and creation of Liens on Collateral as such
Administrative Agent may reasonably request in respect of complying with any
legend on any such certificate or any other matter relating to such shares, and
(C) such other agreements, instruments, approvals, legal opinions or other documents
reasonably requested by any such Agent in order to create, perfect, establish
the first priority of or otherwise protect any Lien purported to be covered by
any such Financing Agreement or otherwise to effect the intent that such
Subsidiary shall become bound by all of the terms, covenants and agreements
contained in the Financing Agreements applicable to a US Credit Party.


 


(b)           Credit Parties shall
cause each Subsidiary of any Credit Party that is not in existence on the
Original Effective Date and which is organized under the laws of Canada or any
province thereof to execute and deliver to any or all of the Revolving Administrative
Agent or Canadian Collateral Agent promptly and in any event within 3 days
after the formation, acquisition or change in status thereof (A) a signed
counterpart of this Agreement in the capacity of a Canadian Borrower, (B) an
Opinion of Counsel in form and substance satisfactory to Revolving Administrative
Agent as to the due execution and delivery of this Agreement and the ability of
such Subsidiary to perform all of its obligations hereunder of such Subsidiary
as the Revolving Administrative Agent or Canadian Collateral Agent may reasonably
request in respect of complying with any legend on any such certificate or any
other matter relating to such shares, (C) any Canadian Security Documents, if
applicable, and (D) such other agreements, instruments, approvals, legal
opinions or other documents reasonably requested by such Revolving
Administrative Agent or Canadian Collateral Agent in order to create, perfect,
establish the first priority of or otherwise protect any Lien purported to be
covered by any such Financing Agreement or otherwise to effect the intent that
such Subsidiary shall become bound by all of the terms, covenants and
agreements contained in the Financing Agreements applicable to a Canadian Borrower.


 


9.27               Post-Closing
Real Property .  Upon the acquisition
by any US Credit Party after the Original Effective Date of any interest
(whether fee or leasehold) in any Real Property (wherever located) (each such
interest being a “Subject Property”)
(x) with a Current Value (as defined below) in excess of $1,000,000 in the case
of a fee interest or (y) requiring the payment of annual rent exceeding in the
aggregate $1,000,000 in the case of leasehold interest, promptly (but in any
event within three Business Days of the date of such acquisition or of the date
of the notice given by the LC Facility Collateral Agent pursuant to the last
sentence of this Section 9.27) so notify the LC Facility Collateral Agent,
setting forth with specificity a description of the interest acquired, the location
of the real property, the function and purposes of such real property (including,
without limitation, if any landfill activities are or are intended to be
conducted thereon) any structures or improvements thereon and either an
appraisal or such US Credit Party’s good-faith estimate of the current value of
such real property (for purposes of this Section, the “Current
Value”).  The LC Facility
Collateral Agent shall notify such US Credit Party whether it intends to
require a Mortgage and the other documents referred to below or in the case of
leasehold, a leasehold mortgage or landlord’s waiver; provided
(i) at any time any Collateral


 


123





















 


with a book value in excess of $250,000 (when aggregated with all other
Collateral at the same location) is located on any real property of a Credit
Party (whether such real property is now existing or acquired after the
Original Effective Date) which is not owned by a Credit Party, obtain written
subordinations or waivers, in form and substance satisfactory to the LC
Facility Collateral Agents, of all present and future Liens which the owner or
lessor of such premises may be entitled to assert against the Collateral; and
(ii) use commercially reasonable efforts to obtain written access agreements,
in form and substance satisfactory to the LC Facility Collateral Agent,
providing access to Collateral located on any premises not owned by a Credit
Party in order to remove such Collateral from such premises during an Event of
Default.  Upon receipt of such notice
requesting a Mortgage, the US Credit Party which has acquired such Subject
Property shall immediately furnish to the LC Facility Collateral Agent the
following, each in form and substance satisfactory to the LC Facility
Collateral Agent:  (i) a Mortgage with
respect to such real property and related assets located at the Subject
Property, each duly executed by such Person and in recordable form; (ii) evidence
of the recording of the Mortgage referred to in clause (i) above in such office
or offices as may be necessary or, in the opinion of the LC Facility Collateral
Agent, desirable to create and perfect a valid and enforceable first priority
Lien on the property purported to be covered thereby or to otherwise protect
the rights of the LC Facility Collateral Agent and the Secured Parties
thereunder, (iii) a Title Insurance Policy, (iv) an ALTA survey of such real
property, certified to the LC Facility Collateral Agent and to the issuer of
the Title Insurance Policy by a licensed professional surveyor and using a form
of certification reasonably satisfactory to the LC Facility Collateral Agent,
(v) Phase I Environmental Site Assessments with respect to such Real Property,
certified to the LC Facility Collateral Agent by a company reasonably
satisfactory to the LC Facility Collateral Agent, (vi) in the case of a
leasehold interest, a certified copy of the lease between the landlord and such
Person with respect to such Real Property in which such Person has a leasehold
interest, and the certificate of occupancy with respect thereto, (vii) in the
case of a leasehold interest, an attornment and nondisturbance agreement between
the landlord (and any fee mortgagee) with respect to such real property and the
LC Facility Collateral Agent, (viii) evidence satisfactory to the LC Facility
Collateral Agent of the compliance of such Real Property with all applicable
building codes, subdivision and zoning laws, rules and regulations, (ix) such
other documents or instruments (including guarantees and opinions of counsel)
as the LC Facility Collateral Agent may reasonably require, and (x) opinion of
local counsel in each jurisdiction in which Mortgaged Property is located in
each case in form and substance reasonably satisfactory to LC Facility Collateral
Agent.  With respect to any interest in
Real Property held by a US Credit Party as of the Original Effective Date that
was not a Mortgaged Property as of the Original Effective Date but would have
been a Subject Property if acquired after the Original Effective Date, the LC
Facility Collateral Agent shall be entitled, upon written notice to Parent, to
require that such US Credit Party take any or all of the actions set forth in
this Section 9.27(a) (as determined by the LC Facility Collateral Agent in its
sole discretion) with respect to such interest in Real Property as if such
interest in Real Property were a Subject Property.


 


9.28               Information
Regarding Collateral.


 


(a)           Each Credit Party
will furnish to each Collateral Agent prompt written notice of any change
(i) in such Credit Party’s corporate name, (ii) in any Credit Party’s
identity or corporate structure, (iii) in any Credit Party’s
organizational identification number, if any, or (iv) in any Credit Party’s
jurisdiction of organization.  Each
Credit Party further agrees to give


 


124





















 


notice to each Collateral Agent within 15
days of any such change.  Each Credit
Party also agrees promptly to notify each Administrative Agent if any material
portion of the Collateral is damaged or destroyed.


 


(b)           Concurrently with
the delivery of financial statements pursuant to Section 9.6(b) hereof,
the Credit Party shall deliver to each Administrative Agent and each Collateral
Agent a Perfection Certificate Supplement, a form of which is attached as Exhibit A-2
to this Agreement, and a certificate of a financial officer and the chief legal
officer of Parent certifying that all UCC financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
necessary to protect and perfect the security interests and Liens under the Security
Documents for a period of not less than 18 months after the date of such
certificate (except as noted therein with respect to any continuation
statements to be filed within such period).


 


9.29               Anti-Terrorism
Law; Anti-Money Laundering.  None of
Parent or any of its Subsidiaries shall:


 


(a)              directly or indirectly,
(i) knowingly conduct any business or engage in making or receiving any contribution
of funds, goods or services to or for the benefit of any person described in
Section 8.21, (ii) knowingly deal in, or otherwise engage in any
transaction relating to, any property or interests in property blocked pursuant
to the Order or any other Anti-Terrorism Law or (iii) knowingly engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law (and the Credit Parties shall deliver to
the Lenders any certification or other evidence requested from time to time by
any Lender in its reasonable discretion, confirming the Credit Parties’
compliance with this Section 9.29); or


 


(b)              cause or permit any of the funds
of such Credit Party that are used to repay Secured Obligations to be derived
from any unlawful activity with the result that the making of the Loans would
be in violation of law.


 


9.30               Embargoed
Person.  None of Parent or any of its
Subsidiaries shall cause or permit (a) any of the funds or properties of
the Credit Parties that are used to repay the Loans or any reimbursement
hereunder to constitute property of, or be beneficially owned directly or indirectly
by, any person subject to sanctions or trade restrictions under United States
law (“Embargoed Person” or “Embargoed Persons”) that is identified on (1) the “List
of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC and/or on any other similar
list (“Other List”) maintained by OFAC
pursuant to any authorizing statute including, but not limited to, the International
Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq.,
The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.,
and any Executive Order (defined below) or regulation promulgated thereunder,
with the result that the investment in the Loan Parties (whether directly or
indirectly) is prohibited by law, or the Loans made by the Lenders would be in
violation of law, or (2) the Order, any related enabling legislation or
any other similar orders (collectively, “Executive Orders”),
or (b) any Embargoed Person to have


 


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any direct or indirect interest, of any nature whatsoever in the Credit
Parties, with the result that the investment in the Loan Parties (whether directly
or indirectly) is prohibited by law or the Loans are in violation of law.


 


9.31               Maintenance
of Rating on LC Facility.  Parent and
its Subsidiaries shall use their reasonable best efforts to cause each of
Standard & Poor’s, a division of The McGraw-Hill Companies, and Moody’s
Investors Service, Inc. to maintain
monitored public ratings of the LC Facility at all times, including, without
limitation, at the reasonable request of LC Facility Administrative Agent,
meeting from time to time with representatives of such agencies at the offices
of such agencies.


 


9.32               Prepayments
of Other Indebtedness; Modifications of Organizational Documents and Other
Documents, Etc.  None of Parent or
any of its Subsidiaries shall directly or indirectly:


 


(a)              make (or give any notice in
respect thereof) any voluntary or optional payment or prepayment on or redemption
or acquisition for value of, or any prepayment or redemption as a result of any
asset sale, change of control or similar event of, any Indebtedness incurred or
outstanding pursuant to Section 9.9(e) or (j), except as otherwise permitted by
this Agreement; provided that (i) so long as no
Event of Default shall have occurred and be continuing (or would result therefrom),
the Excess Cash Flow Offer may be made (and Senior Secured Notes may be
repurchased pursuant thereto) in accordance with the terms of the Senior
Secured Notes Indenture as in effect on the Original Effective Date, (ii) the
Specified Notes Redemption and the Warrant Proceeds Redemption shall be
permitted to occur, (iii) in addition to any Senior Secured Notes repurchased
or redeemed pursuant to the immediately preceding clauses (i) and (ii), Parent
may repurchase or redeem up to $50.0 million in aggregate principal amount of
Senior Secured Notes, so long as immediately after giving pro forma effect to
any such repurchase or redemption (x) no Default shall have occurred and be
continuing (or would result therefrom), (y) the Excess Availability shall be no
less than $20.0 million and (z) the Leverage Ratio, as of the last day of the
most recent period for which a Compliance Certificate was required to be delivered
pursuant to Section 9.6(a), assuming such redemption or repurchase occurred on
the first day of such most recent period, shall be at least 0.25 “turns” less
than the Leverage Ratio was required to be as of such last day under Section
9.17 (and the Borrowers shall provide to the Administrative Agents a reasonably
detailed Officers’ Certificate to such effect) and (iv) the Series B Preferred
Stock may be redeemed or repurchased to the extent provided in Section 9.11(d);


 


(b)              amend or modify, or permit the
amendment or modification of, any provision of the Senior Secured Notes
Indenture in any manner that is adverse in any material respect to the
interests of the Lenders; or


 


(c)              terminate, amend, modify or change
any of its Organizational Documents (including by the filing or modification of
any certificate of designation) or any agreement to which it is a party with
respect to its Capital Stock (including any stockholders’ agreement), or enter
into any new agreement with respect to its Capital Stock, other than any such
amendments, modifications or changes or such new agreements which are not


 


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adverse in any
material respect to the interests of the Lenders; provided
that Parent may issue such Capital Stock, so long as such issuance is not
prohibited by Section 9.10 or any other provision of the Financing
Agreements, and may amend its Organizational Documents to authorize any such
Capital Stock.


 


9.33               Sale
and Leaseback Transactions.  None of
Parent or any of its Subsidiaries shall enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred (a “Sale and Leaseback
Transaction”) unless (i) the sale of such property is permitted
by Section 9.7 and (ii) any Liens arising in connection with its use
of such property are permitted by Section 9.8.


 


9.34               No
Further Negative Pledge.  None of
Parent or any of its Subsidiaries shall enter into any agreement, instrument,
deed or lease which prohibits or limits the ability of any Credit Party to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties or revenues, whether now owned or hereafter acquired, or which
requires the grant of any security for an obligation if security is granted for
another obligation, except the following: 
(1) this Agreement and the other Financing Agreements;
(2) covenants in documents creating Liens permitted by Section 9.8
prohibiting further Liens on the properties encumbered thereby; (3) the
Senior Secured Note Indenture as in effect on the Amendment and Restatement
Effective Date; (4) any other agreement that does not restrict in any
manner (directly or indirectly) Liens created pursuant to the Financing Agreements
on any Collateral securing the Obligations and does not require the direct or
indirect granting of any Lien securing any Indebtedness or other obligation by
virtue of the granting of Liens on or pledge of property of any Credit Party to
secure the Obligations; and (5) any prohibition or limitation that
(a) exists pursuant to applicable law, (b) consists of customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 9.7 pending the consummation of such
sale, (c) restricts subletting or assignment of any lease governing a
leasehold interest of Credit Party or a Subsidiary, (d) exists in any
agreement in effect at the time such Subsidiary becomes a Subsidiary of Credit
Party, so long as such agreement was not entered into in contemplation of such
person becoming a Subsidiary or (e) is imposed by any amendments or
refinancings that are otherwise permitted by the Financing Agreements of the
contracts, instruments or obligations referred to in clause (3) or (5)(e);
provided that such amendments and refinancings
are no more materially restrictive with respect to such prohibitions and
limitations than those prior to such amendment or refinancing.


 


9.35               Application
of Proceeds of Specified Equity Offering. 
Parent will cause the net proceeds of the Specified Equity Offering (if
consummated) to be used to redeem Senior Secured Notes in accordance with the
Senior Secured Notes Indenture within 30 days of the consummation of the
Specified Equity Offering.


 


9.36               Post-Closing
Matters.  Borrowers will cause each
item set forth on Schedule 9.36 to be completed on or before the date
indicated in the description such item on such Schedule, subject to extension
by the applicable Administrative Agent.


 


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SECTION
10.                     EVENTS
OF DEFAULT AND REMEDIES.


 


10.1               Events
of Default.  The occurrence or
existence of any one or more of the following events are referred to herein individually
as an “Event of Default”, and collectively as “Events of Default”:


 


(a)              (i) Any Credit Party fails to pay
when due any of the Obligations (other than third party fees and expenses
provided under Section 9.23 of this Agreement), (ii) any Credit Party fails to
pay any third party fees, interest or expenses of Agent or Lenders provided
under Section 9.23 of this Agreement within five (5) Business Days of the due
date, or (iii) any Credit Party fails to perform any of the covenants contained
in Sections 9.2, 9.3, 9.6, 9.15, 9.21 or 9.22 of this Agreement and such
failure shall continue for thirty (30) days; provided
that such thirty (30) day period shall not apply in the case of:  (A) a failure to observe such covenant which
is not capable of being cured at all or within such thirty (30) day period or
which has been the subject of a prior failure within a six (6) month period, or
(B) an intentional breach of any Credit Party of any such covenant, or (iv) any
Credit Party fails to perform any of the other terms, covenants, conditions or
provisions contained in this Agreement or any of the other Financing
Agreements;


 


(b)              any representation, warranty or
statement of fact made by any Credit Party to the Agents and/or Lenders in this
Agreement, the other Financing Agreements or any other agreements, schedule,
confirmatory assignment or otherwise shall when made or deemed made be false or
misleading in any material respect;


 


(c)              [intentionally omitted];


 


(d)              any judgment for the payment of
money is rendered against any Credit Party in excess of the US Dollar
Equivalent of $5.0 million in any one case or in the aggregate and shall remain
undischarged or unvacated for a period in excess of thirty (30) days or
execution shall at any time not be effectively stayed, or any judgment other
than for the payment of money, or injunction, attachment, garnishment or
execution is rendered against any Credit Party or any of its assets;


 


(e)              any Credit Party which is a
partnership, limited liability company, limited liability partnership, corporation
or business trust, dissolves or suspends or discontinues doing business;


 


(f)               any Credit Party becomes
insolvent (however defined or evidenced), makes an assignment for the benefit
of creditors, makes or sends notice of a bulk transfer or calls a meeting of
its creditors or principal creditors;


 


(g)              a case or proceeding under the
bankruptcy laws of the United States of America now or hereafter in effect, or
a petition, case, application or proceeding under any bankruptcy or insolvency
laws of Canada (including the Bankruptcy and Insolvency Act (Canada) and the
Companies’ Creditors Arrangement Act (Canada)) or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction now or hereafter in effect (whether at law
or in equity) is filed against any Credit Party or all or any part of its
properties and such petition or


 


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application is
not dismissed within thirty (30) days after the date of its filing or any
Credit Party shall file any answer admitting or not contesting such petition or
application or indicates its consent to, acquiescence in or approval of, any
such action or proceeding or the relief requested is granted sooner;


 


(h)              a case or proceeding under the
bankruptcy laws of the United States of America now or hereafter in effect, or
a petition, case, application or proceeding under any bankruptcy or insolvency
laws of Canada (including the Bankruptcy and Insolvency Act (Canada) and the
Companies’ Creditors Arrangement Act (Canada)) or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction now or hereafter in effect (whether at a law
or equity) is filed by any Credit Party or for all or any part of its property;
or


 


(i)               any default by any Credit Party
under any agreement, document or instrument relating to any Indebtedness for
borrowed money owing to any person other than to Agent and Lenders hereunder or
under the other Financing Agreements, or any capitalized lease obligations,
contingent Indebtedness in connection with any guarantee, letter of credit,
indemnity or similar type of instrument in favor of any person other than to
Agent and Lenders hereunder or under the other Financing Agreements, in any
case in an amount in excess of the US Dollar Equivalent of $5.0 million, which
default continues for more than the applicable cure period, if any, with
respect thereto;


 


(j)               any bank at which any deposit
account of any Credit Party is maintained shall fail to comply with any of the
material terms of any Deposit Account Control Agreement to which such bank is a
party or any securities intermediary, commodity intermediary or other financial
institution at any time in custody, control or possession of any investment
property of any Credit Party shall fail to comply with any of the material
terms of any Investment Property Control Agreement to which such person is a
party;


 


(k)              any material provision hereof or
of any of the other Financing Agreements shall for any reason cease to be
valid, binding and enforceable with respect to any party hereto or thereto
(other than as to Agent or any Lender) in accordance with its terms, or any
such party shall challenge the enforceability hereof or thereof, or shall assert
in writing, or take any action or fail to take any action based on the
assertion that any provision hereof or of any of the other Financing Agreements
has ceased to be or is otherwise not valid, binding or enforceable in accordance
with its terms, or any security interest or Lien provided for herein or in any
of the other Financing Agreements shall cease to be a valid and perfected first
priority security interest or Lien in any of the Collateral purported to be
subject thereto (except as otherwise permitted herein or therein);


 


(l)               an ERISA Event shall occur which
results in or could reasonably be expected to result in liability of any Credit
Party in an aggregate amount in excess of $5.0 million;


 


(m)             any Change of Control;


 


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(n)              the indictment by any Governmental
Authority, or as Agent may reasonably and in good faith determine, the
threatened indictment by any Governmental Authority of any Credit Party of
which any Credit Party or Agent or any Lender receives notice, in either case,
as to which there is a reasonable possibility of an adverse determination, in
the good faith determination of Agent, under any criminal statute, or
commencement or threatened commencement of criminal or civil proceedings
against any Credit Party, pursuant to which statute or proceedings the penalties
or remedies sought or available include forfeiture of (i) any of the Collateral
having a value in excess of the US Dollar Equivalent of $5.0 million, or (ii)
any other property of any Credit Party which is necessary or material to the
conduct of its business;


 


(o)              a requirement from the Minister of
National Revenue for payment pursuant to Section 224 or any successor section
of the Income Tax Act (Canada) or Section 317, or any successor section in
respect of any Credit Party of the Excise Tax Act (Canada) or any comparable
provision of similar legislation shall have been received by Agent or any
Lender or any other Person in respect of any Credit Party or otherwise issued
in respect of any Credit Party; or


 


(p)              there shall be an event of default
under any of the other Financing Agreements.


 


10.2               Remedies.


 


(a)              At any time an
Event of Default exists or has occurred and is continuing, Secured Parties shall
have all rights and remedies provided in this Agreement, the other Financing
Agreements, the UCC and other applicable law, all of which rights and remedies
may be exercised without notice to or consent by any US Credit Party or any
other Person, except as such notice or consent is expressly provided for
hereunder or required by applicable law. 
All rights, remedies and powers granted to the Secured Parties
hereunder, under any of the other Financing Agreements, the UCC or other
applicable law, are cumulative, not exclusive and enforceable, in the Secured
Parties’ discretion, alternatively, successively, or concurrently on any one or
more occasions, and shall include, without limitation, the right to apply to a
court of equity for an injunction to restrain a breach or threatened breach by
any US Credit Party of this Agreement or any of the other Financing
Agreements.  Revolving Administrative
Agent may, at any time or times, proceed directly against any US Credit Party
to collect the Revolving Obligations without prior recourse to the Accounts
Collateral.  Without limiting the
foregoing, at any time an Event of Default exists or has occurred and is
continuing, Revolving Administrative Agent may (or, insofar as any such action
relates to Collateral, Accounts Collateral Agent may), in its discretion and
shall, upon the request of the Majority Lenders (or, with respect to the
following clauses (i) and (vii), upon the request of the Majority Revolving
Lenders), without limitation, (i) accelerate the payment of all US
Revolving Obligations, terminate the US Revolving Facility and demand immediate
payment thereof to Revolving Administrative Agent and US Revolving Lenders (provided that, upon the occurrence of any Event of Default
described in Sections 10.1(f), (g) and 10.1(h), all Revolving Obligations shall
automatically become immediately due and payable), (ii) with or without judicial
process or the aid or assistance of others, enter upon any premises on or in
which any of the Accounts Collateral (and, if the Accounts Collateral Agent is
the LC Facility Collateral Agent, the Non-Accounts Collateral) may be located
and take possession of all or any


 


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portion of the Accounts
Collateral or complete processing, manufacturing and repair of all or any
portion of the Accounts Collateral, (iii) require US Credit Parties, at US
Credit Parties’ expense, to assemble and make available to Accounts Collateral
Agent any part or all of the Accounts Collateral (and, if the Accounts
Collateral Agent is the LC Facility Collateral Agent, the Non-Accounts
Collateral) at any place and time designated by Accounts Collateral Agent,
(iv) collect, foreclose, receive, appropriate, setoff (even though the US
Revolving Obligations may be unmatured and regardless of the adequacy of other
Accounts Collateral) and realize upon any and all Accounts Collateral (and, if
the Accounts Collateral Agent is the LC Facility Collateral Agent, the
Non-Accounts Collateral), (v) remove any or all of the Accounts Collateral
(and, if the Accounts Collateral Agent is the LC Facility Collateral Agent, the
Non-Accounts Collateral) from any premises on or in which the same may be
located for the purpose of effecting the sale, foreclosure or other disposition
thereof or for any other purpose, (vi) sell, lease, transfer, assign, deliver
or otherwise dispose of any and all Accounts Collateral (and, if the Accounts
Collateral Agent is the LC Facility Collateral Agent, the Non-Accounts
Collateral) (including entering into contracts with respect thereto, public or
private sales at any exchange, broker’s board, at any office of Accounts
Collateral Agent or elsewhere) at such prices or terms as Accounts Collateral
Agent may deem reasonable, for cash, upon credit or for future delivery, with
the Accounts Collateral Agent having the right to purchase the whole or any
part of the Accounts Collateral at any such public sale, all of the foregoing
being free from any right or equity of redemption of US Credit Parties, which
right or equity of redemption is hereby expressly waived and released by each
US Credit Party and/or (vii) terminate the US Revolving Facility.  If any of the Accounts Collateral (and, if
the Accounts Collateral Agent is the LC Facility Collateral Agent, the Non-Accounts
Collateral) is sold or leased by Accounts Collateral Agent upon credit terms or
for future delivery, the US Obligations shall not be reduced as a result
thereof until payment therefor is finally collected by Accounts Collateral
Agent.  If notice of disposition of
Accounts Collateral is required by law, ten (10) days’ prior notice by Accounts
Collateral Agent to US Credit Parties designating the time and place of any
public sale or the time after which any private sale or other intended
disposition of any Accounts Collateral is to be made, shall be deemed to be
reasonable notice thereof and each US Credit Party waives any other
notice.  In the event Accounts Collateral
Agent institutes an action to recover any Accounts Collateral or seeks recovery
of any Accounts Collateral by way of prejudgment remedy, each US Credit Party
waives the posting of any bond which might otherwise be required.  At any time an Event of Default exists or has
occurred and is continuing, upon Accounts Collateral Agent’s request, US Credit
Parties will either, as Revolving Administrative Agent shall specify, furnish
cash collateral to the issuer to be used to secure and fund Revolving
Administrative Agent’s reimbursement obligations to the issuer in connection
with any US Revolving Letter of Credit Accommodations or furnish cash
collateral to Revolving Administrative Agent for the US Revolving Letter of
Credit Accommodations.  Such cash
collateral shall be in the amount equal to one hundred ten percent (110%) of
the amount of the US Revolving Letter of Credit Accommodations plus the amount
of any fees and expenses payable in connection therewith through the end of the
expiration of such US Revolving Letter of Credit Accommodations.


 


(b)              All rights,
remedies and powers granted to the Secured Parties hereunder, under any of the
other Financing Agreements, the UCC or other applicable law, are cumulative,
not exclusive and enforceable, in Secured Parties’ discretion, alternatively,
successively, or concurrently on any one or more occasions, and shall include,
without limitation, the right to apply to a court of equity for an injunction
to restrain a breach or threatened breach by any US Credit


 


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Party of this Agreement or any
of the other Financing Agreements.  LC
Facility Administrative Agent may, at any time or times, proceed directly
against any US Credit Party to collect the LC Facility Obligations without
prior recourse to Non-Accounts Collateral. 
Without limiting the foregoing, at any time an Event of Default exists
or has occurred and is continuing, LC Facility Administrative Agent may (or,
insofar as any such action relates to Non-Accounts Collateral, LC Facility
Collateral Agent may), in its discretion and shall, upon the request of the
Majority Lenders (or, with respect to the following clauses (i) and (vii), the
Majority LC Facility Lenders), without limitation, (i) accelerate the payment
of all LC Facility Obligations and demand immediate payment thereof to LC Facility
Administrative Agent, LC Facility Lenders and the Term Loan Lenders, as the
case may be, terminate the LC Facility and terminate the obligation of the LC
Facility Issuing Bank to issue or renew any LC Facility Letters of Credit (provided that, upon the occurrence of any Event of Default
described in Sections 10.1(f), (g) and 10.1(h), all LC Facility Obligations
shall automatically become immediately due and payable and the obligation of
the LC Facility Issuing Bank to issue or renew any LC Facility Letters of Credit
shall be terminated), (ii) with or without judicial process or the aid or
assistance of others, enter upon any premises on or in which any of the
Non-Accounts Collateral (and, if the LC Facility Collateral Agent is then the Accounts
Collateral Agent, the Accounts Collateral) may be located and take possession
of all or any portion of such Collateral or complete processing, manufacturing
and repair of all or any portion of such Collateral, (iii) require US Credit
Parties, at US Credit Parties’ expense, to assemble and make available to LC
Facility Collateral Agent any part or all of the Non-Accounts Collateral (and,
if the LC Facility Collateral Agent is then the Accounts Collateral Agent, the
Accounts Collateral) at any place and time designated by LC Facility Collateral
Agent, (iv) collect, foreclose, receive, appropriate, setoff (even though the
LC Facility Obligations may be unmatured and regardless of the adequacy of
other Collateral) and realize upon any and all Non-Accounts Collateral (and, if
the LC Facility Collateral Agent is then the Accounts Collateral Agent, the
Accounts Collateral), (v) remove any or all of the Non-Accounts Collateral
(and, if the LC Facility Collateral Agent is then the Accounts Collateral
Agent, the Accounts Collateral) from any premises on or in which the same may
be located for the purpose of effecting the sale, foreclosure or other disposition
thereof or for any other purpose, (vi) sell, lease, transfer, assign, deliver
or otherwise dispose of any and all Non-Accounts Collateral (and, if the LC
Facility Collateral Agent is then the Accounts Collateral Agent, the Accounts
Collateral) (including entering into contracts with respect thereto, public or
private sales at any exchange, broker’s board, at any office of LC Facility
Collateral Agent or elsewhere) at such prices or terms as LC Facility
Collateral Agent may deem reasonable, for cash, upon credit or for future
delivery, with the LC Facility Collateral Agent having the right to purchase
the whole or any part of such Collateral at any such public sale, all of the
foregoing being free from any right or equity of redemption of US Credit
Parties, which right or equity of redemption is hereby expressly waived and
released by each Credit Party and/or (vii) terminate the obligation of the LC
Facility Issuing Bank to issue or renew any LC Facility Letters of Credit.  If any of the Non-Accounts Collateral (and,
if the LC Facility Collateral Agent is then the Accounts Collateral Agent, the
Accounts Collateral) is sold or leased by LC Facility Collateral Agent upon
credit terms or for future delivery, the Obligations shall not be reduced as a
result thereof until payment therefor is finally collected by LC Facility
Collateral Agent.  If notice of
disposition of any such Collateral is required by law, ten (10) days’ prior
notice by LC Facility Collateral Agent to US Credit Parties designating the
time and place of any public sale or the time after which any private sale or
other intended disposition of any Collateral is to be made, shall be deemed to
be reasonable


 


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notice thereof and each US
Credit Party waives any other notice.  In
the event LC Facility Collateral Agent institutes an action to recover any
Collateral or seeks recovery of any Collateral by way of prejudgment remedy,
each US Credit Party waives the posting of any bond which might otherwise be
required.  At any time an Event of
Default exists or has occurred and is continuing, upon LC Facility Collateral
Agent’s request, US Credit Parties will either deposit cash collateral into the
Cash Collateral Account for the LC Facility Letters of Credit.  Such cash collateral shall be in the amount
equal to one hundred ten percent (110%) of the amount of the Uncovered LC
Facility Amount plus the amount of any fees and expenses payable in connection
therewith through the end of the expiration of each outstanding LC Facility
Letter of Credit.


 


(c)              At any time an
Event of Default exists or has occurred and is continuing, Canadian Secured
Parties shall have all rights and remedies provided in this Agreement, the
other Financing Agreements, the UCC, the PPSA and other applicable law, all of
which rights and remedies may be exercised without notice to or consent by any
Canadian Borrower or any other Person, except as such notice or consent is
expressly provided for hereunder or required by applicable law.  All rights, remedies and powers granted to
the Canadian Secured Parties hereunder, under any of the other Financing
Agreements, the UCC, the PPSA or other applicable law, are cumulative, not
exclusive and enforceable, in Canadian Secured Parties’ discretion,
alternatively, successively, or concurrently on any one or more occasions, and
shall include, without limitation, the right to apply to a court of equity for
an injunction to restrain a breach or threatened breach by any Canadian
Borrower of this Agreement or any of the other Financing Agreements.  Revolving Administrative Agent may, at any
time or times, proceed directly against any Canadian Borrower to collect the
Canadian Obligations without prior recourse to the Canadian Accounts
Collateral.  Without limiting the
foregoing, at any time an Event of Default exists or has occurred and is
continuing, Revolving Administrative Agent may (or, insofar as any such action
relates to Collateral, Canadian Collateral Agent may), in its discretion and
shall, upon the request of the Canadian Lender, without limitation, (i) accelerate
the payment of all Canadian Obligations, terminate the Canadian Revolving
Facility and demand immediate payment thereof to Revolving Administrative Agent
and Canadian Lender (provided that,
upon the occurrence of any Event of Default described in Sections 10.1(f), (g)
and 10.1(h), all Canadian Obligations shall automatically become immediately
due and payable), (ii) with or without judicial process or the aid or
assistance of others, enter upon any premises on or in which any of the
Canadian Accounts Collateral may be located and take possession of all or any
portion of the Canadian Accounts Collateral or complete processing, manufacturing
and repair of all or any portion of the Canadian Accounts Collateral,
(iii) require Canadian Borrowers, at Canadian Borrowers’ expense, to
assemble and make available to Canadian Collateral Agent any part or all of the
Canadian Accounts Collateral at any place and time designated by Canadian
Collateral Agent, (iv) collect, foreclose, receive, appropriate, setoff
(even though the Canadian Obligations may be unmatured and regardless of the adequacy
of other Collateral) and realize upon any and all Canadian Accounts Collateral,
(v) remove any or all of the Canadian Accounts Collateral from any premises on
or in which the same may be located for the purpose of effecting the sale,
foreclosure or other disposition thereof or for any other purpose, (vi) sell,
lease, transfer, assign, deliver or otherwise dispose of any and all Canadian
Accounts Collateral (including entering into contracts with respect thereto,
public or private sales at any exchange, broker’s board, at any office of
Canadian Collateral Agent or elsewhere) at such prices or terms as Canadian
Collateral Agent may deem reasonable, for cash, upon credit or for future
delivery, with the Canadian Collateral Agent having the right to purchase the
whole or any part of the Canadian Accounts


 


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Collateral at any such public
sale, all of the foregoing being free from any right or equity of redemption of
Canadian Borrowers, which right or equity of redemption is hereby expressly
waived and released by each Canadian Borrower and/or (vii) terminate the
Canadian Revolving Facility.  If any of
the Canadian Accounts Collateral is sold or leased by Canadian Collateral Agent
upon credit terms or for future delivery, the Canadian Obligations shall not be
reduced as a result thereof until payment therefor is finally collected by Canadian
Collateral Agent.  If notice of
disposition of Canadian Accounts Collateral is required by law, ten (10) days’
prior notice by Canadian Collateral Agent to Canadian Borrowers designating the
time and place of any public sale or the time after which any private sale or
other intended disposition of any Canadian Accounts Collateral is to be made,
shall be deemed to be reasonable notice thereof and each Canadian Borrower
waives any other notice.  In the event
Canadian Collateral Agent institutes an action to recover any Canadian Accounts
Collateral or seeks recovery of any Canadian Accounts Collateral by way of
prejudgment remedy, each Canadian Borrower waives the posting of any bond which
might otherwise be required.


 


(d)              Accounts
Collateral Agent may (and shall, upon the request of the Majority Lenders), at
any time or times that an Event of Default exists or has occurred and is
continuing, enforce US Credit Parties’ rights against any account debtor,
secondary obligor or other obligor in respect of any of the Accounts
Collateral.  Without limiting the
generality of the foregoing, Accounts Collateral Agent may at such time or times
(i) notify any or all account debtors, secondary obligors or other obligors in
respect thereof that the Receivables have been assigned to Accounts Collateral
Agent and that Accounts Collateral Agent has a security interest therein and
Accounts Collateral Agent may direct any or all accounts debtors, secondary
obligors and other obligors to make payment of Receivables directly to Accounts
Collateral Agent, (ii) extend the time of payment of, compromise, settle or
adjust for cash, credit, return of merchandise or otherwise, and upon any terms
or conditions, any and all Receivables or other obligations included in the
Accounts Collateral and thereby discharge or release the account debtor or any
secondary obligors or other obligors in respect thereof without affecting any
of the Obligations, (iii) demand, collect or enforce payment of any Receivables
or such other obligations, but without any duty to do so, and neither Accounts
Collateral Agent, nor any Lender shall be liable for the failure to collect or
enforce the payment thereof nor for the negligence of its agents or attorneys
with respect thereto, and (iv) take whatever other action Accounts Collateral
Agent may deem necessary or desirable for the protection of its interests.  At any time that an Event of Default exists
or has occurred and is continuing, at Accounts Collateral Agent’s request, all
invoices and statements sent to any account debtor shall state that the
Accounts and such other items in the Accounts Collateral have been assigned to
Accounts Collateral Agent and are payable directly and only to Accounts
Collateral Agent, and US Credit Parties shall deliver to Accounts Collateral
Agent such originals of documents evidencing the sale and delivery of goods or
the performance of services giving rise to any Accounts as Accounts Collateral
Agent may require.  In the event any
account debtor returns Inventory when an Event of Default under the Revolving
Facility exists or has occurred and is continuing, US Credit Parties shall,
upon Accounts Collateral Agent’s request, hold the returned Inventory in trust
for Accounts Collateral Agent, segregate all returned Inventory from all of its
other property, dispose of the returned Inventory solely according to Accounts
Collateral Agent’s instructions, and not issue any credits, discounts or allowances
with respect thereto without Accounts Collateral Agent, prior written consent.


 


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(e)              Canadian
Collateral Agent may (and shall, upon the request of Canadian Lender) at any
time or times that an Event of Default exists or has occurred and is
continuing, enforce Canadian Borrowers’ rights against any account debtor,
secondary obligor or other obligor in respect of any of the Canadian Accounts
Collateral.  Without limiting the
generality of the foregoing, Canadian Collateral Agent may at such time or
times (i) notify any or all account debtors, secondary obligors or other
obligors in respect thereof that the Receivables have been assigned to Canadian
Collateral Agent and that Canadian Collateral Agent has a security interest
therein and Canadian Collateral Agent may direct any or all accounts debtors,
secondary obligors and other obligors to make payment of Receivables directly
to Canadian Collateral Agent, (ii) extend the time of payment of, compromise,
settle or adjust for cash, credit, return of merchandise or otherwise, and upon
any terms or conditions, any and all Receivables or other obligations included
in the Canadian Accounts Collateral and thereby discharge or release the
account debtor or any secondary obligors or other obligors in respect thereof
without affecting any of the Canadian Obligations, (iii) demand, collect or
enforce payment of any Receivables or such other obligations, but without any
duty to do so, and Canadian Collateral Agent and Canadian Lender shall not be
liable for the failure to collect or enforce the payment thereof nor for the
negligence of its agents or attorneys with respect thereto, and (iv) take
whatever other action Canadian Accounts Collateral Agent may deem necessary or
desirable for the protection of its interests. 
At any time that an Event of Default exists or has occurred and is
continuing, at Canadian Collateral Agent’s request, all invoices and statements
sent to any account debtor shall state that the Accounts and such other items
in the Canadian Accounts Collateral have been assigned to Canadian Collateral
Agent and are payable directly and only to Canadian Collateral Agent, and
Canadian Borrowers shall deliver to Canadian Collateral Agent such originals of
documents evidencing the sale and delivery of goods or the performance of
services giving rise to any Accounts as Canadian Collateral Agent may
require.  In the event any account debtor
returns Inventory when an Event of Default exists or has occurred and is
continuing, Canadian Borrowers shall, upon Canadian Collateral Agent’s request,
hold the returned Inventory in trust for Canadian Collateral Agent, segregate
all returned Inventory from all of its other property, dispose of the returned
Inventory solely according to Canadian Collateral Agent’s instructions, and not
issue any credits, discounts or allowances with respect thereto without
Canadian Collateral Agent’s prior written consent.


 


(f)               To the extent
that applicable law imposes duties on any Collateral Agent or any Secured Party
to exercise remedies in a commercially reasonable manner (which duties cannot
be waived under such law), Credit Parties acknowledge and agree that it is not
commercially unreasonable for such Collateral Agent and Secured Parties (i) to
fail to incur expenses reasonably deemed significant by such Collateral Agent
or any such Secured Party to prepare Collateral for disposition or otherwise to
complete raw material or work in process into finished goods or other finished
products for disposition, (ii) to fail to obtain third party consents for
access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain consents of any Governmental Authority or other
third party for the collection or disposition of Collateral to be collected or
disposed of, (iii) to fail to exercise collection remedies against account
debtors, secondary obligors or other persons obligated on Collateral or to
remove Liens or encumbrances on or any adverse claims against Collateral, (iv)
to exercise collection remedies against account debtors and other persons
obligated on Collateral directly or through the use of collection agencies and
other collection specialists, (v) to advertise dispositions of Collateral
through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (vi) to contact other persons, whether
or not in the same business as Credit Parties,


 


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for expressions of interest in
acquiring all or any portion of the Collateral, (vii) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the collateral is of a specialized nature, (viii) to dispose of Collateral
by utilizing Internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capability of doing so,
or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale
rather than retail markets, (x) to disclaim disposition warranties, (xi) to purchase
insurance or credit enhancements to insure such Collateral Agent and any such
Secured Party against risks of loss, collection or disposition of Collateral or
to provide to such Collateral Agent or any such Secured Party a guaranteed
return from the collection or disposition of Collateral, or (xii) to the extent
deemed appropriate by such Collateral Agent or any such Secured Party, to
obtain the services of other brokers, investment bankers, consultants and other
professionals to assist such Collateral Agent or Secured Party  in the collection or disposition of any of
the Collateral.  Credit Parties
acknowledge that the purpose of this Section 10.2 is to provide non-exhaustive
indications from Credit Parties of what actions or omissions by such Collateral
Agent or any such Secured Party would not be commercially unreasonable in such
Collateral Agent’s and/or Secured Party’s exercise of remedies against the
Collateral and that other actions or omissions by any such Collateral Agent or
Secured Party shall not be deemed commercially unreasonable solely on account
of not being indicated in this Section 10.2. 
Without limitation of the foregoing, nothing contained in this Section
10.2 shall be construed to grant any rights to Credit Parties or to impose any
duties on any Collateral Agent or any Secured Party that would not have been
granted or imposed by this Agreement or by applicable law in the absence of
this Section 10.2.


 


(g)              For the purpose
of enabling Accounts Collateral Agent to exercise the rights and remedies hereunder,
each US Credit Party hereby grants to Accounts Collateral Agent, to the extent
assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to US Credit Parties) to, at any time when an
Event of Default has occurred and is continuing, use, assign, license or sublicense
any of the trademarks, service-marks, trade names, business names, trade
styles, designs, logos and other source of business identifiers and other
Intellectual Property and general intangibles now owned or hereafter acquired
by US Credit Parties, wherever the same maybe located, including in such
license reasonable access to all media in which any of the licensed items may
be recorded or stored and to all computer programs used for the compilation or
printout thereof.  Additionally, for the
purpose of enabling Accounts Collateral Agent to exercise its rights and
remedies hereunder, US Credit Parties hereby grant to Accounts Collateral Agent
an irrevocable right of access, easement and license (exercisable without
payment of any fee or other compensation to US Credit Parties) to, at any time
when an Event of Default has occurred and is continuing, enter into any Real
Property of US Credit Parties and to use and operate any Equipment or other
goods thereon and to utilize any Inventory of the US Credit Parties in connection
with the fulfillment and completion of any contractual or other obligations of
US Credit Parties to their account debtors and customers.


 


(h)              For the purpose
of enabling Canadian Collateral Agent to exercise the rights and remedies hereunder,
each Canadian Borrower hereby grants to Canadian Collateral Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to Canadian Borrowers) to, at any time
when an Event of Default has occurred and is continuing, use, assign, license
or sublicense any of the trademarks, service-marks, trade names, business
names, trade styles, designs, logos and other source of business identifiers
and other Intellectual Property and general intangibles now owned or hereafter


 


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acquired by Canadian Borrowers,
wherever the same maybe located, including in such license reasonable access to
all media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.  For the purpose of enabling Canadian
Collateral Agent to exercise its rights and remedies hereunder, Canadian Borrowers
hereby grant to Canadian Collateral Agent an irrevocable right of access,
easement and license (exercisable without payment of any fee or other compensation
to Canadian Borrowers) to, at any time when an Event of Default has occurred
and is continuing, enter into any Real Property of Canadian Borrowers and to
use and operate any Equipment or other goods thereon and to utilize any Inventory
of the Canadian Borrower in connection with the fulfillment and completion of
any contractual or other obligations of Canadian Borrowers to their account
debtors and customers.


 


(i)               Accounts
Collateral Agent shall apply the cash proceeds of (A) Accounts Collateral
actually received by Accounts Collateral Agent and (B) from and after the
Discharge of LC Obligations, Non-Accounts Collateral from any sale, lease,
foreclosure or other disposition of the Accounts Collateral in the following
order:


 


(i)      first, to reimburse Revolving
Administrative Agent and Accounts Collateral Agent for all costs and expenses
of collection or enforcement including reasonable attorneys’ fees and legal expenses;


 


(ii)     second, to the extent that any unpaid US
Revolving Obligations (other than US Revolving Obligations consisting of
obligations under Hedging Agreements) are outstanding, to Revolving
Administrative Agent in an amount equal to such US Revolving Obligations, to be
applied as provided in Section 6.4 hereof;


 


(iii)    third, to the extent not reimbursed by the
Canadian Borrowers, to reimburse Canadian Collateral Agent for all costs and
expenses of collection or enforcement including reasonable attorneys’ fees and
legal expenses;


 


(iv)    fourth, to the extent that any unpaid Canadian
Obligations (other than Canadian Obligations consisting of obligations under
Hedging Agreements) are outstanding, to Canadian Agent in an amount equal to
such Canadian Obligations, to be applied as provided in Section 6.4 hereof;


 


(v)     fifth, to the extent that any Revolving Letter of Credit Accommodations remain outstanding,
to cash collateral for such Revolving Letter of Credit Accommodations as
contemplated by the last two sentences of Section 10.2(a) to be held by the Revolving
Administrative Agent;


 


(vi)    sixth, to the extent that any US Revolving Obligations under Hedging Agreements owed to any
Person that was a US Revolving Lender, Revolving Administrative Agent or any of
their respective Affiliates at the time such Hedging Agreement was entered into
remains outstanding, to the holders of such US Revolving Obligations;


 


(vii)   seventh, to the
extent that any US Revolving Obligations under Hedging Agreements owed to any
Person that was a LC Facility Lender, Term Loan Lender, LC Administrative Agent
or any of their respective Affiliates at the time such Hedging


 


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Agreement was entered into
remain outstanding, to the holders of such US Revolving Obligations;


 


(viii)  eighth, so long as all Revolving Obligations
have been paid in full in cash, to the extent any unpaid LC Facility
Obligations are outstanding, to the LC Facility Collateral Agent in an amount
equal to such unpaid LC Facility Obligations for application to the LC Facility
Obligations as provided in Sections 10.2(j)(i), (j)(ii), (j)(iii), (j)(iv) and
(j)(vi); and


 


(ix)    ninth, to the US Credit Parties or any other
Person entitled thereto.


 


US Credit
Parties shall remain liable to Secured Parties for the payment of any
deficiency with interest at the highest rate provided for herein and all costs
and expenses of collection or enforcement, including attorneys’ fees and legal
expenses.


 


(j)      LC Facility Collateral
Agent shall apply the cash proceeds of (A) subject to the last sentence of
this Section 10.2(j), Non-Accounts Collateral in the manner specified in
the Amended and Restated Security Agreement or other applicable Security
Documents and (B) from and after the Discharge of Revolving Obligations,
Accounts Collateral and any other collateral for the LC Facility Obligations
pursuant to any Financing Agreement, actually received by LC Facility
Collateral Agent from any sale, lease, foreclosure or other disposition of  Collateral or other collateral for the LC
Facility Obligations in the following order:


 


(i)      first, to reimburse LC Facility
Administrative Agent and LC Facility Collateral Agent for all costs and expenses
of collection or enforcement including attorneys’ fees and legal expenses;


 


(ii)     second, to reimburse the LC Facility
Issuing Bank for any amount which has not been reimbursed to it with respect to
any drawing under any LC Facility Letters of Credit;


 


(iii)    third, to payment of the LC Facility
Obligations on a pro rata basis to the LC Facility Secured Parties based on the
amount of LC Facility Obligations then outstanding, whether or not then due;


 


(iv)    fourth, to the extent that any LC Facility
Letters of Credit remain outstanding, to cash collateral for such LC Facility
Letters of Credit as contemplated by the last two sentences of Section 10.2(b)
to be held by the LC Facility Administrative Agent;


 


(v)     fifth, so long as all LC Facility
Obligations have been paid in full in cash, to the extent any unpaid Revolving
Obligations are outstanding, to the Revolving Administrative Agent and Accounts
Collateral Agent in an amount equal to such unpaid Revolving Obligations for
application to the Revolving Obligations as provided in Sections 10.2(i)(i),
(i)(ii), (i)(iii), (i)(iv), (i)(v), (i)(vi), (i)(vii) and (i)(ix); and


 


(vi)    sixth, to the US Credit Parties or any other
Person legally entitled thereto.


 


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US Credit
Parties shall remain liable to Secured Parties for the payment of any
deficiency with interest at the highest rate provided for herein and all costs
and expenses of collection or enforcement, including attorneys’ fees and legal
expenses.


 


Notwithstanding
clause (A) above, in the event that the LC Facility Collateral Agent
receives any proceeds from or in respect of Non-Accounts Collateral held in any
Deposit Account into which funds were released from a US Blocked Account as
contemplated by Section 6.3 at a time when any unpaid US Revolving
Obligations remain outstanding then (i) if any Revolving Loans are
outstanding that were incurred in violation of Section 9.10(b) (“Default Revolving Loans”), the LC Facility Collateral Agent
shall apply the proceeds from such Deposit Account (but not from any other
Non-Accounts Collateral), first, to pay all outstanding Revolving Obligations
in respect of such Default Revolving Loans, second, in the order specified in
Section 10.2(j) and third, in the order specified in the Amended and Restated Security
Agreement and (ii) if any Revolving Obligations are outstanding as a
result of the Revolving Administrative Agents or the Revolving Lenders being
required to refund amounts applied to repay Revolving Loans as a result of the
application of any federal or state bankruptcy, insolvency or debtor/creditor
law requiring repayment of preferential payments (“Refunded
Revolving Obligations”), the LC Facility Collateral Agent shall
apply the proceeds from such Deposit Account (but not from any other
Non-Accounts Collateral), first, to pay all outstanding Refunded Revolving
Obligations, second, in the order specified in Section 10.2(j) and third, in
the order specified in the Amended and Restated Security Agreement.


 


(k)           Canadian Collateral
Agent shall apply the cash proceeds of Canadian Accounts Collateral actually
received by Accounts Collateral Agent from any sale, lease, foreclosure or
other disposition of the Canadian Accounts Collateral:


 


(i)       first, to reimburse Revolving
Administrative Agent and Canadian Collateral Agent for all costs and expenses
of collection or enforcement including attorneys’ fees and legal expenses,


 


(ii)     second, to the extent that any unpaid
Canadian Obligations (other than Canadian Obligations consisting of obligations
under Hedging Agreements) are outstanding, to the Revolving Administrative
Agent in an amount equal to such Canadian Obligations to be applied as provided
in Section 6.6 hereof,


 


(iii)    third, to the extent that any Canadian
Obligations under Hedging Agreements owed to any Person that was a Canadian
Lender, Revolving Administrative Agent or any of their respective Affiliates at the time such Hedging Agreement was entered into
remain outstanding, to the holders of such Canadian Revolving Obligations,


 


(iv)    fourth, to the extent that any Canadian Obligations under Hedging Agreements
owed to any Person that was an LC Facility Lender, Term Loan Lender, LC
Administrative Agent or any of their respective Affiliates at the time such
Hedging Agreement was entered into remain outstanding, to the holders of such
Canadian Obligations


 


(v)     fifth, to the Canadian Borrowers or any
other Person entitled thereto.


 


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Canadian
Borrowers shall remain liable to Canadian Secured Parties for the payment of
any deficiency with interest at the highest rate provided for herein and all
costs and expenses of collection or enforcement, including attorneys’ fees and
legal expenses.


 


(l)            Regardless of the
adequacy of any Collateral, if any of the Obligations are due and payable and
have not been paid or any Event of Default shall have occurred, any deposits or
other sums credited by or due from any Secured Party to any Credit Party which
is liable for such Obligations and any securities or other property of any
Credit Party which is liable for such Obligations in the possession of such
Secured Party may, at any time, without demand or notice (any such notice being
expressly waived by Credit Parties), in whole or in part, be applied to or set
off by such Secured Party against the payment of such Obligations and any and
all other liabilities or obligations, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of such
Credit Party to any Secured Party.  Each
of the Lenders agrees with each other Lender that (i) if an amount to be set
off is to be applied to Obligations of any Credit Party owed to such Lender, is
in excess of its Pro Rata Share or (ii) if such Lender shall receive from any
Credit Party or any other source, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, or by enforcement of the
Obligations, by proceedings against any Credit Party at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, any amount in excess of its Pro Rata Share
of the Obligations then, in either such case, will make such disposition and arrangements
with the applicable Lenders with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Lender holding Obligations of such Credit Party, receiving in
respect of the Obligations owed it, equal to its Pro Rata Share as contemplated
by this Agreement; provided that
if all or any part of such excess payment is thereafter recovered from such
Lender, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest and provided
further that any setoff of, (x) Accounts Collateral shall be subject to Section
10.2(i), (y) Canadian Accounts Collateral shall be subject to Section 10.2(k)
and (z) Non-Accounts Collateral shall be subject to Section 10.2(j).  ANY AND ALL RIGHTS TO REQUIRE ANY SECURED
PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF ANY CREDIT PARTY ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


(m)          Canadian Collateral
Agent may, at any time when any Event of Default has occurred and is
continuing, appoint or reappoint by instrument in writing, any person or persons,
whether an officer or officers or any employee or employees of such Collateral
Agent or not, to be a receiver or receivers (hereinafter called a “Receiver”, which term when used herein shall include a
receiver and manager) of any Canadian Borrower (including any interest, income
or profits therefrom) and may remove any Receiver so appointed and appoint
another in his/her stead.  Any such Receiver
shall, so far as concerns responsibility for his/her acts, be deemed the agent
of the Canadian Borrowers and not Canadian Collateral Agent, and Canadian
Collateral Agent shall not be in any way responsible for any misconduct, negligence
or non-feasance on the part of any such Receiver, his/her servants, agents or
employees.  Subject to the provisions of
the instrument appointing him/her, any such Receiver shall have power to take
possession of any or all of the Canadian Accounts Collateral, to preserve such
Collateral or its value, to carry on or


 


140





















 


concur in carrying on all or
any part of the business of the applicable Canadian Borrower and to sell,
lease, license or otherwise dispose of or concur in selling, leasing, licensing
or otherwise disposing of such Collateral. 
To facilitate the foregoing powers, any such Receiver may, to the
exclusion of all others, including the applicable Canadian Borrower, at any
time when an Event of Default has occurred and is continuing, enter upon, use
and occupy all premises owned or occupied by the applicable Canadian Borrower
wherein Canadian Accounts Collateral may be situate, maintain Canadian Accounts
Collateral upon such premises, borrow money on a secured or unsecured basis and
use Canadian Accounts Collateral directly in carrying on the applicable
Canadian Borrower’s business or as security for loans or advances to enable the
Receiver to carry on applicable Canadian Borrower’s business or otherwise, as
such Receiver shall, in its discretion, determine.  Except as may be otherwise directed by
Canadian Collateral Agent, all proceeds of Canadian Accounts Collateral
received from time to time by such Receiver in carrying out his/her appointment
shall be received in trust for and paid over to Canadian Collateral Agent (or
upon Canadian Collateral Agent’s direction to Canadian Lender).  Every such Receiver may, in the discretion of
the Canadian Collateral Agent be vested with all or any of the rights and
powers of Canadian Collateral Agent. 
Canadian Collateral Agent may, either directly or through its agents or
nominees, exercise any or all powers and rights given by Canadian Collateral
Agent to a Receiver by virtue of the foregoing provisions of this paragraph.


 


(n)           On and after an Event of Default and
for so long as the same is continuing, US Credit Parties shall pay all costs,
charges and expenses incurred by any Collateral Agent, any Secured Party or any
Receiver or any nominee or agent of any Agent (and Canadian Borrowers shall pay
all costs, charges and expenses incurred by any Canadian Secured Party or any Receiver
or any nominee or agent of any Canadian Secured Party), whether directly or for
services rendered (including, without limitation, solicitor’s costs on a
solicitor and his own client basis, auditor’s costs, other legal expenses and
Receiver remuneration) in enforcing this Agreement or any other Financing
Agreement and in enforcing or collecting Obligations and all such expenses together
with any money owing as a result of any borrowing permitted hereby shall be a
charge on the proceeds of realization and shall be secured hereby.


 


(o)           If any Accounts Collateral or any
other payment made with respect to the Revolving Obligations received by the
Revolving Lenders is required to be returned under any circumstance (the “Returned Amount”), then the LC Facility Administrative
Agent, the LC Facility Lenders and the Term Loan Lenders shall to the extent
Accounts Collateral were received by the LC Facility Administrative Agent, the
LC Facility Lenders or the Term Loan Lenders, immediately reimburse the
Revolving Lenders up to an amount equal to such Returned Amount.


 


SECTION
11.                     JURY
TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW.


 


11.1               Governing
Law; Choice of Forum; Service of Process; Jury Trial Waiver.


 


(a)           The validity,
interpretation and enforcement of this Agreement and the other Financing Agreements
(except as otherwise expressly provided therein) and any dispute arising out of
the relationship between the parties hereto, whether in contract, tort, equity
or otherwise, shall be governed by the internal laws of The State of New York
(without giving effect to principles of conflicts of law).


 


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(b)           Each Credit Party,
each Agent, and each Lender irrevocably consent and submit to the non-exclusive
jurisdiction of the Supreme Court 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, whichever the Administrative
Agents may elect, and in addition, Credit Parties irrevocably consent and
submit to the non-exclusive jurisdiction of the Ontario Superior Court of
Justice, in each case, whichever the Administrative Agents may elect and waive
any objection based on venue or forum non conveniens with respect to any action
instituted therein arising under this Agreement or any of the other Financing
Agreements or in any way connected with or related or incidental to the
dealings of the parties hereto in respect of this Agreement or any of the other
Financing Agreements or the transactions related hereto or thereto, in each
case whether now existing or hereafter arising, and whether in contract, tort,
equity or otherwise, and agree that any dispute with respect to any such
matters shall be heard only in the courts described above (except that Accounts
Collateral Agent (with respect to the Accounts Collateral) and LC Facility
Collateral Agent (with respect to the Non-Accounts Collateral) and Lenders
shall have the right to bring any action or proceeding against any Credit Party
or its property in the courts of any other jurisdiction which such Collateral
Agent deems necessary or appropriate in order to realize on the applicable Collateral
or to otherwise enforce its rights against any Credit Party or its property).


 


(c)           Each Credit Party
hereby waives personal service of any and all process upon it and consents that
all such service of process may be made by certified mail (return receipt
requested) directed to its address set forth herein and service so made shall
be deemed to be completed five (5) days after the same shall have been so
deposited in the US mails, or, at Agent’s option, by service upon Credit
Parties in any other manner provided under the rules of any such courts.  Within thirty (30) days after such service,
Credit Parties shall appear in answer to such process, failing which Credit
Parties shall be deemed in default and judgment may be entered by Lender
against Credit Parties for the amount of the claim and other relief requested.


 


(d)           EACH CREDIT PARTY,
EACH AGENT, AND EACH LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR
ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. 
EACH CREDIT PARTY, EACH AGENT, AND EACH LENDER EACH HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY CREDIT PARTY OR ANY LENDER
MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.


 


(e)           No Agent nor any
Lender shall have any liability to any Credit Party (whether in tort, contract,
equity or otherwise) for losses suffered by any Credit Party in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated


 


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by this Agreement, or any act,
omission or event occurring in connection herewith, unless it is determined by
a final and non-appealable judgment or court order binding on such Agent or
such Lender, that the losses were the result of acts or omissions constituting
gross negligence or willful misconduct of such Agent or such Lender.  In any such litigation, each Agent and each
Lender shall be entitled to the benefit of the rebuttable presumption that it
acted in good faith and with the exercise of ordinary care in the performance
by it of the terms of this Agreement.  Except
as prohibited by law, each Credit Party waives any right which it may have to
claim or recover in any litigation with any Agent and any Lender any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages.  Each Credit
Party:  (i) certifies that no Agent,
no Lender nor any representative, agent or attorney acting for or on behalf of
any Agent or any Lender has represented, expressly or otherwise, that such
Agent or such Lender would not, in the event of litigation, seek to enforce any
of the waivers provided for in this Agreement or any of the other Financing
Agreements, and (ii) acknowledges that in entering into this Agreement and the
other Financing Agreements, each Agent and Lenders are relying upon, among
other things, the waivers and certifications set forth in this Section 11.1 and
elsewhere herein and therein.


 


11.2               Waiver
of Notices.  Each Credit Party hereby
expressly waives demand, presentment, protest and notice of protest and notice
of dishonor with respect to any and all instruments and chattel paper, included
in or evidencing any of the Obligations or the Collateral, and any and all
other demands and notices of any kind or nature whatsoever with respect to the
Obligations, the Collateral and this Agreement, except such as are expressly
provided for herein.  No notice to or
demand on any Credit Party which any Agent or any Lender may elect to give
shall entitle any Credit Party to any other or further notice or demand in the
same, similar or other circumstances.


 


11.3               Amendments
and Waivers.  Except as set forth in
this Section 11.3, neither this Agreement nor any provision hereof shall be
amended, modified, waived or discharged orally or by course of conduct, but
only by a written agreement signed by authorized officers of each Administrative
Agent and the Majority Lenders (except as otherwise provided in Sections
11.3(b) and (c) below), and as to amendments, as also signed by an authorized
officer of each Credit Party; provided that:


 


(a)           without
the written consent of each Administrative Agent and each affected Lender, no
such amendment, waiver or consent shall:


 


(i)            reduce the principal of, or interest
on, any amount payable or reimbursable to any Lender hereunder, other than
those payable only to an Agent in its capacity as such, which may be reduced by
such Agent unilaterally;


 


(ii)           postpone any date fixed for any
payment of principal of, or interest on, any amounts payable hereunder, other
than those payable only to an Agent in its capacity as such, which may be
postponed by such Agent unilaterally;


 


(iii)          except as otherwise permitted
hereunder or under any of the Financing Agreements, release any Significant
Subsidiary for the performance of any its obligations hereunder or under any of
the Financing Agreements;


 


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(iv)          amend any provision of this Agreement
that requires the consent of all Lenders to consent to or waive any breach
thereof;


 


(v)           amend the definition of the term “Majority
Lenders”;


 


(vi)          amend this Section 11.3;


 


(vii)         extend the date on which the LC
Facility Deposits are required to be returned to LC Facility Lenders;


 


(viii)        change the provisions of this Agreement
dealing with the application of proceeds from Collateral; or


 


(ix)           release all or substantially all of
the Accounts Collateral, Canadian Accounts Collateral or Non-Account Collateral
unless otherwise permitted pursuant to the terms of this Agreement;


 


(b)           without
the written consent of Revolving Administrative Agent and each affected Revolving
Lender, no such amendment, waiver or consent shall:


 


(i)            increase or decrease the Revolving Maximum
Credit, the US Revolving Maximum Credit or Canadian Maximum Credit or any
Revolving Lender’s Revolving Loan Commitment or Pro Rata Share; provided that no consent of the LC Facility Administrative
Agent or any LC Facility Lender shall be required with respect to any increase
or increases contemplated by this Section 11.3(b)(i) except to the extent any
such increase would have the effect of increasing the maximum amount of credit
under the Revolving Facility by more than $15.0 million from the maximum amount
of credit available under the Revolving Facility as of the Amendment and
Restatement Effective Date (with any increases denominated in Canadian Dollars
being converted to U.S. dollars at the Dollar Equivalent Amount);


 


(ii)           increase any advance percentage
contained in the definition of the term US Borrowing Base or Canadian Borrowing
Base; provided that no consent of the LC
Facility Administrative Agent or any LC Facility Lender shall be required with
respect to any increase or increases contemplated by this Section 11.3(b)(ii)
except to the extent any such increase would have the effect of increasing any
such advance percentage by an aggregate of more than 5% over the amount of such
advance percentage as in effect as of the Amendment and Restatement Effective
Date;


 


(iii)          increase or decrease the percentage
specified in the “Majority Revolving Lenders”; provided
that no consent of the LC Facility Administrative Agent or any LC Facility
Lender shall be required with respect to any change contemplated by this
Section 11.3(b)(iii);


 


(iv)          decrease any interest rate or fees
payable hereunder to any Revolving Lender; provided that
no consent of the LC Facility Administrative Agent; or


 


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any LC Facility
Lender shall be required with respect to any decrease contemplated by this
Section 11.3(b)(iv);


 


(c)           without
the written consent of LC Facility Administrative Agent and each affected LC
Facility Lender or Term Loan Lender, no such amendment, waiver or consent
shall:


 


(i)            increase the amount required to be
funded by such LC Facility Lender or increase the principal amount of the Term
Loan of any Term Loan Lender or increase the amount of the LC Facility or the
maximum amount of Term Loans that may be drawn hereunder; provided
that no consent of the Revolving Administrative Agent or any Revolving Lender
shall be required with respect to any increase or increases contemplated by
this Section 11.3(c)(i) except to the extent any such increase would have the
effect of increasing the maximum aggregate principal amount of credit under the
LC Facility and the Term Loans, taken together, by more than $15.0 million from
the amount of credit available under the LC Facility and the Term Loans
(assuming all conditions thereto would be satisfied), taken together, as of the
Amendment and Restatement Effective Date;


 


(ii)           decrease any interest rate or fees
payable hereunder to any LC Facility Lender or Term Loan Lender; provided that no consent of the Revolving Administrative Agent
or any Revolving Lender shall be required with respect to any decrease
contemplated by this Section 11.3(c)(ii); or


 


(iii)          increase or decrease the percentage
specified in “Majority LC Facility Lenders”; provided
that no consent of the Revolving Administrative Agent or any Revolving Lender
shall be required with respect to any change contemplated by this Section
11.3(c)(iii);


 


(d)           if,
in connection with any proposed change, waiver, discharge or termination of the
provisions of this Agreement as contemplated by Section 11.3(a), (b) or
(c), the consent of the Majority Lenders, Majority LC Facility Lenders or
Majority Revolving Facility Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then Borrowers
shall, if no Default then exists, have the right to replace all, but not less
than all, of such non-consenting Lenders (so long as all non-consenting Lenders
are so replaced) with one or more Eligible Assignees pursuant to Section 3.7 so
long as at the time of such replacement each such new Lender consents to the
proposed change, waiver, discharge or termination; provided
that if such change, waiver, discharge or termination shall concern a decrease
in the Participation Fee prior to the first anniversary of the Amendment and
Restatement Effective Date, then each such non-consenting Lender shall only be
required to so assign if it receives from the US Borrowers or the relevant
assignee a premium of 1% of the amount received in connection with such assignment;


 


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(e)           any
amendment, modification or supplement to any Financing Agreement contemplated
by Section 2.10(vi) shall be permitted in accordance with the terms of such
Section without further compliance with the provisions of this Section 11.3;


 


provided
that (A) no consent of the LC Facility Administrative Agent or the LC Facility
Lenders shall be required with respect to any change made to Section 2.1, 2.2,
2.3, 2.4, 3, 6.1, 6.2, 6.3, 6.4, 6.5 or 6.6, so long as the effect of any such
change is not to (i) make the Financing Agreements materially more onerous to
the Borrowers, (ii) materially and adversely affect the interests of the LC
Facility Lenders or the Term Loan Lenders or (iii) contravene any of the
provisions of Section 11.3(a) or 11.3(b) and (B) the consent of the Revolving
Facility Administrative Agent or the Revolving Lenders shall not be required
with respect to any change made to Section 2.7, 2.8, 2.9 or 2.10, so long as
the effect of any such change is not to (i) make the Financing Agreements
materially more onerous to the Borrowers, (ii) materially and adversely affect
the interests of the Revolving Lenders or (iii) contravene any of the
provisions of Section 11.3(a) or 11.3(c). 
No Agent nor any Lender shall, by any act, delay, omission or otherwise
be deemed to have expressly or impliedly waived any of their rights, powers
and/or remedies unless such waiver shall be in writing and signed by an
authorized officer of such Agent or such Lender.  Any such waiver shall be enforceable only to
the extent specifically set forth therein. 
A waiver by any Agent and/or Lender of any right, power and/or remedy on
any one occasion shall not be construed as a bar to or waiver of any such
right, power and/or remedy which Agent and Lender would otherwise have on any
future occasion, whether similar in kind or otherwise.


 


11.4               Waiver
of Counterclaims.  Each Credit Party
waives all rights to interpose any claims, deductions, setoffs or counterclaims
of any nature (other then compulsory counterclaims) in any action or proceeding
with respect to this Agreement, the Obligations, the Collateral or any matter
arising therefrom or relating hereto or thereto.


 


11.5               Costs
and Expenses.  The Credit Parties
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and
their Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Agents), 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 related 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 LC Facility Issuing
Bank and any issuing bank in respect of the Revolving Letter of Credit Accommodations
in connection with the issuance, amendment, renewal or extension of any letter
of credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Agents, the LC Facility Issuing Bank and
any issuing bank in respect of the Revolving Letter of Credit Accommodations
(and, if an Event of Default under Section 10.1(a)(i) shall have occurred and
be continuing, any Lender) or the related documents (including the reasonable
fees, charges and disbursements of counsel for the Agents, the LC Facility
Issuing Bank and any issuing bank in respect of the Revolving Letter of Credit
Accommodations and, if an Event of Default under Section 10.1(a)(i) shall have
occurred and be continuing, any Lender) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other
related documents, including its rights under this section, or (B) in connection
with the Loans made or Letters of Credit issued hereunder, including all such
reasonable


 


146





















 


out-of-pocket expenses incurred
during any workout, restructuring or negotiations with respect of such Loans or
Letters of Credit.


 


11.6               Indemnification.  Each Credit Party shall indemnify and hold
each Agent and each Lender, and their respective directors, agents, employees
and counsel, harmless from and against any and all losses, claims, damages,
liabilities, costs or expenses imposed on, incurred by or asserted against any
of them in connection with any litigation, investigation, claim or proceeding
commenced or threatened related to the negotiation, preparation, execution,
delivery, enforcement, performance or administration of this Agreement, any
other Financing Agreements, or any undertaking or proceeding related to any of
the transactions contemplated hereby or any act, omission, event or transaction
related or attendant thereto, including amounts paid in settlement, court
costs, and the fees and expenses of counsel. 
To the extent that the undertaking to indemnify, pay and hold harmless
set forth in this Section 11.6 may be unenforceable because it violates any law
or public policy, each Credit Party shall pay the maximum portion which it is
permitted to pay under applicable law to each Agent and Lenders in satisfaction
of indemnified matters under this Section 11.6. 
The foregoing indemnity shall survive the payment of the Obligations and
the termination or non-renewal of this Agreement.


 


11.7               Currency
Indemnity.  If, for the purposes of
obtaining judgment in any court in any jurisdiction with respect to this Agreement
or any of the other Financing Agreements, it becomes necessary to convert into
the currency of such jurisdiction (the “Judgment Currency”)
any amount due under this Agreement or under any of the other Financing
Agreements in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which judgment is
given.  For this purpose, “rate of
exchange” means the rate at which the Revolving Administrative Agent and/or the
LC Facility Administrative Agent, as the case may be, is able, on the relevant
date, to purchase the Currency Due with the Judgment Currency in accordance
with its normal practice.  In the event
that there is a change in the rate of exchange prevailing between the Business
Day before the day on which the judgment is given and the date of receipt by
the Revolving Administrative Agent and/or the LC Facility Administrative Agent,
as the case may be, of the amount due, Credit Parties will, on the date of
receipt by the applicable Agent, pay such additional amounts, if any, or be
entitled to receive reimbursement of such amount, if any, as may be necessary
to ensure that the amount received by such Administrative Agent and Revolving
Lenders, the LC Facility Lenders and/or Term Loan Lenders on such date is the
amount in the Judgment Currency which when converted at the rate of exchange
prevailing on the date of receipt by such Administrative Agent is the amount
then due under this Agreement or such other of the Financing Agreements in the
Currency Due.  If the amount of the
Currency Due which the Revolving Administrative Agent and/or the LC Facility
Administrative Agent, as the case may be, is able to purchase is less than the
amount of the Currency Due originally due to it, Credit Parties shall indemnify
and save the Revolving Administrative Agent and/or the LC Facility Administrative
Agent, as the case may be, and hold the Revolving Lenders, the LC Facility
Lenders and/or the Term Loan Lenders harmless from and against loss or damage
arising as a result of such deficiency. 
The indemnity contained herein shall constitute an obligation separate
and independent from the other obligations contained in this Agreement and the
other Financing Agreements, shall give rise to a separate and independent cause
of action, shall apply irrespective of any indulgence granted by the Revolving
Administrative Agent and/or the LC Facility Administrative Agent, as the case
may be, from time to time and shall continue in full force and effect


 


147





















 


notwithstanding any judgment or
order for a liquidated sum in respect of an amount due under this Agreement or
any of the other Financing Agreements or under any judgment or order.


 


11.8               Confidential
Lender Authorizations. 
Notwithstanding anything else contained herein, each Original LC
Facility Lender who signs a Confidential Lender Authorization shall be deemed
to have consented to the LC Facility Administrative Agent signing this
Agreement on its behalf pursuant to the provisions thereof and, effective upon
the Administrative Agent signing a counterpart of such Confidential Lender
Authorization, shall be further deemed in this Agreement to have been a
signatory hereto and to have consented to the Amendment and Restatement.  Each Lender signatory to a Confidential
Lender Authorization agrees that such Lender shall not be entitled to receive a
copy of any other Lender’s Confidential Lender Authorization, but agrees that a
copy of such Confidential Lender Authorization may be delivered to the
Borrowers (and the Borrowers’ advisors and representatives) and the Revolving
Administrative Agent.


 


SECTION
12.                     TERM
OF AGREEMENT; MISCELLANEOUS.


 


12.1               Term.


 


(a)           Upon the termination
of the LC Facility, Revolving Facility and the repayment in full of the Term
Loans, each Credit Party shall, jointly and severally, pay to the applicable
Administrative Agents for the benefit of Lenders, in full, all outstanding and
unpaid Obligations of such Credit Party and shall furnish cash collateral to
the applicable Administrative Agent (or at such Administrative Agent’s option,
a letter of credit issued for the account of such Credit Parties and at such
Credit Parties’ expense, in form and substance satisfactory to such
Administrative Agent, by an issuer acceptable to the issuer of any Revolving
Letter of Credit Accommodation or LC Facility Letter of Credit and payable to
such issuer as beneficiary) in such amounts as such Administrative Agent determines
are reasonably necessary to secure (or reimburse) the applicable Administrative
Agent and Secured Parties from loss, cost, damage or expense, including
attorneys’ fees and legal expenses, in connection with any contingent Obligations,
including issued and outstanding LC Facility Letters of Credit or Revolving
Letter of Credit Accommodations and checks or other payments provisionally
credited to the Obligations and/or as to which any Secured Party has not yet
received final and indefeasible payment. 
Such payments in respect of the Obligations and cash collateral shall be
remitted by wire transfer in Federal funds to such bank account of the
applicable Administrative Agent, as such Administrative Agent may, in its
discretion, designate in writing to Credit Parties for such purpose.  Interest shall be due until and including the
next business day, if the amounts so paid by Credit Parties to the bank account
designated by Agent are received in such bank account later than 12:00 noon,
Boston, Massachusetts time.


 


(b)           No termination of
this Agreement or the other Financing Agreements shall relieve or discharge
Credit Parties of their respective duties, obligations and covenants under this
Agreement or the other Financing Agreements until all Obligations of such
Credit Parties have been fully and finally discharged and paid.  The LC Facility Collateral Agent’s continuing
security interest in the Collateral and the rights and remedies of each Secured
Party hereunder, under the other Financing Agreements and applicable law, shall
remain in effect until all LC Facility Obligations secured by such Collateral
have been fully and finally discharged and paid and the LC Facility Commitment
and all LC Facility Letters of Credit thereunder have been terminated.


 


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The Accounts Collateral Agent’s
continuing security interest in the Accounts Collateral and the rights and
remedies of each Revolving Secured Party hereunder, under the other Financing
Agreements and applicable law, shall remain in effect until the Discharge of Revolving
Obligations and the Revolving Loan Commitment has terminated.  Accordingly, each Credit Party waives any
rights which it may have (i) under the UCC or the PPSA to demand the filing of
UCC amendments to partially release the Non-Accounts Collateral or to request
Mortgage releases with respect to the Non-Accounts Collateral, and no Agent
shall be required to send such amendments or releases to any Credit Party, or
to file or record them with any filing office, unless and until all of the Obligations
of such Credit Party secured by such Non-Accounts Collateral are paid and
satisfied in full in immediately available funds and the LC Facility Commitment
and all LC Facility Letters of Credit have been terminated, and (ii) under the
UCC or the PPSA to demand the filing of UCC amendments to partially release the
Accounts Collateral, and no Agent shall be required to send such amendments to
any Credit Party or to file them with any filing office unless and until the
Discharge of Revolving Obligations and the Revolving Loan Commitment has
terminated.


 


12.2               Interpretative
Provisions.


 


(a)              All terms used
herein which are defined in Article 1 or Article 9 of the UCC shall have the
meanings given therein unless otherwise defined in this Agreement.


 


(b)              All references to
the plural herein shall also mean the singular and to the singular shall also
mean the plural unless the context otherwise requires.


 


(c)              All references to
Credit Party and Lender pursuant to the definitions set forth in the recitals
hereto, or to any other person herein, shall include their respective
successors and assigns.


 


(d)              The words “hereof”,
“herein”, “hereunder”, “this Agreement” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement and as this Agreement now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.


 


(e)              The word “including”
when used in this Agreement shall mean “including, without limitation”.


 


(f)               All references
to the term “good faith” used herein when applicable to Agent or Lenders shall
mean, notwithstanding anything to the contrary contained herein or in the UCC,
honesty in fact in the conduct or transaction concerned.  Credit Party shall have the burden of proving
any lack of good faith on the part of the Agents or Lenders alleged by Credit
Party at any time.


 


(g)              An Event of
Default shall exist or continue or be continuing until such Event of Default is
waived in accordance with Section 11.3 or is cured in a manner satisfactory to
the Agents and Majority Lenders, if such Event of Default is capable of being
cured as determined by the Agents and Majority Lenders.


 


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(h)              Any accounting
term used in this Agreement shall have, unless otherwise specifically provided
herein, the meaning customarily given in accordance with GAAP, and all
financial computations hereunder shall be computed unless otherwise specifically
provided herein, in accordance with GAAP as consistently applied and using the
same method for inventory valuation as used in the preparation of the
consolidated financial statements of Parent most recently received by Agents
and Lenders prior to the Original Effective Date.


 


(i)               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”.


 


(j)               Unless otherwise
expressly provided herein, (i) references herein to any agreement, document or
instrument shall be deemed to include all subsequent amendments, modifications,
supplements, extensions, renewals, restatements or replacements with respect
thereto, but only to the extent the same are not prohibited by the terms hereof
or of any other Financing Agreement, and (ii) references to any statute or
regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, recodifying, supplementing or
interpreting the statute or regulation.


 


(k)              The captions and
headings of this Agreement are for convenience of reference only and shall not
affect the interpretation of this Agreement.


 


(l)               This Agreement
and other Financing Agreements may use several different limitations, tests or
measurements to regulate the same or similar matters.  All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their terms.


 


(m)             This Agreement and
the other Financing Agreements are the result of negotiations among and have
been reviewed by counsel to Lender and the other parties, and are the products
of all parties.  Accordingly, this
Agreement and the other Financing Agreements shall not be construed against
Agents and Lenders merely because of Agent’s involvement in their preparation.


 


12.3               Notices.  All notices, requests and demands hereunder
shall be in writing and deemed to have been given or made:  if delivered in person, immediately upon
delivery; if by telex, telegram or facsimile transmission, immediately upon
sending and upon confirmation of receipt; if by nationally recognized overnight
courier service with instructions to deliver the next Business Day, one (1) Business
Day after sending; and if by certified mail, return receipt requested, five (5)
days after mailing.  All notices,
requests and demands upon the parties are to be given to the following
addresses (or to such other address as any party may designate by notice in accordance
with this Section 12.3):


 


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  If to Credit Parties:

  	
   

  	
  c/o Clean
  Harbors, Inc.

  1501 Washington Street

  Braintree, MA 02184

  Attention: Chief Financial Officer

  Telephone No.: (617) 849-1800

  Telecopy No.: (617) 848-1632

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Davis Malm
  & D’Agostine, P.C.

  One Boston Place

  Boston, MA 02108-4470

  Attention: C. Michael Malm, Esq.

  Telephone No.: 617-367-2500

  Telecopy No.: 617-523-6215

  
	
   

  	
   

  	
   

  
	
  If to
  Revolving Administrative

  Agent, Accounts Collateral 

  Agent, Revolving Arranger 

  and Revolving Lenders:

  	
   

  	
  Bank of
  America, N.A.

  One Federal Street

  Boston, MA 02110

  Attention: Mark B. Schafer, Vice President

  Telephone No.: 617-654-1187

  Telecopy No.: 617-654-1167

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Bingham
  McCutchen LLP

  150 Federal Street

  Boston, MA 02110

  Attention: Amy L. Kyle, Esq.

  Telephone No.: 617-951-8288

  Telecopy No.: 617-951-8736

  
	
   

  	
   

  	
   

  
	
  If to
  Canadian Collateral Agent:

  	
   

  	
  BABC Global
  Finance Inc.

  One Federal Street

  Boston, MA 02110

  Attention: Mark B. Schafer, Vice President

  Telephone No.: 617-654-1187

  Telecopy No.: 617-654-1167

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Bingham
  McCutchen LLP

  150 Federal Street

  Boston, MA 02110

  Attention: Amy L. Kyle, Esq.

  Telephone No.: 617-951-8288

  Telecopy No.: 617-951-8736

  



 


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  If to LC
  Facility Administrative Agent, LC Facility Collateral Agent, LC Facility
  Lenders or Term Loan Lenders:

  	
   

  	
  Credit
  Suisse

  One Madison Avenue

  New York, NY 10010

  Credit Suisse Loan Services Group

  Attention: Carolyn Tee

  Telephone No.: (212) 325-9936

  Telecopy No.: (212) 325-8304

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Cahill
  Gordon & Reindel LLP

  80 Pine Street

  New York, NY 10005

  Attention: Susanna M. Suh, Esq.

  Telephone No.: 212-701-3000

  Telecopy No.: 212-269-5420

  



 


12.4               Partial
Invalidity.  If any provision of this
Agreement is held to be invalid or unenforceable, such invalidity or unenforceability
shall not invalidate this Agreement as a whole, but this Agreement shall be
construed as though it did not contain the particular provision held to be invalid
or unenforceable and the rights and obligations of the parties shall be
construed and enforced only to such extent as shall be permitted by applicable
law.


 


12.5               Successors.  This Agreement, the other Financing
Agreements and any other document referred to herein or therein shall be binding
upon and inure to the benefit of and be enforceable by Agents, Lenders, Credit
Parties, and their respective successors and assigns, except that no Credit
Party may assign its rights under this Agreement, the other Financing
Agreements and any other document referred to herein or therein without the
prior written consent of each Administrative Agent and Lenders


 


12.6               Assignment
by Lenders.  (a)  Except as provided herein, each Revolving
Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Pro Rata Share) together with the Loans at the time owing to it
and its participating interest in the risk relating to any Revolving Letter of
Credit Accommodations; provided that
(i) unless such assignment is to an Affiliate of, or a successor to, a Lender,
an Approved Fund of such Lender or to a Person which is, at the time of such
assignment, a Lender hereunder, the Revolving Administrative Agent and, so long
as no Default or Event of Default shall have occurred and be continuing,
Parent, shall have given its prior written consent to such assignment (with
such consent not to be unreasonably withheld), (ii) each assignment shall be in
an amount that is not less than the lesser of (x) $1,000,000 and (y) the
aggregate amount of such assigning Lender’s Revolving Loan Commitment and, if
greater, in whole multiples of $1,000,000 (or if less, the remaining amount
thereof), and (iv) the parties to such assignment shall execute and deliver to
the Revolving Administrative Agent for recording in the Revolving Register an
Assignment and Acceptance, subject to such assignment.  Upon such execution, delivery, acceptance and
recording, from and after the effective date for such assignment specified in
each Assignment and Acceptance, (i) the assignee thereunder shall be a party
hereto and, to the extent provided


 


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in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender shall, to the extent provided in such assignment and upon payment to the
Revolving Administrative Agent of the registration fee, if any, referred to in
Section 12.8, be released from its obligations under this Agreement.


 


(b)           Except as provided
herein, each LC Facility Lender may assign to one or more Eligible Assignees
all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Pro Rata Share), together with such LC
Facility Lender’s Credit-Linked Deposit and its Participations in LC Facility
Letters of Credit; provided that
(i) unless such assignment is to an Affiliate of, or a successor to, an LC
Facility Lender or a Term Loan Lender, an Approved Fund of such LC Facility
Lender or to a Person which is, at the time of such assignment, an LC Facility
Lender or a Term Loan Lender hereunder, the LC Facility Administrative Agent
and LC Facility Issuing Bank and except in connection with the initial syndication
of the LC Facility Deposits and participations in LC Facility Letters of
Credit, so long as no Default or Event of Default shall have occurred and be continuing,
Parent shall have given its prior written consent to such assignment (with such
consent not to be unreasonably withheld), (ii) each assignment shall be in an
amount that is not less than the lesser of (x) $1,000,000 of Credit-Linked
Deposits and participations in LC Facility LC Letters of Credit and (y) the
aggregate Credit-Linked Deposits and participations in LC Facility LC Letters
of Credit held by such LC Facility Lender and, if greater, in whole multiples
of $1,000,000 (or if less, the remaining amount thereof), and (iii) the parties
to each such assignment shall (x) electronically execute and deliver to
the LC Facility Administrative Agent an Assignment and Acceptance via an
electronic settlement system acceptable to the LC Facility Administrative Agent
(which initially shall be ClearPar, LLC) or (y) manually execute and
deliver to the LC Facility Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of US$3,500 and, in each case,
an Administrative Questionnaire (unless such assignment is to an LC Facility
Lender or a Term Loan Lender) and such forms, certificates or other evidence,
if any, with respect to United States federal income tax withholding matters as
the assignee under such Assignment Agreement may be reasonably required by the
LC Facility Administrative Agent.  Upon
such execution, delivery, acceptance and recording, from and after the
effective date for such assignment specified in each Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of an LC
Facility Lender hereunder, and (ii) the assigning LC Facility Lender shall, to
the extent provided in such assignment and upon payment to the LC Facility
Administrative Agent of the registration fee, if any, referred to above, be
released from its obligations under this Agreement.


 


(c)           Except as provided
herein, each Term Loan Lender may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Pro Rata Share); provided that
(i) unless such assignment is to an Affiliate of, or a successor to, a
Term Loan Lender, an Approved Fund of such Term Loan Lender or to a Person
which is, at the time of such assignment, a Term Loan Lender or an LC Facility
Lender hereunder, the LC Facility Administrative Agent, so long as no Default
or Event of Default shall have occurred and be continuing, Parent shall have
given its prior written consent to such assignment (with such consent not to be
unreasonably withheld), (ii) each assignment shall be in an amount that is not
less than the lesser of (x) $1,000,000 of aggregate principal amount of
Term Loans and (y) the aggregate Term Loans held by such Term Loan Lender
and, if greater, in whole multiples of $1,000,000 (or if less, the remaining
amount thereof), and (iii) the parties to each such assignment shall
(x) electronically execute and deliver to the LC Facility


 


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Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to the
LC Facility Administrative Agent (which initially shall be ClearPar, LLC) or
(y) manually execute and deliver to the LC Facility Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
US$3,500 and, in each case, an Administrative Questionnaire (unless such
assignment is to a Term Loan Lender or an LC Facility Lender) and such forms,
certificates or other evidence, if any, with respect to United States federal income
tax withholding matters as the assignee under such Assignment Agreement may be
reasonably required by the LC Facility Administrative Agent.  Upon such execution, delivery, acceptance and
recording, from and after the effective date for such assignment specified in
each Assignment and Acceptance, (i) the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Term Loan Lender hereunder, and (ii) the assigning
Term Loan Lender shall, to the extent provided in such assignment and upon
payment to the LC Facility Administrative Agent of the registration fee, if
any, referred to above, be released from its obligations under this Agreement


 


12.7               Certain
Representations and Warranties; Limitations; Covenants.  By executing and delivering an Assignment and
Acceptance, the parties to the assignment thereunder confirm to and agree with
each other and the other parties hereto as follows:


 


(a)              other than the representation and
warranty that it is legally authorized to enter into the Assignment and
Acceptance and the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the other Financing Agreements
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage;


 


(b)              the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Credit Parties and their Subsidiaries, or the
performance or observance by Credit Parties and their Subsidiaries of any of
their obligations under this Agreement or any of the other Financing Agreements
or any other instrument or document furnished pursuant hereto or thereto;


 


(c)              such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 9.6 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;


 


(d)              such assignee will, independently
and without reliance upon the assigning Lender, the Agent or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement;


 


(e)              such assignee represents and
warrants that it is an Eligible Assignee;


 


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(f)               such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Financing Agreements as are
delegated to the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;


 


(g)              such assignee agrees that it is
bound by and will perform in accordance with their terms all of the obligations
that by the terms of this Agreement and other Financing Agreements are required
to be performed by it as a Lender;


 


(h)              such assignee represents and
warrants that it is legally authorized to enter into such Assignment and Acceptance;
and


 


(i)               such assignee acknowledges that
it has made arrangements with the assigning Lender satisfactory to such
assignee with respect to its share of interest, letter of credit fees and other
fees payable to Lenders hereunder.


 


12.8               Register.


 


(a)              The Revolving
Administrative Agent shall maintain a copy of each Assignment and Acceptance delivered
to it and a register or similar list (the “Revolving Register”)
for the recordation of the names and addresses of the Revolving Lenders and the
Pro Rata Share of, and principal amount of the Revolving Loans owing to and
participations in Revolving Letter of Credit Accommodations purchased by, the
Revolving Lenders from time to time.  The
entries in the Revolving Register shall be conclusive, in the absence of
manifest error, and Credit Parties, the Revolving Administrative Agent and the
Revolving Lenders may treat each Person whose name is recorded in the Revolving
Register as a Revolving Lender hereunder for all purposes of this
Agreement.  Upon each such recordation,
the assigning Revolving Lender agrees to pay to the Revolving Administrative
Agent a registration fee in the sum of $3,500. 
The Revolving Register shall be available for inspection by Credit
Parties and the Revolving Lenders at any reasonable time and from time to time
upon reasonable prior notice.


 


(b)              The LC Facility
Administrative Agent shall maintain a Register (the “LC Facility
Register”) including a subaccount for each LC Facility Lender, in
which LC Facility Register and subaccounts (taken together) shall be recorded
(i) the amount of each Credit-Linked Deposit, (ii) the amount of LC
Facility LC Disbursements and amounts payable pursuant to Section 2.7(b) in
respect of each such Credit-Linked Deposit and (iii) the amount of any reductions
to the Total Credit-Linked Deposits and the reduction in the amount of
Credit-Linked Deposits of each LC Facility Lender as a result thereof and the
amount of any sum received by the LC Facility Administrative Agent hereunder
from any Credit Party in respect of any Obligations and each LC Facility Lender’s
Pro Rata Share thereof.  The entries in
the LC Facility Register shall be conclusive, in the absence of manifest error,
and US Credit Parties, the LC Facility Administrative Agent and the LC Facility
Lenders may treat each Person whose name is recorded in the LC Facility
Register as an LC Facility Lender hereunder for all purposes of this
Agreement.  The LC Facility Register
shall be available for inspection by US Credit Parties and the LC Facility
Lenders at any reasonable time and from time to time upon reasonable prior notice.


 


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(c)              The LC Facility
Administrative Agent shall maintain a Register (the “Term Loan
Register”) including a subaccount for each Term Loan Lender, in
which Term Loan Register and subaccounts (taken together) shall be recorded the
amount of each Term Loan made by each Term Loan Lender and any prepayments or
repayments thereof and the amount of any sum received by the LC Facility Administrative
Agent hereunder from any Credit Party in respect of any Obligations and each
Term Loan Lender’s Pro Rata Share thereof. 
The entries in the Term Loan Register shall be conclusive, in the
absence of manifest error, and US Credit Parties, the LC Facility
Administrative Agent and the Term Loan Lenders may treat each Person whose name
is recorded in the Term Loan Register as a Term Loan Lender hereunder for all
purposes of this Agreement.  The Term
Loan Register shall be available for inspection by US Credit Parties and the
Term Loan Lenders at any reasonable time and from time to time upon reasonable
prior notice.


 


12.9               Participations.  Each Lender may sell participations to one or
more banks or other entities in all or a portion of such Lender’s rights and
obligations under this Agreement and the other Financing Agreements; provided that (i) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Credit
Parties, and (ii) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of the Financing Agreements shall be the rights to approve waivers, amendments
or modifications that would reduce the principal of or the interest rate on any
Loans, extend the term or increase the amount of the Pro Rata Share of such
Lender as it relates to such participant, reduce the amount of the fees payable
under this Agreement to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest.


 


12.10             Assignee
or Participant Affiliated with Any Credit Party.  If any assignee Lender is an Affiliate of
Credit Party, then any such assignee Lender shall have no right to vote as a
Lender hereunder or under any of the other Financing Agreements for purposes of
granting consents or waivers or for purposes of agreeing to amendments or other
modifications to any of the Financing Agreements or for purposes of making requests
to the Agent pursuant to Section 10, and the determination of the Majority
Lenders shall for all purposes of this Agreement and the other Financing
Agreements be made without regard to such assignee Lender’s interest in any of
the Obligations.  If any Lender sells a
participating interest in any of the Obligations to a participant, and such
participant is a Credit Party or an Affiliate of a Credit Party, then such
transferor Lender shall promptly notify the Agent of the sale of such
participation.  Any such transferor
Lender shall have no right to vote as a Lender hereunder or under any of the
other Financing Agreements for purposes of granting consents or waivers or for
purposes of agreeing to amendments or modifications to any of the Financing
Agreements or for purposes of making requests to the Agent pursuant to Section
10 to the extent that such participation is beneficially owned by a Credit
party or any Affiliate of a Credit Party, and the determination of the Majority
Lenders shall for all purposes of this Agreement and the other Financing
Agreements be made without regard to the interest of such transferor Lender in
the Loans to the extent of such participation.


 


12.11             Miscellaneous
Assignment Provisions.  Any assigning
Lender shall retain its rights to be indemnified pursuant to Sections 6.8, 9.4,
11.5 and 11.6 with respect to any claims or actions arising prior to the date
of such assignment.  If BANA transfers
all of its interest, rights and obligations under this Agreement (other than to
an Affiliate), the Agents shall, in consultation


 


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with the Credit Parties and
with the consent of the Majority Lenders, appoint another financial institution
to act as a Reference Bank hereunder. 
Anything contained in this Section 12.11 to the contrary
notwithstanding, any Lender may at any time pledge all or any portion of its
interest and rights under this Agreement to any of the twelve Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. §
341.  No such pledge or the enforcement
thereof shall release the pledgor Lender from its obligations hereunder or
under any of the other Financing Agreements.


 


12.12             Confidentiality.


 


(a)              Agents and
Lenders shall use all reasonable efforts to keep confidential, in accordance
with its customary procedures for handling confidential information and safe
and sound lending practices, any non-public information supplied to it by
Credit Parties pursuant to this Agreement which is clearly and conspicuously
marked as confidential at the time such information is furnished by Credit
Parties to Agents and Lenders, provided that
nothing contained herein shall limit the disclosure of any such information:  (i) to the extent required by statute, rule,
regulation, subpoena or court order, (ii) to bank examiners and other
regulators, auditors and/or accountants, (iii) in connection with any
litigation to which Agents or any such Lender is a party, (iv) to any assignee
or participant (or prospective assignee or participant) so long as such
assignee or participant (or prospective assignee or participant) shall have
first agreed in writing to treat such information as confidential in accordance
with this Section 12.12, or (v) to counsel for Agents or any Lender or any
participant or assignee (or prospective participant or assignee).


 


(b)              In no event shall
this Section 12.12 or any other provision of this Agreement or applicable law
be deemed:  (i) to apply to or restrict
disclosure of information that has been or is made public by any Credit Party
or any third party without breach of this Section 12.12 or otherwise become
generally available to the public other than as a result of a disclosure in violation
hereof, (ii) to apply to or restrict disclosure of information that was or
becomes available to Agents or any Lender on a non-confidential basis from a
person other than a Credit Party, (iii) require Agents or any Lender to return
any materials furnished by Credit Parties to Agents or any Lenders, or (iv)
prevent Agents and Lenders from responding to routine informational requests in
accordance with the Code of Ethics for the Exchange of Credit Information
promulgated by The Robert Morris Associates or other applicable industry
standards relating to the exchange of credit information.  The obligations of Agents and Lenders under
this Section 12.12 shall supersede and replace the obligations of Agents and
Lenders under any confidentiality letter signed prior to the Amendment and
Restatement Effective Date.


 


12.13             Entire
Agreement.  This Agreement, the other
Financing Agreements, any supplements hereto or thereto, and any instruments or
documents delivered or to be delivered in connection herewith or therewith
represents the entire agreement and understanding concerning the subject matter
hereof and thereof between the parties hereto, and supersede all other prior
agreements, understandings, negotiations and discussions, representations,
warranties, commitments, proposals, offers and contracts concerning the subject
matter hereof, whether oral or written. 
In the event of any inconsistency between the terms of this Agreement
and any schedule or exhibit hereto, the terms of this Agreement shall govern.


 


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12.14             Counterparts,
Etc.  This Agreement or any of the other
Financing Agreements may be executed in any number of counterparts, each of
which shall be an original, but all of which taken together shall constitute
one and the same agreement.  Delivery of
an executed counterpart of this Agreement “or any of the other Financing
Agreements by telefacsimile shall have the same force and effect as the
delivery of an original executed counterpart of this Agreement or any of such
other Financing Agreements.  Any party
delivering an executed counterpart of any such agreement by telefacsimile shall
also deliver an original executed counterpart, but the failure to do so shall
not affect the validity, enforceability or binding effect of such agreement.


 


12.15             Choice
of Language.  The parties hereto
confirm that they have requested that this Agreement and all documents related
hereto be drafted in English.  Les parties aux presentes ont exige que cette convention ainsi que tout
document connexe soient rediges en anglais.


 


SECTION
13.       THE AGENTS.


 


13.1               Authorization.


 


(a)              The Revolving
Administrative Agent, LC Facility Administrative Agent, Accounts Collateral
Agent, Canadian Collateral Agent and LC Facility Collateral Agent are authorized
to take such action on behalf of the Secured Parties hereunder (except that the
Canadian Collateral Agent shall only take such action on behalf of the Canadian
Secured Parties), and to exercise all such powers as are hereunder and under
any of the other Financing Agreements and any related documents delegated to
such Agent, together with such powers as are reasonably incident thereto,
including the authority, without the necessity of any notice to or further
consent of the Lenders, from time to time to take any action with respect to
any Collateral or the Financing Agreements which may be necessary to perfect,
maintain perfected or insure the priority of the security interest in and Liens
upon the Collateral granted pursuant hereto or to the other Financing Agreements,
and provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agents.  Each
Secured Party hereby agrees that the Accounts Collateral Agent is authorized to
take any action on behalf of Secured Parties with respect to Accounts
Collateral and each Secured Party hereby agrees that LC Facility Collateral
Agent is authorized to take any action on behalf of Secured Parties with
respect to Non-Accounts Collateral.


 


(b)              The relationship
between the Agents and each of the Lenders is that of an independent
contractor.  The use of the term “Agent”
is for convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agents and each of the
Lenders.  Nothing contained in this
Agreement nor the other Financing Agreements shall be construed to create an
agency, trust or other fiduciary relationship between the Agents and any of the
Lenders.


 


(c)              As independent
contractors empowered by the Lenders to exercise certain rights and perform
certain duties and responsibilities hereunder and under the other Financing
Agreements, the Accounts Collateral Agent, the Canadian Collateral Agent and
the LC Facility Collateral Agent are nevertheless each a “representative” of
the Secured Parties, the Canadian Secured Parties, respectively, as that term
is defined in Article 1 of the UCC, for purposes of actions


 


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for the benefit of such Secured
Parties with respect to all collateral security and guaranties contemplated by
the Financing Agreements.  Such actions
include the designation of such Collateral Agent as “secured party”, “mortgagee”
or the like on all financing statements and other documents and instruments,
whether recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the applicable Secured Parties.


 


(d)              Notwithstanding
anything to the contrary in this Agreement, neither the Revolving Credit
Arranger, Credit Suisse and BAS, as Joint Lead Arrangers, nor Credit Suisse, as
Sole Bookrunner under the LC Facility, in such respective capacities, shall
have any obligations, duties or responsibilities, or shall incur any
liabilities, under this Agreement or any other Financing Agreement.


 


(e)              It is the intent
of this Agreement and the other Financing Agreements that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee
in such jurisdiction.  It is recognized
that in case of litigation under this Agreement or any of the other Financing
Agreements, and in particular in case of the enforcement of any of the
Financing Agreements, or in case any Collateral Agent deems that by reason of
any present or future law of any jurisdiction it may not exercise any of the
rights, powers or remedies granted herein or in any of the other Financing Agreements
or take any other action which may be desirable or necessary in connection
therewith, it may be necessary that such Collateral Agent appoint an additional
individual or institution as a separate trustee, co-trustee, collateral agent
or collateral co-agent (any such additional individual or institution being
referred to herein individually as a “Supplemental Collateral
Agent” and collectively as “Supplemental Collateral
Agents”).


 


In the event
that any Collateral Agent appoints a Supplemental Collateral Agent with respect
to any Collateral, (i) each and every right, power, privilege or duty expressed
or intended by this Agreement or any of the other Financing Agreements to be
exercised by or vested in or conveyed to such Collateral Agent with respect to
such Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Financing
Agreements and necessary to the exercise or performance thereof by such
Supplemental Collateral Agent shall run to and be enforceable by either such
Collateral Agent or such Supplemental Collateral Agent, and (ii) the provisions
of this Section 13 and of Sections 9.23 and 13.8 that refer to such Collateral
Agent shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to such Collateral Agent shall be deemed to be references to
such Agent and/or such Supplemental Collateral Agent, as the context may
require.


 


Should any
instrument in writing from Parent or any other Credit Party be required by any
Supplemental Collateral Agent so appointed by any Collateral Agent for more
fully and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Parent shall, or shall cause such Credit Party to,
execute, acknowledge and deliver any and all such instruments promptly upon request
by any Collateral Agent.  In case any
Supplemental


 


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Collateral Agent, or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental Collateral
Agent, to the extent permitted by law, shall vest in and be exercised by such
Collateral Agent until the appointment of a new Supplemental Collateral Agent.


 


13.2               Employees
and Agents.  The Agents may exercise
their powers and execute their duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to their rights and duties under this Agreement and the
other Financing Agreements.  Each Agent
may utilize the services of such Persons as such Agent in its sole discretion
may determine, and all reasonable fees and expenses of any such Persons shall
be paid by the Parent.


 


13.3               No
Liability.  Neither the Agents nor
any of their respective shareholders, directors, officers or employees nor any
other Person assisting them in their duties nor any agent or employee thereof,
shall be liable for any waiver, consent or approval given or any action taken,
or omitted to be taken, in good faith by it or them hereunder or under any of
the other Financing Agreements, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of judgment
whatsoever, unless it is determined by a final and non-appealable judgment or
court order binding on such Agent, that the acts or omissions of such Agent or
such other Person constituted willful misconduct or gross negligence.


 


13.4               No
Representations.


 


(a)              The Agents shall
not be responsible for the execution or validity or enforceability of this Agreement,
the LC Facility Letters of Credit, the Revolving Letter of Credit
Accommodations, any of the other Financing Agreements or any instrument at any
time constituting, or intended to constitute, collateral security for any of
the Financing Agreements, or for the value of any such collateral security or
for the validity, enforceability, or collectability of any such amounts owing
with respect to any of the Financing Agreements, or for any recitals or
statements, warranties or representations made herein or in any of the other
Financing Agreements or in any certificate or instrument hereafter furnished to
it by or on behalf of Credit Parties or any of their Subsidiaries, or be bound
to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for any of
the Financing Agreements or to inspect any of the properties, books or records
of Credit Parties or any of their Subsidiaries. 
The Agents shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to them by Credit Parties shall have been duly
authorized or is true, accurate and complete. 
The Agents have not made nor do they now make any representations or
warranties, express or implied, nor does it assume any liability to the
Lenders, with respect to the credit worthiness or financial conditions of Credit
Parties or any of its Subsidiaries.  Each
Lender acknowledges that it has, independently and without reliance upon the
Agents or any other Lender, and based upon such information and documents as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.


 


(b)              For purposes of
determining compliance with the conditions set forth in Section 4, each Lender
that has executed this Agreement shall be deemed to have consented to, approved
or accepted, or to be satisfied with, each document and matter either sent, or
made


 


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available, by the Agents to
such Lender for consent, approval, acceptance or satisfaction, or required thereunder
to be to be consent to or approved by or acceptable or satisfactory to such
Lender, unless an officer of the applicable Administrative Agent active upon
the Credit Parties’ account shall have received notice from such Lender not
less than one (1) Business Day prior to the date of the closing hereunder
specifying such Lender’s objection thereto and such objection shall not have
been withdrawn by notice to such Administrative Agent to such effect on or
prior to such date.


 


13.5               Payments.


 


(a)              A payment by
Credit Parties to an Administrative Agent hereunder or under any of the other
Financing Agreements for the account of any Lender shall constitute a payment
to such Lender.  Each Administrative
Agent agrees promptly to distribute to each Lender such Lender’s Pro Rata Share
of payments received by such Administrative Agent for the account of the
applicable Lenders except as otherwise expressly provided herein or in any of
the other Financing Agreements.


 


(b)              If in the opinion
of any Administrative Agent the distribution of any amount received by it in
such capacity hereunder or under any of the other Financing Agreements might
involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of competent
jurisdiction.  If a court of competent
jurisdiction shall adjudge that any amount received and distributed by such
Administrative Agent is to be repaid, each Person to whom any such distribution
shall have been made shall either repay to such Administrative Agent its proportionate
share of the amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.


 


(c)              Notwithstanding
anything to the contrary contained in this Agreement or any of the other
Financing Agreements, any Revolving Lender that fails (i) to make available to
the Revolving Administrative Agent its pro rata share of any Loan or to
purchase any participation in a Revolving Letter of Credit Accommodation, or
(ii) to comply with the provisions of Section 10.2(i) with respect to making
dispositions and arrangements with the other Revolving Lenders, where such
Revolving Lender’s share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and payable
to all of the Revolving Lenders, in each case as, when and to the full extent
required by the provisions of this Agreement, shall be deemed delinquent (a “Delinquent Revolving Lender”) and shall be deemed a
Delinquent Revolving Lender until such time as such delinquency is
satisfied.  A Delinquent Revolving Lender
shall be deemed to have assigned any and all payments due to it from Credit Parties,
whether on account of outstanding Loans, interest, fees or otherwise, to the
remaining non-delinquent Revolving Lenders for application to, and reduction
of, their respective pro rata shares of all outstanding Loans and other
Revolving Obligations.  The Delinquent
Revolving Lender hereby authorizes the Revolving Administrative Agent to
distribute such payments to the non-delinquent Revolving Lenders in proportion
to their respective pro rata shares of all outstanding Loans and other
Revolving Obligations.  A Delinquent
Revolving Lender shall be deemed to have satisfied in full a delinquency when
and if, as a result of application of the assigned payments to all outstanding
Loans and other Revolving Obligations of the non-delinquent Revolving Lenders,
the Revolving Lenders’ respective pro rata shares of all outstanding


 


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Loans and other Revolving
Obligations have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.


 


(d)              At the Credit
Parties’ request, the Revolving Administrative Agent or an Eligible Assignee
reasonably acceptable to the Revolving Administrative Agent shall have the
right (but not the obligation) to purchase from any Delinquent Revolving
Lender, and each Delinquent Revolving Lender shall, upon such request, sell and
assign to the Revolving Administrative Agent or such Eligible Assignee, all of
the Delinquent Revolving Lender’s outstanding Loans and participations in
Revolving Letter of Credit Accommodations hereunder.  Such sale shall be consummated promptly after
the Revolving Administrative Agent has arranged for a purchase by the Revolving
Administrative Agent or an Eligible Assignee pursuant to an Assignment and Acceptance,
and at a price equal to the outstanding principal balance of the Delinquent
Revolving Lender’s Loans plus accrued interest and fees, without premium or
discount.


 


13.6               Holders
of Revolving Letter of Credit Accommodation Participations.  The Revolving Administrative Agent may deem
and treat the purchaser of any participation in Revolving Letter of Credit
Accommodations as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a different name by
such payee or by a subsequent holder, assignee or transferee.


 


13.7               Holders
of LC Facility Letters of Credit Participations.  The LC Facility Administrative Agent may deem
and treat the purchaser of any Participation in LC Facility Letters of Credit
as the absolute owner or purchaser thereof for all purposes hereof until it
shall have been furnished in writing with a different name by such payee or by
a subsequent holder, assignee or transferee.


 


13.8               Indemnity.


 


(a)              The Revolving
Lenders ratably agree hereby to indemnify and hold harmless Revolving Administrative
Agent, Accounts Collateral Agent (prior to the Discharge of Revolving
Obligations), LC Facility Collateral Agent and the Reference Bank from and
against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for which
any such Agent and/or the Reference Bank has not been reimbursed by the Credit
Parties as required by Section 11.5), and liabilities of every nature and
character arising out of or related to this Agreement or any of the other Financing
Agreements or the transactions contemplated or evidenced hereby or thereby, or
such Agent’s or the Reference Bank’s actions taken hereunder or thereunder,
unless it is determined by a court of competent jurisdiction by a final and
non-appealable judgment or court order binding such Agent or Reference Bank, as
the case may be, that such loss was the result of acts or omissions of such
Agent or the Reference Bank, as the case may be, constituting willful
misconduct or gross negligence.


 


(b)              The LC Facility
Lenders and Term Loan Lenders ratably agree hereby to indemnify and hold harmless
LC Facility Administrative Agent, the LC Facility Issuing Bank, Accounts
Collateral Agent, Reference Bank and the LC Facility Collateral Agent from and
against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for which
any such Agent has not been reimbursed by


 


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the US Credit Parties as
required by Section 11.5), and liabilities of every nature and character
arising out of or related to this Agreement or any of the other Financing
Agreements or the transactions contemplated or evidenced hereby or thereby, or
such Agent’s actions taken hereunder or thereunder, unless it is determined by
a court of competent jurisdiction by a final and non-appealable judgment or
court order binding such Agent that such loss was the result of acts or
omissions of such Agent or the Reference Bank constituting willful misconduct
or gross negligence.


 


13.9               Agents
as Lenders, Etc.  In its individual
capacity, each Agent shall have the same obligations and the same rights,
powers and privileges in respect to the Loans or LC Facility Deposits made by
it and as the purchaser of a participation in any Revolving Letter of Credit Accommodation
or LC Facility Letter of Credit, as it would have were it not such an
Agent.  Each Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
banking, trust, financial advisory or other business with Parent or any of its
Affiliates as if it were not performing the duties specified herein, and may
accept fees and other consideration from Parent for services in connection with
this Agreement and otherwise without having to account for the same to Lenders.


 


13.10             Resignation;
Removal.  Any Agent may resign at any
time by giving sixty (60) days’ prior written notice thereof to the Credit
Parties, the Agents and the Lenders. 
Upon any such resignation of an Agent under the Revolving Facility, the
Revolving Majority Lenders, in the case of the foregoing clause or, in the case
of the resignation of any Agent under the LC Facility or the Term Loans, the LC
Facility Majority Lenders, as the case may be, shall have the right to appoint
a successor Agent.  Unless a Default or
Event of Default shall have occurred and be continuing, such successor Agent
shall be reasonably acceptable to the Credit Parties.  If no successor Agent shall have been so
appointed by the applicable Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent’s giving of notice of
resignation, then the retiring Agent may, on behalf of the applicable Lenders,
appoint a successor Agent, which shall be a financial institution having a
rating of not less than A or its equivalent by Standard & Poor’s
Corporation.  Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. 
After any retiring Agent’s resignation, the provisions of this Agreement
and the other Financing Agreements shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Agent.


 


13.11             Notification
of Defaults and Events of Default. 
No Agent shall be deemed to have notice of a Default or an Event of
Default unless it is notified thereof by a Credit Party or a Lender with
reference to this Agreement.  Each Lender
hereby agrees that, upon learning of the existence of a Default or Event of
Default, it shall promptly notify each Administrative Agent thereof.  Each Administrative Agent hereby agrees that
upon receipt of any notice under this Section 13.11 it shall promptly notify
the Lenders of the existence of such Default or Event of Default.


 


13.12             Duties
in the Case of Enforcement.  Each
Lender agrees that, except as set forth in Section 10.2(l), no Lender shall
have the right individually (i) to realize upon the security created under this
Agreement or the other Financing Agreements, (ii) to enforce any provision of


 


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this Agreement or the other
Financing Agreements or to exercise any remedy hereunder or thereunder, or
(iii) to make demand under this Agreement or any other Financing
Agreement.  In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Accounts Collateral Agent and LC Facility
Collateral Agent shall, if (a) in the case of the Accounts Collateral Agent or
the LC Facility Collateral Agent, such Agent is so requested by the Majority
Lenders and (b) such Lenders have provided to the Accounts Collateral Agent or
the LC Facility Collateral Agent, as the case may be, such additional
indemnities and assurances against expenses and liabilities as the Accounts Collateral
Agent and LC Facility Collateral Agent, respectively, may reasonably request,
proceed to enforce the provisions hereof, the Financing Agreements authorizing
the sale or other disposition of all or any part of the Accounts Collateral or
Non-Accounts Collateral, respectively, and exercise all or any such other legal
and equitable and other rights or remedies as it may have in respect of such
Accounts Collateral or Non-Accounts Collateral. 
Such Majority Lenders may direct such Collateral Agent in writing as to
the method and the extent of any Accounts Collateral or Non-Accounts Collateral
or other disposition, the applicable Lenders hereby agreeing to indemnify and
hold such Collateral Agent, harmless from all liabilities incurred in respect
of all actions taken or omitted in accordance with such directions, provided that such Collateral Agent need not comply with any
such direction to the extent that such Collateral Agent reasonably believes
such Collateral Agent’s compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.


 


13.13             Field
Audit and Examination Reports; Disclaimer by Revolving Administrative Agent,
Accounts Collateral Agent and Revolving Lenders.  In the event that the Accounts Collateral Agent
provides to Revolving Lenders copies of field audits or examination reports
(each, a “Report” and collectively, “Reports”), in Accounts Collateral Agent’s discretion, each Revolving
Lender:


 


(a)              expressly agrees and acknowledges
that the Accounts Collateral Agent (i) makes no representation or warranty as
to the accuracy of any Report; or (ii) shall be liable for any information
contained in any Report;


 


(b)              expressly agrees and acknowledges
that the Reports are not comprehensive audits or examinations, that the
Accounts Collateral Agent or other party performing any audit or examination
will inspect only specific information regarding the Credit Parties and will
rely significantly upon each Credit Parties’ books and records, as well as on
representations of each Credit Party’s personnel;


 


(c)              agrees to keep all Reports
confidential and strictly for its internal use, and not to distribute except to
its participants, or use any Report in any other manner; and


 


(d)              without limiting the generality of
any other indemnification provision contained in this Agreement, agrees:  (i) to hold the Accounts Collateral Agent and
any such other Revolving Lender preparing a Report harmless from any action the
indemnifying Revolving Lender may take or conclusion the indemnifying Revolving
Lender may reach or draw from any Report in connection with any loans or other
credit accommodations that the indemnifying Revolving Lender has made or may
make to any of the Credit Parties, or the indemnifying Revolving


 


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Lender’s
participation in, or the indemnifying Revolving Lender’s purchase of, a loan or
loans of any of the Credit Parties; and (ii) to pay and protect, and indemnify,
defend and hold the Accounts Collateral Agent and any such other Revolving
Lender preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses and other amounts (including attorney’s
fees and expenses) incurred by the Accounts Collateral Agent and any such other
Revolving Lender preparing a Report as the direct or indirect result of any
third parties who might obtain all or part of any Report through the
indemnifying Revolving Lender.


 


13.14             Canadian
Collateral Agent as Fondé de Pouvoir.  Without prejudice to the provisions of this
Agreement, each Canadian Secured Party hereby designates and appoints the
Canadian Collateral Agent as the person holding the power of attorney (fondé de pouvoir) of the Canadian Secured Parties as
contemplated under Article 2692 of the Civil Code of Quebec, to enter into, to
take and to hold on their behalf, and for their benefit, the Deed of Hypothec,
and to exercise such powers and duties which are conferred upon the Canadian
Collateral Agent under the Deed of Hypothec. 
Any Person who becomes a Canadian Secured Party shall be deemed to have
consented to and confirmed the Canadian Collateral Agent as the person holding
the power of attorney (fondé de pouvoir)
as aforesaid and to have ratified, as of the date it becomes a Canadian Secured
Party, all actions taken by the Canadian Collateral Agent in such
capacity.  As the person holding the
power of attorney (fondé de pouvoir),
the Canadian Collateral Agent shall be entitled to delegate from time to time
any of its powers or duties under the Deed of Hypothec to any Person and on
such terms and conditions as the Canadian Collateral Agent may determine from
time to time.


 


Without
prejudice to the designations and appointment of the Canadian Collateral Agent
as the person holding the power of attorney (fondé de
pouvoir) as aforesaid, each Canadian Secured Party hereby
additionally designates and appoints the Canadian Collateral Agent as agent and
custodian for and on behalf of each of them to hold and to be the sole
registered holder of any bond issued under the Deed of Hypothec,
notwithstanding Section 32 of an Act respecting the special powers of legal
persons (Quebec) or any other requirement of law.  In this respect, (i) the Canadian Collateral
Agent, as agent and custodian of the Canadian Secured Parties, shall keep a
record indicating the names and addresses of, and the pro rata portion of the
obligations and indebtedness secured by the Movable Hypothec, owing to the
persons for and on behalf of whom the aforesaid bond is so held from time to
time and (ii) each Canadian Secured Party will be entitled to the benefits of
any Canadian Accounts Collateral subject to the Deed of Hypothec and will
participate in the proceeds of realization of any such collateral, the whole in
accordance with the terms hereof.  The Canadian
Collateral Agent, in such capacity as agent and custodian shall, (x) have the
sole and exclusive right and authority to exercise, except as may be otherwise
specifically restricted by the terms hereof, all rights and remedies given to
the Canadian Accounts Collateral Agent with respect to the Canadian Accounts
Collateral under the Deed of Hypothec and Movable Hypothec, applicable law or
otherwise, and (y) benefit from and be subject to all provisions hereof with
respect to the Canadian Collateral Agent mutatis mutandis,
including, without limitation, all such provisions with respect to the
liability or responsibility to and indemnification by the Canadian Secured
Parties.  Any Person who becomes a
Canadian Secured Party shall be deemed to have consented to and confirmed the
Canadian Collateral Agent as the agent and custodian as aforesaid and to have
ratified, as of the date it becomes a Canadian Secured Party, all actions taken
by the Canadian Collateral Agent in such capacity.  As agent and custodian, the Canadian
Collateral Agent shall be entitled to delegate from time to time any of its


 


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powers or duties hereunder to
any Person and on such terms and conditions as the Canadian Collateral Agent
may determine from time to time.


 


SECTION
14.       JOINT AND SEVERAL LIABILITY;
GUARANTEES.


 


14.1               (a)           Joint and Several Liability of US
Borrowers.  All Loans made,
LC Facility Letters of Credit and Revolving Letter of Credit Accommodations
issued hereunder are made to or for the mutual benefit, directly and
indirectly, of each of the US Borrowers and in
consideration of the agreement of the other US Borrowers to accept joint and
several liability for the Obligations and for the Canadian Borrowers to accept
joint and several liability with respect to the Canadian Obligations.  Each US Borrower jointly and severally,
hereby irrevocably and unconditionally accepts, not merely as a surety but also
as a co-debtor, joint and several and direct and primary liability for the full
and indefeasible payment when due and performance of all Obligations and for
the prompt and full payment and performance of all of the promises, covenants,
representations, and warranties made or undertaken by any Credit Party under
the Financing Agreements and US Borrowers agree that such liability is
independent of the duties, obligations, and liabilities of each of the joint
and several US Borrowers.  In furtherance of the foregoing, each US
Borrower jointly and severally, absolutely and unconditionally guarantees to
(a) the Revolving Secured Parties the full and indefeasible payment and
performance when due of all Revolving Obligations and (b) LC Facility Secured
Parties the full and indefeasible payment and performance when due of all LC
Facility Obligations.


 


14.1               (b)           Joint and Several Liability of
Canadian Borrowers.  All Canadian Loans made issued hereunder are made to or for the mutual
benefit, directly and indirectly, of each of the Canadian Borrowers and in
consideration of the agreement of the US Credit Parties and other Canadian
Borrowers to accept joint and several liability for the Canadian
Obligations.  Each Canadian Borrower
jointly and severally, hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several and direct and
primary liability for the full and indefeasible payment when due and
performance of all Canadian Obligations and for the prompt and full payment and
performance of all of the promises, covenants, representations, and warranties
made or undertaken by each Canadian Borrower under the Financing Agreements and
Canadian Borrowers agree that such liability is independent of the duties,
obligations, and liabilities of each of the joint and several Canadian
Borrowers.  In furtherance of the
foregoing, each Canadian Borrower jointly and severally, absolutely and
unconditionally guarantees to Canadian Secured Parties the full and
indefeasible payment and performance when due of all Canadian Obligations.


 


14.2               Suretyship
Waivers and Consents.


 


(a)              Each US Credit
Party acknowledges that the obligations of such US Credit Party undertaken
herein might be construed to consist, at least in part, of the guarantee of
obligations of persons other than such US Credit Party (including the other US
Credit parties) and, in full recognition of that fact and in full recognition
of the joint and several and direct and primary liability of each US Credit
Party hereunder for the Obligations, each US Credit Party consents and agrees
that (A) in the case of the US Revolving Obligations, the Revolving
Administrative Agent and Revolving Lenders, (B) in the case of the
Canadian Obligations, the Canadian Agent and the Canadian Lender and (C) in the
case of LC Facility Obligations, the LC Facility Administrative


 


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Agent, LC Facility Lenders and
Term Loan Lenders, may, at any time and from time to time, without notice or
demand (except as provided in and in accordance with the terms of this
Agreement), whether before or after any actual or purported termination, repudiation
or revocation of this Agreement by any US Credit Party, and without affecting
the enforceability or continuing effectiveness hereof as to each US Credit
Party:  (i) increase, extend, or
otherwise change the time for payment or the terms of the Obligations or any
part thereof; (ii) supplement, restate, modify, amend, increase, decrease, or
waive, or enter into or give any agreement, approval or consent with respect to
any of the Obligations or any part thereof, or any of the Financing Agreements
or any additional security or guarantees, or any condition, covenant, default,
remedy, right, representation, or term thereof or thereunder; (iii) accept new
or additional instruments, documents, or agreements in exchange for or relative
to any of the Financing Agreements or the Obligations or any part thereof; (iv)
accept partial payments on any of the Obligations; (v) receive and hold
additional security or guarantees for the Obligations or any part thereof; (vi)
release, reconvey, terminate, waive, abandon, fail to perfect, subordinate,
exchange, substitute, transfer, or enforce any security or guarantees, and
apply any security and direct the order or manner of sale thereof as such
Administrative Agent in its sole and absolute discretion may determine; (vii)
release any person from any personal liability with respect to the Obligations
or any part thereof; (viii) settle, release on terms satisfactory to such
Administrative Agent or by operation of applicable laws or otherwise liquidate
or enforce any Obligations and any security therefor or guaranty thereof, respectively,
in any manner, consent to the transfer of any security and bid and purchase at
any sale; or (ix) consent to the merger, change, or any other restructuring or
termination of the corporate or partnership existence of any US Credit Party,
and correspondingly restructure the Obligations, and any such merger, change,
restructuring, or termination shall not affect the liability of any US Credit
Party or the continuing effectiveness hereof, or the enforceability hereof with
respect to all or any part of the Obligations.


 


(b)              Any Secured Party
may enforce its rights under this Agreement independently as to each Credit
Party and independently of any other remedy or security.  Any Secured Party at any time may have or
hold in connection with the Obligations, and it shall not be necessary for any
Secured Party to marshal assets in favor of any Credit Party or to proceed upon
or against or exhaust any security or remedy before proceeding to enforce this
Agreement.  Each Credit Party expressly
waives any right to require any Secured Party to marshal assets in favor of any
Credit Party of the Obligations of such Credit Party or to proceed against any
other US Credit Party, and agrees that Accounts Collateral Agent may proceed
against US Credit Parties or any US Accounts Collateral in such order as
Accounts Collateral Agent shall determine in its sole and absolute discretion.


 


(c)              Any Secured Party
may each file a separate action or actions against any Credit Party with
respect to such Credit Party’s Obligations, whether such action is brought or
prosecuted with respect to any security or against any guarantor of such Credit
Party, or whether any other person is joined in any such action or
actions.  Each Credit Party agrees that
any of the Secured Parties and any Credit Party and any affiliate of any Credit
Party may deal with each other in connection with the Obligations or otherwise,
or alter any contracts or agreements now or hereafter existing between any of
them, in any manner whatsoever, all without in any way altering or affecting
the continuing efficacy of this Agreement. 
Each Credit Party, as a joint and several Credit Party and guarantor
hereunder with respect to such Credit Party’s Obligations, expressly waives the
benefit of any statute of limitations affecting its joint and several liability
and


 


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guarantee hereunder (but not
its primary liability) or the enforcement of the Obligations of such Credit
Party or any rights of any Secured Party created or granted herein.


 


(d)              Any Secured Party’s
rights hereunder shall be reinstated and revived, and the enforceability of
this Agreement shall continue, with respect to any amount at any time paid on
account of the Obligations of any Credit Party, which thereafter shall be
required to be restored or returned by such Agent or Lender, all as though such
amount had not been paid.  The rights of
the Secured Party created or granted herein and the enforceability of this
Agreement at all times shall remain effective to cover the full amount of all
Obligations of such Credit Party, even though such Obligations, including any
part thereof or any other security or guaranty therefor, respectively, may be
or hereafter may become invalid or otherwise unenforceable as against any
Credit Party and whether or not any Credit Party shall have any personal
liability with respect thereto.


 


(e)              Each Credit Party
expressly waives any and all defenses now or hereafter arising or asserted by
reason of (i) any disability or other defense of any other Credit Party with
respect to such Credit Party’s Obligations; (ii) the unenforceability or invalidity
of any security or guaranty for such Credit Party’s Obligations or the lack of
perfection or continuing perfection or failure of priority of any security for
such Credit Party’s Obligations; (iii) the cessation for any cause whatsoever
of the liability of such Credit Party (other than by reason of the full payment
and performance of all of such Credit Party’s Obligations); (iv) any failure of
any Secured Party to marshal assets in favor of any Credit Party; (v) any
failure of any Secured Party to give notice to any Credit Party of sale or
other disposition of Collateral of another Credit Party or any defect in any
notice that may be given in connection with any such sale or disposition of
Collateral of any Credit Party securing the Obligations of such Credit Party;
(vi) any failure of any Secured Party to comply with applicable law in
connection with the sale or other disposition of any Collateral or other
security of any Credit Party, for any Obligations of such Credit Party,
including any failure of any Secured Party to conduct a commercially reasonable
sale or other disposition of any Collateral or other security of any other
Credit Party for any Obligations of such Credit Party; (vii) any act or
omission of any Secured Party or others that directly or indirectly results in
or aids the discharge or release of any other Credit Party or any Obligations
of any other Credit Party or any security or guaranty therefor by operation of
law or otherwise; (viii) any law which provides that the obligation of a surety
or guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety’s or guarantor’s
obligation in proportion to the principal obligation; (ix) any failure of any
Secured Party to file or enforce a claim in any bankruptcy or other proceeding
with respect to any Credit Party; (x) the avoidance of any Lien or security
interest in assets of any other Credit Party in favor of any Secured Party for
any reason; or (xi) any action taken by any Secured Party that is authorized by
this section or any other provision of any Financing Agreement.  Until such time, if any, as all of the
Obligations of any Credit Party have been indefeasibly paid and performed in
full and no portion of any commitment of any Secured Party to such Credit Party
under any Financing Agreement remains in effect (or in the case of the Canadian
Borrowers, prior to the Discharge of Revolving Obligations), such Credit
Parties’ rights of subrogation, contribution, reimbursement, or indemnity
against the other shall be fully and completely subordinated to the
indefeasible repayment in full of such Credit Parties’ Obligations, and each
Credit Party expressly waives any right to enforce any remedy that it now has
or hereafter may have against any other Person and


 


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waives the benefit of, or any
right to participate in, any Collateral now or hereafter held by any Secured Party.


 


(f)               To the fullest
extent permitted by applicable law, each Credit Party expressly waives and
agrees not to assert, any and all defenses in its favor based upon an election
of remedies by any Secured Party which destroys, diminishes, or affects such
Credit Party’s subrogation rights against the other Credit Parties and/or
(except as explicitly provided for herein) any rights to proceed against each
other Credit Party, or any other party liable to any Secured Party, for
reimbursement, contribution, indemnity, or otherwise.


 


(g)              Each Credit Party
warrants and agrees that each of the waivers and consents set forth herein are
made after consultation with legal counsel and with full knowledge of their
significance and consequences, with the understanding that events giving rise
to any defense or right waived may diminish, destroy, or otherwise adversely
affect rights which such Credit Party otherwise may have against the other
Credit Parties or the Secured Parties, or others, or against the Collateral,
and that, under the circumstances, the waivers and consents herein given are reasonable.  If any of the waivers or consents herein are
determined to be contrary to any applicable law or public policy, such waivers
and consents shall be limited to the extent required in order to be enforceable
under applicable law.


 


(h)              Notwithstanding
any provision herein to the contrary, the joint and several liability and
guarantees of the Canadian Borrowers shall be limited to the maximum amount
permitted under any laws to which a Canadian Borrower is subject.


 


14.3               Contribution
Agreement.  As an inducement to each
Secured Party to enter into the Financing Agreements and to make the loans and
extend credit to the Borrowers, each Borrower agrees to indemnify and hold the
other harmless from and each shall have a continuing right of contribution against
each other Borrower with respect to the portion of the Obligations which such
Borrowers are jointly and severally liable for, if and to the extent that a
Borrower makes or is caused to make disproportionate payments in excess of that
Borrower’s Proportionate Share of any of the Obligations.  These indemnification and contribution obligations
shall be unconditional and continuing obligations of the Credit Parties and
shall not be waived, rescinded, modified, limited or terminated in any way whatsoever
without the prior written consent of each Secured Party, in its sole
discretion.  For purposes hereof, the “Proportionate Share” of a Borrower shall mean the Adjusted
Net Worth of such Borrower divided by the Adjusted Net Worth of all the
Borrowers which are jointly and severally liable with such Borrower for such
portion of the Obligations in the aggregate on the Amendment and Restatement
Effective Date (or, in the case of any Person that becomes a Borrower after the
Amendment and Restatement Effective Date, its Adjusted Net Worth on the date it
becomes a Borrower).


 


14.4               General
Limitation on Guarantee Obligations. 
In any action or proceeding involving any state corporate law, or any
state, federal or foreign bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of any Credit
Party under Section 14 would otherwise be held or determined to be void,
voidable, invalid or unenforceable, or subordinated to the claims of any other
creditors, on account of the amount of its liability under Section 14,
then, notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Credit Party, any Credit
Party


 


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or any other person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.


 


14.5               PREJUDGMENT
REMEDIES.  EACH CREDIT PARTY HEREBY
WAIVES SUCH RIGHTS AS IT MAY HAVE TO NOTICE AND/OR HEARING UNDER ANY APPLICABLE
FEDERAL OR STATE LAWS INCLUDING, WITHOUT LIMITATION, CONNECTICUT GENERAL
STATUTES SECTIONS 52-278A, ET SEQ., AS AMENDED, PERTAINING TO THE EXERCISE BY
SECURED PARTIES OF SUCH RIGHTS AS SECURED PARTIES MAY HAVE INCLUDING, BUT NOT
LIMITED TO, THE RIGHT TO SEEK PREJUDGMENT REMEDIES AND/OR DEPRIVE ANY CREDIT
PARTY OF OR AFFECT THE USE OF OR POSSESSION OR ENJOYMENT OF A CREDIT PARTY’S
PROPERTY PRIOR TO THE RENDITION OF A FINAL JUDGMENT AGAINST A CREDIT
PARTY.  EACH CREDIT PARTY FURTHER WAIVES
ANY RIGHT IT MAY HAVE TO REQUIRE ANY SECURED PARTY TO PROVIDE A BOND OR OTHER
SECURITY AS A PRECONDITION TO OR IN CONNECTION WITH ANY PREJUDGMENT REMEDY
SOUGHT BY ANY SECURED PARTY.


 


14.6               Guaranty.


 


(a)              Each Guarantor hereby jointly and
severally guarantees to each Secured Party as hereinafter provided the prompt
payment of all Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with
the terms thereof.  The Guarantors hereby
further agree that if any of the Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Guarantors will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.  Each Guarantor further
agrees that its guarantee constitutes a guarantee of payment when due and not
of collection.  To the fullest extent
permitted by applicable law, the obligations of each Guarantor hereunder shall
not be affected by (a) the failure of any Administrative Agent or any other
Secured Party to assert any claim or demand or to enforce or exercise any right
or remedy against any Borrower under the provisions of this Agreement, any
other Financing Agreement or otherwise, (b) any rescission, waiver, amendment
or modification of, or any release from any of the terms
or provisions of, this Agreement, any other Financing Agreement, any guarantee
or any other agreement, including with respect to any other Borrower or
Guarantor under this Agreement, or (c) the failure to perfect any security
interest in or lien on, or the release of, any of the security held by or on behalf
of any Collateral Agent or any other Secured Party.


 


(b)              Each Guarantor hereby waives (i) any right to require that
an action be brought against Borrower or any other person or to require that
resort be made to the Collateral of any Borrower prior to enforcement of such
Guarantor’s guarantee hereunder; (ii) any defense that may be available to any
other Credit Party with respect to any portion of the Obligations; (iii) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the


 


170





















 


invalidity, illegality or
unenforceability of the Obligations or otherwise; and (iv) any right or claim
of right to cause a marshalling of the assets of any Credit Party.


 


(c)              Upon payment by
any Guarantor of any sums to any Administrative Agent or any Secured Party
pursuant to this Agreement and upon the satisfaction of all outstanding Obligations,
such Guarantor shall be subrogated to the rights of each Administrative Agent
or such Secured Party to the extent of such payment; provided,
however, that all rights of such
Guarantor against any Credit Party arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in
all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations.  In addition, any Indebtedness of any Credit
Party now or hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full in cash of the Obligations.  If any amount shall erroneously be paid to
any Guarantor on account of (i) such subrogation, contribution, reimbursement,
indemnity or similar right or (ii) any such Indebtedness of any Credit Party,
such amount shall be held in trust for the benefit of the Secured Parties and
shall forthwith be paid to the applicable Administrative Agent to be credited
against the payment of the Obligations, whether matured or unmatured, in
accordance with the terms of this Agreement.


 


(d)              As an inducement
to each Secured Party to enter into the Financing Agreements and to make the
loans and extend credit to the Borrowers, each Borrower and each Guarantor
agrees to indemnify and hold each Guarantor harmless from and each Guarantor
shall have a continuing right of contribution against each other Credit Party
with respect to the portion of the Obligations which such Credit Parties are
jointly and severally liable for, if and to the extent that a Guarantor makes
or is caused to make disproportionate payments in excess of that ‘s
Proportionate Share of any of the Obligations. 
These indemnification and contribution obligations shall be unconditional
and continuing obligations of the Credit Parties and shall not be waived,
rescinded, modified, limited or terminated in any way whatsoever without the
prior written consent of each Secured Party, in its sole discretion.  For purposes hereof, the “Proportionate Share” of a Guarantor shall mean the Adjusted
Net Worth of such Guarantor divided by the Adjusted Net Worth of all the Credit
Parties which are jointly and severally liable with such Guarantor for such
portion of the Obligations in the aggregate on the Amendment and Restatement
Effective Date (or, in the case of any Person that becomes a Credit Party after
the Amendment and Restatement Effective Date, its Adjusted Net Worth on the
date it becomes a Borrower).


 


(e)              Notwithstanding
any other provision of this Agreement to the contrary, the Guarantors are not
and shall not be liable as borrowers or otherwise for repayment of any Obligations
other than to the extent of the Guarantors’ obligations under the provisions of
this Section 14.6 and/or any indemnity deeds of trust (or similar documents or
instruments) executed in favor of either Collateral Agent by any Guarantor. 


 


SECTION
15.       USA PATRIOT ACT NOTICE.


 


15.1               USA
Patriot Act Notice.  Each Lender that
is subject to the Act and each Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers 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 Borrowers,


 


171





















 


which information includes the
name and address of the Borrowers and other information that will allow such
Lender or Agent, as applicable, to identify the Borrowers in accordance with
the Act.


 


 


[Remainder of Page Intentionally Left Blank]


 


172





















 


Signature Page to Loan and Security Agreement


 


IN WITNESS WHEREOF, Lender and Credit Parties
have caused these presents to be duly executed as of the day and year first
above written.


 


CREDIT PARTIES


 


CLEAN
HARBORS, INC.


ALTAIR
DISPOSAL SERVICES, LLC


BATON
ROUGE DISPOSAL, LLC


BRIDGEPORT
DISPOSAL, LLC


CH
INTERNATIONAL HOLDINGS, INC.


CLEAN
HARBORS ANDOVER, LLC


CLEAN
HARBORS ANTIOCH, LLC


CLEAN
HARBORS ARAGONITE, LLC


CLEAN
HARBORS ARIZONA, LLC


CLEAN
HARBORS OF BALTIMORE, INC.


CLEAN
HARBORS BATON ROUGE, LLC


CLEAN
HARBORS BDT, LLC


CLEAN
HARBORS BUTTONWILLOW, LLC


CLEAN
HARBORS CHATTANOOGA, LLC


CLEAN
HARBORS COFFEYVILLE, LLC


CLEAN
HARBORS COLFAX, LLC


CLEAN
HARBORS DEER PARK, L.P.


CLEAN
HARBORS DEER TRAIL, LLC


CLEAN
HARBORS DISPOSAL SERVICES, INC.


CLEAN
HARBORS FINANCIAL SERVICES COMPANY


CLEAN
HARBORS FLORIDA, LLC


CLEAN
HARBORS GRASSY MOUNTAIN, LLC


CLEAN
HARBORS KANSAS, LLC


CLEAN HARBORS LAPORTE, L.P.


CLEAN HARBORS LAUREL, LLC


CLEAN HARBORS LONE MOUNTAIN, LLC


CLEAN HARBORS LONE STAR CORP.


CLEAN HARBORS LOS ANGELES, LLC


CLEAN HARBORS (MEXICO), INC.


CLEAN HARBORS OF TEXAS, LLC


CLEAN HARBORS PECATONICA, LLC


CLEAN HARBORS PLAQUEMINE, LLC


CLEAN HARBORS PPM, LLC


CLEAN HARBORS REIDSVILLE, LLC


CLEAN HARBORS SAN JOSE, LLC


CLEAN HARBORS TENNESSEE, LLC


 


S-1





















 


CLEAN
HARBORS WESTMORLAND, LLC


CLEAN
HARBORS WHITE CASTLE, LLC


CROWLEY
DISPOSAL, LLC


DISPOSAL
PROPERTIES, LLC


GSX
DISPOSAL, LLC


HARBOR
MANAGEMENT CONSULTANTS, INC.


HARBOR
INDUSTRIAL SERVICES TEXAS, L.P.


HILLIARD
DISPOSAL, LLC


NORTHEAST
CASUALTY REAL PROPERTY, LLC


ROEBUCK
DISPOSAL, LLC


SAWYER
DISPOSAL SERVICES, LLC


SERVICE
CHEMICAL, LLC


TULSA
DISPOSAL, LLC


CLEAN
HARBORS ENVIRONMENTAL SERVICES, INC


CLEAN
HARBORS OF BRAINTREE, INC.


CLEAN
HARBORS OF NATICK, INC.


CLEAN
HARBORS SERVICES, INC.


MURPHY’S
WASTE OIL SERVICE, INC.


CLEAN
HARBORS KINGSTON FACILITY CORPORATION


CLEAN
HARBORS OF CONNECTICUT, INC.


SPRING
GROVE RESOURCE RECOVERY, INC.


CH CANADA
HOLDINGS CORP.


CH CANADA
GP, INC.


CLEAN
HARBORS CANADA LP


CLEAN
HARBORS CANADA, INC.


CLEAN
HARBORS QUEBEC, INC.


CLEAN
HARBORS MERCIER, INC.


510127
N.B. INC.


 


 


	
   

  	
  By:

  	
  /s/ Stephen Moynihan

  	
   

  
	
   

  	
  Title:

  	
    Vice
  President

  
	
   

  	
   

  
	
   

  	
  Chief Executive Office:

  
	
   

  	
  1501 Washington Street

  
	
   

  	
  Braintree, MA 02184

  



 


S-2





















 


REVOLVING ADMINISTRATIVE AGENT,

ACCOUNTS COLLATERAL AGENT AND

US REVOLVING LENDER


 


	
  BANK OF AMERICA, N.A.,

  
	
  Individually and as Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Mark Schafer

  	
   

  
	
  Title: Vice President

  



 


 


CANADIAN COLLATERAL AGENT AND


CANADIAN LENDER:


 


	
  BABC GLOBAL FINANCE INC.,

  
	
  Individually and as Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Alister Bazaz

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
					



 


 


LC FACILITY ADMINISTRATIVE AGENT


AND LC FACILITY COLLATERAL AGENT


 


	
  CREDIT SUISSE,
  Cayman Islands Branch

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Paul L. Colon

  	
   

  
	
  Title: Director

  	
   

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Karim Blasetti

  	
   

  
	
  Title: Associate

  
					



 


S-3





















 


	
  CREDIT SUISSE,
  Cayman Islands Branch, in its

  capacity as an LC Facility Lender

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Phillip Ho

  	
   

  
	
  Title: Director

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Karim Blasetti

  	
   

  
	
  Title: Associate

  



 


S-4