EXHIBIT 10.1


 




 





AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of August 6, 2004


 


among


 


SEALY MATTRESS COMPANY,

as Borrower


 


SEALY CANADA LTD./LTEE,

as Canadian Borrower


 


CERTAIN SUBSIDIARIES OF BORROWER,

as Guarantors


 


SEALY MATTRESS CORPORATION,

as Holdings and a Guarantor


 


SEALY CORPORATION,

as Parent


 


The Several Lenders

from Time to Time Parties Hereto


 


JPMORGAN CHASE BANK,

as Administrative Agent


 


J.P. MORGAN SECURITIES INC.,

as Joint Lead Arranger and Joint Bookrunner


 


GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Joint Lead Arranger, Joint Bookrunner and Syndication Agent


 


GENERAL ELECTRIC CAPITAL CORPORATION,

as Co-Documentation Agent


 


and


 


ROYAL BANK OF CANADA,


as Co-Documentation Agent




 





 
















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  Definitions

  	
   

  
	
  1.1.

  	
  Defined
  Terms

  	
   

  
	
  1.2.

  	
  Exchange
  Rates

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  Amount and Terms of Credit

  	
   

  
	
  2.1.

  	
  Commitments

  	
   

  
	
  2.2.

  	
  Minimum Amount of Each Borrowing; Maximum
  Number of Borrowings

  	
   

  
	
  2.3.

  	
  Notice of Borrowing

  	
   

  
	
  2.4.

  	
  Disbursement
  of Funds

  	
   

  
	
  2.5.

  	
  Repayment of Loans; Evidence of Debt

  	
   

  
	
  2.6.

  	
  Conversions and Continuations

  	
   

  
	
  2.7.

  	
  Pro Rata Borrowings

  	
   

  
	
  2.8.

  	
  Interest

  	
   

  
	
  2.9.

  	
  Interest
  Periods

  	
   

  
	
  2.10.

  	
  Increased
  Costs, Illegality, etc.

  	
   

  
	
  2.11.

  	
  Compensation

  	
   

  
	
  2.12.

  	
  Change of Lending Office

  	
   

  
	
  2.13.

  	
  Notice of Certain Costs

  	
   

  
	
  2.14.

  	
  Bankers’ Acceptances

  	
   

  
	
  2.15.

  	
  Incremental Facilities

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  Letters of Credit

  	
   

  
	
  3.1.

  	
  Letters
  of Credit

  	
   

  
	
  3.2.

  	
  Letter of Credit Requests

  	
   

  
	
  3.3.

  	
  Letter of Credit Participations

  	
   

  
	
  3.4.

  	
  Agreement
  to Repay Letter of Credit Drawings

  	
   

  
	
  3.5.

  	
  Increased
  Costs

  	
   

  
	
  3.6.

  	
  Successor
  Letter of Credit Issuer

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  Fees; Commitments

  	
   

  
	
  4.1.

  	
  Fees

  	
   

  
	
  4.2.

  	
  Voluntary Reduction of Revolving Credit Commitments

  	
   

  
	
  4.3.

  	
  Mandatory Termination of Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  Payments

  	
   

  
	
  5.1.

  	
  Voluntary Prepayments.

  	
   

  
	
  5.2.

  	
  Mandatory Prepayments

  	
   

  
	
  5.3.

  	
  Method
  and Place of Payment

  	
   

  
	
  5.4.

  	
  Net
  Payments

  	
   

  
	
  5.5.

  	
  Computations of Interest and Fees

  	
   

  
	
  5.6.

  	
  Limit on Rate of Interest.

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  Conditions Precedent to Initial Borrowing

  	
   

  
	
  6.1.

  	
  Credit
  Documents

  	
   

  
	
  6.2.

  	
  Collateral

  	
   

  



 


i
















 


	
  6.3.

  	
  Legal
  Opinions

  	
   

  
	
  6.4.

  	
  No
  Default

  	
   

  
	
  6.5.

  	
  Consent

  	
   

  
	
  6.6.

  	
  [Reserved]

  	
   

  
	
  6.7.

  	
  Effective Date Certificates

  	
   

  
	
  6.8.

  	
  Corporate Proceedings of Each Credit Party

  	
   

  
	
  6.9.

  	
  Corporate
  Documents

  	
   

  
	
  6.10.

  	
  Fees

  	
   

  
	
  6.11.

  	
  Representations and Warranties

  	
   

  
	
  6.12.

  	
  Governmental Authorizations and Consents

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  Conditions Precedent to All Credit Events

  	
   

  
	
  7.1.

  	
  No Default; Representations and Warranties

  	
   

  
	
  7.2.

  	
  Notice of Borrowing; Letter of Credit
  Request

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  Representations, Warranties and Agreements

  	
   

  
	
  8.1.

  	
  Corporate
  Status

  	
   

  
	
  8.2.

  	
  Corporate
  Power and Authority

  	
   

  
	
  8.3.

  	
  No
  Violation

  	
   

  
	
  8.4.

  	
  Litigation

  	
   

  
	
  8.5.

  	
  Margin
  Regulations

  	
   

  
	
  8.6.

  	
  Governmental
  Approvals

  	
   

  
	
  8.7.

  	
  Investment
  Company Act

  	
   

  
	
  8.8.

  	
  True and Complete Disclosure

  	
   

  
	
  8.9.

  	
  Financial Condition; Financial Statements

  	
   

  
	
  8.10.

  	
  Tax
  Returns and Payments

  	
   

  
	
  8.11.

  	
  Compliance
  with ERISA

  	
   

  
	
  8.12.

  	
  Subsidiaries

  	
   

  
	
  8.13.

  	
  Patents,
  etc.

  	
   

  
	
  8.14.

  	
  Environmental
  Laws

  	
   

  
	
  8.15.

  	
  Properties

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  Affirmative Covenants

  	
   

  
	
  9.1.

  	
  Information Covenants

  	
   

  
	
  9.2.

  	
  Books,
  Records and Inspections

  	
   

  
	
  9.3.

  	
  Maintenance of Insurance

  	
   

  
	
  9.4.

  	
  Payment
  of Taxes

  	
   

  
	
  9.5.

  	
  Consolidated Corporate Franchises

  	
   

  
	
  9.6.

  	
  Compliance with Statutes, Obligations, etc.

  	
   

  
	
  9.7.

  	
  ERISA

  	
   

  
	
  9.8.

  	
  Good
  Repair

  	
   

  
	
  9.9.

  	
  Transactions with Affiliates

  	
   

  
	
  9.10.

  	
  End of Fiscal Years; Fiscal Quarters

  	
   

  
	
  9.11.

  	
  Additional Guarantors and Grantors

  	
   

  
	
  9.12.

  	
  Pledges of Additional Stock and Evidence of
  Indebtedness

  	
   

  
	
  9.13.

  	
  Use
  of Proceeds

  	
   

  
	
  9.14.

  	
  Changes
  in Business

  	
   

  



 


ii
















 


	
  9.15.

  	
  Further
  Assurances

  	
   

  
	
  9.16.

  	
  Canadian
  Borrower

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  Negative Covenants

  	
   

  
	
  10.1.

  	
  Limitation on Indebtedness

  	
   

  
	
  10.2.

  	
  Limitation on Liens

  	
   

  
	
  10.3.

  	
  Limitation on Fundamental Changes

  	
   

  
	
  10.4.

  	
  Limitation on Sale of Assets

  	
   

  
	
  10.5.

  	
  Limitation on Investments

  	
   

  
	
  10.6.

  	
  Limitation on Dividends

  	
   

  
	
  10.7.

  	
  Limitations on Debt Payments and Amendments

  	
   

  
	
  10.8.

  	
  Limitations on Sale Leasebacks

  	
   

  
	
  10.9.

  	
  Consolidated Total Debt to Consolidated
  EBITDA Ratio

  	
   

  
	
  10.10.

  	
  Consolidated EBITDA to Consolidated
  Interest Expense Ratio

  	
   

  
	
  10.11.

  	
  Capital
  Expenditures

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  Events of Default

  	
   

  
	
  11.1.

  	
  Payments

  	
   

  
	
  11.2.

  	
  Representations,
  etc.

  	
   

  
	
  11.3.

  	
  Covenants

  	
   

  
	
  11.4.

  	
  Default Under Other Agreements

  	
   

  
	
  11.5.

  	
  Bankruptcy,
  etc.

  	
   

  
	
  11.6.

  	
  ERISA

  	
   

  
	
  11.7.

  	
  Guarantee

  	
   

  
	
  11.8.

  	
  Pledge
  Agreement

  	
   

  
	
  11.9.

  	
  Security
  Agreement

  	
   

  
	
  11.10.

  	
  Mortgages

  	
   

  
	
  11.11.

  	
  Foreign
  Guarantees

  	
   

  
	
  11.12.

  	
  Canadian Security Documents

  	
   

  
	
  11.13.

  	
  Subordination

  	
   

  
	
  11.14.

  	
  Judgments

  	
   

  
	
  11.15.

  	
  Change
  of Control

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  The Administrative Agent

  	
   

  
	
  12.1.

  	
  Appointment

  	
   

  
	
  12.2.

  	
  Delegation of Duties

  	
   

  
	
  12.3.

  	
  Exculpatory Provisions

  	
   

  
	
  12.4.

  	
  Reliance by Administrative Agent

  	
   

  
	
  12.5.

  	
  Notice
  of Default

  	
   

  
	
  12.6.

  	
  Non-Reliance on Administrative Agent and
  Other Lenders

  	
   

  
	
  12.7.

  	
  Indemnification

  	
   

  
	
  12.8.

  	
  Administrative Agent in its Individual
  Capacity

  	
   

  
	
  12.9.

  	
  Successor
  Agent

  	
   

  
	
  12.10.

  	
  Withholding
  Tax

  	
   

  
	
  12.11.

  	
  Canadian Administrative Agent.

  	
   

  
	
  12.12.

  	
  Quebec.

  	
   

  



 


iii
















 


	
  SECTION 13.

  	
  Collateral Allocation Mechanism

  	
   

  
	
  13.1.

  	
  Implementation of CAM

  	
   

  
	
  13.2.

  	
  Letters
  of Credit

  	
   

  
	
  13.3.

  	
  Net Payments Upon Implementation of CAM
  Exchange

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  Miscellaneous

  	
   

  
	
  14.1.

  	
  Amendments and Waivers

  	
   

  
	
  14.2.

  	
  Notices

  	
   

  
	
  14.3.

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
  14.4.

  	
  Survival of Representations and Warranties

  	
   

  
	
  14.5.

  	
  Payment of Expenses and Taxes

  	
   

  
	
  14.6.

  	
  Successors and Assigns; Participations and
  Assignments

  	
   

  
	
  14.7.

  	
  Replacements of Lenders under Certain
  Circumstances

  	
   

  
	
  14.8.

  	
  Adjustments; Set-off

  	
   

  
	
  14.9.

  	
  Counterparts

  	
   

  
	
  14.10.

  	
  Severability

  	
   

  
	
  14.11.

  	
  Integration

  	
   

  
	
  14.12.

  	
  GOVERNING
  LAW

  	
   

  
	
  14.13.

  	
  Submission to Jurisdiction; Waivers

  	
   

  
	
  14.14.

  	
  Acknowledgments

  	
   

  
	
  14.15.

  	
  WAIVERS OF JURY TRIAL

  	
   

  
	
  14.16.

  	
  Confidentiality

  	
   

  
	
  14.17.

  	
  Judgment
  Currency

  	
   

  
	
  14.18.

  	
  USA
  PATRIOT Act

  	
   

  
	
  14.19.

  	
  Reaffirmation and Grant of Security
  Interest

  	
   

  
	
  14.20.

  	
  Amendment and Restatement

  	
   

  



 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1 (b)

  	
  Mortgaged Properties

  	
   

  
	
  Schedule 1.1 (c)

  	
  Commitments and Addresses of Lenders

  	
   

  
	
  Schedule 1.1(d)

  	
  EBITDA Add-Backs

  	
   

  
	
  Schedule 1.1(e)

  	
  Excluded Subsidiaries

  	
   

  
	
  Schedule 2.1(a)

  	
  Continuing Lenders

  	
   

  
	
  Schedule 8.11(ii)

  	
  Canadian Pension Plan Disclosures

  	
   

  
	
  Schedule 8.12

  	
  Subsidiaries

  	
   

  
	
  Schedule 10.1

  	
  Closing Date Indebtedness

  	
   

  
	
  Schedule 10.2

  	
  Closing Date Liens

  	
   

  
	
  Schedule 10.5

  	
  Closing Date Investments

  	
   

  
	
  Schedule 10.5(o)

  	
  Investments in newly formed Puerto Rican Subsidiary

  	
   

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  Form of Canadian Guarantee

  	
   

  



 


iv
















 


	
  Exhibit A-2

  	
  Forms of Canadian Pledge Agreements

  	
   

  
	
  Exhibit A-3

  	
  Form of Canadian Security Agreement

  	
   

  
	
  Exhibit C

  	
  Form of Guarantee

  	
   

  
	
  Exhibit D

  	
  Form of Mortgage (Real Property)

  	
   

  
	
  Exhibit E

  	
  Form of Perfection Certificate

  	
   

  
	
  Exhibit F

  	
  Form of Pledge Agreement

  	
   

  
	
  Exhibit G

  	
  Form of Security Agreement

  	
   

  
	
  Exhibit H-1

  	
  Form of US Letter of Credit Request

  	
   

  
	
  Exhibit H-2

  	
  Form of Canadian Letter of Credit Request

  	
   

  
	
  Exhibit I-1

  	
  Form of Legal Opinion of Simpson Thacher & Bartlett LLP

  	
   

  
	
  Exhibit I-2

  	
  Form of Legal Opinions of Osler, Hoskin & Harcourt LLP

  	
   

  
	
  Exhibit I-3

  	
  Form of Legal Opinion of Calfee, Halter & Griswold LLP

  	
   

  
	
  Exhibit I-4

  	
  Form of Legal Opinion of general counsel

  	
   

  
	
  Exhibit J

  	
  Form of Effective Date Certificate

  	
   

  
	
  Exhibit K

  	
  Form of Assignment and Acceptance

  	
   

  
	
  Exhibit L-1

  	
  Form of Promissory Note (Tranche C Term Loans)

  	
   

  
	
  Exhibit L-2

  	
  Form of Promissory Note (Revolving Credit and Swingline Loans)

  	
   

  
	
  Exhibit M

  	
  Form of Joinder Agreement

  	
   

  



 


v
















 


AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 6, 2004,
among SEALY MATTRESS COMPANY, an Ohio corporation (the “Borrower”),
SEALY CANADA LTD./LTEE, a company organized under the laws of Canada (the “Canadian
Borrower”), SEALY MATTRESS CORPORATION, a Delaware Corporation (“Holdings”)
and SEALY CORPORATION, a Delaware corporation (“Parent”), the lending
institutions from time to time parties hereto (each a “Lender” and,
collectively, the “Lenders”), J.P. MORGAN
SECURITIES INC., as Joint Lead Arranger and Joint Bookrunner, GOLDMAN SACHS
CREDIT PARTNERS L.P., as Joint Lead Arranger, Joint Bookrunner and Syndication
Agent, JPMORGAN CHASE BANK, as
Administrative Agent (such term and each other capitalized term used but not
defined in this introductory statement having the meaning provided in
Section 1), JPMORGAN CHASE BANK, TORONTO
BRANCH, as Canadian Administrative Agent, and GENERAL ELECTRIC CAPITAL CORPORATION
and ROYAL BANK OF CANADA, as Co-Documentation Agents.


 


WHEREAS, Borrower, Canadian Borrower,
Holdings, the Guarantors, certain financial institutions and other persons (the
“Existing Lenders”), J.P. Morgan Securities Inc., as joint lead arranger
and joint bookrunner, Goldman Sachs Credit Partners L.P., as joint lead
arranger, joint bookrunner and syndication agent, JPMorgan Chase Bank, as
administrative agent, JPMorgan Chase Bank, Toronto branch, as Canadian administrative
agent and General Electric Capital Corporation, and Royal Bank of Canada, as
co-documentation agents, are parties to that certain Credit Agreement dated as
of April 6, 2004 (as heretofore amended, supplemented or otherwise
modified, the “Existing Credit Agreement”), pursuant to which the
Existing Lenders have extended certain credit facilities to Company, the
proceeds of which have been used to consummate the Recapitalization and for
working capital and general corporate purposes;


 


WHEREAS, Borrower desires that certain
Existing Lenders and other Lenders party hereto agree to amend and restate the
Existing Credit Agreement in its entirety to (i) refinance the existing term
loans made under the Existing Credit Agreement (the “Existing Term Loans”)
with the Tranche C Term Loans made hereunder; and (ii) make certain other
changes as more fully set forth herein, which amendment and restatement shall
become effective upon satisfaction of the conditions precedent set forth
herein;


 


WHEREAS, (i) the
proceeds of the Tranche C Term Loans made on the Effective Date shall be used
by the Borrower to repay in full the outstanding Existing Term Loans; (ii) the
proceeds of the Revolving Credit Loans and Swingline Loans made on and after
the Effective Date will continue to be used by the Borrower and the Canadian
Borrower for general corporate purposes (including Permitted Acquisitions); and
(iii) Letters of Credit will continue to be used by the Borrower and the
Canadian Borrower for general corporate purposes;


 


WHEREAS, Borrower has agreed to secure all of
its Obligations by reaffirming its grant to Administrative Agent, for the
benefit of Secured Parties, of a Lien on certain of its assets, including a
pledge of all of the Capital Stock of each of its


 
















 


Domestic Subsidiaries and 65% of all the Capital Stock of each of its
Foreign Subsidiaries;


 


WHEREAS, it is the intent of the parties
hereto that this Agreement not constitute a novation of the obligations and
liabilities of the parties under the Existing Credit Agreement and that this
Agreement amend and restate in its entirety the Existing Credit Agreement; and


 


WHEREAS, it is the intent of the Credit
Parties to confirm that all Obligations of the Credit Parties under the other
Credit Documents shall continue in full force and effect and that, from and
after the Effective Date, all references to the “Credit Agreement”
contained therein shall be deemed to refer to this Agreement.


 


The parties hereto hereby agree as follows:


 


SECTION 1.                                Definitions


 


1.1.          Defined Terms. 
(a)     As used herein, the
following terms shall have the meanings specified in this Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the plural
the singular):


 


“ABR” shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1⁄2 of 1%.  Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.


 


“ABR Loan” shall mean each Loan bearing interest at the rate
provided in Section 2.8(a) and, in any event, shall include all Swingline
Loans.


 


“Acquired EBITDA” shall mean, with respect to any Acquired
Entity or Business, any Converted Restricted Subsidiary, any Sold Entity or
Business or any Converted Unrestricted Subsidiary (any of the foregoing, a “Pro
Forma Entity”) for any period, the amount for such period of Consolidated
EBITDA of such Pro Forma Entity (determined using such definitions as if references
to Holdings and its Subsidiaries therein were to such Pro Forma Entity and its
Subsidiaries), all as determined on a consolidated basis for such Pro Forma
Entity in accordance with GAAP.


 


“Acquired Entity or Business” shall have the meaning provided in
the definition of the term “Consolidated EBITDA”.


 


“Adjusted Canadian Total Revolving Credit Commitment” shall mean
at any time the Canadian Total Revolving Credit Commitment less the aggregate
Canadian Revolving Credit Commitments of all Defaulting Lenders.


 


2
















 


“Adjusted US Total Revolving Credit Commitment” shall mean at
any time the US Total Revolving Credit Commitment less the aggregate US
Revolving Credit Commitments of all Defaulting Lenders.


 


“Adjusted Total Term Loan Commitment” shall mean at any time the
Total Term Loan Commitment less the Tranche C Term Loan Commitments of all
Defaulting Lenders.


 


“Administrative Agent” shall mean JPMorgan Chase Bank, together
with its affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Credit
Documents.  With respect to Borrowings by
the Canadian Borrower, the Canadian Administrative Agent may be an Affiliate of
JPMorgan Chase Bank for purposes of administering such Borrowings, and all
references herein to the term “Administrative Agents” shall be deemed to refer
to both the Administrative Agent and the Canadian Administrative Agent, as the
context requires.


 


“Administrative
Agent’s Office” shall mean (a) in respect of all Credit Events for the
account of the Borrower, the office of the Administrative Agent located at 270 Park Avenue, 5th Floor, New York, NY 10017,
or such other office as the Administrative Agent may hereafter designate in
writing as such to the other parties hereto and (b) in respect of all Credit
Events for the account of the Canadian Borrower, the office of the Canadian
Administrative Agent located at 200 Bay Street, Royal Bank Plaza, South Tower,
Toronto, Ontario M5J 2J2, or such other office in Canada as the Canadian
Administrative Agent may hereafter designate in writing as such to the other
parties hereto and all references to the term “Canadian Administrative Agent’s
Office” shall mean the office referred to in this clause (b).


 


“Affiliate” shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with such Person. 
A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power (a) to vote 10% or more of
the securities having ordinary voting power for the election of directors of
such corporation or (b) to direct or cause the direction of the management
and policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.


 


“Agents” shall mean each Joint Lead Arranger, the Administrative
Agent, the Canadian Administrative Agent, the Syndication Agent and the
Documentation Agents.


 


“Aggregate Canadian Revolving Credit Outstanding” shall have the
meaning provided in Section 5.2(b)(ii).


 


“Aggregate US Revolving Credit Outstanding” shall have the
meaning provided in Section 5.2(b)(i).


 


3
















 


“Agreement” shall mean this Amended and Restated Credit
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time.


 


“Amortization Amount” shall have the meaning provided in
Section 5.2(c).


 


“Applicable ABR Margin” shall mean at any date, with respect to
each ABR Loan, Cdn ABR Loan and Canadian Prime Loan, the applicable percentage
per annum set forth below based upon the Status in effect on such date:


 


	
  Status

  	
   

  	
  Applicable ABR Margin for

  Revolving Credit and Swingline

  Loans (including ABR Loans,

  Cdn ABR Loans and Canadian

  Prime Loans)

  	
   

  	
  Applicable ABR

  Margin for

  Tranche C Term

  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  1.25

  	
  %

  	
  1.25

  	
  %

  
	
  Level II Status

  	
   

  	
  1.00

  	
  %

  	
  1.00

  	
  %

  
	
  Level III Status

  	
   

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  
	
  Level IV Status

  	
   

  	
  0.50

  	
  %

  	
  1.00

  	
  %

  



 


Notwithstanding the foregoing, (i) the term “Applicable ABR Margin”
shall mean, (a) with respect to each ABR Loan that is a Tranche C Term Loan,
1.25% per annum and (b) with respect to each ABR Loan, Cdn ABR Loan and
Canadian Prime Loan that is a Revolving Credit Loan or a Swingline Loan, 1.25%
per annum, during the period from and including the Closing Date to but
excluding the Initial Financial Statement Delivery Date and (ii) the Applicable
ABR Margin, with respect to Tranche C Term Loans only, shall be reduced by 25
basis points from the then applicable Status level, in the event the Tranche C
Term Loans have been assigned and maintain a credit rating by Moody’s and
S&P of B1 and B+, respectively, in each case with a “stable” outlook.


 


“Applicable Eurodollar Margin” shall mean at any date, with
respect to each Eurodollar Loan, the applicable percentage per annum set forth
below based upon the Status in effect on such date:


 


	
  Status

  	
   

  	
  Applicable Eurodollar

  Margin for Revolving

  Credit and Swingline Loans

  	
   

  	
  Applicable Eurodollar

  Margin for Tranche C

  Term Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  2.50

  	
  %

  	
  2.50

  	
  %

  
	
  Level II Status

  	
   

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  
	
  Level III Status

  	
   

  	
  2.00

  	
  %

  	
  2.25

  	
  %

  
	
  Level IV Status

  	
   

  	
  1.75

  	
  %

  	
  2.25

  	
  %

  



 


Notwithstanding the foregoing, (i) the term “Applicable Eurodollar
Margin” shall mean, (a) with respect to each Eurodollar Loan that is a Tranche
C Term


 


4
















 


Loan, 2.50% per annum and (b) with respect to each Eurodollar Loan that
is a Revolving Credit Loan, 2.50% per annum, during the period from and
including the Closing Date to but excluding the Initial Financial Statement
Delivery Date and (ii) the Applicable Eurodollar Margin, with respect to
Tranche C Term Loans only, shall be reduced by 25 basis points from the then
applicable Status level, in the event the Tranche C Term Loans have been
assigned and maintain a credit rating by Moody’s and S&P of B1 and B+,
respectively, in each case with a “stable” outlook.


 


“Applicable
Stamping Fee” shall mean, with respect to each accepted or advanced
BA Loan by a Lender on any date, the applicable percentage per annum set forth
below based on the Status in effect on such date:


 


	
  Status

  	
   

  	
  Applicable Stamping Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  2.50

  	
  %

  
	
  Level II Status

  	
   

  	
  2.25

  	
  %

  
	
  Level III Status

  	
   

  	
  2.00

  	
  %

  
	
  Level IV Status

  	
   

  	
  1.75

  	
  %

  



 


Notwithstanding the foregoing, the term “Applicable Stamping Fee” shall
mean, 2.50% per annum, during the period from and including the Closing Date to
but excluding the Initial Financial Statement Delivery Date.


 


“Approved Fund” shall have the meaning provided in
Section 14.6.


 


“Asset Sale Prepayment Event” shall mean any sale, transfer or
other disposition of any business units, assets or other properties of the
Borrower or any of the Restricted Subsidiaries not in the ordinary course of
business (including any sale, transfer or other disposition of any capital
stock of any Subsidiary of the Borrower owned by the Borrower or a Restricted
Subsidiary).  Notwithstanding the
foregoing, the term “Asset Sale Prepayment Event” shall not include any
transaction permitted by Section 10.4, other than transactions permitted
by Sections 10.4(b) and (e).


 


“Assignment and Acceptance” shall mean an assignment and
acceptance substantially in the form of Exhibit K.


 


“Authorized Officer” shall mean the Chairman of the Board, the
President, the Chief Financial Officer, the Treasurer or any other senior
officer of the Borrower designated as such in writing to the Administrative
Agent by the Borrower.


 


“Available Amount” shall mean, on any date (the “Reference
Date”), an amount equal at such time to (a) the sum of, without
duplication, (i) for the purposes of Section 10.5(j),
Section 10.5(m), Section 10.11(b) and the first proviso to each of
Sections 10.7(a) and 10.7(b) (to the extent, in the case of the first proviso
to each of Sections 10.7(a) and 10.7(b), that the Consolidated Total Debt to
Consolidated EBITDA Ratio at such time and after giving effect to the
prepayment, repurchase, redemption or defeasance, as applicable, to be
completed on the Reference Date is less than 2.25 to 1.00), $125,000,000 in
aggregate, (ii) an amount equal to (x) the cumulative amount of


 


5
















 


Excess Cash Flow for all fiscal years completed after the Closing Date
and prior to the Reference Date minus (y) the portion of such
Excess Cash Flow that has been after the Closing Date and on or prior to the
Reference Date (or will be) applied to the prepayment of Loans in accordance
with Section 5.2(a)(ii), (iii) the amount of any capital contributions
(other than the Equity Proceeds) made in cash to the Borrower from and
including the Business Day immediately following the Closing Date through and
including the Reference Date, including contributions with the proceeds from
any issuance of equity securities by Holdings, (iv) the aggregate amount
of all cash dividends and other cash distributions received by the Borrower or
any Guarantor from any Minority Investments or Unrestricted Subsidiaries after
the Closing Date and on or prior to the Reference Date (other than the portion
of any such dividends and other distributions that is used by the Borrower or
any Guarantor to pay taxes), (v) the aggregate amount of all cash
repayments of principal received by the Borrower or any Guarantor from any Minority
Investments or Unrestricted Subsidiaries after the Closing Date and on or prior
to the Reference Date in respect of loans made by the Borrower or any Guarantor
to such Minority Investments or Unrestricted Subsidiaries and (vi) the
aggregate amount of all net cash proceeds received by the Borrower or any
Guarantor in connection with the sale, transfer or other disposition of its
ownership interest in any Minority Investment or Unrestricted Subsidiary after
the Closing Date and on or prior to the Reference Date minus
(b) the sum at such time of (i) the aggregate amount of any
investments (including loans) made by the Borrower or any Restricted Subsidiary
pursuant to Section 10.5(j) or Section 10.5(m) after the Closing Date
and on or prior to the Reference Date, (ii) the aggregate amount of Capital
Expenditures made by the Borrower or any of the Restricted Subsidiaries after
the Closing Date and on or prior to the Reference Date pursuant to
Section 10.11(b) and (iii) the aggregate price paid by the Borrower
in connection with any prepayment, repurchase or redemption of the Subordinated
Notes or Senior Unsecured Term Loans pursuant to Section 10.7(a) or
10.7(b), respectively, after the Closing Date and on or prior to the Reference
Date.


 


“Available Canadian Commitment” shall mean an amount equal to
the excess, if any, of (a) the Dollar Equivalent of the amount of the
Canadian Total Revolving Credit Commitment over (b) the sum of
(i) the aggregate principal amount of all Canadian Revolving Credit Loans (but
not Swingline Loans) then outstanding and (ii) the aggregate Canadian
Letter of Credit Outstanding at such time.


 


“Available US Commitment” shall mean an amount equal to the
excess, if any, of (a) the Dollar Equivalent of the amount of the US Total
Revolving Credit Commitment over (b) the sum of (i) the aggregate
principal amount of all US Revolving Credit Loans (but not Swingline Loans)
then outstanding and (ii) the aggregate US Letter of Credit Outstanding at
such time.


 


“BA Discount Proceeds”
shall mean, with respect to any BA Loan, an amount (rounded to the nearest full
Canadian cent with one-half of one Canadian cent being rounded up), calculated
on the date of acceptance or advance of such BA Loan which is equal to the face
or principal amount of such BA Loan divided by the sum of one plus the product
of (i) the BA Discount Rate applicable to such BA Loan multiplied by
(ii) a fraction, the numerator of which is the term of such BA Loan
measured in days


 


6
















 


(commencing on the date of acceptance and purchase or advance and
ending on, but excluding, the maturity date thereof) and the denominator of
which is 365; with such product being rounded up or down to the fifth decimal
place and .000005 being rounded up.


 


“BA Discount Rate”
shall mean:


 


(a) with respect to an issue of Bankers’ Acceptances to be accepted by
a Schedule I Lender hereunder, the CDOR Rate at or about 10:00 a.m.
on the date of issuance and acceptance of such Bankers’ Acceptance for bankers’
acceptances having a comparable face value and an identical maturity date to
the face value and maturity date of such Bankers’ Acceptances; and


 


(b) with respect to an issue of Bankers’ Acceptances or a BA Equivalent
Loan to be accepted or advanced by another Canadian Lender hereunder, the
lesser of:


 


(i) the rate determined by the Canadian Administrative Agent as being
the arithmetic average (rounded upwards to the nearest multiple of 0.01%) of
the discount rates, calculated on the basis of a year of 365 days, of the
Schedule II/III Reference Lenders determined in accordance with their
normal practices at or about 10:00 a.m. (New York time) on the date of
issue and acceptance of such Bankers’ Acceptances or advance of such BA
Equivalent Loans for bankers’ acceptances having a comparable face amount and
an identical maturity date to the face or principal amount and maturity date of
such Bankers’ Acceptance or BA Equivalent Loans; and


 


(ii)  the rate established in (a)
above plus 0.10% per annum.


 


“BA Equivalent Loans”
shall mean, in relation to a Loan by way of BA Loans, an advance in Canadian
Dollars made by a Non-Acceptance Lender pursuant to Section 2.14(i).


 


“BA Loans” shall
mean Bankers’ Acceptances and BA Equivalent Loans; provided that reference
to the amount or principal amount of a BA Loan shall mean the full face amount
of the applicable Bankers’ Acceptances or Discount Notes issued in connection
therewith.


 


“Bankers’ Acceptance”
shall mean a Draft denominated in Dollars drawn by the Canadian Borrower and
accepted by a Canadian Lender as provided in Section 2.14 and includes a
depository bill issued in accordance with the Depository
Bills and Notes Act (Canada).


 


“Bankruptcy Code” shall have the meaning provided in
Section 11.5.


 


“Board” shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).


 


“Borrower” shall have the meaning provided in the preamble to
this Agreement.


 


7
















 


“Borrowing” shall mean and include (a) the incurrence of
Swingline Loans from the Swingline Lender on a given date, (b) the
incurrence of one Type of Tranche C Term Loan on the Effective Date (or
resulting from conversions on a given date after the Effective Date) having, in
the case of Eurodollar Term Loans, the same Interest Period (provided
that ABR Loans incurred pursuant to Section 2.10(b) shall be considered
part of any related Borrowing of Eurodollar Term Loans) and (c) the
incurrence of one Type of Revolving Credit Loan on a given date (or resulting
from conversions on a given date) having, in the case of Eurodollar Revolving
Credit Loans or BA Loans, the same Interest Period (provided that ABR
Loans, Cdn ABR Loans or Canadian Prime Loans incurred pursuant to
Section 2.10(b) or 2.10(c)  shall be
considered part of any related Borrowing of Eurodollar Revolving Credit Loans
or BA Loans, as the case may be).


 


“Business Day” shall mean any day excluding Saturday, Sunday and
any day that shall be in The City of New York or Toronto, Canada a legal
holiday or a day on which banking institutions are authorized by law or other
governmental actions to close.


 


“Calculation Date” means (a) the Closing Date, (b) each date on
which a Borrowing of Canadian Revolving Credit Loans is made, (c) the last
Business Day of each calendar month, (d) if at any time (i) the Aggregate
US Revolving Credit Outstandings exceed 75% of the US Total Revolving Credit
Commitment or (ii) the Aggregate Canadian Revolving Credit Outstandings exceed
75% of the Canadian Total Revolving Credit Commitment, the last Business Day of
each week and (e) if a Default or an Event of Default shall have occurred
and be continuing, such additional dates as the Administrative Agent or the
Required Lenders shall specify.


 


“CAM” shall mean the mechanism for the allocation and exchange
of interests in the Credit Facilities and collections thereunder established
under Section 13.


 


“CAM Exchange” shall mean the exchange of the Lender’s interests
provided for in Section 13.1.


 


“CAM Exchange Date” shall mean the date on which (a) any
event referred to in Section 11.5 shall occur in respect of any of
Holdings, the Borrower or any Specified Subsidiary or (b) an acceleration
of the maturity of the Loans pursuant to Section 11 shall occur.


 


“CAM Percentage” shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the aggregate
Dollar Equivalent (determined on the basis of Exchange Rates prevailing on the
CAM Exchange Date) of the Specified Obligations owed to such Lender and such
Lender’s participation in the aggregate Letter of Credit Outstanding
immediately prior to the CAM Exchange Date and (b) the denominator shall be the
aggregate Dollar Equivalent (as so determined) of the Specified Obligations
owed to all the Lenders and the aggregate Letter of Credit Outstanding
immediately prior to such CAM Exchange Date. 
For purposes of computing each Lender’s CAM Percentage, all Specified
Obligations which are denominated in


 


8
















 


Canadian Dollars shall be translated into Dollars at the Exchange Rate
in effect on the CAM Exchange Date.


 


“Canadian
Administrative Agent” shall mean JPMorgan Chase Bank, an authorized foreign
bank under the Bank Act  (Canada),
acting through its Toronto Branch, as the Canadian administrative agent for the
Lenders under this Agreement and the other Credit Documents, together with any
of its permitted successors appointed pursuant to Section 12.


 


“Canadian
Benefit Plans” shall mean all material employee benefit plans of any nature
or kind whatsoever that are not Canadian Pension Plans and are maintained or
contributed to by any Credit Party in relation to employees that it may have in
Canada.


 


“Canadian Borrower” shall have the meaning provided in the
preamble to this Agreement.


 


“Canadian Borrowing” shall mean a Borrowing by the Canadian
Borrower.


 


“Canadian Dollars” and “C$” shall mean the lawful money
of Canada.


 


“Canadian Guarantee” shall mean the Canadian Guarantee
Agreement, made by each of the Canadian Guarantors in favor of the Canadian
Administrative Agent for the benefit of the Lenders to the Canadian Borrower,
substantially in the form of Exhibit A-1, as the same may be amended,
supplemented or otherwise modified from time to time.


 


“Canadian Guarantors” shall mean (a) each Subsidiary of the
Canadian Borrower on the Effective Date and (b) each Subsidiary of the Borrower
that becomes a party to the Canadian Guarantee after the Effective Date
pursuant to Section 9.11.


 


“Canadian
Hypothec” means a trust deed of hypothec granted or to be granted by any
Credit Party in favor of the Canadian Administrative Agent on moveable or
immoveable property pursuant to the laws of the Province of Quebec, together
with all bonds, debentures and pledges or hypothecs thereof, as amended,
supplemented or otherwise modified from time to time.


 


“Canadian Lenders” means each Lender that has a Canadian Revolving
Credit Commitment or that holds Canadian Revolving Credit Loans; provided,
that (a) as of the Effective Date, any such Lender shall be a Canadian Resident
and (b) to the extent that all or any portion of such Loans or Commitments of
such Lender shall be allocated to the Borrower, the relevant Canadian Lender in
respect of such allocation shall also be a “United States person” as specified
in Section 2.1(b)(ii) or the Related Affiliate of such Canadian Revolving
Credit Lender, if any, designated by such Lender in accordance with
Section 2.1(b)(ii).


 


“Canadian Letter of Credit” shall mean a Letter of Credit issued
by the Canadian Letter of Credit Issuer.


 


9
















 


“Canadian Letter of Credit Commitment” shall mean $10,000,000,
as the same may be reduced from time to time pursuant to Section 3.1.


 


“Canadian Letter of Credit Exposure” shall mean, with respect to
any Canadian Lender, at any time, the sum of (a) the Dollar Equivalent of the
amount of any Unpaid Drawings in respect of which such Canadian Lender has made
(or is required to have made) payments to the Canadian Letter of Credit Issuer
pursuant to Section 3.4(a) at such time and (b) such Canadian Lender’s
Canadian Revolving Credit Commitment Percentage of the Canadian Letter of
Credit Outstanding at such time (excluding the portion thereof consisting of
Unpaid Drawings in respect of which the Canadian Lenders have made (or are
required to have made) payments to the Canadian Letter of Credit Issuer
pursuant to Section 3.4(a)).


 


“Canadian Letter of Credit Fee” shall have the meaning provided
in Section 4.1(d).


 


“Canadian
Letter of Credit Issuer” shall mean JPMorgan Chase Bank, Toronto Branch or
any affiliate thereof, or any other Canadian Lender with a Canadian Revolving
Credit Commitment designated as the Canadian Letter of Credit Issuer in a
written notice from the Canadian Administrative Agent and the Canadian Borrower
to the Lenders with a Canadian Revolving Credit Commitment; provided
that to the extent that any Canadian Letter of Credit shall be issued for the
account of the Borrower, the Canadian Issuing Lender shall, if it is not a “US
person” (as defined in Section 7701(a)(30) of the Code), make such Letters
of Credit available through its Related Affiliate in accordance with
Section 3.1(a), and such Related Affiliate shall be deemed to be the
Canadian Letter of Credit Issuer for such purpose.


 


“Canadian Letter of Credit Outstanding” shall mean, at any time,
the sum of without duplication (a) the aggregate Stated Amount of outstanding
Canadian Letters of Credit and (b) the aggregate amount of all Unpaid Drawings
in respect all Canadian Letters of Credit.


 


“Canadian Letter of Credit Request” shall have the meaning
provided in Section 3.2.


 


“Canadian Obligations” shall have the meaning assigned to such
term in the Canadian Security Agreement.


 


“Canadian Pension Plans” shall mean each plan which is a
registered pension plan for the purposes of the Tax Act established, maintained
or contributed to by any Credit Party in relation to any employees that it may
have in Canada.


 


“Canadian Pledge Agreements” shall mean the Canadian Pledge
Agreement, entered into by the parent of the Canadian Borrower, the Canadian
Borrower, certain other Restricted Subsidiaries and the Canadian Administrative
Agent for the benefit of the Canadian Lenders in each case, substantially in
the form of Exhibit A-2, as the same may be amended, supplemented or otherwise
modified from time to time.


 


10
















 


“Canadian Prime Loan” shall mean a Loan the rate of interest of
which is based on the Canadian Prime Rate.


 


“Canadian Prime Rate” shall mean the higher of (a) the rate of
interest publicly announced by the Canadian Administrative Agent as being its
reference rate then in effect for determining interest rates on C$ denominated
commercial loans made in Canada, and (b) the one-month CDOR Rate plus 1% per
annum.


 


“Canadian Resident” shall mean, at any time, a Person who at
that time is (a) not a non-resident of Canada for purposes of the Tax Act or
(b) an authorized foreign bank deemed to be resident in Canada for purposes of
the Tax Act in respect of all amounts paid or credited to such Person under the
Canadian Revolving Credit Commitment or Canadian Letter of Credit Commitment
pursuant to this Agreement.


 


“Canadian Revolving Credit Commitment” shall mean, (a) with
respect to each Lender that is a Lender on the date hereof, the amount set
forth opposite such Lender’s name on Schedule 1.1(c) as such Lender’s
“Canadian Revolving Credit Commitment” and (b) in the case of any Lender
that becomes a Lender after the date hereof, the amount specified as such
Lender’s “Canadian Revolving Credit Commitment” in the Assignment and
Acceptance pursuant to which such Lender assumed a portion of the Canadian
Total Revolving Credit Commitment, in each case as the same may be changed from
time to time pursuant to the terms hereof. 
The aggregate amount of the Canadian Revolving Credit Commitments as of
the Closing Date is US $25,000,000.


 


“Canadian Revolving Credit Commitment Percentage” shall mean at
any time, for each Canadian Lender, the percentage obtained by dividing
(a) such Lender’s Canadian Revolving Credit Commitment by (b) the
aggregate amount of the Canadian Revolving Credit Commitments, provided
that at any time when the Canadian Total Revolving Credit Commitment shall have
been terminated, each Canadian Lender’s Canadian Revolving Credit Commitment
Percentage shall be its Canadian Revolving Credit Commitment Percentage as in
effect immediately prior to such termination.


 


“Canadian Revolving Credit Exposure” shall mean, with respect to
any Canadian Lender at any time, the sum of (a) the aggregate principal
amount of the Dollar Equivalent of the Canadian Revolving Credit Loans of such
Lender then outstanding, and (b) such Lender’s Canadian Letter of Credit
Exposure at such time.


 


“Canadian Revolving Credit Loans” shall have the meaning
provided in Section 2.1(b)(ii).


 


“Canadian Security Agreement” shall mean the Canadian Security
Agreement entered into by the Canadian Borrower, certain other Restricted
Subsidiaries and the Canadian Administrative Agent for the benefit of the
Lenders to the Canadian Borrower, substantially in the form of Exhibit A-3, as
the same may be amended, supplemented or otherwise modified from time to time.


 


“Canadian Security Documents” shall mean, collectively, (a) the
Canadian Guarantee, (b) the Canadian Pledge Agreements, (c) the Canadian
Security Agreement,


 


11
















 


and the Canadian Hypothecs, if any, with respect to collateral located
in Quebec, (d) any Mortgage or Canadian Hypothec, if applicable, over Mortgaged
Property of a Canadian Subsidiary and (e) any security document entered into by
a Canadian Subsidiary pursuant to Section 9.11 or 9.12.


 


“Canadian Subsidiary Guarantees” shall mean the Canadian Guarantee
and any guarantee agreement entered into by a Restricted Foreign Subsidiary
pursuant to Section 9.11 or 9.12.


 


“Canadian Subsidiary Guarantors” shall mean the Canadian
Guarantors and any Subsidiary that becomes a Canadian Subsidiary Guarantor pursuant
to Section 9.11.


 


“Canadian Total Revolving Credit Commitment” shall mean the sum
of the Canadian Revolving Credit Commitments.


 


“Capital Expenditures” shall mean, for any period, the aggregate
of all expenditures (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under Capital
Leases, but excluding any amount representing capitalized interest) by the
Borrower and the Restricted Subsidiaries during such period that, in conformity
with GAAP, are or are required to be included as additions during such period
to property, plant or equipment reflected in the consolidated balance sheet of
the Borrower and its Subsidiaries, provided that the term “Capital
Expenditures” shall not include (a) expenditures made in connection with
the replacement, substitution or restoration of assets (i) to the extent
financed from insurance proceeds paid on account of the loss of or damage to
the assets being replaced or restored or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets being
replaced, (b) the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment to the extent that the
gross amount of such purchase price is reduced by the credit granted by the
seller of such equipment for the equipment being traded in at such time,
(c) the purchase of plant, property or equipment made within one year of
the sale of any asset to the extent purchased with the proceeds of such sale or
(d) expenditures that constitute any part of Consolidated Lease Expense.


 


“Capital Lease” shall mean, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is, or is required to be, accounted for as a
capital lease on the balance sheet of that Person.


 


“Capitalized Lease Obligations” shall mean, as applied to any
Person, all obligations under Capital Leases of such Person or any of its
Subsidiaries, in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.


 


“Cdn
ABR” shall mean, for any day, a rate per annum equal to the higher of (a)
the rate of interest per annum publicly announced from time to time by the
Canadian Administrative Agent as its reference rate of interest then in effect
for


 


12
















 


determining
interest rates on commercial loans denominated in Dollars made by it in Canada
and (b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1% per
annum.


 


“Cdn
ABR Loans” shall mean Loans the rate of interest applicable to which is
based upon the Cdn ABR.


 


“Cdn L/C Participants” shall have the meaning provided in
Section 3.3(b).


 


“Cdn L/C Participation” shall have the meaning provided in
Section 3.3(b).


 


“CDOR
Rate” shall mean, as of any day with respect to a BA Loan and
the Interest Period selected by the Canadian Borrower for such BA Loan, or
otherwise as applicable, the average interest rate equal to:


 


(a)                                  the average of the annual rates for Canadian Dollar bankers
acceptances for a term equal to such Interest Period (or a term as closely
possible comparable to such Interest Period) or such other specified period
quoted (at approximately 10:00 a.m. New York time on such day) on the
Reuters Monitor Money Rates Service, CDOR page “Canadian Interbank Bid BA
Rates”; and


 


(b)                                 if such rate is not available on such day, the rate for such date
will be the annual discount rate (rounded upward to the nearest whole multiple
of 1/100 of 1%) as of 10:00 a.m. (New York time) on such day at which the
Canadian Administrative Agent is then offering to purchase Canadian Dollar
bankers acceptances for a term approximately equal to such Interest Period (or
a term as closely possible comparable to such Interest Period), or such other
specified period, accepted by it.


 


“Change of Control” shall mean and be deemed to have occurred if
(a) (i) KKR, its Affiliates, Permitted Investors and the Management
Investors shall at any time not own, in the aggregate, directly or indirectly,
beneficially and of record, at least 35% of the outstanding Voting Stock of
Holdings (other than as the result of one or more widely distributed offerings
of Holdings or Parent common stock, in each case whether by Holdings, Parent or
by KKR, its Affiliates, Permitted Investors or the Management Investors) and/or
(ii) any person, entity or “group” (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended)
shall at any time have acquired direct or indirect beneficial ownership of a
percentage of the outstanding Voting Stock of Holdings that exceeds the
percentage of such Voting Stock then beneficially owned, in the aggregate, by
KKR, its Affiliates, Permitted Investors and the Management Group, unless, in
the case of either clause (i) or (ii) above, KKR, its Affiliates,
Permitted Investors and the Management Investors have, at such time, the right
or the ability by voting power, contract or otherwise to elect or designate for
election a majority of the


 


13
















 


Board of Directors of Holdings; provided, however, for
purposes of this definition, Permitted Investors shall be deemed to own no more
than the aggregate amount of Voting Stock of Holdings that such Permitted
Investors owned as of the Effective Date; and/or (b) at any time
Continuing Directors shall not constitute a majority of the Board of Directors
of Holdings; and/or (c) any Person, other than Holdings acquires ownership,
directly or indirectly, beneficially or of record, of any equity interest
(other than any management or employee equity interests) of any nature in the
Borrower; (d) any Person, other than Parent acquires ownership, directly or
indirectly, beneficially or of record, of any equity interest of any nature in
Holdings and/or (e) a Change of Control (as defined in the Subordinated Note
Indenture) shall have occurred.


 


“Class”, when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Credit Loans, New Revolving Loans, Canadian Revolving Credit Loans, Tranche C
Term Loans, New Term Loans of each Series or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Credit Commitment, a New Revolving Loan Commitment, a Canadian Revolving Credit
Commitment, Tranche C Term Loan Commitment or a New Term Loan Commitment.


 


“Closing Date” means the date of the initial Borrowing under the
Existing Credit Agreement, which date was April 6, 2004.


 


“Code” shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.  Section references to
the Code are to the Code, as in effect at the date of this Agreement, and any
subsequent provisions of the Code, amendatory thereof, supplemental thereto or
substituted therefor.


 


“Collateral” shall have the meaning provided in the Pledge
Agreement, the Security Agreement, any Foreign Security Document or any
Mortgage, as applicable.


 


“Commitment Fee Rate” shall mean, with respect to the Available
US Commitment and the Available Canadian Commitment on any day, the rate per
annum set forth below opposite the Status in effect on such day:


 


	
  Status

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Level I Status

  	
   

  	
  0.500

  	
  %

  
	
  Level II Status

  	
   

  	
  0.500

  	
  %

  
	
  Level III Status

  	
   

  	
  0.500

  	
  %

  
	
  Level IV Status

  	
   

  	
  0.375

  	
  %

  



 


Notwithstanding the foregoing, the term “Commitment Fee Rate” shall
mean 0.500%, during the period from and including the Closing Date to but
excluding the Initial Financial Statement Delivery Date.


 


14
















 


“Commitments” shall mean, with respect to each Lender, such
Lender’s Tranche C Term Loan Commitment, Revolving Credit Commitment, New Revolving
Loan Commitment or New Term Loan Commitment.


 


“Confidential Information” shall have the meaning provided in
Section 14.16.


 


“Confidential Information Memorandum” shall mean the
Confidential Information Memorandum of the Borrower dated March, 2004, delivered
to the Lenders in connection with this Agreement.


 


“Consolidated Earnings” shall mean, for any period, “income
(loss) before the deduction of income taxes” of Holdings, the Borrower and the
Restricted Subsidiaries, excluding extraordinary items, for such period,
determined in a manner consistent with the manner in which such amount was
determined in accordance with the audited financial statements referred to in
Section 9.1(a).


 


“Consolidated EBITDA” shall mean, for any period, the sum,
without duplication, of the amounts for such period of (a) Consolidated
Earnings and to the extent already deducted in arriving at Consolidated
Earnings: (b) Consolidated Interest Expense, (c) depreciation
expense, (d) amortization expense, including amortization of deferred
financing fees, (e) extraordinary losses and unusual or non-recurring
charges (including severance, relocation costs and one-time compensation
charges), (f) non-cash charges (provided that if any such non-cash charges
represent an accrual or reserve for potential cash items in any future period,
the cash payment in respect thereof in such future period shall be subtracted
from Consolidated EBITDA to such extent, and excluding amortization of a
prepaid cash item that was paid in a prior period), (g) losses on asset
sales, (h) restructuring charges or reserves (including costs related to
closure of facilities), (i) in the case of any period that includes a
period ending during the fiscal year ending November 28, 2004, Transaction
Expenses, to the extent deducted in determining Consolidated Earnings,
(j) any expenses or charges incurred in connection with any issuance of
debt, equity securities or any refinancing transaction, (k) any fees and
expenses related to Permitted Acquisitions, (l) any deduction for minority
interest expense, (m) the amount of management, monitoring, consulting and
advisory fees and related expenses paid to KKR and (n) those items described on
Schedule 1.1(d) annexed hereto, less the sum of the amounts
for such period of (o) extraordinary gains and non-recurring gains,
(p) non-cash gains (excluding any such non-cash gain to the extent it
represents the reversal of an accrual or reserve for potential cash item in any
prior period) and (q) gains on asset sales, all as determined on a
consolidated basis for Holdings, the Borrower and the Restricted Subsidiaries
in accordance with GAAP, provided that (i) except as provided in
clause (iv) below, there shall be excluded from Consolidated Earnings for
any period the income from continuing operations before income taxes and
extraordinary items of all Unrestricted Subsidiaries for such period to the
extent otherwise included in Consolidated Earnings, except to the extent
actually received in cash by Holdings, the Borrower or its Restricted Subsidiaries
during such period through dividends or other distributions, (ii) there shall
be excluded from Consolidated Earnings for any period the income from
continuing operations before income taxes and


 


15
















 


extraordinary items of each Foreign Joint Venture for such period
corresponding to the percentage of capital stock or other equity interests in
such Foreign Joint Venture not owned by the Borrower or its Restricted
Subsidiaries (other than Foreign Joint Ventures), (iii) there shall be excluded
in determining Consolidated EBITDA non-operating
currency transaction gains and losses and (iv) (x) there shall
be included in determining Consolidated EBITDA for any period (A) the
Acquired EBITDA of any Person, property, business or asset (other than an
Unrestricted Subsidiary) acquired to the extent not subsequently sold,
transferred or otherwise disposed of (but not including the Acquired EBITDA of
any related Person, property, business or assets to the extent not so acquired)
by the Borrower or any Restricted Subsidiary during such period (each such
Person, property, business or asset acquired and not subsequently so disposed
of, an “Acquired Entity or Business”), and the Acquired EBITDA of any
Unrestricted Subsidiary that is converted into a Restricted Subsidiary during
such period (each, a “Converted Restricted Subsidiary”), in each case
based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof
occurring prior to such acquisition or conversion) and (B) for the
purposes of the definition of the term “Permitted Acquisition” and
Sections 10.3, 10.9 and 10.10, an adjustment in respect of each Acquired
Entity or Business equal to the amount of the Pro Forma Adjustment with respect
to such Acquired Entity or Business for such period (including the portion
thereof occurring prior to such acquisition or conversion) as specified in the
Pro Forma Adjustment Certificate delivered to the Lenders and the
Administrative Agent and (y) for purposes of determining the Consolidated
Total Debt to Consolidated EBITDA Ratio only, there shall be excluded in
determining Consolidated EBITDA for any period the Acquired EBITDA of any Person,
property, business or asset (other than an Unrestricted Subsidiary) sold,
transferred or otherwise disposed of, closed or classified as discontinued
operations by the Borrower or any Restricted Subsidiary during such period
(each such Person, property, business or asset so sold or disposed of, a “Sold
Entity or Business”), and the Acquired EBITDA of any Restricted Subsidiary
that is converted into an Unrestricted Subsidiary during such period (each, a “Converted
Unrestricted Subsidiary”), in each case based on the actual Acquired EBITDA
of such Sold Entity or Business or Converted Unrestricted Subsidiary for such
period (including the portion thereof occurring prior to such sale, transfer,
disposition or conversion).  Notwithstanding
anything to the contrary contained herein, Consolidated EBITDA shall be deemed
to be $49,900,000, $47,300,000 and $47,500,000, respectively, for the fiscal
quarters ended August 31, 2003, November 30, 2003 and
February 29, 2004.


 


“Consolidated EBITDA to Consolidated Interest Expense Ratio”
shall mean, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the relevant Test Period to (b) Consolidated Interest Expense
for such Test Period.


 


“Consolidated Interest Expense” shall mean, for any period, the
cash interest expense (including that attributable to Capital Leases in
accordance with GAAP), net of cash interest income, of Holdings, the Borrower
and the Restricted Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Holdings, the Borrower and the Restricted
Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing and
net costs under Hedge Agreements (other than currency swap agreements, currency


 


16
















 


future or option contracts and other similar agreements), but
excluding, however, amortization of deferred financing costs and any other
amounts of non-cash interest, all as calculated on a consolidated basis in
accordance with GAAP, provided that (a) except as provided in
clause (b) below, there shall be excluded from Consolidated Interest
Expense for any period the cash interest expense (or income) of all
Unrestricted Subsidiaries for such period to the extent otherwise included in
Consolidated Interest Expense and (b) for purposes of the definition of
the term “Permitted Acquisition” and Sections 10.3, 10.9 and 10.10, there
shall be included in determining Consolidated Interest Expense for any period
the cash interest expense (or income) of any Acquired Entity or Business
acquired during such period and of any Converted Restricted Subsidiary
converted during such period, in each case based on the cash interest expense
(or income) of such Acquired Entity or Business or Converted Restricted
Subsidiary for such period (including the portion thereof occurring prior to
such acquisition or conversion) assuming any Indebtedness incurred or repaid in
connection with any such acquisition or conversion had been incurred or prepaid
on the first day of such period. Notwithstanding anything to the contrary
contained herein, for purposes of determining Consolidated Interest Expense for
any period ending prior to the first anniversary of the Closing Date, Consolidated
Interest Expense shall be an amount equal to actual Consolidated Interest
Expense from the Closing Date through the date of determination multiplied by a
fraction the numerator of which is 365 and the denominator of which is the
number of days from the Closing Date through the date of determination.


 


“Consolidated Lease Expense” shall mean, for any period, all
rental expenses of Holdings, the Borrower and the Restricted Subsidiaries
during such period under operating leases for real or personal property
(including in connection with Permitted Sale Leasebacks), excluding real estate
taxes, insurance costs and common area maintenance charges and net of sublease
income, other than (a) obligations under vehicle leases entered into in
the ordinary course of business, (b) all such rental expenses associated with
assets acquired pursuant to a Permitted Acquisition to the extent that such
rental expenses relate to operating leases in effect at the time of (and
immediately prior to) such acquisition and (c) Capitalized Lease
Obligations, all as determined on a consolidated basis in accordance with GAAP,
provided that there shall be excluded from Consolidated Lease Expense
for any period the rental expenses of all Unrestricted Subsidiaries for such
period to the extent otherwise included in Consolidated Lease Expense.


 


“Consolidated Net Income” shall mean, for any period, the
consolidated net income (or loss) after the deduction of income taxes of
Holdings, the Borrower and the Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.


 


“Consolidated Net Sales” shall mean, for any fiscal year or any
Test Period, as the case may be, “net sales” of Holdings, the Borrower and the
Restricted Subsidiaries as set forth in the Section 9.1 Financials with
respect to such Test Period or fiscal year, as applicable.


 


17
















 


“Consolidated Total Debt” shall mean, as of any date of
determination, (a) the sum of (i) all indebtedness of Holdings, the
Borrower and the Restricted Subsidiaries for borrowed money outstanding on such
date and (ii) all Capitalized Lease Obligations of Holdings, the Borrower
and the Restricted Subsidiaries outstanding on such date, all calculated on a
consolidated basis in accordance with GAAP minus (b) the aggregate
amount of cash included in the cash accounts listed on the consolidated balance
sheet of Holdings, the Borrower and the Restricted Subsidiaries as at such date
up to a maximum amount of $45,000,000 to the extent the use thereof for
application to payment of Indebtedness is not prohibited by law or any contract
to which the Borrower or any of the Restricted Subsidiaries is a party.


 


“Consolidated Total Debt to Consolidated EBITDA Ratio” shall
mean, as of any date of determination, the ratio of (a) Consolidated Total
Debt as of the last day of the relevant Test Period to (b) Consolidated
EBITDA for such Test Period.


 


“Consolidated Working Capital” shall mean, at any date, the
excess of (a) the sum of all amounts (other than cash, cash equivalents and
bank overdrafts) that would, in conformity with GAAP, be set forth opposite the
caption “total current assets” (or any like caption) on a consolidated balance
sheet of Holdings, the Borrower and the Restricted Subsidiaries at such date
over (b) the sum of all amounts that would, in conformity with GAAP, be set
forth opposite the caption “total current liabilities” (or any like caption) on
a consolidated balance sheet of Holdings, the Borrower and the Restricted
Subsidiaries on such date, but excluding (i) the current portion of any Funded
Debt, (ii) without duplication of clause (i) above, all Indebtedness consisting
of Loans and Letter of Credit Exposure to the extent otherwise included therein
and (iii) the current portion of deferred income taxes.


 


“Continuing Director” shall mean, at any date, an individual
(a) who is a member of the Board of Directors of Holdings on the date
hereof, (b) who, as at such date, has been a member of such Board of
Directors for at least the 12 preceding months, (c) who has been nominated
to be a member of such Board of Directors, directly or indirectly, by KKR or
one of its Affiliates or Persons nominated by KKR or one of its Affiliates or
(d) who has been nominated to be a member of such Board of Directors by a
majority of the other Continuing Directors then in office.


 


“Continuing Lenders” means the lenders under the Existing Credit
Agreement identified as Continuing Lenders under Section 2.1(a).


 


“Converted Restricted Subsidiary” shall have the meaning
provided in the definition of the term “Consolidated EBITDA”.


 


“Converted Unrestricted Subsidiary” shall have the meaning
provided in the definition of the term “Consolidated EBITDA”.


 


“Credit Documents” shall mean this Agreement, the Security
Documents, each Letter of Credit and any promissory notes issued by the
Borrower hereunder.


 


18
















 


“Credit Event” shall mean and include the making (but not the
conversion or continuation) of a Loan and the issuance of a Letter of Credit.


 


“Credit Facility” shall mean a category of Commitments and
extensions of credit thereunder.


 


“Credit Party” shall mean each of the Borrower, the Canadian
Borrower, the Guarantors, the Canadian Subsidiary Guarantors and each other
Subsidiary of the Borrower that is a party to a Credit Document.


 


“Cumulative Consolidated Net Income Available to Stockholders”
shall mean, as of any date of determination, Consolidated Net Income less cash
dividends paid by Holdings with respect to its capital stock for the period
(taken as one accounting period) commencing on the Closing Date and ending on
the last day of the most recent fiscal quarter for which Section 9.1
Financials have been delivered to the Lenders under Section 9.1.


 


“Debt Incurrence Prepayment Event” shall mean any issuance or
incurrence by the Borrower or any of the Restricted Subsidiaries of any
Indebtedness (including any issuance by the Borrower of Permitted Additional
Subordinated Notes but excluding any other Indebtedness permitted to be issued
or incurred under Section 10.1A other than Section 10.1A(o)).


 


“Default” shall mean any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.


 


“Defaulting Lender” shall mean any Lender with respect to which
a Lender Default is in effect.


 


“Discount Note”
shall mean a non-interest-bearing promissory note or depository note (within
the meaning of the Depository Bills
and  Notes Act (Canada))
denominated in Dollars issued by the Borrower to a Non-Acceptance Lender to
evidence a BA Equivalent Loan.


 


“Dividends” shall have the meaning provided in
Section 10.6.


 


“Documentation Agents” shall mean General Electric
Capital Corporation, together with its affiliates, and Royal Bank of
Canada, together with its affiliates, as the co-documentation agents for the
Lenders under this Agreement and the other Credit Documents.


 


“Dollar Borrowing” shall mean a Borrowing denominated in
Dollars.


 


“Dollar Equivalent” shall mean, on any date of determination,
(a) with respect to any amount denominated in Dollars, such amount, and
(b) with respect to any amount denominated in any Canadian Dollars, the
equivalent in Dollars of such amount, determined by the Administrative Agent
pursuant to Section 1.2(b) using the applicable


 


19
















 


Exchange Rate with respect to such Canadian Dollars at the time in
effect under the provisions of such Section 1.2.


 


“Dollars” and “$” shall mean dollars in lawful currency
of the United States of America.


 


“Domestic Subsidiary” shall mean each Subsidiary of the Borrower
that is organized under the laws of the United States, any state thereof,
or the District of Columbia.


 


“Drawing” shall have the meaning provided in
Section 3.4(b).


 


“Effective Date” means the date upon which the conditions set
forth in Section 6 are satisfied.


 


“Eligible Lender” shall mean, at any time, a Person who, on any
date on which interest is payable under this Agreement, is a Person which is
beneficially entitled to the interest payable to it under this Agreement.


 


“Environmental Claims” shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations (other than internal
reports prepared by the Borrower or any of the Subsidiaries (a) in the ordinary
course of such Person’s business or (b) as required in connection with a
financing transaction or an acquisition or disposition of real estate) or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereinafter, “Claims”),
including (i) any and all Claims by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and (ii) any and all
Claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to health, safety or the
environment.


 


“Environmental Law” shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code and rule of
common law now or hereafter in effect and in each case as amended, and any
binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating
to the environment, human health or safety or Hazardous Materials.


 


“Equity Proceeds” shall have the meaning provided in the
Existing Credit Agreement.


 


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


 


20





















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


 


“Eurodollar Loan” shall mean any Eurodollar Term Loan or
Eurodollar Revolving Credit Loan.


 


“Eurodollar Rate” shall mean, in the case of any Eurodollar Term
Loan or Eurodollar Revolving Credit Loan, with respect to each day during each
Interest Period pertaining to such Eurodollar Loan, (a) the rate of
interest determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 a.m. (London time) two Business Days prior to the beginning of such
Interest Period multiplied by (b) the Statutory Reserve Rate.  In the event that any such rate does not
appear on the applicable Page of the Telerate Service (or otherwise on such
service), the “Eurodollar Rate” for the purposes of this paragraph shall
be determined by reference to such other publicly available service for
displaying Eurodollar rates as may be agreed upon by the Administrative Agent
and the Borrower or, in the absence of such agreement, the “Eurodollar Rate”
for the purposes of this paragraph shall instead be the rate per annum notified
to the Administrative Agent by the Reference Lender as the rate at which the
Reference Lender is offered Dollar deposits at or about 11:00 a.m. (London
time) two Business Days prior to the beginning of such Interest Period in the
interbank Eurodollar market where the Eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being conducted
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its Eurodollar
Term Loan or Eurodollar Revolving Credit Loan, as the case may be, to be
outstanding during such Interest Period.


 


“Eurodollar Revolving Credit Loan” shall mean any Revolving
Credit Loan bearing interest at a rate determined by reference to the Eurodollar
Rate.


 


“Eurodollar Term Loan” shall mean any Tranche C Term Loan
bearing interest at a rate determined by reference to the Eurodollar Rate.


 


“Event of Default” shall have the meaning provided in
Section 11.


 


“Excess Cash Flow” shall mean, for any period, an amount equal
to the excess of (a) the sum, without duplication, of (i) Consolidated Net
Income for such period, (ii) an amount equal to the amount of all non-cash
charges to the extent deducted in arriving at such Consolidated Net Income, (iii)
decreases in Consolidated Working Capital for such period and (iv) an amount
equal to the aggregate net non-cash loss on the sale, lease, transfer or other
disposition of assets by the Borrower and the Restricted Subsidiaries during
such period (other than sales in the ordinary course of business) to the extent
deducted in arriving at such Consolidated Net Income over (b) the sum,
without duplication, of (i) an amount equal to the amount of all non-cash
credits included in


 


21
















 


arriving at such Consolidated Net Income, (ii) the aggregate amount
actually paid by the Borrower and the Restricted Subsidiaries in cash during
such period on account of Capital Expenditures (excluding the principal amount
of Indebtedness incurred in connection with such Capital Expenditures, whether
incurred in such period or in a subsequent period), (iii) the aggregate amount
of all prepayments of Revolving Credit Loans and Swingline Loans made during
such period to the extent accompanying reductions of the US Total Revolving
Credit Commitments except to the extent not financed with the proceeds of other
Indebtedness of Holdings or its Restricted Subsidiaries, (iv) the
aggregate amount of all principal payments of Indebtedness of the Borrower or
the Restricted Subsidiaries (including any Tranche C Term Loans and the
principal component of payments in respect of Capitalized Lease Obligations but
excluding Revolving Credit Loans, Swingline Loans and voluntary prepayments of
Tranche C Term Loans pursuant to Section 5.1) made during such period
(other than in respect of any revolving credit facility to the extent there is
not an equivalent permanent reduction in commitments thereunder) except to the
extent not financed with the proceeds of other Indebtedness of Holdings or its
Restricted Subsidiaries, (v) an amount equal to the aggregate net non-cash gain
on the sale, lease, transfer or other disposition of assets by the Borrower and
the Restricted Subsidiaries during such period (other than sales in the
ordinary course of business) to the extent included in arriving at such
Consolidated Net Income, (vi) increases in Consolidated Working Capital
for such period, (vii) payments by the Borrower and the Restricted Subsidiaries
during such period in respect of long-term liabilities of the Borrower and the
Restricted Subsidiaries other than Indebtedness, (viii) the amount of
investments made during such period pursuant to Section 10.5 to the extent
that such investments were financed with internally generated cash flow of the
Borrower and the Restricted Subsidiaries, (ix) the amount of dividends
paid during such period pursuant to clause (b), (c), (d) or (e) of the
proviso to Section 10.6 to the extent such dividends were paid with the
proceeds of any amount referred to in paragraph (a) of this definition,
(x) the aggregate amount of expenditures actually made by the Borrower and
the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not
expensed during such period and (xi) the aggregate amount of any premium,
make-whole or penalty payments actually paid in cash by the Borrower and the
Restricted Subsidiaries during such period that are required to be made in
connection with any prepayment of Indebtedness and that are accounted for as
extraordinary items.


 


“Exchange Rate” shall mean on any day (i) with respect to any
Foreign Currency, the rate at which such Foreign Currency may be exchanged into
Dollars, as set forth at approximately 11:00 a.m. (London time) on such
day on the Reuters World Currency Page for such Foreign Currency; in the event
that such rate does not appear on any Reuters World Currency Page, the Exchange
Rate shall be determined by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative Agent
and the Borrower, or, in the absence of such agreement, such Exchange Rate
shall instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m. (New York time) on such date for the purchase of Dollars
for delivery two Business Days later and (ii) with respect to calculations
in connection with Canadian


 


22
















 


Borrowings, the rate at which Canadian Dollars may be exchanged into
Dollars, computed by the Canadian Administrative Agent at the Bank of Canada
noon spot rate, after 12:00 noon (New York time) on such day, provided
that if at the time of any such determination, for any reason, no such spot
rate is being quoted, the Canadian Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.


 


“Existing Credit Agreement” as defined in the recitals hereto.


 


“Existing Indenture” shall mean the Indenture, dated as of
December 18, 1997, among the Borrower, the subsidiary guarantors party
thereto and The Bank of New York, as trustee.


 


“Existing Lenders” as defined in the recitals hereto.


 


“Existing Term Loans” as defined in the recitals hereto.


 


“Federal Funds Effective Rate” shall mean, for any day, the
weighted average of the per annum 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 rate is not so published for any day that is a
Business Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.


 


“Fees” shall mean all amounts payable pursuant to, or referred
to in, Section 4.1.


 


“Final Date” shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be
outstanding and the Letter of Credit Outstandings shall have been reduced to
zero.


 


“Foreign Borrowing Base Amount” shall mean, at any time, the sum
of (i) 85% of the book value of all accounts receivable of all Restricted
Foreign Subsidiaries of Holdings and (ii) 60% of the book value of all
inventory of all Restricted Foreign Subsidiaries of Holdings.


 


“Foreign Currencies” shall mean Canadian Dollars, Euro and
Sterling.


 


“Foreign Joint Venture” shall mean any Restricted Foreign
Subsidiary in which the Borrower and its Restricted Subsidiaries own,
collectively, less than 100% of the equity interests and designated as such in
a written notice to the Administrative Agent by the Borrower, provided
that in the event a Restricted Subsidiary not previously designated by the
Borrower as a Foreign Joint Venture is subsequently re-designated as a Foreign
Joint Venture, (x) such re-designation shall be deemed to be an investment on
the date of such re-designation in a Foreign Joint Venture in an amount equal
to the product of (i) the net worth of such re-designated Restricted Subsidiary
immediately prior to such


 


23
















 


re-designation (such net worth to be calculated without regard to any
guarantee provided by such re-designated Restricted Subsidiary) and (ii) the
percentage of capital stock or other equity interests in such Foreign Joint
Venture owned by the Borrower or its Restricted Subsidiaries (other than
Foreign Joint Ventures) and (y) no Default or Event of Default would result
from such re-designation.


 


“Foreign Subsidiary” shall mean each Subsidiary of the Borrower
that is not a Domestic Subsidiary, including the Canadian Borrower.


 


“Foreign Subsidiary Guarantors” shall mean any Foreign
Subsidiary that becomes a Foreign Subsidiary Guarantor pursuant to
Section 9.11.


 


“Fronting Fee” shall have the meaning provided in
Section 4.1(c).


 


“Funded Debt” shall mean all indebtedness of the Borrower and
the Restricted Subsidiaries for borrowed money that matures more than one year
from the date of its creation or matures within one year from such date that is
renewable or extendable, at the option of the Borrower or one of the Restricted
Subsidiaries, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
amounts of Funded Debt required to be paid or prepaid within one year from the
date of its creation and, in the case of the Borrower, Indebtedness in respect
of the Loans.


 


“GAAP” shall mean generally accepted accounting principles in
the United States of America or Canada, as applicable, as in effect from time
to time; provided, however, that if there occurs after the date
hereof any change in GAAP that affects in any respect the calculation of any
covenant contained in Section 10, the Lenders and the Borrower shall
negotiate in good faith amendments to the provisions of this Agreement that relate
to the calculation of such covenant with the intent of having the respective
positions of the Lenders and the Borrower after such change in GAAP conform as
nearly as possible to their respective positions as of the date of this
Agreement and, until any such amendments have been agreed upon, the covenants
in Section 10 shall be calculated as if no such change in GAAP has
occurred.


 


“Governmental Authority” shall mean any nation or government,
any state, province, territory or other political subdivision thereof, and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.


 


“Guarantee” shall mean the Guarantee, made by each Guarantor in
favor of the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.


 


“Guarantee and Collateral Exception Amount” shall mean, at any
time: (a) $100,000,000 minus (b) the sum of (i) the aggregate
amount of Indebtedness incurred or assumed prior to such time pursuant to
Section 10.1(j) or (k) that is outstanding at such


 


24
















 


time and that was used to acquire, or was assumed in connection with the
acquisition of, capital stock and/or assets in respect of which guarantees,
pledges and security have not been given pursuant to Sections 9.11 and
9.12, (ii) the lesser of (x) the aggregate Increased Commitment Amount at
such time and (y) $50,000,000 and (iii) any Indebtedness incurred by any
Foreign Joint Venture, provided that if such amount is a negative
number, the Guarantee and Collateral Exception Amount shall be zero.


 


“Guarantee Obligations” shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including any obligation of such Person,
whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting direct or indirect security therefor (b) to advance or
supply funds (i) for the purchase or payment of any such Indebtedness or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such Indebtedness of the ability of the primary obligor to
make payment of such Indebtedness or (d) otherwise to assure or hold harmless
the owner of such Indebtedness against loss in respect thereof; provided,
however, that the term “Guarantee Obligations” shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the Indebtedness in respect of which such Guarantee Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.


 


“Guarantors” shall mean Holdings, the US Subsidiary Guarantors
and the Foreign Subsidiary Guarantors, other than the immaterial Subsidiaries
listed on Schedule 1.1(e).


 


“Hazardous Materials” shall mean (a) any petroleum or petroleum
products, radioactive materials, friable asbestos, urea formaldehyde foam
insulation, transformers or other equipment that contain dielectric fluid
containing regulated levels of polychlorinated biphenyls, and radon gas; (b)
any chemicals, materials or substances defined as or included in the definition
of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely
hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic
pollutants”, “contaminants”, or “pollutants”, or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, which is prohibited, limited or regulated by any Environmental Law.


 


“Hedge Agreements” shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity price protection agreements or
other commodity price hedging agreements, and other similar agreements entered
into by the Borrower or the Canadian Borrower in the ordinary course of
business (and not for speculative purposes) in order to protect the Borrower,
the Canadian Borrower or any of the


 


25
















 


Restricted Subsidiaries against fluctuations in interest rates,
currency exchange rates or commodity prices.


 


“Historical Financial Statements” means as of the Closing Date,
the audited financial statements of Parent and its Subsidiaries, for the
immediately preceding three fiscal years, consisting of balance sheets and the
related consolidated statements of income, stockholders’ equity and cash flows
for such fiscal years.


 


“Holdings” shall have the meaning provided in the preamble to
this Agreement.


 


“Increased Amount Date” as defined in Section 2.15.


 


“Increased Commitment Amount” shall have the meaning given to
that term in Section 14.1.


 


“Indebtedness” of any Person shall mean (a) all indebtedness of
such Person for borrowed money, (b) the deferred purchase price of assets or
services that in accordance with GAAP would be included as liabilities in the
balance sheet of such Person, (c) the face amount of all letters of credit
issued for the account of such Person and, without duplication, all drafts
drawn thereunder, (d) all Indebtedness of a second Person secured by any Lien
on any property owned by such first Person, whether or not such Indebtedness
has been assumed, (e) all Capitalized Lease Obligations of such Person,
(f) all obligations of such Person under interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity price protection agreements or
other commodity price hedging agreements and other similar agreements and (g)
without duplication, all Guarantee Obligations of such Person, provided
that Indebtedness shall not include trade payables and accrued expenses, in
each case payable directly or through a bank clearing arrangement and arising
in the ordinary course of business.


 


“Initial Financial Statement Delivery Date” shall mean the date
on which Section 9.1 Financials are delivered to the Lenders under
Section 9.1 for the first full fiscal quarter commencing after the Closing
Date.


 


“Interest Period” shall mean, with respect to any Tranche C Term
Loan or Revolving Credit Loan, the interest period applicable thereto, as
determined pursuant to Section 2.9.


 


“JPMCB” shall mean JPMorgan Chase Bank, a New York banking
corporation, and any successor thereto by merger, consolidation or otherwise.


 


“Joinder Agreement” means an agreement substantially in the form
of Exhibit M.


 


“Judgment Currency” shall have the meaning set forth in Section 14.17.


 


26
















 


“Judgment Currency Conversion Date” shall have the meaning set
forth in Section 14.17.


 


“Junior Subordinated Seller Notes” means the Junior Subordinated
Seller Notes issued in the initial principal amount of $25,000,000 on
December 18, 1997 by Holdings in favor of Zell/Chilmark Fund, L.P., and
any additional amount of such notes as are permitted to be issued under the
Existing Credit Agreement.


 


“KKR” shall mean each of Kohlberg Kravis Roberts & Co., L.P.
and KKR Associates, L.P.


 


“L/C Maturity Date” shall mean the date that is five Business
Days prior to the Revolving Credit Maturity Date.


 


“L/C
Participants”: means
collectively the Cdn L/C Participants and the US L/C Participants and each is
an “L/C Participant”


 


“L/C Reserve Account” shall have the meaning provided in
Section 13.2(a)


 


“Lender” shall have the meaning provided in the preamble to this
Agreement.


 


“Lender Default” shall mean (a) the failure (which has not been
cured) of a Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 3.3 or (b) a Lender
having notified the Administrative Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 2.1(b), 2.1(d) or 3.3,
in the case of either clause (a) or clause (b) above, as a result of
the appointment of a receiver or conservator with respect to such Lender at the
direction or request of any regulatory agency or authority.


 


“Letter of Credit” shall mean each standby letter of credit
issued pursuant to Section 3.1.


 


“Letter of Credit Fee” shall have the meaning provided in
Section 4.1(b).


 


“Letter of Credit Issuers” means a collective reference to the
US Letter of Credit Issuer and the Canadian Letter of Credit Issuer and each is
a “Letter of Credit Issuer.”


 


“Letter of Credit Request” shall have the meaning provided in
Section 3.2.


 


“Level I Status” shall mean, on any date, the Consolidated
Total Debt to Consolidated EBITDA Ratio is greater than or equal to 5.25 to
1.00 as of such date.


 


“Level II Status” shall mean, on any date, the circumstance
that Level I Status does not exist and the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 4.50 to 1.00 as of such
date.


 


27
















 


“Level III Status” shall mean, on any date, the
circumstance that neither Level I Status nor Level II Status exists
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or
equal to 4.00 to 1.00 as of such date.


 


“Level IV Status” shall mean, on any date, the circumstance
that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 4.00
to 1.00 as of such date.


 


“Lien” shall mean any mortgage, pledge, security interest,
hypothecation, assignment, lien (statutory or other) or similar encumbrance
(including any agreement to give any of the foregoing, any conditional sale or
other title retention agreement or any lease in the nature thereof).


 


“Loan” shall mean any Revolving Credit Loan, Swingline Loan,
Tranche C Term Loan or New Term Loan made by any Lender hereunder.


 


“Management Group” shall mean, at any time, the Chairman of the
Board, any President, any Executive Vice President or Vice President, any
Managing Director, any Treasurer and any Secretary of any of Holdings, the
Borrower or any Subsidiaries at such time.


 


“Management Investors” means the management officers and
employees of Holdings and its Subsidiaries who are investors in Holdings on the
Effective Date.


 


“Mandatory Borrowing” shall have the meaning provided in
Section 2.1(d).


 


“Material Adverse Change” shall mean any change in the business,
assets, operations, properties or financial condition of Holdings, the Borrower
and its Subsidiaries, taken as a whole, that would materially adversely affect
the ability of Holdings, the Borrower and the other Credit Parties, taken as a
whole, to perform their obligations under this Agreement or any of the other
Credit Documents.


 


“Material Adverse Effect” shall mean a circumstance or condition
affecting the business, assets, operations, properties or financial condition
of Holdings, the Borrower and the Subsidiaries, taken as a whole, that would
materially adversely affect (a) the ability of Holdings, the Borrower and
the other Credit Parties, taken as a whole, to perform their obligations under
this Agreement or any of the other Credit Documents or (b) the rights and
remedies of the Administrative Agent and the Lenders under this Agreement or
any of the other Credit Documents.


 


“Material Subsidiary” shall mean, at any date of determination,
each Restricted Subsidiary of the Borrower (a) whose total assets at the
last day of the Test Period ending on the last day of the most recent fiscal
period for which Section 9.1 Financials have been delivered were equal to
or greater than 5% of the consolidated total assets of the Borrower and the
Restricted Subsidiaries at such date or (b) whose gross revenues for such
Test Period were equal to or greater than 5% of the consolidated gross


 


28
















 


revenues of the Borrower and the Restricted Subsidiaries for such
period, in each case determined in accordance with GAAP.


 


“Maturity Date” shall mean the Tranche C Term Loan Maturity Date
or the Revolving Credit Maturity Date.


 


“Merger” shall have the meaning provided in the Existing Credit
Agreement.


 


“Merger Agreement” shall mean that certain Agreement and Plan of
Merger dated as of March 3, 2004, by and among Sealy Corporation and SAC (as
assignee of the rights and obligations of Posturepedic Acquisition Corp.).


 


“Minimum Borrowing Amount” shall mean (a) with respect to a
Dollar Borrowing of Tranche C Term Loans or Revolving Credit Loans, $2,000,000,
(b) with respect to a C$ - denominated Borrowing of Canadian Revolving Loans,
C$1,000,000 and (c) with respect to a Borrowing of Swingline Loans,
$100,000.


 


“Minority Investment” shall mean any Person (other than a
Subsidiary) in which the Borrower or any Restricted Subsidiary owns capital stock
or other equity interests.


 


“Moody’s” shall mean Moody’s Investors Service, Inc. or any
successor by merger or consolidation to its business.


 


“Mortgage” shall mean a Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement or other security document
entered into by the owner of a Mortgaged Property and the Administrative Agent
for the benefit of the Lenders in respect of that Mortgaged Property,
substantially in the form of Exhibit D or, in the case of Mortgaged Properties
located outside the United States of America, in such form as agreed between
the Borrower and the Administrative Agent or the Canadian Administrative Agent,
as applicable, as the same may be amended, supplemented or otherwise modified
from time to time.


 


“Mortgaged Property” shall mean, initially, each parcel of real
estate and the improvements thereto owned by a Credit Party and identified on
Schedule 1.1(b), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 9.15.


 


“Net Cash Proceeds” shall mean, with respect to any Prepayment
Event or the issuance after the Closing Date by the Borrower of any capital
stock, (a) the gross cash proceeds (including payments from time to time
in respect of installment obligations, if applicable) received by or on behalf
of Holdings, the Borrower or any of the Restricted Subsidiaries in respect of
such Prepayment Event or issuance, as the case may be, less (b) the sum
of:


 


29
















 


(i)                                     in the case of any Prepayment Event,
the amount, if any, of all taxes paid or estimated to be payable by any of
Holdings, the Borrower or any of the Restricted Subsidiaries in connection with
such Prepayment Event,


 


(ii)                                  in the case of any Prepayment Event,
the amount of any reasonable reserve established in accordance with GAAP
against any liabilities (other than any taxes deducted pursuant to clause
(i) above) (x) associated with the assets that are the subject of
such Prepayment Event and (y) retained by any of Holdings, the Borrower or
any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such
reserve (other than in connection with a payment in respect of any such
liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event
occurring on the date of such reduction,


 


(iii)                               in the case of any Prepayment Event,
the amount of any Indebtedness secured by a Lien on the assets that are the
subject of such Prepayment Event to the extent that the instrument creating or
evidencing such Indebtedness requires that such Indebtedness be repaid upon
consummation of such Prepayment Event,


 


(iv)                              in the case of any Asset Sale
Prepayment Event (other than a transaction permitted by Section 10.4(e)),
the amount of any proceeds of such Asset Sale Prepayment Event that the
Borrower has reinvested (or intends to reinvest within one year of the date of
such Asset Sale Prepayment Event) in the business of the Borrower or any of the
Restricted Subsidiaries (subject to Section 9.14), provided that any portion of such proceeds
that has not been so reinvested within such one-year period shall (x) be
deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event occurring on
the last day of such one-year period and (y) be applied to the repayment
of Tranche C Term Loans in accordance with Section 5.2(a)(i); provided  further that, for purposes of the preceding
proviso, such one-year period shall be extended by up to twelve months (or, if
less, extended by up to the shortest period of time in excess of one year that
such a reinvestment period exists pursuant to, or may be extended under the
terms of, any instrument governing any publicly offered or privately placed
Indebtedness of Holdings or the Borrower) from the last day of such one-year
period so long as (A) such proceeds are to be reinvested within such
additional twelve-month period under the Borrower’s business plan as most
recently adopted in good faith by its Board of Directors and (B) the Borrower
believes in good faith that such proceeds will be so reinvested within such
additional twelve-month period, and


 


(v)                                 in the case of any Prepayment Event
or the issuance by the Borrower of any capital stock, reasonable and customary
fees, commissions, expenses, issuance costs, discounts and other costs paid by
Holdings, the Borrower or any of the Restricted Subsidiaries, as applicable, in
connection with such Prepayment Event or issuance, as the case may be (other
than those payable to Holdings, the Borrower or any Subsidiary of the
Borrower), in each case only


 


30
















 


to
the extent not already deducted in arriving at the amount referred to in
clause (a) above.


 


“New Revolving
Loan Commitments” as defined in Section 2.15.


 


“New Revolving
Loan Lender” as defined in Section 2.15.


 


“New Revolving
Loans” as defined in Section 2.15.


 


“New Term Loan
Commitments” as defined in Section 2.15.


 


“New Term Loan
Lender” as defined in Section 2.15.


 


“New Term Loan
Maturity Date” means the date that New Term Loans of a Series shall become
due and payable in full hereunder, as specified in the applicable Joinder
Agreement, including by acceleration or otherwise.


 


“New Term Loans”
as defined in Section 2.15.


 


“Non-Acceptance
Lender” shall mean a Canadian Lender that does not accept Bankers’
Acceptances.


 


“Non-Defaulting Lender” shall mean and include each Lender other
than a Defaulting Lender.


 


“Non-Excluded Taxes” shall have the meaning provided in
Section 5.4(a).


 


“Notice of Borrowing” shall have the meaning provided in
Section 2.3.


 


“Notice of Conversion or Continuation” shall have the meaning
provided in Section 2.6.


 


“Obligations” shall have the meaning assigned to such term in
the Security Documents.


 


“Parent” shall have the meaning provided in the preamble to this
Agreement.


 


“Participant” shall have the meaning provided in
Section 14.6(c)(i).


 


“PBGC” shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.


 


“Perfection Certificate” shall mean a certificate of the
Borrower and the Canadian Borrower in the form of Exhibit E or any other form
approved by the Administrative Agent.


 


“Permitted Acquisition” shall mean the acquisition, by merger or
otherwise, by the Borrower or any of the Restricted Subsidiaries of assets or
capital stock


 


31
















 


or other equity interests, so long as (a) such acquisition and all
transactions related thereto shall be consummated in accordance with applicable
law; (b) such acquisition shall result in the issuer of such capital stock
or other equity interests becoming (i) a Restricted Subsidiary and
(ii) (x) in the case of a Restricted Domestic Subsidiary, a Subsidiary
Guarantor or (y) in the case of a Restricted Foreign Subsidiary, a Foreign
Subsidiary Guarantor, in each case to the extent required by Section 9.11;
(c) such acquisition shall result in the Administrative Agent or the Canadian
Administrative Agent, as applicable, for the benefit of the applicable Lenders,
being granted a security interest in any capital stock or any assets so
acquired to the extent required by Sections 9.11, 9.12 and/or 9.15;
(d) after giving effect to such acquisition, no Default or Event of
Default shall have occurred and be continuing; and (e) the Borrower shall
be in compliance, on a pro forma basis after giving effect to such acquisition
(including any Indebtedness assumed or permitted to exist or incurred pursuant
to Sections 10.1(j) and 10.1(k), respectively, and any related Pro Forma
Adjustment), with the covenants set forth in Sections 10.9 and 10.10, as
such covenants are recomputed as at the last day of the most recently ended
Test Period under such Sections as if such acquisition had occurred on the
first day of such Test Period.


 


“Permitted Additional Subordinated Notes” shall mean
Subordinated Notes other than Subordinated Notes issued as Permitted
Subordinated Debt, provided that the aggregate principal amount of
Permitted Additional Subordinated Notes outstanding at any time shall not
exceed $100,000,000, plus accrued interest thereon as provided in the
Subordinated Note Indenture.


 


“Permitted Capital Expenditure Amount” shall have the meaning
given to such term in Section 10.11.


 


“Permitted Investments” shall mean (a) securities issued or
unconditionally guaranteed by the United States government or any agency or
instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof; (b) securities issued by any state
of the United States of America or any political subdivision of any such state
or any public instrumentality thereof or any political subdivision of any such
state or any public instrumentality thereof having maturities of not more than
24 months from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P or
Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, then from another nationally recognized rating service); (c)
commercial paper issued by any Lender or any bank holding company owning any
Lender; (d) commercial paper maturing no more than 12 months after
the date of creation thereof and, at the time of acquisition, having a rating
of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time
neither S&P nor Moody’s shall be rating such obligations, an equivalent
rating from another nationally recognized rating service); (e) domestic and
Eurodollar certificates of deposit or bankers’ acceptances maturing no more
than two years after the date of acquisition thereof issued by any Lender or
any other bank having combined capital and surplus of not less than
$250,000,000 in the case of domestic banks and $100,000,000 (or the dollar
equivalent thereof) in the case of foreign banks; (f) repurchase agreements
with a term of not more than 30 days for underlying securities of


 


32
















 


the type described in clauses (a), (b) and (e) above entered into with
any bank meeting the qualifications specified in clause (e) above or securities
dealers of recognized national standing; (g) marketable short-term money
market and similar securities, having a rating of at least A-2 or P-2 from either
S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be
rating such obligations, an equivalent rating from another nationally
recognized rating service); (h) shares of investment companies that are
registered under the Investment Company Act of 1940 and invest solely in one or
more of the types of securities described in clauses (a) through (g) above; and
(i) in the case of investments by any Restricted Foreign Subsidiary or
investments made in a country outside the United States of America, other
customarily utilized high-quality investments in the country where such
Restricted Foreign Subsidiary is located or in which such investment is made.


 


“Permitted Investors” shall mean the Management Investors and
certain other investors in Parent as of the Effective Date.


 


“Permitted Liens” shall mean (a) Liens for taxes, assessments or
governmental charges or claims not yet due or which are being contested in good
faith and by appropriate proceedings for which appropriate reserves have been
established in accordance with GAAP; (b) Liens in respect of property or assets
of the Borrower or any of the Subsidiaries imposed by law, such as carriers’,
warehousemen’s and mechanics’ Liens and other similar Liens arising in the
ordinary course of business, in each case so long as such Liens arise in the
ordinary course of business and do not individually or in the aggregate have a
Material Adverse Effect; (c) Liens arising from judgments or decrees in
circumstances not constituting an Event of Default under Section 11.14;
(d) Liens incurred or deposits made in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (e) ground
leases in respect of real property on which facilities owned or leased by the
Borrower or any of its Subsidiaries are located; (f) easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the
business of Holdings, the Borrower and its Subsidiaries, taken as a whole or
the Canadian Borrower and its Subsidiaries, taken as a whole; (g) any interest
or title of a lessor or secured by a lessor’s interest under any lease
permitted by this Agreement; (h) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (i) Liens on goods the purchase
price of which is financed by a documentary letter of credit issued for the
account of the Borrower or any of its Subsidiaries, provided that such
Lien secures only the obligations of the Borrower or such Subsidiaries in
respect of such letter of credit to the extent permitted under
Section 10.1; (j) leases or subleases granted to others not
interfering in any material respect with the business of Holdings, the Borrower
and its Subsidiaries, taken as a whole; and (k) Liens created in the
ordinary course of business in favor of banks and other financial institutions
over credit balances of any bank accounts of any of Holdings, the Borrower and
the Restricted Subsidiaries held at such banks or financial institutions, as
the case may be, to facilitate the operation of cash pooling and/or


 


33
















 


interest set-off arrangements in respect of such bank accounts in the
ordinary course of business.


 


“Permitted Sale Leaseback” shall mean any Sale Leaseback
consummated by the Borrower or any of the Restricted Subsidiaries after the
Closing Date, provided that such Sale Leaseback is consummated for fair
value as determined at the time of consummation in good faith by the Borrower
and, in the case of any Sale Leaseback (or series of related Sales Leasebacks)
the aggregate proceeds of which exceed $20,000,000, the Board of Directors of
the Borrower (which such determination may take into account any retained
interest or other investment of the Borrower or such Restricted Subsidiary in
connection with, and any other material economic terms of, such Sale
Leaseback).


 


“Permitted Subordinated Debt” shall mean the Subordinated Notes,
provided that the aggregate principal amount of such Subordinated Notes
outstanding at any time shall not exceed $490,000,000.


 


“Person” shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any Governmental Authority.


 


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


 


“Pledge Agreement” shall mean the Pledge Agreement, entered into
by any of Holdings, the Borrower, the other pledgors party thereto and the
Administrative Agent for the benefit of the Lenders, substantially in the form
of Exhibit F, as the same may be amended, supplemented or otherwise modified
from time to time.


 


“Prepayment Event” shall mean any Asset Sale Prepayment Event,
Debt Incurrence Prepayment Event or any Permitted Sale Leaseback.


 


“Prime Rate” shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its reference rate
in effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by JPMCB in connection with
extensions of credit to debtors).


 


“Pro Forma Adjustment” shall mean, for any test period that
includes any of the six fiscal quarters first ending following any Permitted
Acquisition, with respect to the Acquired EBITDA of the applicable Acquired
Entity or Business or the Consolidated EBITDA of the Borrower affected by such
acquisition, the pro forma increase or decrease in such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, projected by the Borrower in good
faith as a result of reasonably identifiable and factually supportable net cost
savings or additional net costs, as the case may be, realizable during such
period by combining the operations of such Acquired Entity or Business with the
operations of the Borrower and its Subsidiaries, provided that so long
as such net cost


 


34
















 


savings or additional net costs will be realizable at any time during
such six-quarter period, it may be assumed, for purposes of projecting such
pro forma increase or decrease to such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, that such net cost savings or
additional net costs will be realizable during the entire such period; provided
further that any such pro forma increase or decrease to such
Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be
without duplication for net cost savings or additional net costs actually
realized during such period and already included in such Acquired EBITDA or
such Consolidated EBITDA, as the case may be.


 


“Pro Forma Adjustment Certificate” shall mean any certificate of
an Authorized Officer of the Borrower delivered pursuant to Section 9.1(h)
or setting forth the information described in clause (iv) to
Section 9.1(d).


 


“Qualified PIK Securities” shall mean (1) any preferred capital
stock or preferred equity interest of Parent (a) that does not provide for
any cash dividend payments or other cash distributions in respect thereof on or
prior to the Tranche C Term Loan Maturity Date and (b) that by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable or exercisable) or upon the happening of any event does not
(i)(x) mature or become mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (y) become convertible or exchangeable at the
option of the holder thereof for Indebtedness or preferred stock that is not
Qualified PIK Securities or (z) become redeemable at the option of the
holder thereof (other than as a result of a change of control event), in whole
or in part, in each case on or prior to the first anniversary of the Tranche C
Term Loan Maturity Date and (ii) provide holders thereunder with any
rights upon the occurrence of a “change of control” event prior to the
repayment of the Obligations under the Credit Documents and (2) any
Indebtedness of Parent which has payments terms at least as favorable to the
Borrower and Lenders as described in clause (1)(a) above and is subordinated
and has other terms, other than with respect to interest rates, at least as
favorable to the Borrower and Lenders as the Subordinated Notes.


 


“Real Estate” shall have the meaning given to that term in
Section 9.1(f).


 


“Recalculation Date” shall have the meaning provided in
Section 1.2.


 


“Recapitalization” shall mean the consummation of the Merger and
the Refinancing (as such term is defined in the Existing Credit Agreement).


 


“Reference Lender” shall mean JPMCB.


 


 “Register” shall have the
meaning provided in Section 14.6(b)(iv).


 


“Regulation D” shall mean Regulation D of the Board as
from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.


 


“Regulation T” shall mean Regulation T of the Board as
from time to time in effect and any successor to all or a portion thereof
establishing margin requirements.


 


35
















 


“Regulation U” shall mean Regulation U of the Board as from
time to time in effect and any successor to all or a portion thereof
establishing margin requirements.


 


“Regulation X” shall mean Regulation X of the Board as
from time to time in effect and any successor to all or a portion thereof
establishing margin requirements.


 


“Related
Affiliate” shall mean with respect to any Lender with a Canadian Revolving
Credit Commitment, an Affiliate or lending office of such Lender designated by
it to make its Canadian Revolving Credit Commitment, Canadian Letters of Credit
and Canadian Revolving Credit Loans available to the Borrower under this
Agreement.


 


“Related Parties” means, with respect to any specified Person,
such Person’s Affiliates and the directors, officers, employees, agents,
trustees, advisors of such Person and any Person that possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of such Person, whether through the ability to exercise voting power,
by contract or otherwise.


 


“Repayment Amount” shall have the meaning provided in
Section 2.5(b).


 


“Repayment Date” shall have the meaning provided in
Section 2.5(b).


 


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


 


“Required Canadian Revolving Credit Lenders” shall mean, at any
date, (a) Non-Defaulting Lenders having or holding a majority of the
Dollar Equivalent of the Adjusted Canadian Total Revolving Credit Commitment
that relates to Canadian Revolving Credit Loans at such date or (b) if the
Canadian Total Revolving Credit Commitment has been terminated, the holders
(excluding Defaulting Lenders) of a majority of the outstanding principal
amount of the Dollar Equivalent of the Canadian Revolving Credit Loans in the
aggregate at such date.


 


“Required Lenders” shall mean, at any date,
(a) Non-Defaulting Lenders having or holding a majority of the sum of
(i) the Adjusted US Total Revolving Credit Commitment at such date,
(ii) the Adjusted Canadian Total Revolving Credit Commitment at such date,
(iii) the Adjusted Total Term Loan Commitment at such date,  (iv) the outstanding principal amount of
the Tranche C Term Loans (excluding the Tranche C Term Loans held by Defaulting
Lenders) at such date and (v) the outstanding principal amount of the New Term
Loans (excluding the New Term Loans held by Defaulting Lenders) or (b) if
the US Total Revolving Credit Commitment, the Canadian Total Revolving Credit
Commitment and the Total Term Loan Commitment have been terminated or for the
purposes of acceleration pursuant to Section 11, the holders (excluding
Defaulting Lenders) of a majority of the outstanding principal amount of the
Loans and Letter of Credit Exposures (excluding the Loans and Letter of Credit Exposures
of Defaulting Lenders) in the aggregate at such date.


 


36
















 


“Required US Revolving Credit Lenders” shall mean, at any date,
(a) Non-Defaulting Lenders having or holding a majority of the
Adjusted US Total Revolving Credit Commitment that relates to US Revolving
Credit Loans at such date or (b) if the US Total Revolving Credit
Commitment has been terminated, the holders (excluding Defaulting Lenders) of a
majority of the outstanding principal amount of the US Revolving Credit Loans
and Letter of Credit Exposures (excluding the Loans and Letter of Credit
Exposures of Defaulting Lenders) in the aggregate at such date.


 


“Required Term Lenders” shall mean, at any date, Non-Defaulting
Lenders having or holding a majority of the sum of (a) the portion of the
Adjusted Total Term Loan Commitment that relates to Tranche C Term Loan
Commitments at such date and (b) the outstanding principal amount of the
Tranche C Term Loans (excluding the Tranche C Term Loans held by Defaulting
Lenders) in the aggregate at such date.


 


“Requirement of Law” shall mean, as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
assets or to which such Person or any of its property or assets is subject.


 


“Restricted Domestic Subsidiary” shall mean each Restricted
Subsidiary that is also a Domestic Subsidiary.


 


“Restricted Foreign Subsidiary” shall mean a Foreign Subsidiary
that is a Restricted Subsidiary.


 


“Restricted Subsidiary” shall mean any Subsidiary of the
Borrower other than an Unrestricted Subsidiary.


 


“Revolving Credit Loans” shall have the meaning provided in
Section 2.1(b).


 


“Revolving Credit Maturity Date” shall mean the date that is six
years after the Closing Date, or, if such date is not a Business Day, the next
preceding Business Day.


 


“SAC” shall have the meaning provided in the Existing Credit
Agreement.


 


“Sale Leaseback” shall mean any transaction or series of related
transactions pursuant to which the Borrower or any of the Restricted
Subsidiaries (a) sells, transfers or otherwise disposes of any property, real
or personal, whether now owned or hereafter acquired, and (b) as part of such
transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property
being sold, transferred or disposed.


 


“S&P” shall mean Standard & Poor’s Ratings Services
or any successor by merger or consolidation to its business.


 


37
















 


“Schedule II/III Reference Lenders” means specified
Canadian Lenders that are banks named in Schedule II or Schedule III
to the Bank Act (Canada) and approved by the Canadian Borrower and the
Canadian Administrative Agent.


 


“SEC” shall mean the Securities and Exchange Commission or any
successor thereto.


 


“Section 9.1 Financials” shall mean the financial
statements delivered, or required to be delivered, pursuant to
Section 9.1(a) or (b) together with the accompanying officer’s certificate
delivered, or required to be delivered, pursuant to Section 9.1(e).


 


“Secured Parties” shall have the meaning assigned to such term
in the applicable Security Documents.


 


“Security Agreement” shall mean the Security Agreement entered
into by the Borrower, the other grantors party thereto and the Administrative
Agent for the benefit of the Lenders, substantially in the form of Exhibit G,
as the same may be amended, supplemented or otherwise modified from time to
time.


 


“Security Documents” shall mean, collectively, (a) the
Guarantee, (b) the Pledge Agreement, (c) the Security Agreement, (d) the
Mortgages, (e) the Canadian Security Documents and (f) each other security
agreement or other instrument or document executed and delivered pursuant to
Section 9.11 or 9.12 or pursuant to any of the Security Documents to
secure any of the Obligations.


 


“Senior Unsecured Term Loan Agreement” shall mean the Senior
Unsecured Term Loan Agreement, dated as of the Closing Date, among the Company,
Holdings, J.P. Morgan Securities Inc., as joint lead arranger
and joint bookrunner, Goldman Sachs Credit Partners L.P., as joint lead arranger, joint
bookrunner and syndication agent, JPMCB,
as administrative agent and the other agents and the lenders party thereto as
it may be amended, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.


 


“Senior Unsecured Term Loans” shall mean the Indebtedness
incurred under the Senior Unsecured Term Loan Agreement on the Closing Date in
an aggregate principal amount of $100,000,000.


 


“Series” as defined in Section 2.15.


 


“Sold Entity or Business” shall have the meaning provided in the
definition of the term “Consolidated EBITDA”.


 


“Solvent” means, with respect to the Borrower, that as of the
Closing Date, both (i) (a) the sum of the Borrower’s debt (including contingent
liabilities) does not exceed the present fair saleable value of the Borrower’s
present assets; (b) the Borrower’s capital is not unreasonably small in
relation to its business as contemplated on the Closing Date; and (c) the Borrower
has not incurred and does not intend to incur, or believe that it will incur,
debts including current obligations beyond its ability to pay


 


38
















 


such debts as they become due (whether at maturity or otherwise); and
(ii) such Person is “solvent” within the meaning given that term and similar
terms under applicable laws relating to fraudulent transfers and
conveyances.  For purposes of this
definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No.5).


 


“Specified Obligations” shall mean Obligations consisting of
(a) the principal and interest on Loans and (b) reimbursement
obligations in respect of Letters of Credit.


 


“Specified Subsidiary” shall mean, at any date of determination,
(a) any Material Subsidiary or (b) any Unrestricted Subsidiary
(i) whose total assets at the last day of the Test Period ending on the
last day of the most recent fiscal period for which Section 9.1 Financials
have been delivered were equal to or greater than 15% of the consolidated total
assets of the Borrower and the Subsidiaries at such date or (ii) whose
gross revenues for such Test Period were equal to or greater than 15% of the
consolidated gross revenues of the Borrower and the Subsidiaries for such
period, in each case determined in accordance with GAAP.


 


“Stated Amount” of any Letter of Credit shall mean the maximum
amount from time to time available to be drawn thereunder, determined without
regard to whether any conditions to drawing could then be met.


 


“Status” shall mean, as to the Borrower as of any date, the
existence of Level I Status, Level II Status, Level III Status or
Level IV Status, as the case may be on such date.  Changes in Status resulting from changes in
the Consolidated Total Debt to Consolidated EBITDA Ratio shall become effective
(the date of such effectiveness, the “Effective Date”) as of the first
day following the last day of the most recent fiscal year or period for which
(a) Section 9.1 Financials are delivered to the Lenders under
Section 9.1 and (b) an officer’s certificate is delivered by the
Borrower to the Lenders setting forth, with respect to such Section 9.1
Financials, the then-applicable Status, and shall remain in effect until the
next change to be effected pursuant to this definition, provided that
(i) if the Borrower shall have made any payments in respect of interest or
commitment fees during the period (the “Interim Period”) from and
including the Effective Date to but excluding the day any change in Status is
determined as provided above, then the amount of the next such payment due on
or after such day shall be increased or decreased by an amount equal to any
underpayment or overpayment so made by the Borrower during such Interim Period
and (ii) each determination of the Consolidated Total Debt to Consolidated
EBITDA Ratio pursuant to this definition shall be made with respect to the Test
Period ending at the end of the fiscal period covered by the relevant financial
statements.


 


“Statutory Reserve Rate” shall mean for any day as applied to
any Eurodollar Loan, a fraction (expressed as a decimal), the numerator of
which is the


 


39
















 


number one and the denominator of which is the number one minus the
aggregate of the maximum reserve percentages that are in effect on that day
(including any marginal, special, emergency or supplemental reserves),
expressed as a decimal, as prescribed by the Board and to which the
Administrative Agent is subject, for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those
imposed pursuant to such Regulation D. 
Eurodollar Loans shall be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“Subordinated Note Indenture” shall mean the Indenture dated as
of the Closing Date, among the Borrower, the guarantors party thereto and The
Bank of New York, as trustee, pursuant to which the Subordinated Notes are
issued, as the same may be amended, supplemented or otherwise modified from
time to time to the extent permitted by Section 10.7(c).


 


“Subordinated Notes” shall mean (a) the Subordinated Notes
defined in the Existing Credit Agreement and (b) any replacement or
refinancing thereof having terms no more adverse to the interests of the
Lenders than the terms thereof, provided that any such amendment,
replacement or refinancing shall bear a rate of interest determined by the
Board of Directors of the Borrower to be a market rate of interest at the date
of such amendment, replacement or refinancing and have other terms customary
for similar issuances under similar market conditions or otherwise be on terms
reasonably acceptable to the Administrative Agent.


 


“Subsidiary” of any Person shall mean and include (a) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (b) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than a 50% equity interest at the time.  Unless otherwise expressly provided, all
references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.


 


“Swingline Commitment” shall mean $25,000,000.


 


“Swingline Lender” shall mean JPMCB in its capacity as lender of
Swingline Loans hereunder.


 


“Swingline Loans” shall have the meaning provided in
Section 2.1(c).


 


“Swingline Maturity Date” shall mean, with respect to any
Swingline Loan, the date that is five Business Days prior to the Revolving
Credit Maturity Date.


 


40
















 


“Syndication Agent” shall mean JPMCB, together with its
affiliates, as the syndication agent for the Lenders under this Agreement and
the other Credit Documents.


 


“Tax Act” means the Income
Tax Act (Canada), as amended from time to time, and regulations
promulgated thereunder.


 


 “Test Period” shall mean,
for any determination under this Agreement, the four consecutive fiscal
quarters of the Borrower then last ended; provided, however, that
for any period ending prior to one year after the end of the first fiscal
quarter ending after the Closing Date, pro forma adjustments shall be made with
respect to the relevant determination in accordance with Schedule 1.1(d).


 


“Total Commitment” shall mean the sum of the Total Term Loan
Commitment, the US Total Revolving Credit Commitment and the Canadian Total
Revolving Credit Commitment.


 


“Total Credit Exposure” shall mean, at any date, the sum of (a)
the US Total Revolving Credit Commitment at such date, (b) the Canadian
Total Revolving Credit Commitment at such date, (c) the Total Term Loan
Commitment at such date and (d) the outstanding principal amount of all
Tranche C Term Loans at such date.


 


“Total Term Loan Commitment” shall mean the sum of the Tranche C
Term Loan Commitments and New Term Loan Commitments, if applicable, of all the
Lenders.


 


“Tranche C Term Loan” shall have the meaning provided in
Section 2.1(a).


 


“Tranche C Term Loan Commitment” shall mean, (a) in the
case of each Lender that is a Lender on the date hereof, the amount set forth
opposite such Lender’s name on Schedule 1.1(c) as such Lender’s “Tranche C
Term Loan Commitment” and (b) in the case of any Lender that becomes a
Lender after the date hereof, the amount specified as such Lender’s “Tranche C
Term Loan Commitment” in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the Total Term Loan Commitment, in each case as the
same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Tranche C Term
Loan Commitments as of the Effective Date is $545,000,000.


 


“Tranche C Term Loan Maturity Date” shall mean the date that is
eight years after the Closing Date, or, if such date is not a Business Day, the
next preceding Business Day.


 


“Transaction Expenses” shall mean any fees or expenses incurred
or paid by Holdings or any of its Subsidiaries in connection with the
Recapitalization, this Agreement and the other Credit Documents and the
transactions contemplated hereby and thereby.


 


“Transferee” shall have the meaning provided in
Section 14.6(e).


 


41
















 


“Type” shall mean (a) as to any Tranche C Term Loan, its nature
as an ABR Loan or a Eurodollar Term Loan, (b) as to any US Revolving
Credit Loan, its nature as an ABR Loan or a Eurodollar Revolving Credit Loan
and (c) as to any Canadian Revolving Credit Loan, its nature as a BA Loan or a
Canadian Prime Loan.


 


“Unfunded Current Liability” of any Plan shall mean the amount,
if any, by which the present value of the accrued benefits under the Plan as of
the close of its most recent plan year, determined in accordance with Statement
of Financial Accounting Standards No. 87 as in effect on the date hereof, based
upon the actuarial assumptions that would be used by the Plan’s actuary in a
termination of the Plan, exceeds the fair market value of the assets allocable
thereto and in
relation to a Canadian Pension Plan shall mean the amount, if any, by which (A)
the present value of the accrued benefits under the Canadian Pension Plan as of
the close of business of its most recent plan year, determined in accordance
with (I) the Statement of Financial Accounting Standards No. 87 as in effect on
the date hereof, or (II) if in the normal course of business, no such
determination is made in relation to the Canadian Pension Plans, the Canadian
equivalent of Statement of Financial Accounting Standards No. 87 as in effect
on the date hereof, in either case such determination being based upon the
actuarial assumptions that would be used by the actuary for the Canadian
Pension Plan in the termination of that Canadian Pension Plan, exceeds (B) the
fair market value of the assets allocable thereto.


 


“Unpaid Drawing” shall have the meaning provided in
Section 3.4(a).


 


 “Unrestricted Subsidiary”
shall mean (a) any Subsidiary of the Borrower that is formed or acquired
after the Closing Date (other than a Subsidiary that becomes or is required to
become a Credit Party hereunder), provided that at such time (or
promptly thereafter) the Borrower designates such Subsidiary an Unrestricted
Subsidiary in a written notice to the Administrative Agent, (b) any
Restricted Subsidiary (other than a Restricted Subsidiary that is or becomes a
Credit Party) subsequently re-designated as an Unrestricted Subsidiary by the
Borrower in a written notice to the Administrative Agent, provided that
(x) such re-designation shall be deemed to be an investment on the date of such
re-designation in an Unrestricted Subsidiary in an amount equal to the sum of
(i) the net worth of such re-designated Restricted Subsidiary immediately
prior to such re-designation (such net worth to be calculated without regard to
any guarantee provided by such re-designated Restricted Subsidiary) and
(ii) the aggregate principal amount of any Indebtedness owed by such
re-designated Restricted Subsidiary to the Borrower or any other Restricted
Subsidiary immediately prior to such re-designation, all calculated, except as
set forth in the parenthetical to clause (i), on a consolidated basis in accordance
with GAAP and (y) no Default or Event of Default would result from such
re-designation and (c) each Subsidiary of an Unrestricted Subsidiary; provided,
however, that at the time of any written re-designation by the Borrower
to the Administrative Agent that any Unrestricted Subsidiary shall no longer
constitute an Unrestricted Subsidiary, such Unrestricted Subsidiary shall cease
to be an Unrestricted Subsidiary to the extent no Default or Event of Default
would result from such re-designation. 
On or promptly after the date of its formation, acquisition or
re-designation, as applicable, each Unrestricted Subsidiary (other than an
Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a
tax sharing agreement containing terms that, in the reasonable judgment of


 


42
















 


the Administrative Agent, provide for an appropriate allocation of tax
liabilities and benefits.


 


“US L/C Participant” shall have the meaning provided in
Section 3.3(a).


 


“US L/C Participation” shall have the meaning provided in
Section 3.3(a).


 


“US Letter of Credit Commitment” shall mean $35,000,000, as the
same may be reduced from time to time pursuant to Section 3.1.


 


“US Letter of Credit Exposure” shall mean, with respect to any
Lender, at any time, the sum of (a) the Dollar Equivalent of the amount of any
Unpaid Drawings in respect of which such Lender has made (or is required to
have made) payments to the US Letter of Credit Issuer pursuant to
Section 3.4(a) at such time and (b) such Lender’s Revolving Credit
Commitment Percentage of the US Letter of Credit Outstanding at such time
(excluding the portion thereof consisting of Unpaid Drawings in respect of
which the Lenders have made (or are required to have made) payments to the US
Letter of Credit Issuer pursuant to Section 3.4(a)).


 


“US Letter of Credit Issuer” shall mean JPMCB, any of its
Affiliates or any successor pursuant to Section 3.6.  The Letter of Credit Issuer may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Letter of Credit Issuer, and in each such case the term
“Letter of Credit Issuer” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate. 
In the event that there is more than one Letter of Credit Issuer at any
time, references herein and in the other Credit Documents to the Letter of
Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in
respect of the applicable Letter of Credit or to all Letter of Credit Issuers,
as the context requires.


 


“US Letters of Credit Outstanding” shall mean, at any time, the
sum of, without duplication, (a) the aggregate Stated Amount of all
outstanding US Letters of Credit and (b) the aggregate amount of all
Unpaid Drawings in respect of all US Letters of Credit.


 


“US Letter of Credit Request” shall have the meaning provided in
Section 3.2.


 


“US Revolving Credit Commitment” shall mean, (a) with respect to
each Lender that is a Lender on the date hereof, the amount set forth opposite
such Lender’s name on Schedule 1.1(c) as such Lender’s “US Revolving
Credit Commitment” and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lender’s “US Revolving
Credit Commitment” in the Assignment and Acceptance pursuant to which such
Lender assumed a portion of the US Total Revolving Credit Commitment, in each
case of the same may be changed from time to time pursuant to terms
hereof.  The aggregate amount of the US
Revolving Credit Commitment as of the Closing Date is $100,000,000.


 


43
















 


“US Revolving Credit Commitment Percentage” shall mean at any
time, for each Lender, the percentage obtained by dividing (a) such Lender’s US
Revolving Credit Commitment by (b) the aggregate amount of the US Revolving
Credit Commitments, provided that at any time when the US Total
Revolving Credit Commitment shall have been terminated, each Lender’s US
Revolving Credit Commitment Percentage shall be its US Revolving Credit
Commitment Percentage as in effect immediately prior to such termination.


 


“US Revolving Credit Exposure” shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount of the
US Revolving Credit Loans of such Lender then outstanding, and (b) such
Lender’s US Letter of Credit Exposure at such time.


 


“US Revolving Credit Loan” shall mean a Revolving Credit Loan
denominated in Dollars and made pursuant to Section 2.1(b).


 


“US Subsidiary Guarantors” shall mean (a) each Domestic
Subsidiary (other than an Unrestricted Subsidiary) on the Closing Date and (b)
each Domestic Subsidiary that becomes a party to the Guarantee after the
Closing Date pursuant to Section 9.11.


 


“US Total Revolving Credit Commitment” shall mean the sum of the
US Revolving Credit Commitments of all the Lenders.


 


“Voting Stock” shall mean, with respect to any Person, shares of
such Person’s capital stock having the right to vote for the election of
directors of such Person under ordinary circumstances.


 


(b)           The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to Sections of this Agreement unless
otherwise specified.  The words
“include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”.


 


1.2.                              Exchange Rates. 
(a)     Not later than
1:00 p.m. (New York time) on each Calculation Date, the Administrative
Agent shall (i) determine the Exchange Rate as of such Calculation Date
with respect to Canadian Dollars to be used for calculating the Dollar
Equivalent and (ii) give notice thereof to the Lenders and the Borrower.  The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a “Recalculation Date”), shall remain effective until
the next succeeding Recalculation Date, and shall for all purposes of this
Agreement (other than any provision expressly requiring the use of a current
Exchange Rate) be the Exchange Rates employed in converting any amounts between
Dollars and Canadian Dollars.


 


(b)                                 Not later than 5:00 p.m.
(New York time) on each Recalculation Date and each date on which Canadian
Revolving Loans are made, the Administrative Agent shall (i) determine the
aggregate amount of the Dollar Equivalents of the principal


 


44
















 


amounts of the Canadian Revolving Loans then outstanding (after giving
effect to any Canadian Revolving Loans made or repaid on such date), and
(ii) notify the Lenders and the Borrower of the results of such
determination.


 


(c)                                  For purposes of determining
compliance under Sections 10.4, 10.5, 10.6, 10.9, 10.10 and 10.11 with
respect to any amount in a Foreign Currency, such amount shall be deemed to
equal the Dollar Equivalent thereof based on the average Exchange Rate for a
Foreign Currency for the most recent twelve-month period immediately prior to the
date of determination determined in a manner consistent with that used in
calculating Consolidated EBITDA for the related period.  For purposes of determining compliance with
Sections 10.1 and 10.2, with respect to any amount of Indebtedness in a Foreign
Currency, compliance will be determined at the time of incurrence thereof using
the Dollar Equivalent thereof at the Exchange Rate in effect at the time of
such incurrence.


 


SECTION 2.                                Amount
and Terms of Credit


 


2.1.                              Commitments. 
(a)     Subject to and upon the
terms and conditions herein set forth, each of the Continuing Lenders listed on
Schedule 2.1(a) agrees that the Existing Term Loans made by such Existing
Lender under the Existing Credit Agreement shall remain outstanding on and
after the Effective Date as “Tranche C Term Loans” made pursuant to this
Agreement in the same pro rata amount of such Continuing Lenders pro rata share
of the Existing Term Loans and such Existing Term Loans shall on and after the
Effective Date have all of the rights and benefits of Tranche C Term Loans as
set forth in this Agreement and the other Credit Documents.


 


Subject to the terms and conditions herein set forth, each Lender
having a Tranche C Term Loan Commitment severally agrees to make a loan or
loans (each a “Tranche C Term Loan”)
to the Borrower in Dollars, which Tranche C Term Loans shall not exceed for any
such Lender the Tranche C Term Loan Commitment of such Lender; and


 


Such Tranche C Term Loans (i) shall be made on the Effective Date,
(ii) may at the option of the Borrower be incurred and maintained as,
and/or converted into, ABR Loans or Eurodollar Term Loans, provided that
all such Tranche C Term Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist
entirely of Tranche C Term Loans of the same Type, (iii) may be repaid or
prepaid in accordance with the provisions hereof, but once repaid or prepaid,
may not be reborrowed, (iv) shall not exceed for any such Lender the Tranche C
Term Loan Commitment, of such Lender and (v) shall not exceed in the
aggregate the total of all Tranche C Term Loan Commitments.  On the Tranche C Term Loan Maturity Date, all
Tranche C Term Loans shall be repaid in full.


 


(b)                                 (i) 
Subject to and upon the terms and conditions herein set forth, each
Lender having a US Revolving Credit Commitment severally agrees to make a loan
or loans denominated in Dollars (each a “US Revolving Credit Loan” and,
collectively, the “US Revolving Credit Loans” and, together with the Canadian
Revolving Credit


 


45





















Loans, the “Revolving Credit Loans”) to the Borrower which US
Revolving Credit Loans (A) shall be made at any time and from time to time
on and after the Closing Date and prior to the Revolving Credit Maturity Date,
(B) may, at the option of the Borrower be incurred and maintained as,
and/or converted into, ABR Loans or Eurodollar Revolving Credit Loans, provided
that all US Revolving Credit Loans made by each of the Lenders pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, consist
entirely of US Revolving Credit Loans of the same Type, (C) may be repaid
and reborrowed in accordance with the provisions hereof, (D) shall not, for any
such Lender at any time, after giving effect thereto and to the application of
the proceeds thereof, result in such Lender’s US Revolving Credit Exposure at
such time exceeding such Lender’s US Revolving Credit Commitment at such time
and (E) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Lenders’ US
Revolving Credit Exposures at such time exceeding the US Total Revolving Credit
Commitment then in effect.


 


(ii)                                  Subject to and upon the terms and
conditions herein set forth, each Canadian Lender having a Canadian Revolving
Credit Commitment severally agrees to make a loan or loans denominated in
Canadian Dollars or Dollars to the Canadian Borrower or a loan or loans
denominated in Dollars to the Borrower (each a “Canadian Revolving Credit
Loan” and, collectively, the “Canadian Revolving Credit Loans”)
which Canadian Revolving Credit Loans (A) shall be made at any time and
from time to time on and after the Closing Date and prior to the Revolving
Credit Maturity Date, (B) shall be incurred and maintained (x) as Canadian
Prime Loans or BA Loans if denominated in C$ or (y) as Cdn ABR Loans or
Eurodollar Loans if denominated in US$ and made to the Canadian Borrower, or
(z) as ABR Loans or Eurodollar Loans if denominated in US$ and made to the
Borrower; provided that all Canadian Revolving Credit Loans made by each
of the Canadian Lenders pursuant to the same Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Canadian Revolving Credit
Loans of the same Type made to the same Borrower, (C) may be repaid and
reborrowed in accordance with the provisions hereof, (D) shall not, for
any such Canadian Lender at any time, after giving effect thereto and to the
application of the proceeds thereof, result in such Canadian Lender’s Canadian
Revolving Credit Exposure allocated to the Canadian Borrower at such time
exceeding such Canadian Lender’s Canadian Revolving Credit Commitment allocated
to the Canadian Borrower at such time, (E) shall not, for any such Canadian
Lender at any time, after giving effect thereto and to the application of the
proceeds thereof, result in such Lender’s Canadian Revolving Credit Exposure
allocated to the Borrower at such time exceeding such Canadian Lender’s
Canadian Revolving Credit Commitment allocated to the Borrower at such time,
(F) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Canadian
Lenders’ Canadian Revolving Credit Exposures at such time exceeding the
Canadian Total Revolving Credit Commitment then in effect, and (G) if made to
the Canadian Borrower shall be made by a Canadian Lender that is a Canadian
Resident or a permitted assignee of such Canadian Lender pursuant to
Section 14.6(b)(ii).  The allocation
of the Canadian Total Revolving Credit Commitment as between the Borrower (the
“Borrower Allocation”) on the one hand and the Canadian Borrower (the “Canadian
Borrower Allocation”) on the other hand shall be fixed by the Borrower at
the beginning of each calendar month by


 


46
















 


providing written notice to the Administrative Agent and the Canadian
Administrative Agent (which notice must be received by each such agent prior to
10:00 a.m. (New York time), three (3) Business Days before the date on
which such allocations shall be revised) specifying the revised allocation of
the Canadian Total Revolving Credit Commitment as between the Borrower and the
Canadian Borrower, respectively.  As of
the Closing Date, $0 of the Canadian Revolving Credit Commitment is allocated
to the Borrower and $25,000,000 of the Canadian Revolving Credit Commitment is
allocated to the Canadian Borrower.  The
portion of each Canadian Lender’s Canadian Revolving Credit Commitment
allocated to the Borrower and the Canadian Borrower, respectively, shall be its
Canadian Revolving Credit Percentage of the Borrower Allocation and the
Canadian Borrower Allocation, respectively. 
Each Canadian Lender, if it is not a “United States person” (as such
term is defined in Section 7701(a)(30) of the Code), shall designate by
notice in writing to the Administrative Agent and the Canadian Administrative
Agent on the Closing Date, and otherwise from time to time, a Related Affiliate
of such Lender which is either a “United States person” (as such term is
defined in Section 7701(a)(30) of the Code) or is a Non-US Lender that has
fulfilled the requirements in Section 5.4(b), for the purposes of making
Canadian Revolving Credit Loans available to the Borrower.


 


(iii)                               Each Lender may at its option make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan, provided that (A) any exercise of
such option shall not affect the obligation of the Borrower or the Canadian
Borrower, as the case may be, to repay such Loan, (B) in exercising such
option, such Lender shall use its reasonable efforts to minimize any increased
costs to the Borrower or the Canadian Borrower, as the case may be, resulting
therefrom (which obligation of the Lender shall not require it to take, or
refrain from taking, actions that it determines would result in increased costs
for which it will not be compensated hereunder or that it determines would be
otherwise disadvantageous to it and in the event of such request for costs for
which compensation is provided under this Agreement, the provisions of
Section 3.5 shall apply) and (C) if a Eurodollar Loan is made to the
Canadian Borrower, it shall be made by a Canadian Lender that is a Canadian
resident or a permitted assignee of such Canadian Lender pursuant to
Section 14.6(b)(ii).  On the
Revolving Credit Maturity Date, all Revolving Credit Loans shall be repaid in
full.


 


(c)                                  Subject to and upon the terms and
conditions herein set forth, the Swingline Lender in its individual capacity
agrees, at any time and from time to time on and after the Closing Date and
prior to the Swingline Maturity Date, to make a loan or loans (each a “Swingline
Loan” and, collectively, the “Swingline Loans”) to the Borrower in
Dollars, which Swingline Loans (i) shall be ABR Loans, (ii) shall
have the benefit of the provisions of Section 2.1(d), (iii) shall not
exceed at any time outstanding the Swingline Commitment, (iv) shall not,
after giving effect thereto and to the application of the proceeds thereof,
result at any time in the aggregate amount of the Lenders’ US Revolving Credit
Exposures at such time exceeding the US Total Revolving Credit Commitment then
in effect and (v) may be repaid and reborrowed in accordance with the provisions
hereof.  On the Swingline Maturity Date,
each outstanding Swingline Loan shall be repaid in full.  The Swingline Lender shall not make any
Swingline Loan after receiving a written notice from the Borrower, the Canadian
Borrower or any Lender


 


47
















 


stating that a Default or Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written notice of
(i) rescission of all such notices from the party or parties originally
delivering such notice or (ii) the waiver of such Default or Event of
Default in accordance with the provisions of Section 14.1.


 


(d)                                 On any Business Day, the Swingline
Lender may, in its sole discretion, give notice to the Lenders that all
then-outstanding Swingline Loans shall be funded with a Borrowing of US
Revolving Credit Loans, in which case US Revolving Credit Loans constituting
ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made
on the immediately succeeding Business Day by all Lenders pro  rata
based on each Lender’s US Revolving Credit Commitment Percentage, and the
proceeds thereof shall be applied directly to the Swingline Lender to repay the
Swingline Lender for such outstanding Swingline Loans.  Each Lender hereby irrevocably agrees to make
such US Revolving Credit Loans upon one Business Day’s notice pursuant to each
Mandatory Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified to it in writing by the Swingline Lender notwithstanding
(i) that the amount of the Mandatory Borrowing may not comply with the minimum
amount for each Borrowing specified in Section 2.2, (ii) whether any
conditions specified in Section 7 are then satisfied, (iii) whether a
Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing or (v) any reduction in the Total Commitment after any
such Swingline Loans were made.  In the
event that, in the sole judgment of the Swingline Lender, any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including as a result of the commencement of a proceeding under the Bankruptcy
Code in respect of the Borrower), each Lender hereby agrees that it shall
forthwith purchase from the Swingline Lender (without recourse or warranty)
such participation of the outstanding Swingline Loans as shall be necessary to
cause the Lenders to share in such Swingline Loans ratably based upon their
respective US Revolving Credit Commitment Percentages, provided that all
principal and interest payable on such Swingline Loans shall be for the account
of the Swingline Lender until the date the respective participation is
purchased and, to the extent attributable to the purchased participation, shall
be payable to the Lender purchasing same from and after such date of purchase.


 


2.2.                              Minimum Amount of Each Borrowing;
Maximum Number of Borrowings. 
The aggregate principal amount of each Borrowing of Tranche C Term Loans
or Revolving Credit Loans shall be in a multiple of $1,000,000 or C$100,000 (in
the case of a Borrowing denominated in C$) and Swingline Loans shall be in a
multiple of $100,000 and, in each case, shall not be less than the Minimum
Borrowing Amount with respect thereto (except that Mandatory Borrowings shall
be made in the amounts required by Section 2.1(d)).  More than one Borrowing may be incurred on
any date, provided that at no time shall there be outstanding more than
20 Borrowings of Eurodollar Loans and BA loans under this Agreement.


 


2.3.                              Notice of Borrowing.  (a)  
The Borrower shall give the Administrative Agent at the Administrative
Agent’s Office (i) prior to 12:00 Noon (New York time) at least three
Business Days’ prior written notice (or telephonic notice promptly confirmed in
writing) of the Borrowing of Tranche C Term Loans if all or any


 


48
















 


of such Tranche C Term Loans are to be initially Eurodollar Loans, and
(ii) prior written notice (or telephonic notice promptly confirmed in
writing) prior to 10:00 a.m. (New York time) on the date of the Borrowing
of Tranche C Term Loans if all such Tranche C Term Loans are to be ABR
Loans.  Such notice (together with each
notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b)
and each notice of a Borrowing of Swingline Loans pursuant to
Section 2.3(d), a “Notice of Borrowing”) shall be irrevocable and
shall specify (i) the aggregate principal amount of the Tranche C Term
Loans to be made, (ii) the date of the borrowing (which shall be the
Effective Date) and (iii) whether the Tranche C Term Loans shall consist
of ABR Loans and/or Eurodollar Term Loans and, if the Tranche C Term Loans are
to include Eurodollar Term Loans, the Interest Period to be initially
applicable thereto.  The Administrative
Agent shall promptly give each Lender written notice (or telephonic notice
promptly confirmed in writing) of the proposed Borrowing of Tranche C Term
Loans, of such Lender’s proportionate share thereof and of the other matters
covered by the related Notice of Borrowing.


 


(b)           Whenever the Borrower desires to
incur US Revolving Credit Loans or Canadian Revolving Credit Loans in Dollars
(subject to its allocated portion of the Canadian Revolving Credit Commitment)
hereunder (other than Mandatory Borrowings or borrowings to repay Unpaid
Drawings), it shall give the Administrative Agent at the Administrative Agent’s
Office, (i) prior to 12:00 Noon (NY Time) at least three Business Days’ prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Revolving Credit Loans, and (ii) prior to
12:00 Noon (New York time) at least one Business Day’s prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing
of ABR Loans.  Each such Notice of
Borrowing, except as otherwise expressly provided in Section 2.10, shall
be irrevocable and shall specify (i) whether the Revolving Credit Loans
are Canadian Revolving Credit Loans or US Revolving Credit Loans, as
applicable, (ii) the aggregate principal amount of the Revolving Credit Loans
to be made pursuant to such Borrowing, (iii) the date of Borrowing (which shall
be a Business Day) and (iv) whether the respective Borrowing shall consist of
ABR Loans or Eurodollar Revolving Credit Loans and, if Eurodollar Revolving
Credit Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give
each Lender written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing of Revolving Credit Loans, of such Lender’s
proportionate share thereof and of the other matters covered by the related
Notice of Borrowing.


 


(c)                                  Whenever the Canadian Borrower
desires to incur Canadian Revolving Credit Loans in Dollars or Canadian Dollars
(subject to its allocated portion of the Canadian Revolving Credit Commitment)
hereunder (other than Mandatory Borrowings or borrowings to repay Unpaid
Drawings), it shall give the Canadian Administrative Agent at the Canadian
Administrative Agent’s Office, (i) prior to 12:00 Noon (New York time) at least
three Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) of each Canadian Borrowing of BA Loans or Eurodollar
Loans, and (ii) prior to 12:00 Noon (New York time) at least one Business
Day’s prior written notice (or telephonic notice promptly confirmed in writing)
of each Canadian Borrowing of Cdn ABR or Canadian Prime Loans.  Each such Notice of


 


49
















 


Borrowing, except as otherwise expressly provided in Section 2.10,
shall be irrevocable and shall specify (i) the aggregate principal amount
of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the
date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of BA Loans, Eurodollar Loans, Canadian
Prime Loans or Cdn ABR Loans and, if BA Loans or Eurodollar Loans, the Interest
Period to be initially applicable thereto. 
The Canadian Administrative Agent shall promptly give each Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Revolving Credit Loans, of such Lender’s proportionate
share thereof and of the other matters covered by the related Notice of
Borrowing.


 


(d)                                 Whenever the Borrower desires to
incur Swingline Loans hereunder, it shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing
of Swingline Loans prior to 2:30 p.m. (New York time) on the date of such
Borrowing.  Each such notice shall be
irrevocable and shall specify (i) the aggregate principal amount of the
Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). 
The Administrative Agent shall promptly give the Swingline Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the
related Notice of Borrowing.


 


(e)                                  Mandatory Borrowings shall be made
upon the notice specified in Section 2.1(d), with the Borrower irrevocably
agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory
Borrowings as set forth in such Section.


 


(f)                                    Borrowings to reimburse Unpaid
Drawings shall be made upon the notice specified in Section 3.4(a).


 


(g)                                 Without in any way limiting the
obligation of the Borrower or the Canadian Borrower, as the case may be, to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent and the Canadian Administrative Agent may act prior to
receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent and the Canadian
Administrative Agent in good faith to be from an Authorized Officer of the
Borrower or the Canadian Borrower, as the case may be.  In each such case, the Borrower and the
Canadian Borrower each hereby waives the right to dispute the Administrative
Agent’s and the Canadian Administrative Agent’s record of the terms of any such
telephonic notice.


 


2.4.                              Disbursement of Funds.  (a)    
No later than 12:00 Noon (New York time) on the date specified in each
Notice of Borrowing (including Mandatory Borrowings), each Lender will make
available its pro rata portion, if any, of each Borrowing requested to be made
on such date in the manner provided below, provided that all Swingline Loans
shall be made available in the full amount thereof by the Swingline Lender no
later than 3:00 p.m. (New York time) on the date requested.


 


50
















 


(b)                                 Each Lender shall make available all
amounts it is to fund to the Borrower under any Borrowing in the applicable
currency for its applicable Commitments, and in immediately available funds to
the Administrative Agent at the Administrative Agent’s Office and the
Administrative Agent will (except in the case of Mandatory Borrowings and
Borrowings to repay Unpaid Drawings) make available to the Borrower, by
depositing to the Borrower’s account at the Administrative Agent’s Office the
aggregate of the amounts so made available in Dollars.  Each Canadian Lender shall make available all
amounts it is to fund to the Canadian Borrower under any Canadian Borrowing in
the applicable currency for its applicable Commitments, and in immediately
available funds to the Canadian Administrative Agent at the Canadian
Administrative Agent’s Office and the Canadian Administrative Agent will
(except in the case of Mandatory Borrowings and Borrowings to repay Unpaid
Drawings) make available to the Canadian Borrower, by depositing to the
Canadian Borrower’s account (as designated by it in a written notice to the
Canadian Administrative Agent from time to time) the aggregate of the amounts
so made available in Canadian Dollars or Dollars as applicable.  Unless the Administrative Agent and the
Canadian Administrative Agent (in the case of Canadian Borrowings) shall have
been notified by any Lender prior to the date of any such Borrowing that such
Lender does not intend to make available to the Administrative Agent or the
Canadian Administrative Agent (in the case of Canadian Borrowings) its portion
of the Borrowing or Borrowings to be made on such date, the Administrative
Agent or the Canadian Administrative Agent (in the case of Canadian Borrowings)
may assume that such Lender has made such amount available to the
Administrative Agent or the Canadian Administrative Agent (in the case of
Canadian Borrowings) on such date of Borrowing, and the Administrative Agent
and the Canadian Administrative Agent (in the case of Canadian Borrowings), in
reliance upon such assumption, may (in its sole discretion and without any
obligation to do so) make available to the Borrower or the Canadian Borrower,
as the case may be, a corresponding amount. 
If such corresponding amount is not in fact made available to the
Administrative Agent or the Canadian Administrative Agent (in the case of
Canadian Borrowings) by such Lender and the Administrative Agent or the
Canadian Administrative Agent (in the case of Canadian Borrowings) has made
available same to the Borrower or the Canadian Borrower, as the case may be,
the Administrative Agent or the Canadian Administrative Agent (in the case of
Canadian Borrowings) shall be entitled to recover such corresponding amount
from such Lender.  If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent’s or
the Canadian Administrative Agent (in the case of Canadian Borrowings) demand
therefor the Administrative Agent or the Canadian Administrative Agent (in the
case of Canadian Borrowings) shall promptly notify the Borrower or the Canadian
Borrower, as the case may be, and the Borrower or the Canadian Borrower, as the
case may be, shall immediately pay such corresponding amount to the
Administrative Agent or the Canadian Administrative Agent (in the case of
Canadian Borrowings).  The Administrative
Agent or the Canadian Administrative Agent (in the case of Canadian Borrowings)
shall also be entitled to recover from such Lender or the Borrower or the
Canadian Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent or the Canadian Administrative Agent (in the case
of Canadian


 


51
















 


Borrowings) to the Borrower or the Canadian Borrower, as the case may
be, to the date such corresponding amount is recovered by the Administrative
Agent or the Canadian Administrative Agent (in the case of Canadian
Borrowings), at a rate per annum equal to (i) if paid by such Lender, the
Federal Funds Effective Rate (or, in the case of an amount owing in respect of
a Canadian Borrowing, the rate reasonably determined by the Canadian Administrative
Agent to be the cost to it of funding such amount) or (ii) if paid by the
Borrower or the Canadian Borrower, as the case may be, the then-applicable rate
of interest or fees, calculated in accordance with Section 2.8, for the
respective Loans.


 


(c)                                  Nothing in this Section 2.4
shall be deemed to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights that the Borrower or the
Canadian Borrower, as the case may be, may have against any Lender as a result
of any default by such Lender hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).


 


2.5.                              Repayment of Loans; Evidence of Debt.  (a)    
The Borrower shall repay to the Administrative Agent, for the benefit of
the Lenders, (i) on the Tranche C Term Loan Maturity Date, the then-unpaid
Tranche C Term Loans, in Dollars.  The
Borrower shall repay to the Administrative Agent in Dollars, for the benefit of
the applicable Lenders, on the Revolving Credit Maturity Date, the then-unpaid
US Revolving Credit Loans and Canadian Revolving Credit Loans made to the
Borrower.  The Canadian Borrower shall
repay to the Canadian Administrative Agent in Dollars or C$, as the case may
be, for the benefit of the applicable Lenders, on the Revolving Credit Maturity
Date, the then-unpaid Canadian Revolving Credit Loans made to the Canadian
Borrower.  The Borrower shall repay to
the Administrative Agent in Dollars, for the account of the Swingline Lender,
on the Swingline Maturity Date, the then-unpaid Swingline Loans.


 


(b)                                 The Borrower shall repay to the
Administrative Agent, in Dollars, for the benefit of the Lenders of Tranche C
Term Loans, on each date set forth below (each a “Repayment Date”), the
principal amount of the Tranche C Term Loans equal to (x) the outstanding
principal amount of Tranche C Term Loans immediately after closing on the
Effective Date multiplied by (y) the percentage set forth below opposite such
Repayment Date (each a “Repayment Amount”):


 


52
















 




	
  Number
  of Months

  From Effective Date

  	
   

  	
  Tranche C Term Loan

  Repayment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  9

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  12

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  15

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  18

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  21

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  24

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  27

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  30

  	
   

  	
   

  	
  0.0

  	
  %

  
	
  33

  	
   

  	
   

  	
  0.07

  	
  %

  
	
  36

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  39

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  42

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  45

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  48

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  51

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  54

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  57

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  60

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  63

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  66

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  69

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  72

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  75

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  78

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  81

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  84

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  87

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  90

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  93

  	
   

  	
   

  	
  0.26

  	
  %

  
	
  Tranche C Term Loan Maturity Date

  	
   

  	
  94.79

  	
  %

  






 


; provided, in the event any New Term Loans are made, such New
Term Loans shall be repaid on each Installment Date occurring on or after the
applicable Increased Amount Date in an amount equal to (i) the aggregate
principal amount of New Term Loans of the applicable Series of New Term Loans,
times (ii) the ratio (expressed as a percentage) of (y) the amount of all other
Tranche C Term Loans being repaid on such Installment Date and (z) the total
aggregate principal amount of all other Tranche C Term Loans outstanding on
such Increased Amount Date.


 


(c)                                  Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower and the Canadian Borrower, as the case may be, to
the appropriate lending office of such Lender resulting


 


53
















 


from each Loan made by such lending office of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
lending office of such Lender from time to time under this Agreement.


 


(d)                                 The Administrative Agent shall
maintain the Register pursuant to Section 14.6(b), and a subaccount for
each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount and currency of each Loan made hereunder, whether such
Loan is a Tranche C Term Loan, a US Revolving Credit Loan, a Canadian Revolving
Credit Loan or a Swingline Loan, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower and the Canadian
Borrower, as the case may be, to each Lender or the Swingline Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent and the
Canadian Administrative Agent hereunder from the Borrower and the Canadian
Borrower, as the case may be, and each Lender’s share thereof.


 


(e)           The entries made in the Register and
accounts and subaccounts maintained pursuant to paragraphs (c) and (d) of this
Section 2.5 shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of the Borrower
and the Canadian Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of the Borrower or the Canadian
Borrower to repay (with applicable interest) the Loans made to the Borrower or
the Canadian Borrower by such Lender in accordance with the terms of this
Agreement.


 


2.6.                              Conversions and Continuations.  (a)    
Each of the Borrower and the Canadian Borrower shall have the option on
any Business Day to convert all or a portion equal to at least the Minimum
Borrowing Amount of the outstanding principal amount of Tranche C Term Loans or
Revolving Credit Loans made to such Borrower (as applicable) of one Type into a
Borrowing or Borrowings of another Type in the same currency and the Borrower
or the Canadian Borrower, as the case may be, shall have the option on any
Business Day to continue the outstanding principal amount of any Eurodollar
Term Loans or Eurodollar Revolving Credit Loans as Eurodollar Term Loans or
Eurodollar Revolving Credit Loans, as the case may be, for an additional
Interest Period, provided that (i) no partial conversion of BA Loans or  Eurodollar Term Loans or Eurodollar
Revolving Credit Loans shall reduce the outstanding principal amount of BA
Loans or Eurodollar Term Loans or Eurodollar Revolving Credit Loans made
pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii)
Cdn ABR Loans and ABR Loans may not be converted into Eurodollar Term Loans or
Eurodollar Revolving Credit Loans and Canadian Prime Loans may not be converted
into BA Loans if a Default or Event of Default is in existence on the date of
the conversion and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such conversion,
(iii) BA Loans and Eurodollar Loans may not be continued as BA Loans or
Eurodollar Loans , respectively, for an additional Interest Period if a Default
or Event of Default is in existence on the date of the proposed continuation
and the Administrative Agent has or the Required Lenders have determined


 


54
















 


in its or their sole discretion not to permit such continuation, (iv)
no conversion or continuation of BA Loans may be made on a day other than the
last day of the Interest Period applicable thereto and (v) Borrowings
resulting from conversions pursuant to this Section 2.6 shall be limited
in number as provided in Section 2.2. 
Each such conversion or continuation shall be effected by the Borrower
or the Canadian Borrower, as the case may be, by giving the Administrative
Agent or the Canadian Administrative Agent at the applicable Administrative
Agent’s Office prior to 12:00 Noon (New York time) at least three Business
Days’ (or one Business Day’s notice in the case of a conversion into Cdn ABR
Loans and ABR Loans or Canadian Prime Loans) prior written notice (or
telephonic notice promptly confirmed in writing) (each a “Notice of
Conversion or Continuation”) specifying the Tranche C Term Loans or
Revolving Credit Loans to be so converted or continued, the Type of Tranche C
Term Loans or Revolving Credit Loans to be converted or continued into and, if
such Tranche C Term Loans or Revolving Credit Loans are to be converted into or
continued as BA Loans or Eurodollar Loans, the Interest Period to be initially
applicable thereto.  The Administrative
Agent (or the Canadian Administrative Agent, in the case of Canadian
Borrowings) shall give each Lender notice as promptly as practicable of any
such proposed conversion or continuation affecting any of its Tranche C Term
Loans or Revolving Credit Loans.


 


(b)                                 If any Default or Event of Default
is in existence at the time of any proposed continuation of any BA Loans or
Eurodollar Loans, as the case may be, and the Administrative Agent has or the
Required Lenders have determined in its or their sole discretion not to permit
such continuation, such BA Loans or Eurodollar Loans shall be automatically
converted on the last day of the current Interest Period (i) in respect of
Eurodollar Loans, into ABR Loans or Cdn ABR Loans (in the case of the Canadian
Borrower) and (ii) in respect of BA Loans, into Canadian Prime Loans.  If upon the expiration of any Interest Period
in respect of BA Loans or Eurodollar Loans, the Borrower or the Canadian
Borrower, as the case may be, has failed to elect a new Interest Period to be
applicable thereto as provided in paragraph (a) above, the Borrower or the
Canadian Borrower, as the case may be, shall be deemed to have elected to
continue such Borrowing of BA Loans or Eurodollar Loans, as the case may be,
into a Borrowing of Canadian Prime Loans or ABR Loans or Cdn ABR Loans (in the
case of the Canadian Borrower), as the case may be, effective as of the
expiration date of such current Interest Period.


 


2.7.                              Pro Rata Borrowings.  Each Borrowing of Tranche C Term Loans under
this Agreement shall be granted by the Lenders pro rata on the basis of their
then-applicable Tranche C Term Loan Commitments.  Each Borrowing of US Revolving Credit Loans
under this Agreement shall be granted by the Lenders pro rata on the basis of
their then-applicable US Revolving Credit Commitments. Each Borrowing of
Canadian Revolving Credit Loans under this Agreement shall be granted by the
Canadian Lenders (or their Related Affiliates if applicable) pro rata on the
basis of their then-applicable Canadian Revolving Credit Commitments allocated
to the Canadian Borrower or the Borrower, as applicable.  Each Borrowing of New Term Loans under this
Agreement shall be granted by the Lenders pro rata on the basis of their
then-applicable New Term Loan Commitments. 
It is understood that no Lender shall be responsible for any default by
any other Lender in its obligation to make Loans hereunder and that each


 


55
















 


Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.


 


2.8.          Interest. 
(a)     (i) The unpaid principal
amount of each ABR Loan shall bear interest from the date of the Borrowing
thereof until maturity (whether by acceleration or otherwise) at a rate per
annum that shall at all times be the Applicable ABR Margin plus the ABR in
effect from time to time, (ii) the unpaid principal amount of each Cdn ABR Loan
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum that shall at all
times be the Applicable ABR Margin plus the Cdn ABR in effect from time to
time, and (iii) the unpaid principal amount of each Canadian Prime Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum that shall at all times be the
Applicable ABR Margin plus the Canadian Prime Rate in effect from time to time.


 


(b)                                 (i) The unpaid principal amount of
each Eurodollar Loan shall bear interest from the date of the Borrowing thereof
until maturity thereof (whether by acceleration or otherwise) at a rate per
annum that shall at all times be the Applicable Eurodollar Margin in effect
from time to time plus the relevant Eurodollar Rate and (ii) the Canadian
Borrower shall pay to each Lender that accepts or advances a BA Loan, as a
condition of and at the time of such acceptance or advance, a fee at the rate
of the then Applicable Stamping Fee calculated on the basis of a year of
365 days on the face amount at maturity (or the principal amount in the
case of a BA Equivalent Loan) of such Bankers’ Acceptance for the period from
and including the date of acceptance (or advance in the case of a BA Equivalent
Loan) of such Bankers’ Acceptance for the period from and including the date of
acceptance to but excluding the maturity date of such Bankers’ Acceptance.


 


(c)                                  If all or a portion of (i) the
principal amount of any Loan or (ii) any interest payable thereon shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum that is
(x) in the case of overdue principal, the rate that would otherwise be
applicable thereto plus 2% or (y) in the case of any overdue
interest, to the extent permitted by applicable law, the rate described in
Section 2.8(a) plus 2% from and including the date of such
non-payment to but excluding the date on which such amount is paid in full
(after as well as before judgment).


 


(d)           Interest on each Loan shall accrue
from and including the date of any Borrowing to but excluding the date of any
repayment thereof and shall be payable (i) in respect of each Canadian Prime
Loan, Cdn ABR Loan and ABR Loan, quarterly in arrears on the last day of each
March, June, September and December, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period,
(iii) in respect of each Loan (except, other than in the case of
prepayments, any Canadian Prime Loan, Cdn ABR Loan or ABR Loan), on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.


 


56
















 


(e)                                  All computations of interest
hereunder shall be made in accordance with Section 5.5.


 


(f)                                    The Administrative Agent, upon
determining the interest rate for any Borrowing of Eurodollar Loans, shall
promptly notify the Borrower (on its own behalf and on behalf of the Canadian
Borrower) and the relevant Lenders thereof. 
Each such determination shall, absent clearly demonstrable error, be
final and conclusive and binding on all parties hereto.


 


2.9.                              Interest Periods.


 


(a)                                  At the time the Borrower or the
Canadian Borrower, as applicable, gives a Notice of Borrowing or Notice of
Conversion or Continuation in respect of the making of, or conversion into or
continuation as, a Borrowing of Eurodollar Loans (in the case of the initial
Interest Period applicable thereto) or prior to 10:00 a.m. (New York time) on
the third Business Day prior to the expiration of an Interest Period applicable
to a Borrowing of Eurodollar Loans, the Borrower or the Canadian Borrower, as
applicable, shall have the right to elect by giving the Administrative Agent or
the Canadian Administrative Agent (in the case of the Canadian Borrower)
written notice (or telephonic notice promptly confirmed in writing) the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower or the Canadian Borrower, as applicable, be a one,
two, three, six or (in the case of Revolving Credit Loans, if available to all
the Lenders making such loans as determined by such Lenders in good faith based
on prevailing market conditions) a nine or twelve month period, provided that
the initial Interest Period may be for a period less than one month if agreed
upon by the Borrower (on its own behalf and on behalf of the Canadian Borrower)
and the Agents.  Notwithstanding anything
to the contrary contained above:


 


(i)                                     the initial Interest Period for any
Borrowing of Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of ABR Loans or Cdn ABR
Loans, as applicable) and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;


 


(ii)                                  if any Interest Period relating to a
Borrowing of Eurodollar Credit Loans begins on the last Business Day of a
calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period,
such Interest Period shall end on the last Business Day of the calendar month
at the end of such Interest Period;


 


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


 


57
















 


(iv)                              the Borrower shall not be entitled
to elect any Interest Period in respect of any Eurodollar Loan if such Interest
Period would extend beyond the applicable Maturity Date of such Loan.


 


(b)                                 At the time the Canadian Borrower
gives a Notice of Borrowing or Notice of Continuation in respect of the making
of, or continuation into or continuation as, a Borrowing of BA Loans prior to
12:00 noon. (New York time) on the third Business Day prior to the applicable
date of making or continuation of such BA Loans, the Canadian Borrower shall
have the right to elect by giving the Canadian Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of the Interest
Period applicable to such Borrowing, which Interest Period shall, at the option
of the Canadian Borrower, be one, two, three or six months (or in the case of
Canadian Revolving Credit Loans, if available to all the Lenders making such
loans as determined by such Lenders in good faith based on prevailing market
conditions), a nine or twelve month period as well; provided that, in each
case, the initial Interest Period for BA Loans advanced on the Closing Date may
be for a period less than one month if agreed upon by the Canadian Borrower and
the Canadian Administrative Agent. 
Notwithstanding anything to the contrary contained above:


 


(i)                the initial
Interest Period for any Borrowing of BA Loans shall commence on the date of
such Borrowing (including the date of any continuation from a Borrowing of
Canadian Prime Loans) and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the next preceding
Interest Period expires;


 


(ii)                                      the Canadian Borrower shall not be entitled
to elect any Interest Period in respect of any BA Loan if such Interest Period
would extend beyond the applicable Maturity Date of such Loan;


 


(iii)                                   no BA Loan shall mature on a day which is
not a Business Day and if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; and


 


(iv)                                  if the Canadian Borrower fails to provide a
Notice of Continuation within the time period required in Section 2.6(a)
in respect of BA Loans, such BA Loans shall automatically be converted into
Canadian Prime Loans on the last day of the Interest period applicable thereto.


 


2.10.                        Increased Costs, Illegality, etc.  (a)    
In the event that (x) in the case of clause (i) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii)
below, any Lender shall have reasonably determined (which determination shall,
absent clearly demonstrable error, be final and conclusive and binding upon all
parties hereto):


 


58
















 


(i)                                     on any date for determining the
Eurodollar Rate for any Interest Period that (x) deposits in the principal
amounts of the Loans comprising such Eurodollar Borrowing are not generally
available in the relevant market or (y) by reason of any changes arising on or
after the Closing Date affecting the interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or


 


(ii)                                  at any time, that such Lender shall
incur increased costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Loans (other than any such increase or
reduction attributable to taxes) because of (x) any change since the date
hereof in any applicable law, governmental rule, regulation, guideline or order
(or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline or
order), such as, for example, without limitation, a change in official reserve
requirements, and/or (y) other circumstances affecting the interbank Eurodollar
market or the position of such Lender in such market; or


 


(iii)                               at any time, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by such
Lender in good faith with any law, governmental rule, regulation, guideline or
order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though the failure to comply
therewith would not be unlawful), or has become impracticable as a result of a
contingency occurring after the date hereof that materially and adversely
affects the interbank Eurodollar market;


 


then, and in any such event, such Lender (or the Administrative Agent,
in the case of clause (i) above) shall within a reasonable time thereafter
give notice (if by telephone, confirmed in writing) to the Borrower (on its own
behalf and on behalf of the Canadian Borrower) and to the Administrative Agent
of such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). 
Thereafter (x) in the case of clause (i) above, Eurodollar
Term Loans and Eurodollar Revolving Credit Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower (on its own
behalf and on behalf of the Canadian Borrower) and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist (which notice the Administrative Agent agrees to give at such time when
such circumstances no longer exist), and any Notice of Borrowing or Notice of
Conversion given by the Borrower or the Canadian Borrower with respect to
Eurodollar Term Loans or Eurodollar Revolving Credit Loans that have not yet
been incurred shall be deemed rescinded by the Borrower or the Canadian
Borrower (y) in the case of clause (ii) above, the Borrower or the
Canadian Borrower, as the case may be, shall pay to such Lender, promptly after
receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable discretion shall determine) as shall be
required to compensate such Lender for such increased costs or reductions in
amounts


 


59
















 


receivable hereunder (it being agreed that a written notice as to the
additional amounts owed to such Lender, showing in reasonable detail the basis
for the calculation thereof, submitted to the Borrower or the Canadian
Borrower, as the case may be, by such Lender shall, absent clearly demonstrable
error, be final and conclusive and binding upon all parties hereto) and
(z) in the case of clause (iii) above, the Borrower or the Canadian
Borrower, as the case may be, shall take one of the actions specified in
Section 2.10(b) as promptly as possible and, in any event, within the time
period required by law.


 


(b)           At any time that any Eurodollar Loan
is affected by the circumstances described in Section 2.10(a)(ii) or
(iii), the Borrower or the Canadian Borrower, as the case may be, may (and in
the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii)
shall) either (x) if the affected Eurodollar Loan is then being made pursuant
to a Borrowing, cancel said Borrowing by giving the Administrative Agent
telephonic notice (confirmed promptly in writing) thereof on the same date that
the Borrower or the Canadian Borrower, as the case may be, was notified by a
Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days’ notice to the Administrative Agent, require the affected Lender to
convert each such Eurodollar Revolving Credit Loan and Eurodollar Term Loan
into an ABR Loan or Cdn ABR Loan, if applicable, provided that if more
than one Lender is affected at any time, then all affected Lenders must be
treated in the same manner pursuant to this Section 2.10(b).


 


(c)           In the event that the Canadian
Administrative Agent shall have reasonably determined (which determination
shall, absent clearly demonstrable error, be final and conclusive and binding
upon all parties hereto) that there does not exist a normal market in Canada
for the purchase and sale of bankers’ acceptances, then, and in any such event,
the Administrative Agent shall within a reasonable time thereafter give notice
(if by telephone confirmed in writing) to the Borrower, the Canadian Borrower
and each of the other Lenders of such determination.  Thereafter BA Loans shall no longer be
available until such time as the Administrative Agent notifies the Borrower,
the Canadian Borrower and the Lenders that the circumstances giving rise to
such notice by the Administrative Agent no longer exist (which notice the
Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Continuation given by the
Borrower with respect to BA Loans that have not yet been incurred shall be
deemed rescinded by the Borrower.  Any
maturing BA Loans shall thereafter, and until contrary notice is provided by
the Administrative Agent, be continued as a Canadian Prime Loan.


 


(d)                                 If, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, the National Association of Insurance
Commissioners, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by a Lender or its
parent with any request or directive made or adopted after the date hereof
regarding capital adequacy (whether or not having the force of law) of any such
authority, association, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Lender’s or its parent’s or
its Related Affiliate’s capital or assets as a


 


60
















 


consequence of such Lender’s commitments or obligations hereunder to a
level below that which such Lender or its parent or its Related Affiliate could
have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Lender’s or its parent’s policies with respect
to capital adequacy), then from time to time, promptly after demand by such
Lender (with a copy to the Administrative Agent), the Borrower or the Canadian
Borrower, as the case may be, shall pay to such Lender such additional amount
or amounts as will compensate such Lender or its parent for such reduction, it
being understood and agreed, however, that a Lender shall not be entitled to
such compensation as a result of such Lender’s compliance with, or pursuant to
any request or directive to comply with, any such law, rule or regulation as in
effect on the date hereof.  Each Lender,
upon determining in good faith that any additional amounts will be payable pursuant
to this Section 2.10(d), will give prompt written notice thereof to the
Borrower (on its own behalf and on behalf of the Canadian Borrower) which
notice shall set forth in reasonable detail the basis of the calculation of
such additional amounts, although the failure to give any such notice shall
not, subject to Section 2.13, release or diminish any of the Borrower’s or
the Canadian Borrower’s, as the case may be, obligations to pay additional
amounts pursuant to this Section 2.10(d) upon receipt of such notice.


 


(e)           Notwithstanding the foregoing, in the
case of Canadian Revolving Credit Loans affected by the circumstances described
in Section 2.10(a)(i), as promptly as practicable but in no event later
than three Business Days after the giving of the required notice by the
Canadian Administrative Agent with respect to such circumstances, the
Administrative Agent (in consultation with the Lenders) shall negotiate with
the Borrower in good faith in order to ascertain whether a substitute interest
rate (a “Substitute Rate”) may be agreed upon for the maintaining of
existing Canadian Revolving Credit Loans. If a Substitute Rate is agreed upon
by the Borrower and all the Lenders, such Substitute Rate shall apply.  If a Substitute Rate is not so agreed upon by
the Borrower and all the Lenders within such time, each Lender’s Canadian
Revolving Credit Loans shall thereafter bear interest at a rate equal to the
sum of (i) the rate certified by such Lender to be its costs of funds
(from such sources as it may reasonably select out of those sources then
available to it) for such Canadian Revolving Credit Loans, plus
(ii) the Applicable Eurodollar Margin.


 


2.11.        Compensation. 
If (a) any payment of principal of any BA Loan or Eurodollar Loan
is made by the Borrower or the Canadian Borrower, as the case may be, to or for
the account of a Lender other than on the last day of the Interest Period for
such BA Loan or Eurodollar Loan as a result of a payment or conversion pursuant
to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 14.7, as a result of acceleration
of the maturity of the Loans pursuant to Section 11 or for any other
reason, (b) any Borrowing of BA Loan or Eurodollar Loans is not made as a
result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not converted
into a Eurodollar Loan as a result of a withdrawn Notice of Conversion or
Continuation, (d) any Canadian Prime Loan is not continued into a BA Loan
as a result of a withdrawn Notice of Continuation, (e) any BA Loan or
Eurodollar Loan is not continued as a BA Loan or Eurodollar Loan, as the case
may be, as a result of a withdrawn Notice of Conversion or Continuation or
(f) any prepayment of principal of any BA Loan or Eurodollar Loan is not
made as a result of a withdrawn notice of


 


61
















 


prepayment pursuant to Section 5.1 or 5.2, the Borrower or the
Canadian Borrower, as the case may be, shall, after receipt of a written
request by such Lender (which request shall set forth in reasonable detail the
basis for requesting such amount), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that such Lender may reasonably incur as a
result of such payment, failure to convert, failure to continue or failure to
prepay, including any loss, cost or expense (excluding loss of anticipated
profits) actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such BA Loan
or Eurodollar Loan.


 


2.12.        Change of Lending Office.  Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.10(a)(ii),
2.10(a)(iii), 2.10(b), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will,
if requested by the Borrower or the Canadian Borrower, as the case may be, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event, provided
that such designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section.  Nothing in this Section 2.12
shall affect or postpone any of the obligations of the Borrower or the Canadian
Borrower, as the case may be, or the right of any Lender provided in
Section 2.10, 3.5 or 5.4.


 


2.13.        Notice of Certain Costs.  Notwithstanding anything in this Agreement to
the contrary, to the extent any notice required by Section 2.10, 2.11, 3.5
or 5.4 is given by any Lender more than 180 days after such Lender has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other
additional amounts described in such Sections, such Lender shall not be
entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case
may be, for any such amounts incurred or accruing prior to the giving of such
notice to the Borrower or the Canadian Borrower, as the case may be.


 


2.14.        Bankers’ Acceptances


 


(a)           The Canadian Administrative Agent,
promptly following receipt of a Notice of Borrowing or Notice of Continuation,
requesting BA Loans, shall advise each applicable Canadian Lender of the face
or principal amount and term of each BA Loan to be accepted (and purchased) or
advanced by it.  The aggregate face or
principal amount of BA Loans to be accepted or advanced by a Canadian Lender
shall be determined by the Canadian Administrative Agent by reference to that
Canadian Lender’s applicable pro rata portion of the issue or advance of BA
Loans, except that the aggregate face amount of Bankers’ Acceptances to be
accepted by the applicable Canadian Lenders shall be increased or reduced by
the Canadian Administrative Agent in its sole discretion as may be necessary to
ensure that the face amount of the Bankers’ Acceptance to be accepted by each
applicable Canadian Lender would be C$100,000 or a whole multiple thereof.  For greater certainty, the foregoing
C$100,000 minimum face amount of Bankers’ Acceptances for each Lender shall not
apply to BA Equivalent Loans.


 


62
















 


(b)           On the date specified in a Notice of
Borrowing or Notice of Continuation on which a BA Loan is to be made, the
Canadian Administrative Agent shall advise the Canadian Borrower as to the
Canadian Administrative Agent’s determination of the BA Discount Rate for the
BA Loans to be purchased or advanced, as the case may be.


 


(c)           The Canadian Borrower shall sell and
each Canadian Lender shall purchase the Bankers’ Acceptance accepted by it at
the applicable BA Discount Rate.  Subject
to clause (d) below, each Canadian Lender shall provide the Canadian
Administrative Agent, for the account of the Canadian Borrower, the BA Discount
Proceeds less the Applicable Stamping Fee payable by the Canadian Borrower with
respect to the Bankers’ Acceptance.


 


(d)           In the event the Canadian Borrower
requests a continuation of BA Loans for a further Interest Period, or requests
conversion from Canadian Prime Loans into BA Loans in accordance with
Section 2.6, the Canadian Administrative Agent shall make arrangements
satisfactory to it to ensure the BA Discount Proceeds from the replacement BA
Loans are applied to repay the face amount of the maturing BA Loans or the
principal amount of such loans to be converted (the “Maturing Amount”)
and the Canadian Borrower should concurrently pay to the Canadian
Administrative Agent any positive difference between the Maturing Amount and
such BA Discount Proceeds.


 


(e)           Each Canadian Lender may from time to
time hold, sell, rediscount or otherwise dispose of any or all Bankers’
Acceptances accepted and purchased by it.


 


(f)            In order to facilitate the issuance
of Bankers’ Acceptances pursuant to this Agreement, the Canadian Borrower
hereby authorizes each of the Canadian Lenders, and appoints each of the
Canadian Lenders as the Canadian Borrower’s attorney, to complete, sign and endorse
drafts or depository bills (as defined in the Depository
Bills and Notes Act (Canada) (each such executed draft or bill being
herein referred to as a “Draft”)
on its behalf in handwritten form or by facsimile or mechanical signature or
otherwise in accordance with the applicable Notice of Borrowing or Notice of
Continuation and, once so completed, signed and endorsed to accept them as
Bankers’ Acceptances under this Agreement and then if applicable, purchase,
discount or negotiate such Bankers’ Acceptances in accordance with the
provisions of this Agreement.  Drafts so
completed, signed, endorsed and negotiated on behalf of the Canadian Borrower
by a Canadian Lender shall bind the Canadian Borrower as fully and effectively
as if so performed by an Authorized Officer of the Canadian Borrower.  Each draft of a Bankers’ Acceptance
completed, signed or endorsed by a Canadian Lender shall mature on the last day
of the term thereof.  All Bankers’
Acceptances to be accepted by a particular Canadian Lender shall, at the option
of such Canadian Lender, be issued in the form of depository bills made payable
originally to and deposited with The Depository for Securities Limited pursuant
to the Depository Bills and Notes Act (Canada).


 


(g)                                 Any Drafts to be used for Bankers’
Acceptances which are held by a Canadian Lender shall be held in safekeeping
with the same degree of care as if they


 


63
















 


were such Canadian Lender’s own property being kept at the place at
which they are to be held.  The Canadian
Borrower may, by written notice to the Canadian Administrative Agent, designate
persons other than Authorized Officers authorized to give the Canadian
Administrative Agent instructions regarding the manner in which Drafts are to
be completed and the times at which they are to be issued; provided however
that receipt by the Canadian Administrative Agent of a Notice of Borrowing or
Notice of Continuation requesting an advance or continuation into, Bankers’
Acceptances shall be deemed to be sufficient authority from Authorized Officers
or such designated persons for each of the Canadian Lenders to complete, and
issue drafts in accordance with such notice. 
None of the Canadian Administrative Agent or the Canadian Lenders nor
any of their respective directors, officers, employees or representatives shall
be liable for any action taken or omitted to be taken by any of them under this
Section 2.14(g) except for their own respective gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction.


 


(h)                                 The Canadian Borrower waives
presentment for payment and any other defense to the payment of any amounts due
to a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased
by it pursuant to this Agreement which might exist solely by reason of the
Bankers’ Acceptance being held, at the maturity thereof, by the Canadian Lender
in its own right and the Canadian Borrower agrees not to claim any days of
grace if the Canadian Lender as holder sues the Canadian Borrower on the
Bankers’ Acceptance for payment of the amount payable by the Canadian Borrower
thereunder.  Each Bankers’ Acceptance
shall mature and the face amount thereof shall be due and payable on the last
day of the Interest Period applicable thereto.


 


(i)                                     Whenever the Canadian Borrower
requests a Loan under this Agreement by way of Bankers’ Acceptances, each
Non-Acceptance Lender shall, in lieu of accepting a Bankers’ Acceptance, make a
BA Equivalent Loan by way of Discount Note in an amount equal to the
Non-Acceptance Lender’s pro rata
portion of the BA Loan.  All terms of
this Agreement applicable to Bankers’ Acceptances shall apply equally to
Discount Notes evidencing BA Equivalent Loans with such changes as may in the
context be necessary.  For greater
certainty:


 


(i)                                         the term of a Discount Note shall be the
same as the Interest Period for Bankers’ Acceptances accepted on the same date
of the Borrowing in respect of the same BA Loan;


 


(ii)                                      an acceptance fee will be payable in respect
of a Discount Note and shall be calculated at the same rate and in the same
manner as the Applicable Stamping Fee in respect of a Bankers’ Acceptance; and


 


(iii)                                   the proceeds from a BA Equivalent Loan shall
be equal to the BA Discount Proceeds of the Discount Note.


 


64
















 


2.15.        Incremental Facilities


 


Borrower may by written notice to Syndication Agent elect to request
(A) prior to the Revolving Credit Commitment Maturity Date, an increase to the
existing US Revolving Credit Commitments (any such increase, the “New
Revolving Loan Commitments”) and/or (B) the establishment of one or more
new term loan commitments (the “New Term Loan Commitments”), by an
amount not in excess of $100,000,000 in the aggregate and not less than
$25,000,000 individually (or such lesser amount which shall be approved by
Administrative Agent and Syndication Agent or such lesser amount that shall
constitute the difference between $100,000,000 and all such New Revolving Loan
Commitments and New Term Loan Commitments obtained prior to such date), and
integral multiples of $5,000,000 in excess of that amount.  Each such notice shall specify (A) the date
(each, an “Increased Amount Date”) on which Borrower proposes that the
New Revolving Loan Commitments or New Term Loan Commitments, as applicable,
shall be effective, which shall be a date not less than 10 Business Days after
the date on which such notice is delivered to Syndication Agent and (B) the
identity of each Lender or other Person that is an eligible assignee pursuant
to Section 14.6(b)  (each, a “New
Revolving Loan Lender” or “New Term Loan Lender”, as applicable) to
whom Borrower proposes any portion of such New Revolving Loan Commitments or
New Term Loan Commitments, as applicable, be allocated and the amounts of such
allocations; provided that Borrower shall first approach the Lenders to
provide all of the New Revolving Loan Commitments or New Term Loan Commitments
prior to approaching any other Person that is an eligible assignee pursuant to
Section 14.6(b); provided  further that any Lender approached
to provide all or a portion of the New Revolving Loan Commitments or New Term
Loan Commitments may elect or decline, in its sole discretion, to provide a New
Revolving Loan Commitment or a New Term Loan Commitment.  Such New Revolving Loan Commitments or New
Term Loan Commitments shall become effective, as of such Increased Amount Date;
provided that (1) no Default or Event of Default shall exist on
such Increased Amount Date before or after giving effect to such New Revolving
Loan Commitments or New Term Loan Commitments, as applicable; (2) both
before and after giving effect to the making of any Series of New Term Loans,
each of the conditions set forth in Section 7 shall be satisfied;
(3) Borrower and its Subsidiaries shall be in pro forma compliance with
each of the covenants set forth in Sections 10.9 and 10.10 as of the last day
of the most recently ended fiscal quarter after giving effect to such New
Revolving Loan Commitments or New Term Loan Commitments, as applicable;
(4) the New Revolving Loan Commitments or New Term Loan Commitments, as
applicable, shall be effected pursuant to one or more Joinder Agreements
executed and delivered by Borrower, Syndication Agent and Administrative Agent,
and each of which shall be recorded in the Register and shall be subject to the
requirements set forth in Section 5.4(b); (5) Borrower shall make any
payments required pursuant to Section 2.11 in connection with the New Revolving
Loan Commitments or New Term Loan Commitments, as applicable; and (6) Borrower
shall deliver or cause to be delivered any legal opinions or other documents
reasonably requested by Administrative Agent in connection with any such
transaction. Any New Term Loans made on an Increased Amount Date shall be
designated, a separate series (a “Series”) of New Term Loans for all
purposes of this Agreement.


 


65
















 


On any Increased Amount Date on which New Revolving Loan Commitments
are effected, subject to the satisfaction of the foregoing terms and
conditions, (a) each of the Lenders with US Revolving Credit Commitments shall
assign to each of the New Revolving Loan Lenders, and each of the New Revolving
Loan Lenders shall purchase from each of the Lenders with US Revolving Credit
Commitments, at the principal amount thereof (together with accrued interest),
such interests in the US Revolving Credit Loans outstanding on such Increased
Amount Date as shall be necessary in order that, after giving effect to all
such assignments and purchases, such US Revolving Credit Loans will be held by
existing Lenders with US Revolving Credit Loans and New Revolving Loan Lenders
ratably in accordance with their US Revolving Credit Commitments after giving
effect to the addition of such New Revolving Loan Commitments to the US
Revolving Credit Commitments, (b) each New Revolving Loan Commitment shall be
deemed for all purposes a US Revolving Credit Commitment and each Loan made thereunder
(a “New Revolving Loan”) shall be
deemed, for all purposes, a US Revolving Credit Loan and (c) each New Revolving
Loan Lender shall become a Lender with respect to the New Revolving Loan
Commitment and all matters relating thereto.


 


On any Increased Amount Date on which any New Term Loan Commitments of
any Series are effective, subject to the satisfaction of the foregoing terms
and conditions, (i) each New Term Loan Lender of any Series shall make a Loan
to Company (a “New Term Loan”) in
an amount equal to its New Term Loan Commitment of such Series, and (ii) each
New Term Loan Lender of any Series shall become a Lender hereunder with respect
to the New Term Loan Commitment of such Series and the New Term Loans of such
Series made pursuant thereto.


 


Administrative Agent shall notify Lenders promptly upon receipt of
Borrower’s notice of each Increased Amount Date and in respect thereof (y) the
New Revolving Loan Commitments and the New Revolving Loan Lenders or the Series
of New Term Loan Commitments and the New Term Loan Lenders of such Series, as
applicable, and (z) in the case of each notice to any Lender with US Revolving
Credit Loans, the respective interests in such Lender’s Revolving Credit Loans,
in each case subject to the assignments contemplated by this Section.


 


The terms and provisions of the New Term Loans and New Term Loan
Commitments of any Series shall be, except as otherwise set forth herein or in
the Joinder Agreement, identical to the Tranche C Term Loans to the extent they
are secured by the Collateral on a pari
passu basis with the Tranche C Term Loans.  The terms and provisions of the New Revolving
Loans shall be identical to the US Revolving Credit Loans.  In any event (i) the weighted average life to
maturity of all New Term Loans of any Series shall be no shorter than the
weighted average life to maturity of the Revolving Credit Loans and the Terms
Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be
no shorter than the final maturity of the Revolving Credit Loans and the
Tranche C Term Loans, (iii) the rate of interest applicable to the New Term
Loans of each Series shall be determined by Borrower and the applicable new
Lenders and shall be set forth in each applicable Joinder Agreement; provided
however that the interest rate margin applicable to the New Term Loans
shall not be greater than the highest interest


 


66
















 


rate that may, under any circumstances (including, without limitation,
any issuance at a discount or as a result of the payment of any fees), be
payable with respect to the Tranche C Term Loans plus 0.25% per annum
unless the interest rate margin with respect to the Tranche C Term Loans is
increased so as to be equal to, or be 0.25% per annum lower than, the interest
rate margin applicable to the New Term Loans, provided that such
limitation shall not apply to the extent such New Term Loans are junior in
collateral rights to the Tranche C Term Loans, in which case customary terms
shall apply consistent with the other provisions of this Agreement and the then
prevailing market conditions.  Each
Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary
or appropriate, in the opinion of the Syndication Agent and Administrative
Agent, to effect the provision of this Section 2.15.


 


SECTION 3.                                Letters
of Credit


 


3.1.                              Letters of Credit.  (a)    
Subject to and upon the terms and conditions herein set forth, at any
time and from time to time after the Closing Date and prior to the L/C Maturity
Date, (i) the Borrower, may request that the US Letter of Credit Issuer issue
for the account of the Borrower a standby letter of credit or letters of credit
in Dollars (the “US Letters of Credit”) and (ii) the Canadian Borrower
may request that the Canadian Letter of Credit Issuer issue for the account of
the Canadian Borrower a standby letter of credit or letters of credit in
Canadian Dollars (the “Canadian Letters of Credit” and with the US
Letters of Credit, the “Letters of Credit” and each a “Letter of
Credit”) in such form as may be approved by the US Letter of Credit Issuer
or the Canadian Letter of Credit Issuer, as the case may be, in its reasonable
discretion.


 


(b)           Notwithstanding the foregoing, (i) no
US Letter of Credit shall be issued the Stated Amount of which, when added to
the US Letter of Credit Outstanding at such time, would exceed the US Letter of
Credit Commitment then in effect; (ii) no US Letter of Credit shall be
issued the Stated Amount of which would cause the aggregate amount of the
Lender’s US Revolving Credit Exposures at such time to exceed the US Revolving
Credit Commitment then in effect; (iii) no Canadian Letter of Credit shall be
issued the Stated Amount of which when added to Canadian Letter of Credit
Outstanding would exceed the Canadian Letter of Credit Commitment then in
effect, (iv) no Canadian Letter of Credit shall be issued the Stated Amount of
which would cause the aggregate amount of the Canadian Lender’s Revolving
Credit Exposure at such time to exceed the Canadian Revolving Credit
Commitment, (v) each Letter of Credit shall have an expiration date occurring
no later than one year after the date of issuance thereof, unless otherwise agreed
upon by the Administrative Agent or the Canadian Administrative Agent, as
applicable, and the Letter of Credit Issuer, provided that in no event
shall such expiration date occur later than the L/C Maturity Date; (vi)
each US Letter of Credit shall be denominated in Dollars; (vii) each Canadian
Letter of Credit shall be denominated in US Dollars or Canadian Dollars,
(viii) no Letter of Credit shall be issued if it would be illegal under
any applicable law for the beneficiary of the Letter of Credit to have a Letter
of Credit issued in its favor; (ix) no Letter of Credit shall be issued by
a Letter of Credit Issuer after it has received a written notice from the
Borrower or the Canadian Borrower or any Lender stating that a Default or Event
of Default has occurred and is continuing


 


67
















 


until such time as the Letter of Credit Issuer shall have received a
written notice of (x) rescission of such notice from the party or parties
originally delivering such notice or (y) the waiver of such Default or
Event of Default in accordance with the provisions of Section 14.1; and
(x) any Letter of Credit issued for the account of the Canadian Borrower shall
be made by a Canadian Lender described in clause (a) of that definition or a
permitted assigned of such Canadian Lender that is a Canadian Resident.  Notwithstanding anything herein to the
contrary, the issuance of US Letters of Credit for the account of the Borrower
shall be deemed a utilization of the US Revolving Credit Commitments allocated
to the Borrower, and the issuance of the Canadian Letters of Credit for the
account of the Canadian Borrower shall be deemed a utilization of the Canadian
Revolving Credit Commitments.


 


(c)           Upon at least one Business Day’s
prior written notice (or telephonic notice promptly confirmed in writing) to
the Administrative Agent and the US Letter of Credit Issuer (which notice the
Administrative Agent shall promptly transmit to each of the applicable
Lenders), the Borrower shall have the right, on any day, permanently to
terminate or reduce the US Letter of Credit Commitment in whole or in part, provided
that, after giving effect to such termination or reduction, the US Letter of
Credit Outstanding shall not exceed the US Letter of Credit Commitment.


 


3.2.          Letter of Credit Requests.  (a)    
Whenever the Borrower desires that a US Letter of Credit be issued for
its account, it shall give the Administrative Agent and the US Letter of Credit
Issuer at least five (or such lesser number as may be agreed upon by the
Administrative Agent and the Letter of Credit Issuer) Business Days’ written
notice thereof.  Each notice shall be
executed by the Borrower and shall be in the form of Exhibit H-1 (each a “US
Letter of Credit Request”). The Administrative Agent shall promptly
transmit copies of each US Letter of Credit Request to each Lender.


 


(b)           Whenever the Canadian Borrower
desires that a Canadian Letter of Credit be issued for its account, it shall
give the Canadian Administrative Agent and the Canadian Letter of Credit Issuer
at least five (or such lesser number as may be agreed upon by the Canadian
Administrative Agent and the Canadian Letter of Credit Issuer) Business Days’
written notice thereof in the form of an executed Canadian Letter of Credit
Request in the form of Exhibit H-2 (which shall, among other things, specify
whether such Letter of Credit is to be denominated in Dollars or Canadian
Dollars) (each a “Canadian Letter of Credit Request” and, together with
the US Letter of Credit Request, the “Letter of Credit Request”).


 


(c)           The making of each Letter of Credit
Request shall be deemed to be a representation and warranty by the Borrower or
the Canadian Borrower, as the case may be, that the Letter of Credit may be
issued in accordance with, and will not violate the requirements of,
Section 3.1(b).


 


3.3.          Letter of Credit Participations.    (a)    
Immediately upon the issuance by the US Letter of Credit Issuer of any
US Letter of Credit, the US Letter of Credit Issuer shall be deemed to have
sold and transferred to each other Lender that has a US Revolving Credit
Commitment (each such other Lender, in its capacity under this


 


68
















 


Section 3.3, an “US L/C Participant”), and each such US L/C
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from the US Letter of Credit Issuer, without recourse or warranty,
an undivided interest and participation (each an “US L/C Participation”),
to the extent of such US L/C Participant’s US Revolving Credit Commitment
Percentage in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto (although Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the US L/C Participants as
provided in Section 4.1(b) and the US L/C Participants shall have no right
to receive any portion of any Fronting Fees).


 


(b)                                 Immediately upon the issuance by the
Canadian Letter of Credit Issuer of any Canadian Letter of Credit on the
account of the Canadian Borrower, the Canadian Letter of Credit Issuer shall be
deemed to have sold and transferred to each other Canadian Lender that has a
Canadian Revolving Credit Commitment, to the extent the Canadian Letter of
Credit Obligations are owed by the Canadian Borrower, (each such other Lender,
in its capacity under this Section 3.3, an “Cdn L/C Participant”  and collectively the “Cdn L/C
Participants”), and each such Cdn L/C Participant shall be deemed
irrevocably and unconditionally to have purchased and received from the
Canadian Letter of Credit Issuer, without recourse or warranty, an undivided interest
and participation (each a “Cdn  L/C Participation”), to the extent
of such Cdn L/C Participant’s Canadian Revolving Credit Commitment Percentage
in such Canadian Letter of Credit, each substitute letter of credit, each
drawing made thereunder and the obligations of the Borrower and the Canadian
Borrower, as the case may be, under this Agreement with respect thereto, and
any security therefor or guaranty pertaining thereto.


 


(c)                                  Letter
of Credit Fees will be paid directly to the Canadian Administrative Agent for
the ratable account of the Cdn L/C Participants for Letters of Credit issued on
behalf of the Canadian Borrower as provided in Section 4.1(d).  The Cdn L/C Participants shall have no right
to receive any portion of any Fronting Fees.


 


(d)           In determining whether to pay under
any Letter of Credit, the relevant Letter of Credit Issuer shall have no
obligation relative to the L/C Participants other than to confirm that any
documents required to be delivered under such Letter of Credit have been delivered
and that they appear to comply on their face with the requirements of such
Letter of Credit.  Any action taken or
omitted to be taken by the relevant Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for the
Letter of Credit Issuer any resulting liability.


 


(e)                                  In the event that the Letter of
Credit Issuer makes any payment under any Letter of Credit issued by it and the
Borrower or the Canadian Borrower, as applicable, shall not have repaid such
amount in full to the respective Letter of Credit Issuer pursuant to
Section 3.4(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
each applicable L/C Participant of such failure, and each such L/C Participant
shall promptly and unconditionally pay to the Administrative Agent or the
Canadian Administrative 


 


69
















 


Agent, as applicable,, for the account of the Letter of Credit Issuer,
the amount of such L/C Participant’s Revolving Credit Commitment Percentage of
such unreimbursed payment in Dollars and in immediately available funds; provided,
however, that no L/C Participant shall be obligated to pay to the
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the respective Letter of Credit Issuer its Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful
payment made by the Letter of Credit Issuer under a Letter of Credit as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of the Letter of Credit Issuer. 
If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New
York time) on any Business Day, any L/C Participant required to fund a payment
under a Letter of Credit, such L/C Participant shall make available to the
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the Letter of Credit Issuer such L/C Participant’s Revolving
Credit Commitment Percentage of the amount of such payment on such Business Day
in immediately available funds.  If and
to the extent such L/C Participant shall not have so made its Revolving Credit
Commitment Percentage of the amount of such payment available to the
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the Letter of Credit Issuer, such L/C Participant agrees to pay
to the Administrative Agent or the Canadian Administrative Agent, as
applicable, for the account of the Letter of Credit Issuer, forthwith on
demand, such amount, together with interest thereon for each day from such date
until the date such amount is paid to the Administrative Agent or the Canadian
Administrative Agent, as applicable, for the account of the Letter of Credit
Issuer at the Federal Funds Effective Rate. 
The failure of any L/C Participant to make available to the
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under any Letter of Credit shall not relieve any
other L/C Participant of its obligation hereunder to make available to the
Administrative Agent or the Canadian Administrative Agent, as applicable, for
the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any payment under such Letter of Credit on the date required, as
specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent or the
Canadian Administrative Agent, as applicable, such other L/C Participant’s
Revolving Credit Commitment Percentage of any such payment.


 


(f)            Whenever the Letter of Credit Issuer
receives a payment in respect of an unpaid reimbursement obligation as to which
the Administrative Agent has received for the account of the Letter of Credit
Issuer any payments from the L/C Participants pursuant to paragraph (c) above,
the Letter of Credit Issuer shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each L/C Participant that has paid
its Revolving Credit Commitment Percentage of such reimbursement obligation, in
Dollars and in immediately available funds, an amount equal to such L/C
Participant’s share (based upon the proportionate aggregate amount originally
funded by such L/C Participant to the aggregate amount funded by all L/C
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective L/C
Participations.


 


70





















(g)           The obligations of the L/C
Participants to make payments to the Administrative Agent or the Canadian
Administrative Agent for the account of a Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including under any of the following circumstances:


 


(i)            any lack of validity or
enforceability of this Agreement or any of the other Credit Documents;


 


(ii)           the existence of any claim, set-off,
defense or other right that the Borrower may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the Administrative
Agent, the Canadian Administrative Agent the Letter of Credit Issuer, any
Lender or other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the beneficiary
named in any such Letter of Credit);


 


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


 


(iv)          the surrender or impairment of any
security for the performance or observance of any of the terms of any of the
Credit Documents; or


 


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


 


provided, however, that no L/C
Participant shall be obligated to pay to the Administrative Agent or the
Canadian Administrative Agent for the account of the Letter of Credit Issuer
its US Revolving Credit Commitment Percentage or Canadian Revolving Credit
Commitment Percentage of any unreimbursed amount arising from any wrongful
payment made by the Letter of Credit Issuer under a Letter of Credit as a result
of acts or omissions constituting willful misconduct or gross negligence on the
part of the Letter of Credit Issuer.


 


3.4.          Agreement to
Repay Letter of Credit Drawings. 
(a)     The Borrower and the
Canadian Borrower hereby agree to reimburse the relevant Letter of Credit
Issuer, by making payment in the currency in which the relevant Letter of
Credit was denominated to the Administrative Agent (in the case of
reimbursement made by the Borrower) or the Canadian Administrative Agent (in
the case of reimbursement made by the Canadian Borrower) in immediately
available funds for any payment or disbursement made by the Letter of Credit
Issuer under any Letter of Credit (each such amount so paid until reimbursed,
an “Unpaid Drawing”) immediately after, and in any event on the date of,
such payment, with interest on the amount so paid or disbursed by the Letter of
Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York
time) on the date of


 


71
















 


such payment or disbursement, from and including the date paid or
disbursed to but excluding the date the Letter of Credit Issuer is reimbursed
therefor at a rate per annum that shall at all times be the Applicable ABR
Margin plus the ABR (or the Cdn ABR or Canadian Prime Rate, as applicable, in
the case of the Canadian Letter of Credit Issuer) as in effect from time to
time, provided that, notwithstanding anything contained in this Agreement to
the contrary, (i) unless the Borrower (or the Canadian Borrower) shall
have notified the Administrative Agent (or the Canadian Administrative Agent)
and the relevant Letter of Credit Issuer prior to 10:00 a.m. (New York
time) on the date of such drawing that the Borrower or the Canadian Borrower,
as the case may be, intends to reimburse the relevant Letter of Credit Issuer
for the amount of such drawing with funds other than the proceeds of Loans, the
Borrower or the Canadian Borrower, as the case may, be shall be deemed to have
given a Notice of Borrowing requesting that (A) with respect to US Letters of
Credit, that the Lenders with US Revolving Credit Commitments make US Revolving
Credit Loans (which shall be ABR Loans) and (B) with respect to Canadian
Letters of Credit, the Lenders with Canadian Revolving Credit Commitment make
Canadian Revolving Credit Loans (in the currency in which the Canadian Letter
of Credit is denominated which shall initially be Cdn ABR Loans or Canadian
Prime Rate Loans, as applicable) on the date on which such drawing is honored
in an amount equal to the amount of such drawing and (ii) the
Administrative Agent or the Canadian Administrative Agent shall promptly notify
each relevant L/C Participant of such drawing and the amount of its Revolving
Credit Loan to be made in respect thereof, and each L/C Participant shall be
irrevocably obligated to make a Revolving Credit Loan to the Borrower or the
Canadian Borrower, as applicable, in the manner deemed to have been requested
in the amount of its Revolving Credit Commitment Percentage of the applicable
Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the
amount of such Revolving Credit Loan available to the Administrative Agent (or
the Canadian Administrative Agent, as applicable).  Such Revolving Credit Loans shall be made
without regard to the Minimum Borrowing Amount. 
The Administrative Agent (or the Canadian Administrative Agent, as
applicable) shall use the proceeds of such Revolving Credit Loans solely for
purpose of reimbursing the Letter of Credit Issuer for the related Unpaid
Drawing.


 


(b)           The obligations of the Borrower and
the Canadian Borrower under this Section 3.4 to reimburse the Letter of
Credit Issuer with respect to Unpaid Drawings (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment that the Borrower, the Canadian Borrower or any other Person may have
or have had against the Letter of Credit Issuer, the Administrative Agent, the
Canadian Administrative Agent or any Lender (including in its capacity as an
L/C Participant), including any defense based upon the failure of any drawing
under a Letter of Credit (each a “Drawing”) to conform to the terms of
the Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing, provided that neither the
Borrower nor the Canadian Borrower shall be obligated to reimburse the Letter
of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer
under the Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter
of Credit Issuer.


 


72
















 


3.5.          Increased Costs.  If after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or actual compliance by the Letter of Credit Issuer or any L/C
Participant with any request or directive made or adopted after the date hereof
(whether or not having the force of law), by any such authority, central bank
or comparable agency shall either (a) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by the Letter of Credit Issuer, or any L/C Participant’s L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C
Participant any other conditions affecting its obligations under this Agreement
in respect of Letters of Credit or L/C Participations therein or any Letter of
Credit or such L/C Participant’s L/C Participation therein, and the result of
any of the foregoing is to increase the cost to the Letter of Credit Issuer or
such L/C Participant of issuing, maintaining or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such L/C Participant hereunder (other than any such
increase or reduction attributable to taxes) in respect of Letters of Credit or
L/C Participations therein, then, promptly after receipt of written demand to
the Borrower by the Letter of Credit Issuer or such L/C Participant, as the
case may be, (a copy of which notice shall be sent by the Letter of Credit
Issuer or such L/C Participant to the Administrative Agent (with respect to
Letter of Credit issued on account of the Borrower) and to the Canadian
Administrative Agent with respect to Letters of Credit issued on account of the
Canadian Borrower)), the Borrower or the Canadian Borrower, as applicable,
shall pay to the Letter of Credit Issuer or such L/C Participant such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such L/C Participant for such increased cost or reduction, it being understood
and agreed, however, that the Letter of Credit Issuer or a L/C Participant
shall not be entitled to such compensation as a result of such Person’s
compliance with, or pursuant to any request or directive to comply with, any
such law, rule or regulation as in effect on the date hereof.  A certificate submitted to the Borrower or
the Canadian Borrower, as applicable, by the relevant Letter of Credit Issuer
or a L/C Participant, as the case may be, (a copy of which certificate
shall be sent by the Letter of Credit Issuer or such L/C Participant to
the Administrative Agent (with respect to Letters of Credit issued on account
of the Borrower) and to the Canadian Administrative Agent with respect to
Letters of Credit issued on account of the Canadian Borrower)) setting forth in
reasonable detail the basis for the determination of such additional amount or amounts
necessary to compensate the Letter of Credit Issuer or such L/C Participant as
aforesaid shall be conclusive and binding on the Borrower or the Canadian
Borrower, as applicable, absent clearly demonstrable error.


 


3.6.          Successor Letter of Credit Issuer.  A Letter of Credit Issuer may resign as
Letter of Credit Issuer upon 60 days’ prior written notice to the
Administrative Agent, the Canadian Administrative Agent, the Lenders and the
Borrower.  If the US Letter of Credit
Issuer shall resign as US Letter of Credit Issuer under this Agreement, then
the Borrower shall appoint from among the Lenders with US Revolving Credit
Commitments a successor issuer of US Letters of Credit, whereupon such
successor issuer shall succeed to the rights, powers and duties of the US
Letter of Credit Issuer, and the term “US Letter of Credit Issuer” shall mean
such successor issuer effective upon


 


73
















 


such appointment.  At the time such resignation shall become
effective, the Borrower shall pay to the resigning US Letter of Credit Issuer
all accrued and unpaid fees pursuant to Sections 4.1(c) and (e).  The acceptance of any appointment as the US
Letter of Credit Issuer hereunder by a successor Lender shall be evidenced by
an agreement entered into by such successor, in a form satisfactory to the
Borrower and the Administrative Agent and, from and after the effective date of
such agreement, such successor Lender shall have all the rights and obligations
of the previous Letter of Credit Issuer under this Agreement and the other
Credit Documents.  If the Canadian Letter
of Credit Issuer shall resign as Canadian Letter of Credit Issuer under this
Agreement, then the Canadian Borrower shall appoint from among the Lenders with
Canadian Revolving Credit Commitments a successor issuer of Canadian Letters of
Credit, whereupon such successor issuer shall succeed to the rights, powers and
duties of the Canadian Letter of Credit Issuer, and the term “Canadian Letter
of Credit Issuer” shall mean such successor issuer effective upon such
appointment.  At the time such
resignation shall become effective, the Canadian Borrower and the Borrower, as
applicable shall pay to the resigning Letter of Credit Issuer all accrued and
unpaid fees pursuant to Sections 4.1(d ) and (e).  After the resignation of the Letter of Credit
Issuer hereunder, the resigning Letter of Credit Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of a Letter of
Credit Issuer under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by it prior to such resignation, but shall not be
required to issue additional Letters of Credit. 
After any retiring Letter of Credit Issuer’s resignation as Letter of
Credit Issuer, the provisions of this Agreement relating to the Letter of
Credit Issuer shall inure to its benefit as to any actions taken or omitted to
be taken by it (a) while it was Letter of Credit Issuer under this Agreement or
(b) at any time with respect to Letters of Credit issued by such Letter of
Credit Issuer.


 


SECTION 4.                                Fees;
Commitments


 


4.1.          Fees.  (a)


 


(i)            The Borrower agrees to pay to the
Administrative Agent in Dollars, for the account of each Lender having a US
Revolving Credit Commitment (in each case pro rata according to the respective
US Revolving Credit Commitments of all such Lenders), a commitment fee for each
day from and including the Closing Date to but excluding the Final Date.  Such commitment fee shall be payable in
arrears (i) on the last day of each March, June, September and
December (for the three-month period (or portion thereof) ended on such
day for which no payment has been received) and (ii) on the Final Date
(for the period ended on such date for which no payment has been received
pursuant to clause (i) above), and shall be computed for each day
during such period at a rate per annum equal to the Commitment Fee Rate in
effect on such day on the Available US Commitments in effect on such day.


 


(ii)           The Canadian Borrower agrees to pay
to the Canadian Administrative Agent for the account of each Canadian Lender
with a Canadian Revolving Credit Commitment allocated to the Canadian Borrower
(in each case pro rata according to the respective Canadian Revolving Credit
Commitments of


 


74
















 


all
such Lenders), a commitment fee for each day from and including the Closing
Date to but excluding the Final Date. Such commitment fee shall be payable in
arrears (i) on the last day of each March, June, September and
December (for the three-month period (or portion thereof) ended on such
day for which no payment has been received) and (ii) on the Final Date
(for the period ended on such date for which no payment has been received pursuant
to clause (i) above), and shall be computed for each day during such
period at a rate per annum equal to the Commitment Fee Rate in effect on such
day on the portion of the Available Canadian Commitments allocated to the
Canadian Borrower on such day.


 


(iii)          The Borrower agrees to pay to the
Administrative Agent for the account of each Canadian Lender with a Canadian
Revolving Credit Commitment allocated to the Borrower (in each case pro rata
according to the respective Canadian Revolving Credit Commitments of all such
Lenders), a commitment fee for each day from and including the Closing Date to
but excluding the Final Date. Such commitment fee shall be payable in arrears
(i) on the last day of each March, June, September and
December (for the three-month period (or portion thereof) ended on such
day for which no payment has been received) and (ii) on the Final Date
(for the period ended on such date for which no payment has been received
pursuant to clause (i) above), and shall be computed for each day
during such period at a rate per annum equal to the Commitment Fee Rate in
effect on such day on the portion of the Available Canadian Commitments
allocated to the Borrower on such day.


 


(iv)          Notwithstanding the foregoing,
neither the Borrower nor the Canadian Borrower shall be obligated to pay any
amounts to any Defaulting Lender pursuant to this Section 4.1.


 


(b)           The Borrower agrees to pay to the
Administrative Agent in Dollars for the account of the Lenders pro  rata
on the basis of their respective Letter of Credit Exposure, a fee in respect of
each Letter of Credit (the “Letter of Credit Fee”), for the period from
and including the date of issuance of such Letter of Credit to but excluding
the termination date of such Letter of Credit computed at the per annum rate
for each day equal to the Applicable Eurodollar Margin for Revolving Credit
Loans minus 0.125% per annum on the average daily Stated Amount of such Letter
of Credit.  Such Letter of Credit Fees
shall be due and payable quarterly in arrears on the last day of each March,
June, September and December and on the date upon which the US Total
Revolving Credit Commitment terminates and the Letter of Credit Outstanding
shall have been reduced to zero.


 


(c)           The Borrower agrees to pay to the
Administrative Agent in Dollars for the account of the US Letter of Credit
Issuer a fee in respect of each US Letter of Credit issued by it (the “Fronting
Fee”), for the period from and including the date of issuance of such US
Letter of Credit to but excluding the termination date of such US Letter of
Credit, computed at the rate for each day equal to 0.125% per annum on the
average daily Stated Amount of such US Letter of Credit.  Such Fronting Fees shall be due and payable
quarterly in arrears on the last day of each March, June, September and


 


75
















 


December and on
the date upon which the US Total Revolving Credit Commitment terminates and the
US Letter of Credit Outstandings shall have been reduced to zero.


 


(d)           The Canadian Borrower agrees to pay
to the Canadian Administrative Agent in for the account of the Lenders with a
Canadian Revolving Credit Commitment pro  rata on the basis of
their respective Canadian Letter of Credit Exposure, a fee in respect of each
Canadian Letter of Credit (the “Canadian Letter of Credit Fee”), for the
period from and including the date of issuance of such Canadian Letter of
Credit to but excluding the termination date of such Canadian Letter of Credit
computed at the per annum rate for each day equal to the Applicable Eurodollar
Margin for Revolving Credit Loans minus 0.125% per annum on the average daily
Stated Amount of such Letter of Credit. 
Such Letter of Credit Fees shall be due and payable quarterly in arrears
on the last day of each March, June, September and December and on
the date upon which the Canadian Total Revolving Credit Commitment terminates
and the Canadian Letter of Credit Outstandings shall have been reduced to zero.


 


(e)           The Borrower agrees to pay directly
to the Letter of Credit Issuer in Dollars upon each issuance of, drawing under,
and/or amendment of, a Letter of Credit issued by it such amount as the Letter
of Credit Issuer and the Borrower shall have agreed upon for issuances of,
drawings under or amendments of, letters of credit issued by it.


 


4.2.          Voluntary Reduction of Revolving Credit
Commitments.  Upon at least one
Business Day’s prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent at the Administrative Agent’s Office
(which notice the Administrative Agent shall promptly transmit to each of the
Lenders), the Borrower (on behalf of itself and the Canadian Borrower) shall
have the right, without premium or penalty, on any day, permanently to
terminate or reduce the Revolving Credit Commitments in whole or in part,
provided that (a) any such reduction shall apply proportionately and
permanently to reduce the US Revolving Credit Commitment or the Canadian
Revolving Credit Commitment, as the case may be, of each of the Lenders, (b) any
partial reduction pursuant to this Section 4.2 shall be in the amount of
at least the Dollar Equivalent of $1,000,000 and (c) after giving effect
to such termination or reduction and to any prepayments of the Loans made on
the date thereof in accordance with this Agreement, (i) the aggregate amount of
the Lenders’ US Revolving Credit Exposures shall not exceed the US Total
Revolving Credit Commitment (ii) the aggregate amount of the Canadian Lenders’
Canadian Revolving Credit Exposure to the Canadian Borrower shall not exceed
the portion of the Canadian Total Revolving Credit Commitment allocated to the
Canadian Borrower and (iii) the aggregate amount of the Canadian Lenders’
Canadian Revolving Credit Exposures to the Borrower shall not exceed the portion
of the Canadian Total Revolving Credit Commitment allocated to the Borrower.


 


4.3.          Mandatory Termination of Commitments.  (a)   
The Total Term Loan Commitments shall terminate at 5:00 p.m.
(New York time) on the Effective Date.


 


(b)           (i) The US Total Revolving Credit
Commitment shall terminate at 5:00 p.m. (New York time) on the
Revolving Credit Maturity Date and (ii) the Canadian


 


76
















 


Total Revolving
Credit Commitment shall terminate at 5:00 p.m. (New York time) on the
Revolving Credit Maturity Date.


 


(c)           The Swingline Commitment shall
terminate at 5:00 p.m. (New York time) on the Swingline Maturity Date.


 


SECTION 5.                                Payments


 


5.1.          Voluntary
Prepayments.    The Borrower shall have the
right to prepay Tranche C Term Loans, US Revolving Credit Loans and Swingline
Loans, and the Canadian Borrower shall have the right to prepay Canadian
Revolving Credit Loans, in each case, without premium or penalty, in whole or
in part from time to time on the following terms and conditions: (a) the
Borrower (on its own behalf and on behalf of the Canadian Borrower) shall give
the Administrative Agent and the Canadian Administrative Agent at the
applicable Administrative Agent’s Office written notice (or telephonic notice
promptly confirmed in writing) of its or the Canadian Borrower’s intent to make
such prepayment, the amount of such prepayment and (in the case of BA Loans and
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which
notice shall be given by the Borrower no later than (i) in the case of Tranche
C Term Loans or Revolving Credit Loans, 10:00 a.m. (New York time) one
Business Day prior to, or (ii) in the case of Swingline Loans, 10:00 a.m. (New
York time) on, the date of such prepayment and shall promptly be transmitted by
the Administrative Agent or the Canadian Administrative Agent, as applicable,
to each of the Lenders or the Swingline Lender, as the case may be; (b) each
partial prepayment of any Borrowing of Tranche C Term Loans or Revolving Credit
Loans shall be in a multiple of the Dollar Equivalent of $100,000 or C$100,000
and in an aggregate principal amount of the Dollar Equivalent of at least
$1,000,000 or C$1,000,000 and each partial prepayment of Swingline Loans shall
be in a multiple of the Dollar Equivalent of $100,000 and in an aggregate
principal amount of at least the Dollar Equivalent of $100,000, provided that
no partial prepayment of Eurodollar Term Loans or Eurodollar Revolving Credit
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Term Loans or Eurodollar Revolving Credit Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for
Eurodollar Term Loans or Eurodollar Revolving Credit Loans; (c) any prepayment
of Eurodollar Term Loans or Eurodollar Revolving Credit Loans pursuant to this
Section 5.1 on any day other than the last day of an Interest Period
applicable thereto shall be subject to compliance by the Borrower or the
Canadian Borrower, as the case may be, with the applicable provisions of
Section 2.11 and (d) BA Loans may not be repaid on any day other than the
last day of an Interest Period applicable thereto except as may be otherwise
provided in this Agreement.  Each
prepayment in respect of any tranche of Tranche C Term Loans pursuant to this
Section 5.1 shall be (a) applied to Tranche C Term Loans in such
manner as the Borrower may determine and (b) applied to reduce Repayment
Amounts in such order as the Borrower may determine.  At the Borrower’s election (on its own behalf
and on behalf of the Canadian Borrower) in connection with any prepayment
pursuant to this Section 5.1, such prepayment shall not be applied to any
Tranche C Term Loan or Revolving Credit Loan of a Defaulting Lender.


 


77
















 


5.2.          Mandatory Prepayments.  (a)    
Tranche C Term Loan Prepayments.  (i)  On each occasion that a Prepayment Event
occurs, the Borrower shall, within one Business Day after the occurrence of a
Debt Incurrence Prepayment Event and within five Business Days after the
occurrence of any other Prepayment Event, prepay, in accordance with
paragraph (c) below, the principal amount of Tranche C Term Loans in an
amount equal to 100% of the Net Cash Proceeds from such Prepayment Event,
provided that, at the option of the Borrower, the Net Cash Proceeds from any
transaction permitted by Section 10.4(e) (including pursuant to any
securitization) may be applied to repay Revolving Credit Loans, which repayment
shall automatically result in the reduction of the Revolving Credit Commitment
of each Lender by an amount equal to the amount of the Revolving Credit Loans
prepaid to such Lender.


 


(ii)           Not later than the date that is
ninety days after the last day of any fiscal year (commencing with the fiscal
year ending December 31, 2004),  the
Borrower shall prepay, in accordance with paragraph (c) below, the
principal of Tranche C Term Loans in an amount equal to (x) 50% of Excess
Cash Flow for such fiscal year (provided such percentage shall be reduced to
25% if the Consolidated Total Debt to Consolidated EBITDA Ratio as of the end
of such fiscal year is less than 4.00 to 1.00), minus (y) the amount of any such
Excess Cash Flow that the Borrower has, after the end of such fiscal year and
prior to such date, reinvested in the business of the Borrower or any of its
Subsidiaries (subject to Section 9.14) and minus (z) the principal amount of
Tranche C Term Loans voluntarily prepaid pursuant to Section 5.1 during
such fiscal year.


 


(b)           Repayment of Revolving Credit
Loans.


 


(i)            Aggregate US Revolving Credit
Outstandings.  If on any date the
aggregate amount of the Lenders’ US Revolving Credit Exposures (all the
foregoing, collectively, the “Aggregate US Revolving Credit Outstandings”)
exceeds 100% of the US Total Revolving Credit Commitment as then in effect, the
Borrower shall forthwith repay on such date the principal amount of Swingline
Loans and, after all Swingline Loans have been paid in full, Revolving Credit
Loans in an amount equal to such excess. 
If, after giving effect to the prepayment of all outstanding Swingline
Loans and Revolving Credit Loans, the Aggregate US Revolving Credit
Outstandings exceed the US Total Revolving Credit Commitment then in effect,
the Borrower shall pay to the Administrative Agent an amount in cash equal to
such excess and the Administrative Agent shall hold such payment for the
benefit of the Lenders as security for the obligations of the Borrower
hereunder (including obligations in respect of Letter of Credit Outstandings)
pursuant to a cash collateral agreement to be entered into in form and
substance satisfactory to the Administrative Agent (which shall permit certain
investments in Permitted Investments satisfactory to the Administrative Agent,
until the proceeds are applied to the secured obligations).


 


(ii)           Aggregate Canadian Revolving Credit
Outstandings.  If on any date the
aggregate amount of the Canadian Lenders’ Canadian Revolving Credit Exposures
(all the foregoing, collectively, the “Aggregate Canadian


 


78
















 


Revolving
Credit Outstandings”) exceeds 103% of the Canadian Total Revolving Credit
Commitment as then in effect, each of the Borrower and the Canadian Borrower,
as the case may be, shall forthwith repay on such date Canadian Revolving
Credit Loans owing by each of them, respectively, in an aggregate amount equal
to such excess.  If, after giving effect
to the prepayment of all outstanding Canadian Revolving Credit Loans (other
than BA Loans), the Aggregate Canadian Revolving Credit Outstandings exceed the
Canadian Total Revolving Credit Commitment then in effect, the Borrower and/or
the Canadian Borrower as the case may be, shall pay to the Canadian
Administrative Agent an amount in cash equal to such excess and the Canadian
Administrative Agent shall hold such payment for the benefit of the applicable
Lenders as security for the obligations of the Borrower and the Canadian
Borrower hereunder (including obligations in respect of Canadian Letter of Credit
Outstandings and BA Loans) pursuant to a cash collateral agreement to be
entered into in form and substance satisfactory to the Canadian Administrative
Agent (which shall permit certain investments in Permitted Investments
satisfactory to the Canadian Administrative Agent, until the proceeds are
applied to the secured obligations).


 


(c)           Application to Repayment Amounts. 
Each prepayment of Tranche C Term Loans required by Section 5.2(a)
shall be applied to reduce Repayment Amounts in such order as the Borrower may
determine up to an amount equal to the aggregate amount of the applicable
Repayment Amounts required to be made by the Borrower pursuant to
Section 2.5(b) during the two year period immediately following the date
of the prepayment (such amount being, the “Amortization Amount”),
provided that to the extent that the amount of the prepayment exceeds the
Amortization Amount, such excess shall be applied ratably to reduce the then
remaining Repayment Amounts.  With
respect to each such prepayment, (i) the Borrower will, not later than the date
specified in Section 5.2(a) for offering to make such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent provide notice of such prepayment to
each Tranche C Term Loan Lender, (ii) each Tranche C Term Loan Lender will
have the right to refuse any such prepayment by giving written notice of such
refusal to the Borrower within fifteen Business Days after such Lender’s
receipt of notice from the Administrative Agent of such prepayment (and the
Borrower shall not prepay any such Tranche C Term Loans until the date that is
specified in the immediately following clause), (iii) the Borrower will
make all such prepayments not so refused upon the earlier of (x) such
fifteenth Business Day and (y) such time as the Borrower has received
notice from each Lender that it consents to or refuses such prepayment and
(iv) any prepayment so refused may be retained by the Borrower, provided
that any prepayment so refused that relates to Net Cash Proceeds from a Debt
Incurrence Prepayment Event in respect of the issuance of Permitted Additional
Subordinated Notes shall be allocated to the then outstanding Tranche C Term
Loans and shall be applied as set forth above in this paragraph (c).


 


(d)           Application to Tranche C Term Loans.  With respect to each
prepayment of Tranche C Term Loans required by Section 5.2(a), the
Borrower may designate the Types of Loans that are to be prepaid and the
specific Borrowing(s) pursuant to which made, provided that
(i) Eurodollar Term Loans may be designated for


 


79
















 


prepayment pursuant
to this Section 5.2 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Term Loans with Interest Periods ending on such
date of required prepayment and all ABR Loans have been paid in full; and
(ii) Eurodollar Term Loans made pursuant to a single Borrowing shall
reduce the outstanding Tranche C Term Loans made pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount for Eurodollar Loans such
Borrowing shall immediately be converted into ABR Loans .  In the absence of a designation by the
Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion
with a view, but no obligation, to minimize breakage costs owing under
Section 2.11.


 


(e)           Application to Revolving Credit
Loans.  With respect to each prepayment of Revolving
Credit Loans elected by the Borrower pursuant to Section 5.2(a) or
required by Section 5.2(b), the Borrower (on its own behalf and on behalf
of the Canadian Borrower) may designate (i) the Types of Loans that are to be
prepaid and the specific Borrowing(s) pursuant to which made and (ii) the US
Revolving Credit Loans or Canadian Revolving Credit Loans to be prepaid, provided
that (w) Eurodollar Revolving Credit Loans may be designated for prepayment
pursuant to this Section 5.2 only on the last day of an Interest Period
applicable thereto unless all Eurodollar Loans with Interest Periods ending on
such date of required prepayment and all ABR Loans have been paid in full; (x)
if any prepayment by the Borrower or the Canadian Borrower of Eurodollar
Revolving Credit Loans made pursuant to a single Borrowing shall reduce the
outstanding Dollar Equivalent of the Revolving Credit Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount for
Eurodollar Revolving Credit Loans, as the case may be, such Borrowing shall
immediately be converted into Cdn ABR Loans or ABR Loans, as applicable; (y)
each prepayment of any Loans made pursuant to a Borrowing shall be applied pro
rata among such Loans; and (z) notwithstanding the provisions of
the preceding clause (y), no prepayment made pursuant to Section 5.2(a) or
Section 5.2(b) of Revolving Credit Loans shall be applied to the Revolving
Credit Loans of any Defaulting Lender. 
In the absence of a designation by the Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its reasonable discretion with a view, but no obligation,
to minimize breakage costs owing under Section 2.11.


 


(f)            BA and Eurodollar Interest Periods. 
In lieu of making any payment pursuant to this Section 5.2 in
respect of any BA Loan or Eurodollar Loan other than on the last day of the
Interest Period therefor so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower or the Canadian Borrower, as the case
may be, at its option may deposit with the Administrative Agent an amount equal
to the amount of the BA Loan or Eurodollar Loan to be prepaid and such BA Loan
or Eurodollar Loan, as the case may be, shall be repaid on the last day of the
Interest Period therefor in the required amount.  Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms
reasonably satisfactory to the Administrative Agent, earning interest at the
then-customary rate for accounts of such type. 
Such deposit shall constitute cash collateral for the Obligations, provided
that the Borrower or the Canadian Borrower, as the case may be, may at any time
direct that such deposit be applied to make the applicable payment required
pursuant to this Section 5.2.


 


80
















 


(g)           Minimum Amount. 
No prepayment shall be required pursuant to Section 5.2(a)(i)
unless and until the amount at any time of Net Cash Proceeds from Prepayment
Events required to be applied at or prior to such time pursuant to such
Section and not yet applied at or prior to such time to prepay Tranche C
Term Loans pursuant to such Section exceeds the Dollar Equivalent of
$15,000,000 in the aggregate for all such Prepayment Events.


 


(h)           Foreign Asset Sales. 
Notwithstanding any other provisions of this Section 5.2,
(i) to the extent that any of or all the Net Cash Proceeds of any asset
sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale Prepayment
Event (a “Foreign Asset Sale”) or Excess Cash Flow are prohibited or
delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or
Excess Cash Flow so affected will not be required to be applied to repay
Tranche C Term Loans at the times provided in this Section 5.2 but may be
retained by the applicable Restricted Foreign Subsidiary so long, but only so
long, as the applicable local law will not permit repatriation to the United States
(the Borrower and the Canadian Borrower hereby agreeing to cause the applicable
Restricted Foreign Subsidiary to promptly take all actions required by the
applicable local law to permit such repatriation), and once such repatriation
of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted
under the applicable local law, such repatriation will be immediately effected
and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly
(and in any event not later than two Business Days after such
repatriation) applied (net of additional taxes payable or reserved against as a
result thereof) to the repayment of the Tranche C Term Loans pursuant to this
Section 5.2 and (ii) to the extent that the Borrower (on its own behalf
and on behalf of the Canadian Borrower) has determined in good faith that
repatriation of any of or all the Net Cash Proceeds of any Foreign Asset Sale
or Excess Cash Flow would have a material adverse tax cost consequence with
respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or
Excess Cash Flow so affected may be retained by the applicable Restricted
Foreign Subsidiary, provided that, in the case of this clause (ii),
on or before the date on which any Net Cash Proceeds so retained would
otherwise have been required to be applied to reinvestments or prepayments
pursuant to Section 5.2(a) (or such Excess Cash Flow would have been so
required if it were Net Cash Proceeds), (x) the Borrower or the Canadian
Borrower, as the case may be, applies an amount equal to such Net Cash Proceeds
or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash
Proceeds or Excess Cash Flow had been received by the Borrower or the Canadian
Borrower, as the case may be, rather than such Restricted Foreign Subsidiary,
less the amount of additional taxes that would have been payable or reserved
against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or,
if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if
received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or
Excess Cash Flow are applied to the repayment of Indebtedness of a Restricted
Foreign Subsidiary.


 


5.3.          Method and Place of Payment.  (a)    
Except as otherwise specifically provided herein, all payments under
this Agreement shall be made by the Borrower or the Canadian Borrower, without
set-off, counterclaim or deduction of any kind, to the Administrative Agent for
the ratable account of the Lenders entitled thereto,


 


81
















 


the Letter of Credit Issuer, the Canadian
Letter of Credit Issuer or the Swingline Lender, as the case may be, not later
than 12:00 Noon (New York time) on the date when due and shall be made
(i) in the case of amounts payable in Dollars, in immediately available
funds at the Administrative Agent’s Office and (ii) in the case of amounts
payable in a Canadian Dollars, in immediately available funds at the
Administrative Agent’s Office or at such other office as the Administrative
Agent shall specify for such purpose by notice to the Borrower, it being
understood that written or facsimile notice by the Borrower or the Canadian
Borrower, as the case may be, to the Administrative Agent to make a payment
from the funds in the Borrower’s or the Canadian Borrower’s, as the case may
be, account at the Administrative Agent’s Office shall constitute the making of
such payment to the extent of such funds held in such account.  All payments under each Credit Document
(whether of principal, interest or otherwise) shall be made (i) in the
case of the principal of and interest on each Loan, in the currency in which
such Loan is denominated, (ii) in the case of reimbursement obligations in
respect of Letters of Credit, in the currency in which such Letter of Credit is
denominated or (iii) in the case of any indemnification or expense
reimbursement payment, in Dollars, except as otherwise expressly provided
herein.  The Administrative Agent will
thereafter cause to be distributed on the same day (if payment was actually
received by the Administrative Agent prior to 2:00 p.m. (New York time) on such
day) like funds relating to the payment of principal or interest or Fees
ratably to the Lenders entitled thereto.


 


(b)           Any payments under this Agreement
that are made later than 2:00 p.m. (New York time) shall be deemed to have
been made on the next succeeding Business Day. 
Whenever any payment to be made hereunder shall be stated to be due on a
day that is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in
effect immediately prior to such extension.


 


5.4.          Net
Payments.  (a)     Subject to the following sentence, all
payments made by or on behalf of the Borrower and the Canadian Borrower under
this Agreement or any other Credit Document shall be made free and clear of,
and without deduction or withholding for or on account of, any current or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding (i) net
income taxes and franchise taxes (imposed in lieu of net income taxes) and
capital taxes imposed on the Administrative Agent, the Canadian Administrative
Agent or any Lender and (ii) any taxes imposed on the Administrative
Agent, the Canadian Administrative Agent or any Lender as a result of a current
or former connection between the Administrative Agent, the Canadian
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent, the Canadian Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement).  If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) are required to be withheld from any
amounts payable under this Agreement, the Borrower or


 


82
















 


the Canadian Borrower, as applicable, shall
increase the amounts payable to the Administrative Agent, the Canadian
Administrative Agent or such Lender to the extent necessary to yield to the
Administrative Agent, the Canadian Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement; provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails
to comply with the requirements of paragraph (b) of this Section 5.4.  Whenever any Non-Excluded Taxes are payable
by the Borrower or the Canadian Borrower, as the case may be, as promptly as
possible thereafter such Borrower or Canadian Borrower shall send to the
Administrative Agent or the Canadian Administrative Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt (or other evidence acceptable to such Lender, acting
reasonably) received by such Borrower or Canadian Borrower showing payment
thereof.  If the Borrower or the Canadian
Borrower, as the case may be, fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent
or the Canadian Administrative Agent the required receipts or other required
documentary evidence, such Borrower or Canadian Borrower shall indemnify the
Administrative Agent, the Canadian Administrative Agent and the Lenders for any
incremental taxes, interest, costs or penalties that may become payable by the
Administrative Agent, the Canadian Administrative Agent or any Lender as a
result of any such failure.  The
agreements in this Section 5.4(a) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.


 


(b)           Each Non-U.S. Lender (other than a
Canadian Lender making Loans only to the Canadian Borrower) shall:


 


(i)            deliver to the Borrower and the
Administrative Agent two copies of either (x) in the case of Non-U.S.
Lender claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, United States Internal Revenue Service Form W-8BEN
(together with a certificate representing that such Non-U.S. Lender is not a
bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y)
Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement;


 


(ii)           deliver to the Borrower and the
Administrative Agent two further copies of any such form or certification (or
any applicable successor form) on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower; and


 


83
















 


(iii)          obtain such extensions of time for
filing and complete such forms or certifications as may reasonably be requested
by the Borrower or the Administrative Agent;


 


unless in any such case any change in treaty, law or regulation has
occurred prior to the date on which any such delivery would otherwise be
required that renders any such form inapplicable or would prevent such Lender
from duly completing and delivering any such form with respect to it and such
Lender so advises the Borrower and the Administrative Agent.  Each Person that shall become a Participant
pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall,
upon the effectiveness of the related transfer, be required to provide all the
forms and statements required pursuant to this Section 5.4(b), provided
that in the case of a Participant such Participant shall furnish all such
required forms and statements to the Lender from which the related
participation shall have been purchased.


 


(c)           The Borrower shall not be required
to indemnify any Non-U.S. Lender, or to pay any additional amounts to any
Non-U.S. Lender, in respect of U.S. Federal withholding tax pursuant to
paragraph (a) above to the extent that (i) the obligation to withhold
amounts with respect to U.S. Federal withholding tax existed on the date such
Non-U.S. Lender became a party to this Agreement (or, in the case of a
Participant that is not organized under the laws of the United States of
America or a state thereof (a “Non-U.S. Participant”), on the date such
Non-U.S. Participant became a Participant hereunder); provided, however,
that this clause (i) shall not apply to the extent that (x) the indemnity
payments or additional amounts any Lender (or Participant) would be entitled to
receive (without regard to this clause (i)) do not exceed the indemnity
payment or additional amounts that the person making the assignment,
participation or transfer to such Lender (or Participant) would have been
entitled to receive in the absence of such assignment, participation or
transfer, or (y) such assignment, participation or transfer had been
requested by the Borrower or the Canadian Borrower, (ii) the obligation to
pay such additional amounts would not have arisen but for a failure by such
Non-U.S. Lender or Non-U.S. Participant to comply with the provisions of
paragraph (b) above or (iii) any of the representations or
certifications made by a Non-U.S. Lender or Non-U.S. Participant pursuant to
paragraph (b) above are incorrect at the time a payment hereunder is made,
other than by reason of any change in treaty, law or regulation having effect
after the date such representations or certifications were made. The Canadian
Borrower shall not be required to indemnify or pay additional amounts to a
Lender or Administrative Agent in respect of Canadian withholding tax pursuant
to paragraph (a) above to the extent that such Non-Excluded Taxes result from a
failure by the Lender or Administrative Agent to comply with any certification,
identification, information, documentation or other reporting requirement
(collectively referred to in this Section 5.4(c) as a “Reporting
Requirement”) if (i) compliance is required by law, regulation,
administrative practice or any applicable tax treaty as a precondition to
exemption from or a reduction in the rate of deduction or withholding of
Non-Excluded Taxes, and (ii) the Canadian Borrower has first made written
request to the Lender or the Canadian Administrative Agent, as applicable, that
the Lender or Administrative Agent comply with the particular Reporting
Requirement (identified specifically in such request) and the Lender or
Administrative Agent, as applicable, has not complied with such Reporting
Requirement within 30 Business Days of such written request; provided, however
that the


 


84
















 


Canadian Borrower
shall not be relieved of its obligation to indemnify or pay additional amounts
to a Lender or Administrative Agent (x) in respect of certain payments where
the obligation to indemnify or pay additional amounts in respect of those
payments arose prior to Canadian Borrower’s written request to the Lender or
Canadian Administrative Agent, as applicable, respecting such Reporting
Requirement, (y) if, by reason of any change in any law, regulation,
administrative practice or applicable tax treaty occurring after the date
hereof, the Lender or Administrative Agent, as applicable, is unable to duly
comply with such Reporting Requirement, or (z) to the extent that the
additional payment or indemnity compensates the Lender or Administrative Agent
for an amount to which the Lender or Administrative Agent would have been
entitled to receive under paragraph (a) had the Lender or Administrative Agent,
as applicable complied with the Reporting Requirement.


 


(d)           If the Borrower or the Canadian
Borrower determines in good faith that a reasonable basis exists for contesting
any taxes for which indemnification has been demanded hereunder, the relevant
Lender, the Canadian Administrative Agent or the Administrative Agent, as
applicable, shall cooperate with such Borrower or Canadian Borrower in
challenging such taxes at Borrower’s or Canadian Borrower’s expense if so
requested by Borrower or Canadian Borrower. 
If any Lender, the Canadian Administrative Agent or the Administrative
Agent, as applicable, receives a refund of a tax for which a payment has been
made by the Borrower or the Canadian Borrower pursuant to this Agreement, which
refund in the good faith judgment of such Lender, the Canadian Administrative
Agent or Administrative Agent, as the case may be, is attributable to such
payment made by such Borrower or Canadian Borrower, then the Lender, the
Canadian Administrative Agent or the Administrative Agent, as the case may be,
shall reimburse Borrower or Canadian Borrower for such amount (together with
any interest received thereon) as the Lender, the Canadian Administrative Agent
or Administrative Agent, as the case may be, determines to be the proportion of
the refund as will leave it, after such reimbursement, in no better or worse
position than it would have been in if the payment had not been required.  A Lender, the Canadian Administrative Agent
or Administrative Agent shall claim any refund that it determines is available
to it, unless it concludes in its reasonable discretion that it would be
adversely affected by making such a claim. 
Neither the Lender, the Canadian Administrative Agent nor the
Administrative Agent shall be obliged to disclose any information regarding its
tax affairs or computations to the Borrower or the Canadian Borrower in
connection with this paragraph (d) or any other provision of this
Section 5.4.


 


(e)           Each Lender represents and agrees
that, on the date hereof and at all times during the term of this Agreement, it
is not and will not be a conduit entity participating in a conduit financing
arrangement (as defined in Section 7701(1) of the Code and the regulations
thereunder) with respect to the Borrowings hereunder unless the Borrower has
consented to such arrangement prior thereto.


 


(f)            Notwithstanding
Section 5.4(a), the Canadian Borrower shall not be required to indemnify
or pay any additional amounts in respect of Canadian withholding tax imposed
under Part XIII of the Tax Act applicable to any amount payable with respect to
Canadian Revolving Credit Loans or Canadian Letters of Credit


 


85
















 


pursuant to Section 5.4(a) above to any Lender
that is not a Canadian Resident for the purposes of the Tax Act, except if any
such Loans were assigned, participated or transferred to such Lender at the
request of the Borrower or the Canadian Borrower or were assigned, participated
or transferred to such Lender following the occurrence of and during the
continuance of an Event of Default pursuant to Section 11.1 or 11.5.


 


5.5.          Computations of Interest and Fees.  (a)    
Interest on Eurodollar Loans and, except as provided in the next
succeeding sentence, ABR Loans shall be calculated on the basis of a 360-day
year for the actual days elapsed. 
Interest on (i) Canadian Prime Loans and (ii) ABR Loans in
respect of which the rate of interest is calculated on the basis of the Prime
Rate and interest on overdue interest shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed.


 


(b)           Fees and Letter of Credit Outstanding
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed.


 


5.6.          Limit on Rate of
Interest.


 


(a)           No Payment shall exceed Lawful Rate. 
Notwithstanding any other term of this Agreement, neither the Borrower
nor the Canadian Borrower shall be obliged to pay any interest or other amounts
under or in connection with this Agreement in excess of the amount or rate
permitted under or consistent with any applicable law, rule or regulation.  In particular, the Canadian Borrower shall
not be obliged to pay any interest or other amounts which would result in the
receipt by any Lender of interest on credit advanced at a rate in excess of the
rate permitted under the Criminal Code
(Canada).  For purposes of this
Section 5.6, “interest” and “credit advanced” have the meanings ascribed
in the Criminal Code (Canada) and
the “effective annual rate of interest” shall be calculated in accordance with
generally accepted actuarial principles and practices.


 


(b)           Payment at Highest Lawful Rate. 
If either the Borrower or the Canadian Borrower is not obliged to make a
payment which it would otherwise be required to make, as a result of
Section 5.6(a), the Borrower or the Canadian Borrower, as applicable,
shall make such payment to the maximum extent permitted by or consistent with
applicable laws, rules and regulations.


 


(c)           Adjustment if any Payment exceeds
Lawful Rate.     If
any provision of this Agreement or any of the other Credit Documents would
obligate the Borrower or the Canadian Borrower to make any payment of interest
or other amount payable to any Lender in an amount or calculated at a rate
which would be prohibited by any applicable law, rule or regulation, or in the
case of the Canadian Borrower, would result in a receipt by that Lender of
interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)), then
notwithstanding such provision, such amount or rate shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law (in the case
of the Borrower or the Canadian Borrower) or so result in a receipt by that


 


86
















 


Lender of interest at
a criminal rate (in the case of the Canadian Borrower), such adjustment to be
effected, to the extent necessary, as follows:


 


(i)            firstly, by reducing the amount or
rate of interest required to be paid by the Borrower or the Canadian Borrower
to the affected Lender under Section 2.8; and


 


(ii)           thereafter, by reducing any fees,
commissions, premiums and other amounts required to be paid by the Borrower or
the Canadian Borrower to the affected Lender where, in the case of the Canadian
Borrower, such amounts would constitute interest for purposes of
Section 347 of the Criminal Code
(Canada).


 


Notwithstanding the foregoing, and after giving effect to all
adjustments contemplated thereby, if any Lender shall have received from the
Borrower or the Canadian Borrower an amount in excess of the maximum permitted
by any applicable law, rule or regulation or in the case of the Canadian
Borrower, an amount in excess of the maximum permitted under the Criminal Code (Canada), then the Borrower
or the Canadian Borrower, as applicable, shall be entitled, by notice in
writing to the Administrative Agent or the Canadian Administrative Agent, as
applicable, to obtain reimbursement from that Lender in an amount equal to such
excess, and pending such reimbursement, such amount shall be deemed to be an
amount payable by that Lender to the Borrower or the Canadian Borrower, as
applicable.  Any amount or rate of
interest referred to in this Section 5.6(c) shall be determined in
accordance with generally accepted actuarial practices and principles as an
effective annual rate of interest over the term that any Loan remains
outstanding on the assumption, with respect to Canadian Borrowings, that any
charges, fees or expenses that fall within the meaning of “interest” (as
defined in the Criminal Code
(Canada)) shall, if the relate to a specific period of time, be pro-rated over that period of time and
otherwise be pro-rated over the
period from the Closing Date to the Maturity Date.


 


SECTION 6.                                Conditions
Precedent to Initial Borrowing


 


The initial Borrowing of Tranche C Term Loans under this Agreement is
subject to the satisfaction of the following conditions precedent:


 


6.1.          Credit Documents.  The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of each of
the Holdings, the Borrower, the Canadian Borrower, Required Lenders under the
Existing Credit Agreement (whom may provide written consent via a consent
supplement to this Agreement) and each Tranche C Term Loan Lender.


 


6.2.          Collateral. 
All documents and instruments, including Uniform Commercial Code or
other applicable personal property security financing statements, required by
law or reasonably requested by the Administrative Agent to be filed, registered
or recorded to create the Liens intended to be created by the Security
Agreement and perfect such Liens to the extent required by, and with the
priority


 


87
















 


required by, the Security Agreement shall
have been filed, registered or recorded or delivered to the Administrative
Agent for filing, registration or recording.


 


6.3.          Legal Opinions.  The Administrative Agent shall have received
the executed legal opinions of (a) Simpson Thacher & Bartlett LLP,
special New York counsel to the Borrower, substantially in the form of Exhibit
I-1 and (b) Kenneth L. Walker, General Counsel to the Borrower.  The Borrower, the Canadian Borrower, the
other Credit Parties and the Administrative Agent hereby instruct such counsel
to deliver such legal opinions.


 


6.4.          No Default. 
After giving effect to the Borrowings on the Effective Date and the
other transactions contemplated hereby, no Default or Event of Default has
occurred and is continuing.


 


6.5.          Consent. 
Borrower, Holdings, Required Lenders (as such term is defined under the
Existing Credit Agreement and whom may provide written consent via a consent
supplement to this Agreement) and the Tranche C Term Loan Lenders shall have
indicated their consent by the execution and delivery of the signature pages
hereof to the Administrative Agent.


 


6.6.          [Reserved]


 


6.7.          Effective Date Certificates.  The Administrative Agent shall have received
a certificate of each Credit Party, dated the Effective Date, substantially in
the form of Exhibit J, with appropriate insertions, executed by the President
or any Vice President and the Secretary or any Assistant Secretary of such
Credit Party, and attaching the documents referred to in Sections 6.8 and 6.9
(if applicable).


 


6.8.          Corporate Proceedings of Each Credit
Party.  The Administrative Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of each
Credit Party (or a duly authorized committee thereof) authorizing (a) the
execution, delivery and performance of the Credit Documents (and any agreements
relating thereto) to which it is a party and (b) in the case of the Borrower
and the Canadian Borrower, the extensions of credit contemplated hereunder;
provided that in lieu of delivery of each of the resolutions set forth in this
Section 6.8, the Borrower may deliver a certificate executed by the
President or any Vice President of such Credit Party certifying that there have
been no material amendments to those resolutions previously delivered to the
Administrative Agent on the Closing Date pursuant to Section 6.8 of the
Existing Credit Agreement.


 


6.9.          Corporate Documents.  The Administrative Agent shall
have received true and complete copies of the certificate of incorporation
and by-laws (or equivalent organizational documents) of each Credit Party;
provided that in lieu of delivery of each of the documents set forth in this
Section 6.9, the Borrower may deliver a certificate executed by the
President or any Vice President of such Credit Party certifying that there have
been no material amendments to those documents previously


 


88
















 


delivered to the Administrative Agent on the
Closing Date pursuant to Section 6.9 of the Existing Credit Agreement.


 


6.10.        Fees.  (a)     The Lenders shall have received the fees
in the amounts previously agreed in writing by the Agents and such Lenders to
be received on the Effective Date and all expenses (including the reasonable
fees, disbursements and other charges of counsel) for which invoices have been
presented on or prior to the Effective Date shall have been paid.


 


6.11.        Representations and Warranties.  On the Effective Date, the representations
and warranties made by each of Holdings, the Borrower and the Canadian Borrower
in Section 8, as they relate to the Credit Parties at such time, shall be
true and correct in all material respects.


 


6.12.        Governmental Authorizations and
Consents.  Each Credit Party shall
have obtained all approval and authorizations of Governmental Authorities
and all consents of other Persons, in each case that are necessary in
connection with the transactions contemplated by the Credit Documents and each
of the foregoing shall be in full force and effect.  All applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
transactions contemplated by the Credit Documents and no action, request for
stay, petition for review or rehearing, reconsideration, or appeal with respect
to any of the foregoing shall be pending, and the time for any applicable
agency to take action to set aside its consent on its own motion shall have
expired.


 


SECTION 7.                                Conditions
Precedent to All Credit Events


 


The agreement of each Lender to make any Loan requested to be made by
it on any date (excluding Mandatory Borrowings) and the obligation of the
Letter of Credit Issuer to issue Letters of Credit on any date is subject to
the satisfaction of the following conditions precedent:


 


7.1.          No Default; Representations and
Warranties.  At the time of each
Credit Event and also after giving effect thereto (a) no Default or Event
of Default shall have occurred and be continuing and (b) all representations
and warranties made by any Credit Party contained herein or in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of
the date of such Credit Event (except where such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such
earlier date).


 


7.2.          Notice of Borrowing; Letter of Credit
Request.  (a)     Prior to the making of each Tranche C Term
Loan, each Revolving Credit Loan (other than any Revolving Credit Loan made
pursuant to Section 3.4(a)) and each Swingline Loan, the


 


89
















 


Administrative Agent shall have received a
Notice of Borrowing (whether in writing or by telephone) meeting the
requirements of Section 2.3.


 


(b)           Prior to the issuance of each Letter
of Credit, the Administrative Agent and the Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of
Section 3.2(a).


 


The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Lenders that
all the applicable conditions specified above exist as of that time.


 


SECTION 8.                                Representations,
Warranties and Agreements


 


In order to induce the Lenders to enter into this Agreement, to make
the Loans and issue or participate in Letters of Credit as provided for herein,
Holdings, the Borrower and the Canadian Borrower make the following
representations and warranties to, and agreements with, the Lenders, all of
which shall survive the execution and delivery of this Agreement and the making
of the Loans and the issuance of the Letters of Credit:


 


8.1.          Corporate Status.  Holdings, the Borrower, the Canadian Borrower
and each Material Subsidiary (a) is a duly organized and validly existing
corporation or other entity in good standing under the laws of the jurisdiction
of its organization and has the corporate or other organizational power and
authority to own its property and assets and to transact the business in which
it is engaged and (b) has duly qualified and is authorized to do business and
is in good standing in all jurisdictions where it is required to be so qualified,
except where the failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.


 


8.2.          Corporate Power and Authority.  Each Credit Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms
and provisions of the Credit Documents to which it is a party and has taken all
necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is a party.  Each Credit Party has duly executed and
delivered each Credit Document to which it is a party and each such Credit
Document constitutes the legal, valid and binding obligation of such Credit
Party enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and subject to general principles of equity.


 


8.3.          No Violation. 
Neither the execution, delivery or performance by any Credit Party of
the Credit Documents to which it is a party nor compliance with the terms and
provisions thereof nor the consummation of the Recapitalization and the other
transactions contemplated hereby or thereby will (a) contravene any
applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality,
(b) result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or


 


90
















 


imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of any of Holdings, the
Borrower, the Canadian Borrower or any of the Restricted Subsidiaries (other
than Liens created under the Credit Documents) pursuant to, the terms of any
material indenture (including the Subordinated Note Indenture), loan agreement,
lease agreement, mortgage, deed of trust, agreement or other material
instrument to which Holdings, the Borrower, the Canadian Borrower or any of the
Restricted Subsidiaries is a party or by which it or any of its property or
assets is bound or (c) violate any provision of the certificate of
incorporation, By-Laws or other constitutional documents of Holdings, the
Borrower, the Canadian Borrower or any of the Restricted Subsidiaries.


 


8.4.          Litigation. 
There are no actions, suits or proceedings (including Environmental
Claims) pending or, to the knowledge of Holdings, the Borrower or the Canadian
Borrower, threatened with respect to Holdings, the Borrower, the Canadian
Borrower or any of its Subsidiaries that could reasonably be expected to result
in a Material Adverse Effect.


 


8.5.          Margin Regulations.  Neither the making of any Loan hereunder nor
the use of the proceeds thereof will violate the provisions of Regulation T, U
or X of the Board.


 


8.6.          Governmental Approvals.  No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority is required to authorize or is
required in connection with (a) the execution, delivery and performance of any
Credit Document or (b) the legality, validity, binding effect or enforceability
of any Credit Document, except any of the foregoing the failure to obtain or
make could not reasonably be expected to have a Material Adverse Effect.


 


8.7.          Investment Company Act.  Neither Holdings nor the Borrower is an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.


 


8.8.          True and Complete Disclosure.  (a)    
None of the factual information and data (taken as a whole) heretofore
or contemporaneously furnished by any of Holdings, the Borrower, the Canadian
Borrower, any of the Subsidiaries or any of their respective authorized
representatives in writing to the Administrative Agent and/or any Lender on or
before the Closing Date (including (i) the Confidential Information
Memorandum and (ii) all information contained in the Credit Documents) for
purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement or omitted to state any
material fact necessary to make such information and data (taken as a whole)
not misleading at such time in light of the circumstances under which such
information or data was furnished, it being understood and agreed that for
purposes of this Section 8.8(a), such factual information and data shall
not include projections and pro forma financial information.


 


91
















 


(b)           The projections and pro forma
financial information contained in the information and data referred to in
paragraph (a) above were based on good faith estimates and assumptions
believed by such Persons to be reasonable at the time made, it being recognized
by the Lenders that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by any
such projections may differ from the projected results.


 


8.9.          Financial Condition; Financial Statements.  The (a) unaudited historical consolidated
financial information of the Parent as set forth in the Confidential
Information Memorandum, and (b) the Historical Financial Statements, in
each case present or will, when provided, present fairly in all material
respects the combined financial position of the Borrower at the respective
dates of said information, statements and results of operations for the
respective periods covered thereby.  The
financial statements referred to in clause (b) of this Section 8.9
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.  There has been no Material Adverse Change
since November 30, 2003, other than solely as a result of changes in
general economic conditions.


 


8.10.        Tax Returns and Payments.  Each of Holdings, the Borrower, the Canadian
Borrower and the Subsidiaries has filed all federal income tax returns and all
other material tax returns, domestic and foreign, required to be filed by it
and has paid all material taxes and assessments payable by it that have become
due, other than those not yet delinquent or contested in good faith.  Each of Holdings, the Borrower, the Canadian
Borrower and each of the Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) in
accordance with GAAP for the payment of, all material federal, state,
provincial and foreign income taxes applicable for all prior fiscal years and
for the current fiscal year to the Effective Date.


 


8.11.        Compliance with ERISA.  (i) Each Plan is in compliance with ERISA,
the Code and any applicable Requirement of Law; no Reportable Event has
occurred (or is reasonably likely to occur) with respect to any Plan; no Plan
is insolvent or in reorganization (or is reasonably likely to be insolvent or
in reorganization), and no written notice of any such insolvency or
reorganization has been given to any of Holdings, the Borrower, any Subsidiary
or any ERISA Affiliate; no Plan (other than a multiemployer plan) has an
accumulated or waived funding deficiency (or is reasonably likely to have such
a deficiency); none of Holdings, the Borrower, any Subsidiary or any ERISA
Affiliate has incurred (or is reasonably likely expected to incur) any
liability to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Code or has been notified in writing that it will incur any
liability under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to administer any Plan,
and no written notice of any such proceedings has been given to any of
Holdings, the Borrower, any Subsidiary or any ERISA Affiliate; and no lien
imposed under the Code or ERISA on the assets of any of Holdings, the Borrower
or any Subsidiary or any ERISA Affiliate exists (or is reasonably likely to
exist) nor has Holdings, the Borrower, any Subsidiary or any ERISA Affiliate
been notified in writing that such a lien will be


 


92
















 


imposed on the assets of any of Holdings, the
Borrower, any Subsidiary or any ERISA Affiliate on account of any Plan, except
to the extent that a breach of any of the representations, warranties or
agreements in this Section 8.11(i) would not result, individually or in
the aggregate, in an amount of liability that would be reasonably likely to
have a Material Adverse Effect or relates to any matter disclosed in the
financial statements of the Borrower contained in the Confidential Information
Memorandum.  No Plan (other than a multiemployer
plan) has an Unfunded Current Liability that would, individually or when taken
together with any other liabilities referenced in this Section 8.11(i), be
reasonably likely to have a Material Adverse Effect.  With respect to Plans that are multiemployer
plans (as defined in Section 3(37) of ERISA), the representations and
warranties in this Section 8.11(i), other than any made with respect to
(a) liability under Section 4201 or 4204 of ERISA or (b) liability for
termination or reorganization of such Plans under ERISA, are made to the best
knowledge of the Borrower.


 


(ii)           the
Canadian Pension Plans are duly registered under all applicable provincial
pension benefits legislation; all material obligations of each Credit Party and
its Subsidiaries (including fiduciary, funding, investment and administration
obligations) required to be performed in connection with the Canadian Pension
Plans, the Canadian Benefit Plans and the funding agreements therefore have
been performed in accordance with applicable laws and regulations;
there are no outstanding disputes concerning the assets held pursuant to any
such funding agreement; all contributions or premiums required to be made by
any Credit Party and any of its Subsidiaries to the Canadian Pension Plans and
the Canadian Benefit Plans have been made within the time limits required by,
and in accordance with, the terms of such plans and applicable laws and
regulations; all employee contributions to the Canadian Pension Plans and the
Canadian Benefit Plans required to be made by way of authorized payroll
deduction have been properly withheld and fully paid into such plans within the
time limits required by, and in accordance with, the terms of such
plans and applicable laws and regulations; all reports
and disclosures relating to the Canadian Pension Plans and Canadian Benefit
Plans required by any applicable laws or regulations have been filed or
distributed in accordance with applicable laws and regulations;
no
Credit Party has made any  improper
withdrawals, or applications of, the assets of any of the Canadian Pension
Plans; other than as disclosed in Schedule 8.11(ii), there have been no
partial terminations of any Canadian Pension Plan with a defined benefit
provision; no amount is owing by any of the Canadian Pension Plans under the
Tax Act; no Credit Party has any knowledge, nor any grounds for believing, that
any of the Canadian Pension Plans is the subject of an investigation, any other
proceeding, an action or a claim other than a routine claim for
benefits; except to the extent that a breach of any of
the foregoing representations, warranties or agreements in this
Section 8.11(ii) would not result, individually or in the aggregate, in an
amount of liability that would be reasonably likely to have a Material Adverse
Effect, or relates to any matter disclosed in the financial statements of the
Borrower contained in the Confidential Information Memorandum;
No Canadian Pension Plan has an Unfunded Current Liability that would,
individually or when taken together with any other liabilities referenced in
this Section 8.11(ii) be reasonably likely to have a Material Adverse
Effect;


 


93
















 


8.12.        Subsidiaries. 
On the Effective Date, Holdings does not have any Subsidiaries other
than the Borrower and its Subsidiaries. 
Schedule 8.12 lists each Subsidiary of the Borrower (and the direct
and indirect ownership interest of the Borrower therein), in each case existing
on the Effective Date.  To the knowledge
of the Borrower, after due enquiry, each Material Subsidiary as of the
Effective Date has been so designated on Schedule 8.12.


 


8.13.        Patents, etc. 
Holdings, the Borrower, the Canadian Borrower and each of the Restricted
Subsidiaries have obtained all patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their respective businesses as currently
conducted and as proposed to be conducted, except where the failure to obtain
any such rights could not reasonably be expected to have a Material Adverse
Effect.


 


8.14.        Environmental Laws.  (a)    
Except as could not reasonably be expected to have a Material Adverse
Effect: (i) each of Holdings, the Borrower, the Canadian Borrower and each of
the Subsidiaries are in compliance with all Environmental Laws in all
jurisdictions in which Holdings, the Borrower and each of the Subsidiaries are
currently doing business (including having obtained all material permits
required under Environmental Laws); (ii) each of Holdings, the Borrower
and the Canadian Borrower will comply and cause each of the Subsidiaries to
comply with all such Environmental Laws (including all permits required under
Environmental Laws); and (iii) none of Holdings, the Borrower, the Canadian
Borrower and each of the Subsidiaries has become subject to any Environmental
Claim or any other liability under any Environmental Law.


 


(b)           None of Holdings, the Borrower, the
Canadian Borrower or any of the Subsidiaries has treated, stored, transported,
released or disposed of Hazardous Materials at or from any currently or
formerly owned Real Estate or facility relating to its business in a manner
that could reasonably be expected to have a Material Adverse Effect.


 


8.15.        Properties. 
Each of Holdings, the Borrower, the Canadian Borrower and each of the
Subsidiaries have good and marketable title to or leasehold interest in all
properties that are necessary for the operation of their respective businesses
as currently conducted and as proposed to be conducted, free and clear of all
Liens (other than any Liens permitted by this Agreement) and except where the
failure to have such good title could not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 9.                                Affirmative
Covenants


 


Each of Holdings, the Borrower and the Canadian Borrower hereby
covenants and agrees that on the Effective Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated
and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full:


 


94
















 


9.1.          Information Covenants.  Holdings or the Borrower will furnish to each
Lender and the Administrative Agent:


 


(a)           Annual Financial Statements.  As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with the SEC (or, if such financial statements are not required to be filed
with the SEC, on or before the date that is 90 days after the end of each
such fiscal year), the consolidated balance sheet of (i) Holdings, the
Borrower and the Restricted Subsidiaries and (ii) Holdings and its
Subsidiaries, in each case as at the end of such fiscal year, and the related
consolidated statement of operations and cash flows for such fiscal year,
setting forth comparative consolidated figures for the preceding fiscal year,
and certified by independent certified public accountants of recognized
national standing whose opinion shall not be qualified as to the scope of audit
or as to the status of Holdings, the Borrower, the Canadian Borrower or any of
the Material Subsidiaries as a going concern, together in any event with a
certificate of such accounting firm stating that in the course of its regular
audit of the business of Holdings, the Borrower, the Canadian Borrower and the
Material Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge of
any Default or Event of Default relating to Section 10.9 or 10.10 that has
occurred and is continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement as to the
nature thereof.  The requirements of this
Section 9.1(a) shall be satisfied by delivery of financial statements of
Parent and its Subsidiaries which otherwise meet the requirements hereof and
are accompanied by reconciliations for any difference between what is delivered
hereunder and what would have been delivered by Holdings and its Subsidiaries
pursuit to this Section 9.1(a).


 


(b)           Quarterly Financial Statements.  As soon as available and in any event on or
before the date on which such financial statements are required to be filed
with the SEC with respect to each of the first three quarterly accounting
periods in each fiscal year of Holdings (or, if such financial statements are
not required to be filed with the SEC, on or before the date that is 45 days
after the end of each such quarterly accounting period), the consolidated
balance sheet of (i) Holdings, the Borrower and the Restricted
Subsidiaries and (ii) Holdings and its Subsidiaries, in each case as at
the end of such quarterly period and the related consolidated statement of
operations for such quarterly accounting period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and setting forth
comparative consolidated figures for the related periods in the prior fiscal
year or, in the case of such consolidated balance sheet, for the last day of
the prior fiscal year, all of which shall be certified by an Authorized Officer
of the Borrower, subject to changes resulting from audit and normal year-end
audit adjustments. The requirements of this Section 9.1(b) shall be
satisfied by delivery of financial statements of Parent and its Subsidiaries
which otherwise meet the requirements hereof and are accompanied by
reconciliations for any difference between what is delivered hereunder and what
would have been delivered by Holdings and its Subsidiaries pursuit to this Section 9.1(b).


 


95





















(c)                                  Budgets. 
Within 60 days after the commencement of each fiscal year of
Holdings and the Borrower, budgets of Holdings, the Borrower and the Canadian
Borrower in reasonable detail for the fiscal year as customarily prepared by
management of Holdings, the Borrower and the Canadian Borrower for their
internal use consistent in scope with the financial statements provided
pursuant to Section 9.1(a), setting forth the principal assumptions upon
which such budgets are based.


 


(d)                                 Officer’s Certificates. 
At the time of the delivery of the financial statements provided for in
Sections 9.1(a) and (b), a certificate of an Authorized Officer of the Borrower
to the effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof, which
certificate shall set forth (i) the calculations required to establish whether
Holdings, the Borrower and the Subsidiaries were in compliance with the
provisions of Sections 10.9 and 10.10 as at the end of such fiscal year or
period, as the case may be, (ii) a specification of any change in the identity
of the Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign
Subsidiaries as at the end of such fiscal year or period, as the case may be,
from the Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign
Subsidiaries, respectively, provided to the Lenders on the Closing Date or the
most recent fiscal year or period, as the case may be, (iii) the then
applicable Status and (iv) the amount of any Pro Forma Adjustment not
previously set forth in a Pro Forma Adjustment Certificate or any change in the
amount of a Pro Forma Adjustment set forth in any Pro Forma Adjustment
Certificate previously provided and, in either case, in reasonable detail, the calculations
and basis therefor.  At the time of the
delivery of the financial statements provided for in Section 9.1(a),
(i) a certificate of an Authorized Officer of the Borrower setting forth
in reasonable detail the Available Amount as at the end of the fiscal year to
which such financial statements relate and (ii) a certificate of an Authorized
Officer and the chief legal officer of the Borrower (x) setting forth the
information required pursuant to Section 2 of the Perfection Certificate
or confirming that there has been no change in such information since the
Closing Date or the date of the most recent certificate delivered pursuant to
this subsection (d)(ii), as the case may be, and (ii) certifying that
all Uniform Commercial Code and Personal Property Security Act 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 identified pursuant to clause (x) above to the extent
necessary to protect and perfect the security interests under the Security
Documents.


 


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


 


96
















 


(f)                                    Environmental Matters. 
Holdings, the Borrower and the Canadian Borrower will promptly advise
the Lenders in writing after obtaining knowledge of any one or more of the
following environmental matters, unless such environmental matters would not,
individually or when aggregated with all other such matters, be reasonably
expected to result in a Material Adverse Effect:


 


(i)                                     Any pending or threatened
Environmental Claim against any of Holdings, the Borrower, the Canadian
Borrower or any of the Subsidiaries or any Real Estate;


 


(ii)                                  Any condition or occurrence on any
Real Estate that (x) results in noncompliance by any of Holdings, the Borrower,
the Canadian Borrower or any of the Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis of
an Environmental Claim against any of Holdings, the Borrower, the Canadian
Borrower or any of the Subsidiaries or any Real Estate;


 


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


 


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


 


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


 


(g)                                 Other Information. 
Promptly upon filing thereof, copies of any filings (including on
Form 10-K, 10-Q or 8-K) or registration statements with, and reports to,
the SEC or any analogous Government Authority in any relevant jurisdiction by
any of Holdings, the Borrower, the Canadian Borrower or any of the Subsidiaries
(other than amendments to any registration statement (to the extent such
registration statement, in the form it becomes effective, is delivered to the
Lenders), exhibits to any registration statement and, if applicable, any
registration statements on Form S-8) and copies of all financial statements,
proxy statements, notices and reports that Holdings, the Borrower, the Canadian
Borrower or any of the Subsidiaries shall send to the holders of any publicly
issued debt of Holdings, the Borrower, the Canadian Borrower and/or any of the
Subsidiaries (including any Subordinated Notes (whether publicly issued or
not)) in their capacity as such holders (in each case to the extent not
theretofore delivered to the Lenders pursuant to this Agreement) and, with
reasonable promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender may
reasonably request in writing from time to time.


 


97
















 


(h)                                 Pro Forma Adjustment Certificate. 
Not later than the consummation of the acquisition of any Acquired
Entity or Business by the Borrower or any Restricted Subsidiary for which there
shall be a Pro Forma Adjustment or not later than any date on which financial
statements are delivered with respect to any four-quarter period in which a Pro
Forma Adjustment is made as a result of the consummation of the acquisition of
any Acquired Entity or Business by the Borrower or any Restricted Subsidiary
for which there shall be a Pro Forma Adjustment, a certificate of an Authorized
Officer of the Borrower setting forth the amount of such Pro Forma Adjustment
and, in reasonable detail, the calculations and basis therefor.


 


(i)                                     Perfection Certificate. 
The Borrower shall deliver to the Administrative Agent on the Closing
Date a completed Perfection Certificate dated the Closing Date and signed by an
Authorized Officer and the chief legal officer of the Borrower, together with
all attachments contemplated thereby.


 


9.2.                              Books, Records and Inspections. Each of Holdings,
the Borrower and the Canadian Borrower will, and will cause each of the
Subsidiaries to, permit officers and designated representatives of the
Administrative Agent or the Required Lenders to visit and inspect any of the
properties or assets Holdings, the Borrower, the Canadian Borrower and any such
Subsidiary in whomsoever’s possession to the extent that it is within such
party’s control to permit such inspection, and to examine the books of account
Holdings, the Borrower, the Canadian Borrower and any such Subsidiary and
discuss the affairs, finances and accounts Holdings, the Borrower, the Canadian
Borrower and of any such Subsidiary with, and be advised as to the same by, its
and their officers and independent accountants, all at such reasonable times
and intervals and to such reasonable extent as the Administrative Agent or the
Required Lenders may desire.


 


9.3.                              Maintenance of Insurance.  Each of Holdings, the Borrower and the
Canadian Borrower will, and will cause each of the Material Subsidiaries to, at
all times maintain in full force and effect, with insurance companies that the
Borrower believes (in the good faith judgment of the management of the
Borrower) are financially sound and responsible at the time the relevant coverage
is placed or renewed, insurance in at least such amounts and against at least
such risks (and with such risk retentions) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and will furnish to the Lenders, upon written request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried.


 


9.4.                              Payment of Taxes.  Each of Holdings, the Borrower and the
Canadian Borrower will pay and discharge, and will cause each of the
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful material claims that, if unpaid, could
reasonably be expected to become a material Lien upon any properties of the
Borrower, the Canadian Borrower or any of the Restricted Subsidiaries, provided
that neither Holdings, the Borrower, the Canadian Borrower nor any of the
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim that


 


98
















 


is being contested in good faith and by proper proceedings if it has
maintained adequate reserves (in the good faith judgment of the management of
the Borrower) with respect thereto in accordance with GAAP.


 


9.5.                              Consolidated Corporate Franchises
..  Each of Holdings, the Borrower and the
Canadian Borrower will do, and will cause each Material Subsidiary to do, or
cause to be done, all things necessary to preserve and keep in full force and
effect its existence, corporate rights and authority, except to the extent that
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; provided, however, that the Borrower and its Subsidiaries may
consummate any transaction permitted under Section 10.3, 10.4 or 10.5.


 


9.6.                              Compliance with Statutes,
Obligations, etc.  Each of Holdings,
the Borrower and the Canadian Borrower will, and will cause each Subsidiary to,
comply with all applicable laws, rules, regulations and orders, except to the
extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect.


 


9.7.                              ERISA.  Promptly
after Holdings, the Borrower or any Subsidiary or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following events that,
individually or in the aggregate (including in the aggregate such events
previously disclosed or exempt from disclosure hereunder, to the extent the
liability therefor remains outstanding), would be reasonably likely to have a
Material Adverse Effect, the Parent Companies, Holdings or the Borrower will
deliver to each of the Lenders a certificate of an Authorized Officer or any
other senior officer of the Borrower setting forth details as to such
occurrence and the action, if any, that Holdings, the Borrower, such Subsidiary
or such ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by Holdings, the
Borrower, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant
(other than notices relating to an individual participant’s benefits) or the
Plan administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application is
to be made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a Plan having an Unfunded Current Liability has been or
is to be terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA (including the giving of written notice thereof); that a Plan has
an Unfunded Current Liability that has or will result in a lien under ERISA or
the Code; that proceedings will be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Borrower, a
Subsidiary or an ERISA Affiliate pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the PBGC has notified
Holdings, the Borrower, any Subsidiary or any ERISA Affiliate of its intention
to appoint a trustee to administer any Plan; that Holdings, the Borrower, any
Subsidiary or any ERISA Affiliate has failed to make a required installment or
other payment pursuant to Section 412 of the Code with respect to a Plan;
or that Holdings, the Borrower, any Subsidiary or any ERISA Affiliate has
incurred or will incur (or has been notified in writing that it will incur) any
liability (including any contingent or secondary


 


99
















 


liability) to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
Section 4971 or 4975 of the Code.


 


9.8.                              Good Repair. 
Each of Holdings,  the Borrower
and the Canadian Borrower will, and will cause each of the Restricted
Subsidiaries to, ensure that its properties and equipment used or useful in its
business in whomsoever’s possession they may be to the extent that it is within
the control of such party to cause same, are kept in good repair, working order
and condition, normal wear and tear excepted, and that from time to time there
are made in such properties and equipment all needful and proper repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto, to
the extent and in the manner customary for companies in similar businesses and
consistent with third party leases, except in each case to the extent the
failure to do so could not be reasonably expected to have a Material Adverse
Effect.


 


9.9.                              Transactions with Affiliates.  Each of Holdings, the Borrower and the
Canadian Borrower will conduct, and cause each of the Restricted Subsidiaries
to conduct, all transactions with any of its Affiliates on terms that are
substantially as favorable to Holdings, the Borrower, the Canadian Borrower or
such Restricted Subsidiary as it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate, provided that the foregoing
restrictions shall not apply to (a) the payment of customary annual fees
to KKR and/or its Affiliates for management, consulting and financial services
rendered to Holdings, the Borrower, the Canadian Borrower and the Subsidiaries
and customary investment banking fees paid to KKR and its Affiliates for
services rendered to Holdings, the Borrower, the Canadian Borrower and the
Subsidiaries in connection with divestitures, acquisitions, financings and
other transactions, (b) customary fees paid to members of the Board of
Directors Holdings, the Borrower, the Canadian Borrower and the Subsidiaries
and (c) transactions permitted by Section 10.6.


 


9.10.                        End of Fiscal Years; Fiscal Quarters.  Holdings and the Borrower will, for financial
reporting purposes, cause (a) each of its, and each of its Subsidiaries’,
fiscal years to end on the Sunday closest to November 30 of each year (but
in no event later than December 2) and (b) each of its, and each of its
Subsidiaries’, fiscal quarters to end on dates consistent with such fiscal
year-end and Holdings and the Borrower’s past practice; provided, however, that
Holdings and the Borrower may, upon written notice to the Administrative Agent,
change the financial reporting convention specified above to any other
financial reporting convention reasonably acceptable to the Administrative
Agent, in which case Holdings and the Borrower and the Administrative Agent
will, and are hereby authorized by the Lenders to, make any adjustments to this
Agreement that are necessary in order to reflect such change in financial
reporting.


 


9.11.                        Additional Guarantors and Grantors.  (a)                          Except
as provided in Section 10.1(j) or (k), each of Holdings, the Borrower and
the Canadian Borrower will cause (i) any direct or indirect Domestic Subsidiary
(other than any Unrestricted Subsidiary) formed or otherwise purchased or
acquired after the date hereof (including pursuant to a Permitted Acquisition),
(ii) any Subsidiary (other than any Unrestricted Subsidiary) that is not a
Domestic Subsidiary on the date hereof but subsequently


 


100
















 


becomes a Domestic Subsidiary (other than any Unrestricted Subsidiary)
and (iii) any inactive Subsidiary listed on Schedule 1.1(e) (unless such
Subsidiary is designated an Unrestricted Subsidiary in accordance with terms of
this Agreement) which acquires any material assets or is otherwise no longer
deemed inactive, in each case to execute a supplement to each of the Guarantee
and the Security Agreement, substantially in the form of Annex B or Annex 1, as
applicable, to the respective agreement in order to become a Guarantor under
the Guarantee and a grantor under the Security Agreement.


 


(b)                                 Except as provided in
Section 10.1(j) or (k), each of Holdings, the Borrower and the Canadian
Borrower will cause each Foreign Subsidiary that is a Restricted Foreign
Subsidiary, or that is required to become a Restricted Foreign Subsidiary for
an investment to constitute a Permitted Acquisition, in each case that makes an
investment constituting a Permitted Acquisition pursuant to
Section 10.5(j) to enter into guarantee and security arrangements in
relation to the Obligations of the Borrower and/or the Canadian Obligations of
the Canadian Borrower, as the case may be, in respect of the capital stock
and/or assets acquired pursuant to such Permitted Acquisition, in a form and to
an extent agreed between the Borrower and the Administrative Agent, but to be
substantially consistent (taking into account the scope of customary collateral
arrangements in the applicable jurisdiction) with the scope of the guarantee
and collateral arrangements entered into pursuant to the Guarantees and the
Security Documents, and to comply with Section 9.15 in respect of such
arrangements, provided that no such Restricted Foreign Subsidiary shall
be required to enter into such arrangements to the extent that such
arrangements would (i) be prohibited by the law of the jurisdiction of
incorporation or formation of such Restricted Subsidiary or of the entity whose
capital stock is acquired or (ii) have material adverse tax consequences
for any of Holdings, the Borrower or any of the Restricted Subsidiaries.


 


9.12.                        Pledges of Additional Stock and
Evidence of Indebtedness. 
(a)                                               Except
as provided in Section 10.1(j) or (k), the Borrower will pledge, and, if
applicable, will cause each Domestic Subsidiary to pledge, to the
Administrative Agent, for the benefit of the Secured Parties, (i) all the
capital stock of each Domestic Subsidiary (other than any Unrestricted
Subsidiary) and each Foreign Subsidiary (other than an Unrestricted Subsidiary
or any capital stock representing in excess of 65% of the issued and
outstanding capital stock in any Foreign Subsidiary) held by the Borrower or a
Domestic Subsidiary, in each case, formed or otherwise purchased or acquired
after the date hereof, in each case pursuant to a supplement to the Pledge
Agreement in form and substance reasonably satisfactory to the Administrative
Agent, (ii) all evidences of Indebtedness in excess of $5,000,000 received
by the Borrower or any of the Domestic Subsidiaries (other than any
Unrestricted Subsidiary) in connection with any disposition of assets pursuant
to Section 10.4(b), in each case pursuant to a supplement to the Pledge Agreement,
substantially in the form of Annex A thereto and (iii) any global
promissory notes executed after the date hereof evidencing Indebtedness of any
of Holdings, the Borrower and each Subsidiary that is owing to any of the
Borrower or any Domestic Subsidiary (other than any Unrestricted Subsidiary),
in each case pursuant to a supplement to the Pledge Agreement, substantially in
the form of Annex A thereto.


 


101
















 


(b)                                 Except as provided in
Section 10.1(j) or (k), the Borrower will pledge, and, if applicable, will
cause each Subsidiary (other than any Foreign Joint Venture) to pledge, to the
Canadian Administrative Agent, for the benefit of the Lenders, to the Canadian
Borrower, (i) all the capital stock of each Subsidiary of the Canadian
Borrower and of any Canadian Subsidiary Guarantor formed or otherwise purchased
or acquired after the date hereof, in each case pursuant to a supplement to the
applicable Canadian Security Documents in form and substance reasonably
satisfactory to the Administrative Agent (or pledge arrangements in relation to
the Canadian Obligations of the Canadian Borrower, in a form and to an extent
agreed between the Borrower and the Administrative Agent, but to be
substantially consistent (taking into account the scope of customary collateral
arrangements in the applicable jurisdiction) with the scope of the pledge
arrangements entered into pursuant to the Canadian Security Documents) and
(ii) all evidences of Indebtedness with a Dollar Equivalent in excess of
$5,000,000 received by any of the Canadian Subsidiary Guarantors in connection
with any disposition of assets pursuant to Section 10.4(b), in each case
pursuant to a supplement to the applicable Canadian Security Documents in form and
substance reasonably satisfactory to the Administrative Agent (or pledge
arrangements in relation to the Obligations of the Canadian Borrower, in a form
and to an extent agreed between the Borrower and the Administrative Agent, but
to be substantially consistent (taking into account the scope of customary
collateral arrangements in the applicable jurisdiction) with the scope of the
pledge arrangements entered into pursuant to the Canadian Security Documents).


 


(c)                                  Holdings will pledge to the
Administrative Agent, for the benefit of the Lenders, all capital stock of the
Borrower acquired by it after the Effective Date (including any capital stock
issued in connection with (i) loans and advances made pursuant to
Section 10.5(c)(i) and (ii) dividends paid by the Borrower solely in
its capital stock pursuant to Section 10.6) and the Borrower will pledge
to the Administrative Agent, for the benefit of the Secured Parties, pursuant
to the Pledge Agreement or the Canadian Pledge Agreements, as the case may be,
all capital stock of the Canadian Borrower acquired by it after the Effective
Date.


 


(d)                                 Holdings, the Borrower and the
Canadian Borrower agree that all Indebtedness in excess of $5,000,000 of any of
Holdings, the Borrower and each Subsidiary that is owing to any Credit Party to
the Pledge Agreement shall be evidenced by one or more global promissory notes.


 


9.13.                        Use of Proceeds.  The Borrower and the Canadian Borrower will
use the Letters of Credit and the proceeds of all Loans for the purposes set
forth in the recitals to this Agreement.


 


9.14.                        Changes in Business.  Holdings, the Borrower, the Canadian Borrower
and the Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from the
business conducted by Holdings, the Borrower, the Canadian Borrower and the
Subsidiaries, taken as a whole, on the Closing Date and other business
activities incidental or related to any of the foregoing.


 


102
















 


9.15.                        Further Assurances.  (a)               Each
of Holdings, the Borrower and the Canadian Borrower will, and will cause each
other Credit Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, in order to grant, preserve, protect and perfect the
validity and priority of the security interests created or intended to be
created by the Security Agreement, the Pledge Agreement or any Mortgage, all at
the expense of Holdings, the Borrower and the Restricted Subsidiaries.


 


(b)                                 If any assets (including any real
estate or improvements thereto or any interest therein) with a book value or
fair market value in excess of $1,000,000 are acquired by the Borrower, the
Canadian Borrower or any other Credit Party after the Closing Date (other than
assets constituting Collateral under the Security Agreement that become subject
to the Lien of the Security Agreement upon acquisition thereof) that are of the
nature secured by the Security Agreement or any Mortgage, as the case may be,
the Borrower will notify the Administrative Agent and the Lenders thereof, and,
if requested by the Administrative Agent or the Required Lenders, the Borrower
will cause such assets to be subjected to a Lien securing the applicable Obligations
and will take, and cause the other Credit Parties to take, such actions as
shall be necessary or reasonably requested by the Administrative Agent to grant
and perfect such Liens consistent with the applicable requirements of the
Security Documents, including actions described in paragraph (a) of this
Section, all at the expense of the Credit Parties.  Any Mortgage delivered to the Administrative
Agent in accordance with the preceding sentence shall be accompanied by (x) a
policy or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each Mortgage as a valid first Lien on
the Mortgaged Property described therein, free of any other Liens except as
expressly permitted by Section 10.2, together with such endorsements,
coinsurance and reinsurance as the Administrative Agent may reasonably request
and (y) an opinion of local counsel to the Borrower (or in the event a
Subsidiary of the Borrower is the Mortgagor, to such Subsidiary) substantially
in the form of Exhibit I-3.


 


9.16.                        Canadian
Borrower.  Holdings and
the Borrower shall ensure that the Canadian Borrower is on the Effective Date,
and shall at all times thereafter be, an indirect or direct wholly owned
Subsidiary of the Borrower, Holdings and the Borrower agree that the Canadian
Borrower is not permitted to be sold, transferred or otherwise disposed of
pursuant to Section 10.4.


 


SECTION 10.                          Negative
Covenants


 


Each of Holdings, the Borrower and the Canadian Borrower hereby
covenant and agree that on the Effective Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated
and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full:


 


103
















 


10.1.                        Limitation on Indebtedness.  (A) 
The Borrower will not, and will not permit any of the Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:


 


(a)                                  Indebtedness arising under the
Credit Documents;


 


(b)                                 Indebtedness of (i) the
Borrower to any Subsidiary of the Borrower and (ii) any Subsidiary to the
Borrower or any other Restricted Subsidiary of the Borrower;


 


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


 


(d)                                 except as provided in clauses (j)
and (k) below, Guarantee Obligations incurred by (i) Restricted
Subsidiaries in respect of Indebtedness of the Borrower or other Restricted
Subsidiaries that is permitted to be incurred under this Agreement and
(ii) the Borrower in respect of Indebtedness of the Restricted
Subsidiaries that is permitted to be incurred under this Agreement, provided
that there shall be no Guarantee (a) by a Restricted Foreign Subsidiary of
any Indebtedness of the Borrower and (b) in respect of the Permitted
Subordinated Debt, unless such Guarantee is made by a Guarantor and such
Guarantee is unsecured and subordinated to the Obligations to the same extent
as the applicable Permitted Subordinated Debt;


 


(e)                                  Guarantee Obligations incurred in
the ordinary course of business in respect of obligations of suppliers,
customers, franchisees, lessors and licensees;


 


(f)                                    (i) Indebtedness (including
Indebtedness arising under Capital Leases) incurred within 270 days of the
acquisition, construction or improvement of fixed or capital assets to finance
the acquisition, construction or improvement of such fixed or capital assets or
otherwise incurred in respect of Capital Expenditures permitted by
Section 10.11, (ii) Indebtedness arising under Capital Leases entered
into in connection with Permitted Sale Leasebacks and (iii) Indebtedness
arising under Capital Leases, other than Capital Leases in effect on the date
hereof and Capital Leases entered into pursuant to subclauses (i) and (ii)
above, provided that the aggregate amount of Indebtedness incurred
pursuant to this subclause (iii) shall not exceed $25,000,000 at any time
outstanding, and (iv) any refinancing, refunding, renewal or extension of
any Indebtedness specified in subclause (i), (ii) or (iii) above, provided
that the principal amount thereof is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal
or extension;


 


(g)                                 Indebtedness outstanding on the date
hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal
or extension thereof, provided that (i) the principal amount
thereof is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension, except
to the extent otherwise permitted hereunder and (ii) the direct and
contingent obligors with respect to such Indebtedness are not changed;


 


(h)                                 Indebtedness in respect of Hedge
Agreements;


 


104
















 


(i)                                     Indebtedness in respect of Permitted
Subordinated Debt;


 


(j)                                     (i) Indebtedness of a Person or
Indebtedness attaching to assets of a Person that, in either case, becomes a
Restricted Subsidiary or Indebtedness attaching to assets that are acquired by
the Borrower or any Restricted Subsidiary, in each case after the Closing Date
as the result of a Permitted Acquisition, provided that (w) such
Indebtedness existed at the time such Person became a Restricted Subsidiary or
at the time such assets were acquired and, in each case, was not created in
anticipation thereof, (x) such Indebtedness is not guaranteed in any
respect by the Borrower or any Restricted Subsidiary (other than any such
person that so becomes a Restricted Subsidiary), (y)(A) the capital stock
of such Person is pledged to the Administrative Agent to the extent required
under Section 9.12 and (B) such Person executes a supplement to each of
the Guarantee, the Security Agreement and the Pledge Agreement (or alternative
guarantee and security arrangements in relation to the Obligations) to the
extent required under Sections 9.11 or 9.12, as applicable, provided
that the requirements of this subclause (y) shall not apply to an
aggregate amount at any time outstanding of up to (and including) the Guarantee
and Collateral Exception Amount at such time of the aggregate of (1) such
Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y)
below then applies, and (z) the aggregate amount of such Indebtedness and
all Indebtedness incurred under clause (k) below, when taken together,
does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, provided that, except to the extent otherwise
permitted hereunder, (x) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension and (y) the direct
and contingent obligors with respect to such Indebtedness are not changed;


 


(k)                                  (i) Indebtedness of the
Borrower or any Restricted Subsidiary incurred to finance a Permitted
Acquisition, provided that (x) such Indebtedness is not guaranteed
in any respect by any Restricted Subsidiary (other than any Person acquired
(the “acquired Person”) as a result of such Permitted Acquisition or the
Restricted Subsidiary so incurring such Indebtedness) or, in the case of
Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the
Borrower pledges the capital stock of such acquired Person to the
Administrative Agent to the extent required under Section 9.12 and (B) such
acquired Person executes a supplement to the Guarantee, the Security Agreement
and the Pledge Agreement (or alternative guarantee and security arrangements in
relation to the Obligations) to the extent required under Sections 9.11 or
9.12, as applicable, provided that the requirements of this
subclause (y) shall not apply to an aggregate amount at any time
outstanding of up to (and including) the amount of the Guarantee and Collateral
Exception Amount at such time of the aggregate of (1) such Indebtedness
and (2) all Indebtedness as to which the proviso to clause (j)(i)(y)
above then applies, and (z) the aggregate amount of such Indebtedness and all
Indebtedness assumed or permitted to exist under clause (j) above, when
taken together, does not exceed $150,000,000 in the aggregate at any time
outstanding, and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in subclause (i) above, provided that
(x) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing,


 


105
















 


refunding, renewal or
extension and (y) the direct and contingent obligors with respect to such
Indebtedness are not changed, except to the extent otherwise permitted
hereunder;


 


(l)                                     Indebtedness of Restricted Foreign
Subsidiaries in an aggregate amount at any time outstanding not to exceed the
Dollar Equivalents of (i) the greater of (x) $70,000,000 (which amount shall
include the aggregate outstanding amount at any time of any Indebtedness of
Restricted Foreign Subsidiaries existing at the Closing Date) or (y) the
Foreign Borrowing Base Amount in effect at such time minus (ii) the
amount, if any, by which the aggregate amount of Indebtedness incurred and
outstanding at such time pursuant to clause (n) below
exceeds the Dollar Equivalent of $100,000,000;


 


(m)                               (i) Indebtedness incurred in
connection with any Permitted Sale Leaseback and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i) above, provided that, except to the extent otherwise
permitted hereunder, (x) the principal amount of any such Indebtedness is
not increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension and (y) the direct
and contingent obligors with respect to such Indebtedness are not changed;


 


(n)                                 (i) additional Indebtedness, provided
that the aggregate amount of Indebtedness incurred and remaining outstanding
pursuant to this clause (n) shall not at any time exceed the sum of (x)
$100,000,000 and (y) the amount, if any, by which $70,000,000
exceeds the aggregate amount of Indebtedness then outstanding under
clause (l) above, and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above; provided,
further, at no time shall Indebtedness of Restricted Foreign
Subsidiaries in an aggregate amount at any time outstanding pursuant to
subclause (l) above and this subclause (n) exceed the aggregate amount
permitted by subclause (l) above;


 


(o)                                 Indebtedness in respect of Permitted
Additional Subordinated Notes to the extent that the Net Cash Proceeds
therefrom are, immediately after the receipt thereof, applied to the prepayment
of Tranche C Term Loans in accordance with Section 5.2; and


 


(p)                                 Indebtedness in respect of the
Senior Unsecured Term Loans.


 


(B)                                Neither
Parent nor Holdings will create, incur, assume or suffer to exist any
Indebtedness except (1) with respect to Parent, Qualified PIK Securities
and (2) the guarantee obligations of Parent and Holdings of the Senior
Unsecured Term Loans under the Senior Unsecured Term Loan Agreement and the
Subordinated Notes under the Subordinated Note Indenture (provided that
Holdings shall not guarantee the Subordinated Notes unless (i) Holdings
also has guaranteed the Obligations pursuant to the Guarantee, (ii) such
guarantee of the Subordinated Notes is unsecured and subordinated to such
guarantee of the Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Subordinated Notes and (iii) such
guarantee of the Subordinated Notes provides for the release and termination
thereof,


 


106
















 


without action by any party, upon any release and termination of such
guarantee of the Obligations).


 


(C)                                Neither
of Parent, Holdings nor the Borrower will, nor will they permit any Subsidiary
to, issue any preferred stock or other preferred equity interests, other than,
in the case of Parent, Qualified PIK Securities.


 


10.2.                        Limitation on Liens.  (A) The Borrower and the Canadian Borrower
will not, and will not permit any of the Restricted Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon any property or assets of any
kind (real or personal, tangible or intangible) of the Borrower or any
Restricted Subsidiary, whether now owned or hereafter acquired, except:


 


(a)                                  Liens arising under the Credit
Documents;


 


(b)                                 Permitted Liens;


 


(c)                                  Liens securing Indebtedness
permitted pursuant to Section 10.1(f), provided that such Liens
attach at all times only to the assets so financed, and Liens on the assets of
Foreign Subsidiaries securing Indebtedness permitted pursuant to
Section 10.1(l);


 


(d)                                 Liens existing on the date hereof
and listed on Schedule 10.2;


 


(e)                                  the replacement, extension or
renewal of any Lien permitted by clauses (a) through (d) above and clauses (f)
and (g) of this Section 10.2 upon or in the same assets theretofore subject
to such Lien or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor except to the extent
otherwise permitted hereunder) of the Indebtedness secured thereby;


 


(f)                                    Liens existing on the assets of any
Person that becomes a Restricted Subsidiary, or existing on assets acquired,
pursuant to a Permitted Acquisition to the extent the Liens on such assets
secure Indebtedness permitted by Section 10.1(j), provided that
such Liens attach at all times only to the same assets that such Liens attached
to, and secure only the same Indebtedness that such Liens secured, immediately
prior to such Permitted Acquisition;


 


(g)                                 (i) Liens placed upon the
capital stock of any Restricted Subsidiary acquired pursuant to a Permitted
Acquisition to secure Indebtedness of the Borrower or any other Restricted
Subsidiary incurred pursuant to Section 10.1(k) in connection with such
Permitted Acquisition and (ii) Liens placed upon the assets of such
Restricted Subsidiary to secure a guarantee by such Restricted Subsidiary or
any such Indebtedness of the Borrower or any other Restricted Subsidiary; and


 


(h)                                 additional Liens so long as the
aggregate principal amount of the obligations so secured does not exceed
$25,000,000 at any time outstanding.


 


107
















 


(B)                                Neither
Parent nor Holdings will create, incur, assume or suffer to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect
thereof, except (a) liens of the nature set forth in clauses (a), (c)
and (h) of the definition of the term “Permitted Liens” and (b) Liens
created under the Pledge Agreement.


 


10.3.                        Limitation on Fundamental Changes.  (A) Except as expressly permitted by
Section 10.4 or 10.5, each of Holdings, the Borrower and the Canadian
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all its
business units, assets or other properties, except that:


 


(a)                                  any Subsidiary of the Borrower or
any other Person may be merged or consolidated with or into the Borrower, provided
that (i) the Borrower shall be the continuing or surviving corporation or
the Person formed by or surviving any such merger or consolidation (if other
than the Borrower) shall be an entity organized or existing under the laws of
the United States, any state thereof, the District of Columbia or any territory
thereof (the Borrower or such Person, as the case may be, being herein referred
to as the “Successor Borrower”), (ii) the Successor Borrower (if
other than the Borrower) shall expressly assume all the obligations of the
Borrower under this Agreement and the other Credit Documents pursuant to a
supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (iii) no Default or Event of Default would result
from the consummation of such merger or consolidation, (iv) the Successor
Borrower shall be in compliance, on a pro forma basis after giving effect to such
merger or consolidation, with the covenants set forth in Sections 10.9 and
10.10, as such covenants are recomputed as at the last day of the most recently
ended Test Period under such Section as if such merger or consolidation
had occurred on the first day of such Test Period, (v) each Guarantor,
unless it is the other party to such merger or consolidation, shall have by a
supplement to the Guarantee confirmed that its Guarantee shall apply to the
Successor Borrower’s obligations under this Agreement, (vi) each Subsidiary
grantor and each Subsidiary pledgor, unless it is the other party to such
merger or consolidation, shall have by a supplement to the Security Agreement
or the Pledge Agreement, as applicable, confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, (vii) each mortgagor of a Mortgaged Property, unless it is the other
party to such merger or consolidation, shall have by an amendment to or
restatement of the applicable Mortgage confirmed that its obligations
thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, and (viii) the Borrower shall have delivered to the Administrative
Agent an officer’s certificate and an opinion of counsel, each stating that
such merger or consolidation and such supplement to this Agreement or any
Security Document comply with this Agreement; provided  further
that if the foregoing are satisfied, the Successor Borrower (if other than the
Borrower) will succeed to, and be substituted for, the Borrower under this
Agreement;


 


(b)                                 any Subsidiary of the Canadian
Borrower or any other Person may be merged, amalgamated or consolidated with or
into the Canadian Borrower, provided


 


108
















 


that (i) the Canadian
Borrower shall be the continuing or surviving corporation or the Person formed
by or surviving any such merger, amalgamation or consolidation (if other than
the Canadian Borrower) shall be a corporation organized or existing under the
laws of Canada (the Canadian Borrower or such Person, as the case may be, being
herein referred to as the “Successor Canadian Borrower”), (ii) the
Successor Canadian Borrower (if other than the Canadian Borrower) shall
expressly assume all the obligations of the Canadian Borrower under this
Agreement and the other Credit Documents pursuant to a supplement hereto or
thereto in form reasonably satisfactory to the Administrative Agent,
(iii) no Default or Event of Default would result from the consummation of
such merger, amalgamation or consolidation, (iv) the Borrower shall be in
compliance, on a pro forma basis after giving effect to such merger,
amalgamation or consolidation, with the covenants set forth in
Sections 10.9 and 10.10, as such covenants are recomputed as at the last
day of the most recently ended Test Period under such Section as if such
merger, amalgamation or consolidation had occurred on the first day of such
Test Period, (v) the Borrower, each Guarantor and each Foreign Subsidiary
Guarantor, unless it is the other party to such merger, amalgamation or
consolidation, shall have by a supplement to the Guarantee or Canadian
Subsidiary Guarantee, as the case may be, confirmed that its Guarantee or
Canadian Subsidiary Guarantee, as the case may be, shall apply to the Successor
Canadian Borrower’s obligations under this Agreement, (vi) each grantor and
each pledgor, unless it is the other party to such merger, amalgamation or
consolidation, shall have by a supplement to the applicable Security Document
confirmed that its obligations thereunder shall apply to the Successor Canadian
Borrower’s obligations under this Agreement, (vii) each mortgagor of a
Mortgaged Property, unless it is the other party to such merger, amalgamation
or consolidation, shall have by an amendment to or restatement of the
applicable Mortgage confirmed that its obligations thereunder shall apply to
the Successor Canadian Borrower’s obligations under this Agreement, and (viii)
the Canadian Borrower shall have delivered to the Administrative Agent an
officer’s certificate and an opinion of counsel, each stating that such merger,
amalgamation or consolidation, such supplement to this Agreement or any
Security Document and such amendment or restatement to any applicable Mortgage,
as the case may be, comply with this Agreement; provided  further
that if the foregoing are satisfied, the Successor Canadian Borrower (if other
than the Canadian Borrower) will succeed to, and be substituted for, the
Canadian Borrower under this Agreement;


 


(c)                                  any Subsidiary of the Borrower
(other than the Canadian Borrower) or any other Person may be merged,
amalgamated or consolidated with or into any one or more Subsidiaries of the
Borrower (other than the Canadian Borrower), provided that (i) in
the case of any merger, amalgamation or consolidation involving one or more
Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the
continuing or surviving corporation or (B) the Borrower shall take all
steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become
a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or
consolidation involving one or more Guarantors and/or Canadian Subsidiary
Guarantors, as the case may be, a Guarantor or Canadian Subsidiary Guarantor,
as the case may be, shall be the continuing or surviving corporation or the
Person formed by or surviving any such merger, amalgamation or consolidation
(if other than a Guarantor or Canadian Subsidiary Guarantor, as the case may
be) shall execute a


 


109
















 


supplement to the
Guarantee Agreement, the Pledge Agreement and the Security Agreement and any
applicable Mortgage or the analogous Canadian Security Documents, as the case
may be, in form and substance reasonably satisfactory to the Administrative
Agent in order to become a Guarantor or Canadian Subsidiary Guarantor, as the
case may be, and pledgor, mortgagor and grantor of Collateral for the benefit
of the Secured Parties, (iii) no Default or Event of Default would result
from the consummation of such merger, amalgamation or consolidation,
(iv) the Borrower shall be in compliance, on a pro forma basis after
giving effect to such merger, amalgamation or consolidation, with the covenants
set forth in Sections 10.9 and 10.10, as such covenants are recomputed as
at the last day of the most recently ended Test Period under such
Section as if such merger or consolidation had occurred on the first day
of such Test Period, and (v) the Borrower shall have delivered to the
Administrative Agent an Officers’ Certificate stating that such merger,
amalgamation or consolidation and such supplements to any Security Document
comply with this Agreement;


 


(d)                                 any Restricted Subsidiary that is
not a Guarantor or a Foreign Subsidiary Guarantor may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower, the Canadian Borrower, a Guarantor, a Foreign Subsidiary
Guarantor or any other Restricted Subsidiary of the Borrower;


 


(e)                                  any Guarantor or any Foreign
Subsidiary Guarantor may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Borrower,
the Canadian Borrower or any other Guarantor or Foreign Subsidiary Guarantor;
and


 


(f)                                    any Restricted Subsidiary (other
than the Canadian Borrower) may liquidate or dissolve if (x) the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
and (y) to the extent such Restricted
Subsidiary is a Credit Party, any assets or business not otherwise disposed of
or transferred in accordance with Section 10.4 or 10.5, or, in the case of
any such business, discontinued, shall be transferred to, or otherwise owned or
conducted by, another Credit Party after giving effect to such liquidation or
dissolution.


 


(B)                                Holdings
will not engage in any business or activity other than (a) the ownership
of all the outstanding shares of capital stock of the Borrower,
(b) maintaining its corporate existence, (c) participating in tax,
accounting and other administrative matters as a member of the consolidated
group of Holdings and Borrower, (d) the performance of the Credit
Documents to which it is a party, (e) making any Dividend permitted by
Section 10.6 or holding any cash received in connection with Dividends
made by the Borrower in accordance with Section 10.6 pending application
thereof by Holdings in the manner contemplated by Section 10.6 and (f)
activities incidental to the businesses or activities described in
clauses (a) to (e) of this Section 10.3(B).  Holdings will not own or acquire any assets
(other than shares of capital stock of the Borrower, cash and Permitted
Investments) or incur any liabilities (other than liabilities under the Credit
Documents, liabilities under its guarantee of the Subordinated


 


110
















 


Notes and liabilities imposed by law, including tax liabilities, and
other liabilities incidental to its existence and business and activities
permitted by this Agreement).


 


(C)                                Parent
will not engage in any business or activity other than (a) the ownership
of all the outstanding shares of capital stock of Holdings,
(b) maintaining its corporate existence, (c) participating in tax,
accounting and other administrative matters as a member of the consolidated
group of Holdings and Borrower, (d) the performance of the Credit
Documents to which it is a party, (e) holding any cash received in
connection with Dividends made by Holdings in accordance with Section 10.6
pending application thereof by Parent in the manner contemplated by
Section 10.6, (f) activities related to Qualified PIK Securities and other
permitted capital stock and (g) activities incidental to the businesses or
activities described in clauses (a) to (e) of this
Section 10.3(C).  Parent will not
own or acquire any assets (other than shares of capital stock of Holdings, cash
and Permitted Investments) or incur any liabilities (other than those
liabilities permitted by Section 10.1(B) or liabilities imposed by law,
including tax liabilities, and other liabilities incidental to its existence
and business and activities permitted by this Agreement).


 


10.4.                        Limitation on Sale of Assets.  Each of Holdings, the Borrower and the
Canadian Borrower will not, and will not permit any of the Restricted
Subsidiaries to, (i) convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including receivables and
leasehold interests), whether now owned or hereafter acquired (other than any
such sale, transfer, assignment or other disposition resulting from any
casualty or condemnation, of any assets of the Borrower or the Restricted
Subsidiaries) or (ii) sell to any Person (other than the Borrower, a
Guarantor or a Restricted Foreign Subsidiary) any shares owned by it of any
Restricted Subsidiary’s capital stock, except that:


 


(a)                                  the Borrower and the Restricted
Subsidiaries may sell, transfer or otherwise dispose of used or surplus
equipment, vehicles, inventory and other assets in the ordinary course of
business;


 


(b)                                 the Borrower and the Restricted
Subsidiaries may sell, transfer or otherwise dispose of other assets (other
than accounts receivable) for fair value, provided that (i) the
aggregate amount of such sales, transfers and disposals by the Borrower and the
Restricted Subsidiaries, taken as a whole, pursuant to this clause (b)
shall not exceed in the aggregate $200,000,000, (ii) any consideration in
excess of $5,000,000 received by the Borrower or any Guarantor in connection
with such sales, transfers and other dispositions of assets pursuant to this
clause (b) that is in the form of Indebtedness shall be pledged to the
Administrative Agent pursuant to Section 9.12, (iii) with respect to
any such sale, transfer or disposition (or series of related sales, transfers
or dispositions) in an aggregate amount in excess of $10,000,000 the Borrower
shall be in compliance, on a pro forma basis after giving effect to such sale,
transfer or disposition, with the covenants set forth in Sections 10.9 and
10.10, as such covenants are recomputed as at the last day of the most recently
ended Test Period under such Sections as if such sale, transfer or disposition
had occurred on the first day of such Test Period and (iv) after giving
effect to


 


111
















 


any such sale,
transfer or disposition, no Default or Event of Default shall have occurred and
be continuing;


 


(c)                                  the Borrower and the Restricted
Subsidiaries may make sales of assets to the Borrower or to any Restricted
Subsidiary, provided that any such sales to Restricted Foreign
Subsidiaries shall be for fair value;


 


(d)                                 any Restricted Subsidiary may effect
any transaction permitted by Section 10.3; and


 


(e)                                  in addition to selling or
transferring accounts receivable pursuant to the other provisions hereof, the
Borrower and the Restricted Subsidiaries may (i) sell or discount without
recourse accounts receivable arising in the ordinary course of business in
connection with the compromise or collection thereof and (ii) sell or transfer
accounts receivable and related rights pursuant to customary receivables
financing facilities so long as, in the case of clauses (i) and (ii), the Net
Cash Proceeds thereof to the Borrower and its Restricted Subsidiaries (except
in the case of transactions permitted by Section 10.4(e)(i) to the extent
the Net Cash Proceeds of any such transaction do not exceed $10,000) are
promptly applied to the prepayment and/or commitment reductions as provided for
in Section 5.2.


 


10.5.                        Limitation on Investments.  Holdings and the Borrower will not, and will
not permit any of the Restricted Subsidiaries to, make any advance, loan,
extensions of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets of, or make any other
investment in, any Person, except:


 


(a)                                  extensions of trade credit and asset
purchases in the ordinary course of business;


 


(b)                                 Permitted Investments;


 


(c)                                  loans and advances to officers,
directors and employees of Holdings or any of its Subsidiaries (i) to
finance the purchase of capital stock of Holdings (provided that the
amount of such loans and advances used to acquire such capital stock shall be
contributed by Holdings to the Borrower in cash as common equity) and
(ii) for additional purposes not contemplated by subclause (i) above
in an aggregate principal amount at any time outstanding with respect to this
clause (ii) not exceeding $10,000,000;


 


(d)                                 investments existing on the date
hereof and listed on Schedule 10.5 and any extensions, renewals or
reinvestments thereof, so long as the aggregate amount of all investments
pursuant to this clause (d) is not increased at any time above the amount
of such investments existing on the date hereof;


 


(e)                                  investments in Hedge Agreements
permitted by Section 10.1(h);


 


112
















 


(f)                                    investments received in connection
with the bankruptcy or reorganization of suppliers or customers and in
settlement of delinquent obligations of, and other disputes with, customers
arising in the ordinary course of business;


 


(g)                                 investments to the extent that
payment for such investments is made solely with capital stock of Holdings;


 


(h)                                 investments constituting non-cash
proceeds of sales, transfers and other dispositions of assets to the extent
permitted by Section 10.4;


 


(i)                                     investments in any Guarantor (other
than Holdings), the Borrower, the Canadian Borrower or any Foreign Subsidiary
Guarantor;


 


(j)                                     investments constituting Permitted
Acquisitions, provided that the aggregate amount of any such investment,
as valued at the fair market value of such investment at the time each such
investment is made, made by the Borrower or any Restricted Subsidiary in any
Restricted Foreign Subsidiary, to the extent that such Restricted Foreign
Subsidiary does not become a Foreign Subsidiary Guarantor pursuant to
Section 9.11 and does not enter into the guarantee and collateral
arrangements contemplated thereby, shall not exceed the Available Amount at the
time of such investment plus an amount equal to any repayments, interest,
returns, profits, distributions, income and similar amounts actually received
in cash in respect of any such investment (which amount shall not exceed the
amount of such investment valued at the fair market value of such investment at
the time such investment was made);


 


(k)                                  investments in the equity interests
of one or more newly formed persons that are received in consideration of the
contribution by the Borrower or its applicable Restricted Subsidiaries of
assets (including capital stock) to such person or persons, provided
that (i) the fair market value of such assets, determined on arms-length
basis, so contributed pursuant to this paragraph (k) shall not in the aggregate
exceed $50,000,000, (ii) with respect to investments in Foreign Joint Ventures,
the sum of all investments in Foreign Joint Ventures made pursuant to this
Section 10.5 (k) prior to the date thereof and all investment in Foreign
Joint Ventures made pursuant to Section 10.5(m) below prior to the date
thereof, when taken together, as valued at the fair market value of such
investment at the time each such investment is made, does not exceed
$50,000,000 plus an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect
of any such investment (which amount shall not exceed the amount of such
investment valued at the fair market value of such investment at the time such
investment was made) in the aggregate and (iii) in respect of each such
contribution, an Authorized Officer of the Borrower shall certify, in a form to
be agreed upon by the Borrower and the Administrative Agent (x) after
giving effect to such contribution, no Default or Event of Default shall have
occurred and be continuing, (y) the fair market value of the assets so
contributed and (z) that the requirements of paragraph (i) of this
proviso remain satisfied;


 


113
















 


(l)                                     investments made to repurchase or
retire common stock of Holdings owned by any employee stock ownership plan or key
employee stock ownership plan of Holdings or the Borrower;


 


(m)                               additional investments (including
investments in Minority Investments and Unrestricted Subsidiaries), as valued
at the fair market value of such investment at the time each such investment is
made, in an aggregate amount at the time of such investment not in excess of
the Available Amount at such time plus an amount equal to any repayments,
interest, returns, profits, distributions, income and similar amounts actually
received in cash in respect of any such investment (which amount shall not
exceed the amount of such investment valued at the fair market value of such
investment at the time such investment was made), provided, that with
respect to investments in Foreign Joint Ventures, the sum of all investments in
Foreign Joint Ventures made pursuant to Section 10.5 (k) above prior to
the date thereof and all investment in Foreign Joint Ventures made pursuant to
this Section 10.5(m) prior to the date thereof, when taken together, as
valued at the fair market value of such investment at the time each such
investment is made, does not exceed $50,000,000 plus an amount equal to any
repayments, interest, returns, profits, distributions, income and similar
amounts actually received in cash in respect of any such investment (which
amount shall not exceed the amount of such investment valued at the fair market
value of such investment at the time such investment was made) in the
aggregate;


 


(n)                                 investments permitted under
Section 10.6; and


 


(o)                                 the initial
investment in a newly formed Puerto Rican Subsidiary as described on Schedule 10.5(o).


 


10.6.                        Limitation on Dividends.  None of Holdings, the Borrower or the
Canadian Borrower will declare or pay any dividends (other than, (a) in
respect of  Holdings, dividends payable
solely in its capital stock or rights, warrants or options to purchase its
capital stock and (b) in respect of the Borrower, dividends payable solely
in its capital stock) or return any capital to its stockholders or make any
other distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for consideration, any shares of any class of its capital stock or
the capital stock of any direct or indirect parent now or hereafter outstanding
(or any options or warrants or stock appreciation rights issued with respect to
any of its capital stock), or set aside any funds for any of the foregoing
purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise
acquire for consideration (other than in connection with an investment
permitted by Section 10.5) any shares of any class of the capital stock of
Holdings or the Borrower, now or hereafter outstanding (or any options or
warrants or stock appreciation rights issued with respect to any of its capital
stock) (all of the foregoing “Dividends”), provided that, so long
as no Default or Event of Default exists or would exist after giving effect
thereto, (a) Holdings or the Borrower may redeem in whole or in part any of its
capital stock for another class of capital stock or rights to acquire its
capital stock or with proceeds from substantially concurrent equity
contributions or issuances of new shares of its capital stock, provided that
such other class of capital stock contains terms and provisions at least as


 


114
















 


advantageous to the Lenders in all respects
material to their interests as those contained in the capital stock redeemed
thereby, (b) Holdings or the Borrower may or may pay Dividends to Parent
to repurchase shares of its or Parent’s capital stock (or any options or
warrants or stock appreciation rights issued with respect to any of its or
Parent’s capital stock) held by officers, directors and employees of Parent,
Holdings and its Subsidiaries, with the proceeds of dividends from, seriatim,
the Borrower and Holdings, as applicable, which shall also be permitted, so
long as such repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements or
shareholder agreements, (c) the Borrower and the Restricted Subsidiaries
may make investments permitted by Section 10.5, (d) Holdings may declare
and pay dividends on its capital stock, with the proceeds of dividends from,
seriatim, the Borrower, which shall also be permitted, provided that
(i) the aggregate amount of such dividends paid by Holdings pursuant to
this clause (d) shall not at any time exceed 50% of Cumulative Consolidated
Net Income Available to Stockholders at such time less the amount of dividends
previously paid pursuant to this clause (d) following the last day of the
most recent fiscal quarter for which Section 9.1 Financials have been
delivered to the Lenders under Section 9.1 and (ii) at the time of
the payment of any such dividends and after giving effect thereto, the
Consolidated Total Debt to Consolidated EBITDA Ratio on the date of such
payment of such dividends shall be less than 3.50:1.00 and (e) the Borrower and
Holdings may declare and pay dividends and/or make distributions on its capital
stock, as applicable, the proceeds of which will be used by Parent or Holdings
solely to pay taxes of Parent, Holdings, the Borrower and the Subsidiaries as
part of a consolidated tax filing group for U.S. federal, state or local tax
purposes, along with franchise taxes, administrative and similar expenses
related to its existence and ownership of the Borrower, as applicable, provided
that the amount of such dividends does not exceed in any fiscal year the amount
of such taxes and expenses payable for such fiscal year (it being understood
that such expenses shall in no event exceed $1,000,000 in the aggregate per
fiscal year).


 


10.7.                        Limitations on Debt Payments and Amendments.  (a)        The
Borrower will not prepay, repurchase or redeem or otherwise defease any
Subordinated Notes (it being understood that any payment of principal prior to
April 6, 2014 shall be deemed a prepayment for purposes of this
Section 10.7); provided, however, that so long as no Default
or Event of Default has occurred and is continuing, the Borrower may prepay,
repurchase or redeem Subordinated Notes (x) for an aggregate price not in
excess of the Available Amount at the time of such prepayment, repurchase or
redemption, or (y) with the proceeds of subordinated Indebtedness that
(1) is permitted by Section 10.1 (other than Permitted Additional
Subordinated Notes) and (2) has terms material to the interests of the
Lenders not materially less advantageous to the Lenders than those of the
Subordinated Notes.


 


(b)                                 The Borrower will not prepay any
Senior Unsecured Term Loans; provided, however, that so long as
no Default or Event of Default has occurred and is continuing, the Borrower may
prepay Senior Unsecured Term Loans (x) for an aggregate price not in
excess of the Available Amount at the time of such prepayment, repurchase or
redemption, or (y) with the proceeds of subordinated Indebtedness that
(1) is permitted


 


115
















 


by Section 10.1
and (2) has terms material to the interests of the Lenders not materially
less advantageous to the Lenders than those of the Senior Unsecured Term Loans.


 


(c)                                  The Borrower will not waive, amend,
modify, terminate or release the Subordinated Note Indenture or the Senior
Unsecured Term Loan Agreement to the extent that any such waiver, amendment,
modification, termination or release would be adverse to the Lenders in any
material respect.


 


10.8.                        Limitations on Sale Leasebacks.  Holdings and the Borrower will not, and will
not permit any of the Restricted Subsidiaries to, enter into or effect any Sale
Leasebacks, other than Permitted Sale Leasebacks.


 


10.9.                        Consolidated Total Debt to
Consolidated EBITDA Ratio. 
Holdings and the Borrower will not permit the Consolidated Total Debt to
Consolidated EBITDA Ratio for any Test Period ending during any period set
forth below to be greater than the ratio set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  May 31, 2004 to August 29, 2004

  	
   

  	
  7.50 to 1.00

  
	
  August 30 2004 to November 28,
  2004

  	
   

  	
  7.50 to 1.00

  
	
  November 29, 2004 to February 27,
  2005

  	
   

  	
  7.50 to 1.00

  
	
  February 28, 2005  to May 29, 2005

  	
   

  	
  7.25 to 1.00

  
	
  May 30, 2005 to August 28, 2005

  	
   

  	
  7.25 to 1.00

  
	
  August 29 2005 to November 27,
  2005

  	
   

  	
  7.00 to 1.00

  
	
  November 28, 2005 to February 26,
  2006

  	
   

  	
  6.75 to 1.00

  
	
  February 27, 2006  to May 28, 2006

  	
   

  	
  6.75 to 1.00

  
	
  May 29, 2006 to August 27, 2006

  	
   

  	
  6.50 to 1.00

  
	
  August 28 2006 to November 26,
  2006

  	
   

  	
  6.25 to 1.00

  
	
  November 27, 2006 to February 25,
  2007

  	
   

  	
  6.00 to 1.00

  
	
  February 26, 2007 to May 27, 2007

  	
   

  	
  5.75 to 1.00

  
	
  May 28, 2007  to August 26, 2007

  	
   

  	
  5.75 to 1.00

  
	
  August 27, 2007 December 2, 2007

  	
   

  	
  5.50 to 1.00

  
	
  December 3, 2007 to March 2, 2008

  	
   

  	
  5.50 to 1.00

  
	
  March 3, 2008 to June 1, 2008

  	
   

  	
  5.25 to 1.00

  
	
  June 2, 2008 to August 31, 2008

  	
   

  	
  5.25 to 1.00

  
	
  September 1, 2008 to November 30,
  2008

  	
   

  	
  5.00 to 1.00

  
	
  December 1, 2008 to March 1, 2009

  	
   

  	
  5.00 to 1.00

  
	
  March 2, 2009 to May 31, 2009

  	
   

  	
  4.75 to 1.00

  
	
  June 1, 2009 to August 30, 2009

  	
   

  	
  4.75 to 1.00

  
	
  August 31, 2009 to November 29,
  2009

  	
   

  	
  4.50 to 1.00

  
	
  November 30, 2009 to February 28,
  2010

  	
   

  	
  4.50 to 1.00

  
	
  March 1, 2010 to May 30, 2010

  	
   

  	
  4.25 to 1.00

  
	
  June 1, 2010 to August 29, 2010

  	
   

  	
  4.25 to 1.00

  
	
  August 30, 2010 to November 28,
  2010

  	
   

  	
  4.00 to 1.00

  
	
  November 29, 2010 and thereafter

  	
   

  	
  4.00 to 1.00

  



 


116
















 


10.10.                  Consolidated EBITDA to Consolidated
Interest Expense Ratio.  Holdings and
the Borrower will not permit the Consolidated EBITDA to Consolidated
Interest Expense Ratio for any Test Period ending during any period set forth
below to be less than the ratio set forth below opposite such period:


 


	
  Period

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  May 31, 2004 to August 29, 2004

  	
   

  	
  2.00 to 1.00

  
	
  August 30 2004 to November 28,
  2004

  	
   

  	
  2.00 to 1.00

  
	
  November 29, 2004 to February 27,
  2005

  	
   

  	
  2.00 to 1.00

  
	
  February 28, 2005  to May 29, 2005

  	
   

  	
  2.00 to 1.00

  
	
  May 30, 2005 to August 28, 2005

  	
   

  	
  2.00 to 1.00

  
	
  August 29 2005 to November 27,
  2005

  	
   

  	
  2.00 to 1.00

  
	
  November 28, 2005 to February 26,
  2006

  	
   

  	
  2.10 to 1.00

  
	
  February 27, 2006  to May 28, 2006

  	
   

  	
  2.10 to 1.00

  
	
  May 29, 2006 to August 27, 2006

  	
   

  	
  2.10 to 1.00

  
	
  August 28 2006 to November 26,
  2006

  	
   

  	
  2.10 to 1.00

  
	
  November 27, 2006 to February 25,
  2007

  	
   

  	
  2.10 to 1.00

  
	
  February 26, 2007 to May 27, 2007

  	
   

  	
  2.10 to 1.00

  
	
  May 28, 2007  to August 26, 2007

  	
   

  	
  2.20 to 1.00

  
	
  August 27, 2007 December 2, 2007

  	
   

  	
  2.20 to 1.00

  
	
  December 3, 2007 to March 2, 2008

  	
   

  	
  2.30 to 1.00

  
	
  March 3, 2008 to June 1, 2008

  	
   

  	
  2.30 to 1.00

  
	
  June 2, 2008 to August 31, 2008

  	
   

  	
  2.30 to 1.00

  
	
  September 1, 2008 to November 30,
  2008

  	
   

  	
  2.30 to 1.00

  
	
  December 1, 2008 to March 1, 2009

  	
   

  	
  2.40 to 1.00

  
	
  March 2, 2009 to May 31, 2009

  	
   

  	
  2.40 to 1.00

  
	
  June 1, 2009 to August 30, 2009

  	
   

  	
  2.50 to 1.00

  
	
  August 31, 2009 to November 29,
  2009

  	
   

  	
  2.50 to 1.00

  
	
  November 30, 2009 to February 28,
  2010

  	
   

  	
  2.50 to 1.00

  
	
  March 1, 2010 to May 30, 2010

  	
   

  	
  2.50 to 1.00

  
	
  June 1, 2010 to August 29, 2010

  	
   

  	
  2.75 to 1.00

  
	
  August 30, 2010 to November 28,
  2010

  	
   

  	
  2.75 to 1.00

  
	
  November 29, 2010 and thereafter

  	
   

  	
  2.75 to 1.00

  



 


10.11.                  Capital Expenditures.  Holdings, the Borrower and the Canadian
Borrower will not, and will not permit any of the Restricted Subsidiaries to,
make any Capital Expenditures (other than Permitted Acquisitions that
constitute Capital Expenditures), that would cause the aggregate amount of such
Capital Expenditures made by the Borrower and the Restricted Subsidiaries in
any fiscal year of the Borrower set forth below to exceed (i) the sum of
(a) the greater of (x) the amount set forth in the table below opposite
such fiscal year and (y) an amount equal to 6.00% multiplied by
Consolidated Net Sales for such fiscal year (such greater amount, the “Permitted
Capital Expenditure Amount”) and (b) the Available Amount as of the last
day of such fiscal year (provided that no portion of the Available Amount may
be used for Capital Expenditures until the entire amount of the sum of (x) the
Permitted Capital Expenditure Amount for such year and (y) the carry-forward
amount (as defined below in this Section 10.11) for


 


117
















 


such year shall have been used to make
Capital Expenditures) less (ii) to the extent deducted in arriving at
Consolidated Earnings in the prior fiscal year, the amount of expenses related
to the implementation of enterprise resource planning systems of such prior
fiscal year.


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
  March 1, 2004  to November 28, 2004

  	
   

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  November 29, 2004 to November 27,
  2005

  	
   

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  November 28, 2005 to November 26,
  2006

  	
   

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  November 27, 2006 to December 2,
  2007

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  December 3, 2007 to November 30,
  2008

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  December 1, 2008 to November 29,
  2009

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  November 30, 2009 to November 28,
  2010

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  November 29, 2010 to the Maturity Date

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  



 


To the extent that Capital Expenditures (other than Permitted
Acquisitions that constitute Capital Expenditures) made by the Borrower and the
Restricted Subsidiaries during any fiscal year are less than the Permitted
Capital Expenditure Amount for such fiscal year, 100% of such unused amount
(each such amount, a “carry-forward amount”) may be carried forward to
the immediately succeeding fiscal year and utilized to make such Capital
Expenditures in such succeeding fiscal year in the event the amount set forth
above for such succeeding fiscal year has been used (it being understood and
agreed that (a) no carry-forward amount may be carried forward beyond the
first two fiscal years immediately succeeding the fiscal year in which it
arose, (b) no portion of the carry-forward amount available for any fiscal
year may be used until the entire amount of the Permitted Capital Expenditure
Amount for such fiscal year (without giving effect to such carry-forward
amount) shall have been used to make Capital Expenditures and (c) if the
carry-forward amount available for any fiscal year is the sum of amounts
carried forward from each of the two immediately preceding fiscal years, no
portion of such carry-forward amount from the earlier of the two immediately
preceding fiscal years may be used until the entire portion of such
carry-forward amount from the more recent immediately preceding fiscal year
shall have been used for such Capital Expenditures made in such fiscal year).


 


SECTION 11.                          Events
of Default


 


Upon the occurrence of any of the following specified events (each an “Event
of Default”):


 


11.1.                        Payments. 
The Borrower or the Canadian Borrower shall (a) default in the payment
when due of any principal of the Loans or (b) default, and such default shall
continue for five or more days, in the payment when due of any interest or
stamping fees on the Loans or any Fees or any Unpaid Drawings or of any other
amounts owing hereunder or under any other Credit Document; or


 


118
















 


11.2.                        Representations, etc.  Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any Security Document or
any certificate delivered or required to be delivered pursuant hereto or
thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or


 


11.3.                        Covenants. 
Any Credit Party shall (a) default in the due performance or observance
by it of any term, covenant or agreement contained in Section 9.1(e),
Section 9.16 or Section 10 or (b) default in the due performance or
observance by it of any term, covenant or agreement (other than those referred
to in Section 11.1 or 11.2 or clause (a) of this Section 11.3)
contained in this Agreement, or any Security Document and such default shall
continue unremedied for a period of at least 30 days after receipt of written
notice by the Borrower from the Administrative Agent or the Required Lenders;
or


 


11.4.                        Default Under Other Agreements.  (a) Any of Holdings, the Borrower, the
Canadian Borrower or any of the Restricted Subsidiaries shall (i) default in
any payment with respect to any Indebtedness (other than the Obligations) in
excess of $20,000,000 in the aggregate, for Holdings, the Borrower, the
Canadian Borrower and such Subsidiaries, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement
or condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist (other than, with respect to Indebtedness consisting
of any Hedge Agreements, termination events or equivalent events pursuant to
the terms of such Hedge Agreements), the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due prior to its stated maturity; or (b) without
limiting the provisions of clause (a) above, any such Indebtedness shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment or as a mandatory prepayment (and, with
respect to Indebtedness consisting of any Hedge Agreements, other than due to a
termination event or equivalent event pursuant to the terms of such Hedge
Agreements), prior to the stated maturity thereof; or


 


11.5.                        Bankruptcy, etc.  Holdings, the Borrower, the Canadian Borrower
or any Specified Subsidiary shall commence a voluntary case, proceeding or
action concerning itself under (a) Title 11 of the United States Code
entitled “Bankruptcy,” or (b) in the case of the Canadian Borrower and any
Foreign Subsidiary that is a Specified Subsidiary, any domestic or foreign law
relating to bankruptcy, insolvency reorganization or relief of debtors
legislation of its jurisdiction of incorporation, in each case as now or
hereafter in effect, or any successor thereto (collectively, the “Bankruptcy
Code”); or an involuntary case, proceeding or action is commenced against
any of Holdings, the Borrower, the Canadian Borrower or any Specified
Subsidiary and the petition is not controverted within 10 days after
commencement of the case, proceeding or action; or an involuntary case,
proceeding or action is commenced against any of Holdings, the Borrower, the
Canadian Borrower or any Specified Subsidiary and the petition is not dismissed
within 60 days after commencement of the case, proceeding or action; or a


 


119
















 


custodian (as defined in the Bankruptcy Code)
receiver, receiver manager, trustee or similar person is appointed for, or
takes charge of, all or substantially all of the property of any of Holdings,
the Borrower, the Canadian Borrower or any Specified Subsidiary; or any of
Holdings, the Borrower, the Canadian Borrower or any Specified Subsidiary
commences any other proceeding or action under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation
or similar law of any jurisdiction whether now or hereafter in effect relating
to any of Holdings, the Borrower, the Canadian Borrower or any Specified
Subsidiary; or there is commenced against any of Holdings, the Borrower, the
Canadian Borrower or any Specified Subsidiary any such proceeding or action
that remains undismissed for a period of 60 days; or any of Holdings, the
Borrower, the Canadian Borrower or any Specified Subsidiary is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding or action is entered; or any of Holdings, the Borrower, the
Canadian Borrower or any Specified Subsidiary suffers any appointment of any
custodian receiver, receiver manager, trustee or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or any of Holdings, the Borrower, the Canadian Borrower or
any Specified Subsidiary makes a general assignment for the benefit of
creditors; or any corporate action is taken by any of Holdings, the Borrower,
the Canadian Borrower or any Specified Subsidiary for the purpose of effecting
any of the foregoing; or


 


11.6.                        ERISA. 
(a) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under
Section 412 of the Code; any Plan is or shall have been terminated or is
the subject of termination proceedings under ERISA (including the giving of
written notice thereof); an event shall have occurred or a condition shall
exist in either case entitling the PBGC to terminate any Plan or to appoint a
trustee to administer any Plan (including the giving of written notice
thereof); any Plan shall have an accumulated funding deficiency (whether or not
waived); any of Holdings, the Borrower or any Subsidiary or any ERISA Affiliate
has incurred or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA or Section 4971 or 4975 of the Code (including the giving of written
notice thereof); (b) there could result from any event or events set forth in
clause (a) of this Section 11.6 the imposition of a lien, the granting of
a security interest, or a liability, or the reasonable likelihood of incurring
a lien, security interest or liability; and (c) such lien, security interest or
liability will or would be reasonably likely to have a Material Adverse Effect;
or


 


11.7.                        Guarantee. 
The Guarantees or any material provision thereof shall cease to be in
full force or effect or any Guarantor thereunder or any Credit Party shall deny
or disaffirm in writing any Guarantor’s obligations under the Guarantee; or


 


11.8.                        Pledge Agreement.  The Pledge Agreements or any material
provision thereof shall cease to be in full force or effect (other than
pursuant to the terms hereof or thereof or as a result of acts or omissions of
the Administrative Agent or any Lender) or any pledgor thereunder or any Credit
Party shall deny or disaffirm in writing any pledgor’s obligations under the
Pledge Agreement; or


 


120
















 


11.9.                        Security Agreement.  The Security Agreements or any material
provision thereof shall cease to be in full force or effect (other than
pursuant to the terms hereof or thereof or as a result of acts or omissions of
the Administrative Agent or any Lender) or any grantor thereunder or any Credit
Party shall deny or disaffirm in writing any grantor’s obligations under the
Security Agreement; or


 


11.10.                  Mortgages. 
Any Mortgage or any material provision of any Mortgage relating to any
material portion of the Collateral shall cease to be in full force or effect
(other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Administrative Agent or any Lender) or any Mortgagor
thereunder or any Credit Party shall deny or disaffirm in writing any Mortgagor’s
obligations under any Mortgage; or


 


11.11.                  Foreign Guarantees.  The Canadian Guarantee or any material
provision of the Canadian Guarantee shall cease to be in full force or effect
or any grantor thereunder or any Credit Party shall deny or disaffirm in
writing any grantors obligations under the Canadian Guarantee; or


 


11.12.                  Canadian Security Documents.  Any Canadian Security Document or any
material provision of any Canadian Security Document shall cease to be in full
force or effect (other than pursuant to the terms hereof or thereof or as a
result of acts or omissions of the Administrative Agent or any Lender) or any
grantor thereunder or any Credit Party shall deny or disaffirm in writing any
grantors obligations under any Canadian Security Document; or


 


11.13.                  Subordination.  The Obligations of the Borrower and the
Canadian Borrower, or the obligations of Holdings or any Subsidiaries pursuant
to the Guarantee or the Canadian Guarantee, shall cease to constitute senior
indebtedness under the subordination provisions of any document or instrument
evidencing the Subordinated Notes or any other permitted subordinated
Indebtedness or such subordination provisions shall be invalidated or otherwise
cease to be legal, valid and binding obligations of the parties thereto,
enforceable in accordance with their terms; or


 


11.14.                  Judgments.  One
or more judgments or decrees shall be entered against the Borrower, the
Canadian Borrower or any of the Restricted Subsidiaries involving a liability
of $20,000,000 or more in the aggregate for all such judgments and decrees for
the Borrower and the Restricted Subsidiaries (to the extent not paid or fully
covered by insurance provided by a carrier not disputing coverage) and any such
judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days from the entry thereof; or


 


11.15.                  Change of Control.  A Change of Control shall occur;


 


then, and in any such event, and at any time thereafter, if any Event
of Default shall then be continuing, the Administrative Agent shall, upon the
written request of the Required Lenders, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights of
the Administrative Agent, the Canadian Administrative


 


121
















 


Agent or any Lender to enforce its claims against the Borrower and the
Canadian Borrower, except as otherwise specifically provided for in this
Agreement (provided that, if an Event of Default specified in
Section 11.5 shall occur with respect to the Borrower, the Canadian
Borrower or any Specified Subsidiary, the result that would occur upon the
giving of written notice by the Administrative Agent as specified in clauses
(i), (ii) and (iv) below shall occur automatically without the giving of any
such notice):  (i) declare the US
Total Revolving Credit Commitment terminated and the Canadian Total Revolving
Credit Commitment terminated, whereupon the Commitments and Swingline
Commitment, if any, of each Lender or the Swingline Lender, as the case may be,
shall forthwith terminate immediately and any Fees theretofore accrued shall
forthwith become due and payable without any other notice of any kind;
(ii) declare the principal of and any accrued interest and fees in respect
of all Loans and all Obligations owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower and the Canadian Borrower; (iii) terminate any Letter of
Credit that may be terminated in accordance with its terms; and/or (iv) direct
the Borrower and the Canadian Borrower to pay (and the Borrower and the
Canadian Borrower agree that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 11.5 with respect
to the Borrower, the Canadian Borrower or any Specified Subsidiary, it will
pay) to the Administrative Agent or the Canadian Administrative Agent, as
applicable, at its Administrative Agent’s Office such additional amounts of
cash, to be held as security for the Borrower’s and the Canadian Borrower’s
respective reimbursement obligations for (x) Drawings that may subsequently
occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit
issued and then outstanding and (y) the full face amount of Bankers’
Acceptances outstanding prior to their maturity dates.


 


SECTION 12.                          The Administrative Agent


 


12.1.                        Appointment. 
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Credit Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto.  Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.  Neither the
Syndication Agent nor the Documentation Agents, in their respective capacities
as such, shall have any obligations, duties or responsibilities under this
Agreement but shall be entitled to all benefits of this Section 12.


 


122
















 


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


 


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


 


12.4.                        Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower and/or the Canadian Borrower), independent accountants
and other experts selected by the Administrative Agent.  The Administrative Agent may deem and treat
the Lender specified in the Register with respect to any amount owing hereunder
as the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent.  The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to
take any such action.  The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in accordance with
a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.


 


123





















12.5.        Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders.  The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders, provided that unless and
until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders (except to the extent
that this Agreement requires that such action be taken only with the approval
of the Required Lenders or each of the Lenders, as applicable).


 


12.6.        Non-Reliance on Administrative
Agent and Other Lenders. 
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, the Canadian Borrower, any Guarantor, any Canadian Subsidiary
Guarantor or any other Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.  Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower, the Canadian Borrower, any Guarantor, any
Canadian Subsidiary Guarantor and any other Credit Party and made its own
decision to make its Loans hereunder and enter into this Agreement.  Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower, the Canadian Borrower, any
Guarantor, any Canadian Subsidiary Guarantor and any other Credit Party.  Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of the Borrower, the Canadian
Borrower, any Guarantor, any Canadian Subsidiary Guarantor or any other Credit
Party that may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates.


 


12.7.        Indemnification.  The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the


 


124
















 


Borrower or the Canadian Borrower and without limiting the obligation
of the Borrower and the Canadian Borrower to do so), ratably according to their
respective portions of the Total Credit Exposure in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their respective portions of the Total
Credit Exposure in effect immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the
other Credit Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by the Administrative Agent under or in connection with any of
the foregoing, provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent’s gross negligence or willful misconduct.  The agreements in this Section 12.7
shall survive the payment of the Loans and all other amounts payable hereunder.


 


12.8.        Administrative Agent in its
Individual Capacity.  The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, the Canadian
Borrower, any Guarantor, any Canadian Subsidiary Guarantor and any other Credit
Party as though the Administrative Agent were not the Administrative Agent
hereunder and under the other Credit Documents. 
With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Credit
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms “Lender” and “Lenders” shall include the
Administrative Agent in its individual capacity.


 


12.9.        Successor Agent.  The Administrative Agent may resign as
Administrative Agent upon 20 days’ prior written notice to the Lenders and the
Borrower.  If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other Credit
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be approved by the
Borrower (which approval shall not be unreasonably withheld), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans.  After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this Section 12 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and
the other Credit Documents.


 


125
















 


12.10.      Withholding
Tax.  To the extent required by
any applicable law, the Administrative Agent may withhold from any interest
payment to any Lender an amount equivalent to any applicable withholding
tax.  If the Internal Revenue Service or
any authority of the United States or other jurisdiction asserts a claim that
the Administrative Agent did not properly withhold tax from amounts paid to or
for the account of any Lender (because the appropriate form was not delivered,
was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred,
including legal expenses, allocated staff costs and any out of pocket expenses.


 


12.11.      Canadian Administrative Agent.  Each of the Lenders hereby agrees and
confirms that the provisions of this Section 12 shall apply to JPMorgan Chase
Bank, Toronto Branch, as Canadian Administrative Agent with respect to the
Canadian Revolving Credit Loans upon the same terms and subject to the same
conditions as provided in this Section 12 mutatis mutandis; provided,
that any successor Canadian Administrative Agent shall be a Canadian Resident
with an office in Toronto, Canada or Montreal, Canada having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank which is
also a bank.


 


12.12.      Quebec.  For greater certainty, and without limiting
the powers of the Agents or any other Person acting as an agent,
attorney-in-fact or mandatary for the Agents under this Agreement or under any
of the other Credit Documents, each Lender, hereby (a) irrevocably
constitutes, to the extent necessary, the Canadian Administrative Agent as the
holder of an irrevocable power of attorney (fondé de pouvoir within the
meaning of Article 2692 of the Civil Code of Québec) for the purposes of
holding any Liens, including hypothecs, granted or to be granted by any Credit
Party on movable or immovable property pursuant to the laws of the Province of
Quebec to secure obligations of a Credit Party under any bond issued by a
Credit Party; and (b) appoints and agrees that the Canadian Administrative
Agent, acting as agent for the Lenders, may act as the bondholder and mandatary
with respect to any bond that may be issued and pledged from time to time for
the benefit of the Lenders.


 


The said
constitution of the fondé de pouvoir  (within
the meaning of Article 2692 of the Civil Code of Quebec) as the holder
of such irrevocable power of attorney and of the Canadian Administrative Agent
as bondholder and mandatary with respect to any bond that may be issued and
pledged from time to time for the benefit of the Lenders shall be deemed to
have been ratified and confirmed by any assignee by the execution of an
Assignment and Acceptance.


 


Notwithstanding
the provisions of Section 32 of An Act respecting the special powers of
legal persons (Quebec), the Canadian Administrative Agent may purchase,
acquire and be the holder of any bond issued by any Credit Party.  Each Credit Party hereby acknowledges that
any such bond shall constitute a title of indebtedness, as such term is used in
Article 2692 of the Civil Code of Quebec.


 


126
















 


The Canadian
Administrative Agent herein appointed as fondé de pouvoir shall have the
same rights, powers and immunities as the Agents as stipulated in this Article
XII, which shall apply mutatis mutandis. 
Without limitation, the provisions of Section 12.9 of this Agreement
shall apply mutatis mutandis to the resignation and appointment of a
successor to the Canadian Administrative Agent acting as fondé de pouvoir.


 


SECTION 13.         Collateral Allocation Mechanism


 


13.1.        Implementation of CAM.  (a)     On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Section 11, (ii) the Lenders shall automatically and
without further act (and without regard to the provisions of Section 14.6)
be deemed to have exchanged interests in the Credit Facilities such that in
lieu of the interest of each Lender in each Credit Facility in which it shall
participate as of such date (including such Lender’s interest in the Specified
Obligations of each Credit Party in respect of each such Credit Facility), such
Lender shall hold an interest in every one of the Credit Facilities (including
the Specified Obligations of each Credit Party in respect of each such Credit
Facility and each L/C Reserve Account established pursuant to Section 13.2
below), whether or not such Lender shall previously have participated therein,
equal to such Lender’s CAM Percentage thereof and (iii) simultaneously
with the deemed exchange of interests pursuant to clause (ii) above, in the
case of (A) any Canadian Lender that has prior to the date thereof notified the
Canadian Administrative Agent and the Borrower in writing that it has elected
to have this clause (iii) apply to it, and (B) any other Lender that has
notified the Administrative Agent in writing that it desires to have its deemed
participation following the CAM Exchange Date converted to Dollars, the
interests in the Canadian Obligations to be received by such Lender in such
deemed exchange shall, automatically and with no further action required, be
converted into the Dollar Equivalent, determined using the Exchange Rate
calculated as of such date, of such amount and on and after such date all
amounts accruing and owed to such Lender in respect of such Obligations shall
accrue and be payable in Dollars at the rate otherwise applicable hereunder,
provided that such CAM Exchange will not affect the aggregate amount of the
Obligations of the Borrower and the Canadian Borrower to the Lenders under the
Credit Documents.  Each Lender and each
Credit Party hereby consents and agrees to the CAM Exchange, and each Lender
agrees that the CAM Exchange shall be binding upon its successors and assigns
and any person that acquires a participation in its interests in any Credit
Facility.  Each Credit Party agrees from
time to time to execute and deliver to the Administrative Agent all promissory
notes and other instruments and documents as the Administrative Agent shall
reasonably request to evidence and confirm the respective interests of the
Lenders after giving effect to the CAM Exchange, and each Lender agrees to
surrender any promissory notes originally received by it in connection with its
Loans hereunder to the Administrative Agent against delivery of new promissory
notes evidencing its interests in the Credit Facilities; provided, however,
that the failure of any Credit Party to execute or deliver or of any Lender to
accept any such promissory note, instrument or document shall not affect the
validity or effectiveness of the CAM Exchange.


 


127
















 


(b)           As a result of the CAM Exchange,
upon and after the CAM Exchange Date, each payment received by the
Administrative Agent pursuant to any Credit Document in respect of the
Specified Obligations, and each distribution made by the Administrative Agent
pursuant to any Credit Document in respect of the Specified Obligations, shall
be distributed to the Lenders pro rata in accordance with their respective CAM
Percentages.  Any direct payment received
by a Lender upon or after the CAM Exchange Date, including by way of setoff, in
respect of a Specified Obligation shall be paid over to the Administrative
Agent for distribution to the Lenders in accordance herewith.


 


13.2.        Letters of Credit.  (a)     In the event that on the CAM Exchange Date
any Letter of Credit shall be outstanding and undrawn in whole or in part, or
any amount drawn under a Letter of Credit shall constitute an Unpaid Drawing,
each Lender with a Revolving Credit Commitment or Canadian Commitment, as
applicable, in respect of Unpaid Drawings on Letters of Credit shall, before
giving effect to the CAM Exchange, promptly pay over to the Administrative
Agent, in immediately available funds and in the currency that such Letters of
Credit are denominated (or at the request of a Lender, such amount in the
Dollar Equivalent thereof at such time), an amount equal to such Lender’s
Revolving Credit Commitment Percentage (as notified to such Lender by the
Administrative Agent), of such Letter of Credit’s undrawn face amount or (to
the extent it has not already done so) such Letter of Credit’s Unpaid Drawing,
as the case may be, together with interest thereon from the CAM Exchange Date
to the date on which such amount shall be paid to the Administrative Agent at
the rate that would be applicable at the time to a Revolving Credit Loan that
is an ABR Loan in a principal amount equal to such amount, as the case may
be.  The Administrative Agent shall
establish a separate account or accounts for each Lender (each, an “L/C
Reserve Account”) for the amounts received with respect to each such Letter
of Credit pursuant to the preceding sentence. 
The Administrative Agent shall deposit in each Lender’s L/C Reserve
Account such Lender’s CAM Percentage of the amounts received from the Lenders
as provided above.  The Administrative
Agent shall have sole dominion and control over each L/C Reserve Account, and
the amounts deposited in each L/C Reserve Account shall be held in such
L/C Reserve Account until withdrawn as provided in paragraph (b), (c), (d)
or (e) below.  The Administrative
Agent shall maintain records enabling it to determine the amounts paid over to
it and deposited in the L/C Reserve Accounts in respect of each Letter of
Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender’s CAM Percentage. 
The amounts held in each Lender’s L/C Reserve Account shall be held as a
reserve against the Letter of Credit Exposure, shall be the property of such
Lender, shall not constitute Loans to or give rise to any claim of or against
any Credit Party and shall not give rise to any obligation on the part of the
Borrower or the Canadian Borrower to pay interest to such Lender, it being
agreed that the reimbursement obligations in respect of Letters of Credit shall
arise only at such times as drawings are made thereunder, as provided in
Section 3.


 


(b)           In the event that after the CAM
Exchange Date any drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the Letter of Credit Issuer
withdraw from the L/C Reserve Account of each Lender any amounts, up to the
amount of such Lender’s CAM Percentage of such drawing, deposited


 


128
















 


in
respect of such Letter of Credit and remaining on deposit and deliver such amounts
to the Letter of Credit Issuer in satisfaction of the reimbursement obligations
of the Lenders under Section 3 (but not of the Borrower and the Canadian
Borrower under Section 3, respectively). 
In the event any Lender shall default on its obligation to pay over any
amount to the Administrative Agent in respect of any Letter of Credit as
provided in this Section 13.2, the Letter of Credit Issuer shall, in the
event of a drawing thereunder, have a claim against such Lender to the same
extent as if such Lender had defaulted on its obligations under Section 2.5(e),
but shall have no claim against any other Lender in respect of such defaulted
amount, notwithstanding the exchange of interests in the reimbursement
obligations pursuant to Section 9.01. 
Each other Lender shall have a claim against such defaulting Lender for
any damages sustained by it as a result of such default, including, in the
event such Letter of Credit shall expire undrawn, its CAM Percentage of the
defaulted amount.


 


(c)           In the event that after the CAM
Exchange Date any Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the L/C Reserve Account of each Lender the amount
remaining on deposit therein in respect of such Letter of Credit and distribute
such amount to such Lender.


 


(d)           With the prior written approval of
the Administrative Agent and the Letter of Credit Issuer, any Lender may
withdraw the amount held in its L/C Reserve Account in respect of the undrawn
amount of any Letter of Credit.  Any
Lender making such a withdrawal shall be unconditionally obligated, in the
event there shall subsequently be a drawing under such Letter of Credit, to pay
over to the  Administrative Agent, for
the account of the Letter of Credit Issuer on demand, its CAM Percentage of
such drawing.


 


(e)           Pending the withdrawal by any Lender
of any amounts from its L/C Reserve Account as contemplated by the above
paragraphs, the Administrative Agent will, at the direction of such Lender and
subject to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Permitted Investments.  Each Lender that has not withdrawn its CAM
Percentage of amounts in its L/C Reserve Account as provided in paragraph (d)
above shall have the right, at intervals reasonably specified by the
Administrative Agent, to withdraw the earnings on investments so made by the
Administrative Agent with amounts in its L/C Reserve Account and to retain such
earnings for its own account.


 


13.3.        Net Payments Upon Implementation
of CAM Exchange. 
Notwithstanding any other provision of this Agreement, if, as a direct
result of the implementation of the CAM Exchange, the Borrower or the Canadian
Borrower is required to withhold Non-Excluded Taxes from amounts payable to the
Administrative Agent, any Lender or any Participant hereunder, the amounts so
payable to the Administrative Agent, such Lender or such Participant shall be
increased to the extent necessary to yield to the Administrative Agent, such
Lender or such Participant (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement; provided, however, that the Borrower
and the Canadian Borrower shall not be required to increase any such


 


129
















 


amounts payable to such Lender or Participant under this Section 13.3
(but, rather, shall be required to increase any such amounts payable to such
Lender or Participant to the extent required by Section 5.4) if such Lender or
Participant was prior to or on the CAM Exchange Date already a Lender or
Participant with respect to such Borrower or Canadian Borrower.  If a Non-U.S. Lender (or Non-U.S. Participant),
in its good faith judgment, is eligible for an exemption from, or reduced rate
of, U.S. Federal withholding tax on payments by the Borrower under this
Agreement, the Borrower shall not be required to increase any such amounts
payable to such Non-U.S. Lender (or Non-U.S. Participant) if such Non-U.S.
Lender (or Non-U.S. Participant) fails to comply with the requirements of
paragraph (b) of Section 5.4.  The
Canadian Borrower shall not be required to indemnify or pay any additional
amounts to any Lender in respect of Canadian withholding tax pursuant to this
Section 13.3 to the extent that such taxes result from a failure by the Lender
to comply with any Reporting Requirement described in Section 5.4(c) of this
Agreement if (i) compliance is required by law, regulation, administrative
practice or any applicable tax treaty as a precondition to exemption from or a
reduction in the rate of deduction or withholding of tax, and (ii) the Canadian
borrower has first made written request to the Lender that such Lender comply
with the particular Reporting Requirement (identified specifically in such
request) and the Lender has not complied with such Reporting Requirement within
30 Business Days of such written request; provided, however that
the Canadian Borrower shall not be relieved of its obligation to indemnify or
pay additional amounts to a Lender (x) where such obligation arose prior to the
Canadian Borrower’s written request to the Lender respecting such Reporting
Requirement, (y) if, by reason of any change in any law, regulation,
administrative practice or applicable tax treaty occurring after the date
hereof, the Lender, as applicable, is unable to duly comply with such Reporting
Requirement, or (z) to the extent that the additional payment or indemnity
compensates the Lender for an amount to which the Lender would have been
entitled to received under this Section 13.3 had the Lender complied with the
Reporting Requirement.  Upon a CAM
Exchange, a Lender (or Participant) will use commercially reasonable efforts,
and complete any procedural formalities necessary, to become an Eligible Lender
with respect to the Canadian Borrower and, if such Lender (or Participant)
fails to do so, the Canadian Borrower shall not be required to increase any
such amounts payable to such Lender (or Participant) (unless such Lender is
prohibited from becoming a Canadian Lender by its governing documents).  If the Borrower or the Canadian Borrower, as
the case may be, fails to pay any such Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower or
Canadian Borrower shall indemnify the Administrative Agent, the Lenders and the
Participants for any incremental taxes, interest, costs or penalties that may
become payable by the Administrative Agent, such Lenders or such Participants
as a result of any such failure.


 


SECTION 14.         Miscellaneous


 


14.1.        Amendments and Waivers.  Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 14.1.  The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative


 


130
















 


Agent may, from time to time, (a) enter into with the relevant Credit
Party or Credit Parties written amendments, supplements or modifications hereto
and to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of the Credit Parties hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall
directly (i) forgive any portion of any Loan or extend the final scheduled
maturity date of any Loan or reduce the stated rate, or forgive any portion, or
extend the date for the payment, of any interest or fee payable hereunder
(other than as a result of waiving the applicability of any post-default
increase in interest rates), or extend the final expiration date of any
Lender’s Commitment or extend the final expiration date of any Letter of Credit
beyond the L/C Maturity Date, or increase the aggregate amount of the Commitments
of any Lender, or amend or modify any provisions of Section 14.8(a), in each
case without the written consent of each Lender directly and adversely affected
thereby, or (ii) amend, modify or waive any provision of this
Section 14.1 or reduce the percentages specified in the definitions of the
terms “Required Canadian Revolving Credit Lenders”, “Required US Revolving
Credit Lenders”, “Required
Lenders” and “Required Term
Lenders” or consent to the assignment or transfer by the Borrower or the Canadian
Borrower of its rights and obligations under any Credit Document to which it is
a party (except as permitted pursuant to Section 10.3), in each case
without the written consent of each Lender directly and adversely affected
thereby, or (iii) amend, modify or waive any provision of Section 12 without
the written consent of the then-current Administrative Agent, or (iv) amend,
modify or waive any provision of Section 3 without the written consent of the
Letter of Credit Issuer, or (v) amend, modify or waive any provisions
hereof relating to Swingline Loans without the written consent of the Swingline
Lender, or (vi) change any Revolving Credit Commitment to a Tranche C Term Loan
Commitment, or change any Tranche C Term Loan Commitment to a Revolving Credit
Commitment, in each case without the prior written consent of each Lender
directly and adversely affected thereby, or (vii) release all or
substantially all of the Guarantors under the Guarantee (except as expressly
permitted by the Guarantee), release all or substantially all of the Canadian
Subsidiary Guarantors under any Canadian Subsidiary Guarantee (except as
permitted by any Canadian Subsidiary Guarantee) or release all or substantially
all of the Collateral under the Pledge Agreement, the Security Agreement, the
Canadian Security Documents and the Mortgages, in each case without the prior
written consent of each Lender, or (viii) amend Section 2.9(a) so as to permit
Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly
and adversely affected thereby, or (ix) decrease any Repayment Amount,
extend any scheduled Repayment Date or decrease the amount or allocation of any
mandatory prepayment to be received by any Lender holding any Tranche C Term
Loans, in each case without the written consent of the Required Term Lenders
and; provided further, that at any time that no Default or Event of Default has
occurred and is continuing, the Revolving Credit Commitment of any Lender may
be increased to finance a Permitted Acquisition, with the consent of such
Lender, the


 


131
















 


Borrower and the Administrative Agent (which consent, in the case of
the Administrative Agent, shall not be unreasonably withheld) and without the
consent of the Required Lenders, so long as (i) the Increased Commitment
Amount at such time, when added to the amount of Indebtedness incurred pursuant
to Section 10.1(k) and outstanding at such time, does not exceed the
limits set forth therein, (ii) the Borrower or its applicable Restricted
Subsidiary shall pledge the capital stock of any person acquired pursuant
thereto to the Administrative Agent for the benefit of the Lenders to the
extent required under Section 9.12 and (iii) to the extent determined
by the Administrative Agent to be necessary to ensure pro rata borrowings
commencing with the initial borrowing after giving effect to such increase, the
Borrower shall prepay any BA Loans or Eurodollar Loans outstanding immediately
prior to such initial borrowing; as used herein, the “Increased Commitment
Amount” means, at any time, aggregate amount of all increases pursuant to
this proviso made at or prior to such time less the aggregate amount of all
voluntary reductions of the Revolving Credit Commitments made prior to such
time.  Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
affected Lenders and shall be binding upon the Borrower, the Canadian Borrower,
such Lenders, the Administrative Agent and all future holders of the affected
Loans.  In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Credit Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing, it being understood that no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.


 


14.2.        Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower, the
Canadian Borrower and the Administrative Agent, and as set forth on Schedule
1.1(c) in the case of the other parties hereto, or to such other address as may
be hereafter notified by the respective parties hereto:


 


	
  The Borrower and the Canadian Borrower:

  	
   

  	
  Sealy Mattress Company

  
	
   

  	
   

  	
  One Office Parkway

  
	
   

  	
   

  	
  Trinity, NC  27370

  
	
   

  	
   

  	
  Attention:

  	
  Kenneth L. Walker

  
	
   

  	
   

  	
  Fax:

  	
  +-336-861-3786

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kohlberg Kravis Roberts & Co., L.P.

  
	
   

  	
   

  	
  9 West 57th Street

  
	
   

  	
   

  	
  Suite 4200

  
	
   

  	
   

  	
  New York, NY  10019

  
	
   

  	
   

  	
  Attention:

  	
  Brian Carroll

  



 


132
















 


	
   

  	
   

  	
  Fax:

  	
  212-750-0003

  
	
   

  	
   

  	
   

  
	
  The Administrative Agent:

  	
   

  	
  JPMorgan Chase Bank

  
	
   

  	
   

  	
  Agent Bank Services Group

  
	
   

  	
   

  	
  1111 Fannin, 10th Floor

  
	
   

  	
   

  	
  Houston,
  Texas  77002

  
	
   

  	
   

  	
  Attention:

  	
  Vaughan Nguyen

  
	
   

  	
   

  	
  Fax:

  	
  (713) 750-2932

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Bank

  
	
   

  	
   

  	
  270
  Park Avenue, 4th Floor

  
	
   

  	
   

  	
  New
  York, New York 10017

  
	
   

  	
   

  	
  Attention:

  	
  Kathryn
  Duncan

  
	
   

  	
   

  	
  Fax:

  	
  212-270-6637

  
	
   

  	
   

  	
   

  
	
  The Canadian Administrative Agent:

  	
   

  	
  JPMorgan Chase Bank, Toronto Branch

  
	
   

  	
   

  	
  200 Bay Street, Suite 1800

  
	
   

  	
   

  	
  Royal Bank Plaza, South Tower

  
	
   

  	
   

  	
  Toronto, Ontario M5J 2J2

  
	
   

  	
   

  	
  Attention:

  	
  Corporate
  Banker

  
	
   

  	
   

  	
  Fax:

  	
  416-981-9138

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Bank, Toronto Branch

  
	
   

  	
   

  	
  200 Bay Street, Suite 1800

  
	
   

  	
   

  	
  Royal Bank Plaza, South Tower

  
	
   

  	
   

  	
  Toronto, Ontario M5J 2J2

  
	
   

  	
   

  	
  Attention:

  	
  Corporate
  Banking Officer

  
	
   

  	
   

  	
  Fax:

  	
  416-981-9128

  



 


provided
that any notice, request or demand to or upon the Administrative Agent or the
Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be
effective until received.


 


14.3.        No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.  The rights, remedies, powers
and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


14.4.        Survival of Representations and
Warranties.  All
representations and warranties made hereunder, in the other Credit Documents
and in any document,


 


133
















 


certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.


 


14.5.        Payment of Expenses and Taxes.  The Borrower and the Canadian Borrower agree
(a) to pay or reimburse the Agents for all their reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees,
disbursements and other charges of counsel to the Agents, (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable and
documented costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and
any such other documents, including the reasonable fees, disbursements and
other charges of counsel to each Lender and of counsel to the Administrative
Agent, (c) to pay, indemnify, and hold harmless each Lender and the
Administrative Agent from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Credit Documents and any such other documents, and
(d) to pay, indemnify, and hold harmless each Lender and the Administrative
Agent and their respective directors, officers, employees, trustees and agents
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of counsel, with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Credit Documents and any such other documents, including any of the
foregoing relating to the violation of, noncompliance with or liability under,
any Environmental Law or any actual or alleged presence of Hazardous Materials
applicable to the operations of the Borrower, any of its Subsidiaries or any of
the Real Estate (all the foregoing in this clause (d), collectively, the “indemnified
liabilities”), provided that the Borrower and the Canadian Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender nor any
of their respective directors, officers, employees and agents with respect to
indemnified liabilities arising from (i) the gross negligence or willful misconduct
of the party to be indemnified or (ii) disputes among the Administrative
Agent, the Lenders and/or their transferees. 
The agreements in this Section 14.5 shall survive repayment of the Loans
and all other amounts payable hereunder.


 


14.6.        Successors and Assigns;
Participations and Assignments. 
(a)     The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit),
except that (i) the Borrower and the Canadian Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any


 


134
















 


attempted assignment or transfer by the Borrower or the Canadian
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.  Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Letter of Credit Issuer that
issues any Letter of Credit), Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Letter of Credit Issuer
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.


 


(b)           (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it) with the prior written consent (such
consent not be unreasonably withheld; it being understood that, without
limitation, the Borrower shall have the right to withhold its consent to any
assignment if, in order for such assignment to comply with applicable law, the
Borrower would be required to obtain the consent of, or make any filing or
registration with, any Governmental Authority) of:


 


(A)          the Borrower, provided that no consent
of the Borrower shall be required for an assignment to a Lender, an Affiliate
of a Lender (unless increased costs would result therefrom except if an Event
of Default under Section 11.1 or Section 11.5 has occurred and is continuing),
an Approved Fund or, if an Event of Default under Section 11.1 or Section 11.5
has occurred and is continuing, any other assignee; and


 


(B)           the Administrative Agent, and, in the case
of Revolving Credit Commitments or Revolving Credit Loans or Canadian Letters
of Credit only, the Swingline Lender and the applicable Letter of Credit
Issuer, provided that no consent of the Administrative Agent, the
Swingline Lender or the Letter of Credit Issuer shall be required for an
assignment of (1) any Commitment to an assignee that is a Lender with a
Commitment of the same Class immediately prior to giving effect to such
assignment or (2) any Tranche C Term Loan to a Lender, an Affiliate of a Lender
or an Approved Fund.


 


(ii)           Assignments shall be subject to the
following additional conditions:


 


(A)          except in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans of any
Class, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the


 


135
















 


Administrative Agent) shall not be less than the Dollar Equivalent of
$2,500,000 or, in the case of a Tranche C Term Loan Commitment or Tranche C
Term Loan, the Dollar Equivalent of $1,000,000 unless each of the Borrower and
the Administrative Agent otherwise consents, provided that no such
consent of the Borrower shall be required if an Event of Default under Section
11.1 or Section 11.5 has occurred and is continuing; provided  further
that contemporaneous assignments to a single assignee made by Affiliate Lenders
shall be aggregated for purposes of meeting the minimum assignment amount
requirements stated above;


 


(B)           each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, provided that this clause shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one Class of
Commitments or Loans;


 


(C)           the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, provided that only one
such fee shall be payable in the event of simultaneous assignments to or from
two or more Approved Funds;


 


(D)          the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire in a
form approved by the Administrative Agent; and


 


(E)           so
long as no Event of Default has occurred and is continuing, with respect to any
assignment of the Canadian Revolving Credit Commitments allocated to the
Canadian Borrower in accordance with Section 2.1(b)(ii), the Assignee shall be
a Canadian Resident and a pro rata portion of the Canadian Revolving Credit
Commitments of the Canadian Lender or its Related Affiliate, as applicable,
allocated to the Borrower in accordance with Section 2.1(b)(ii) shall be
assigned to a Related Affiliate, if applicable, of such assignee, that is
either a “United States person” (as such term is defined in Section 7701(a)(30)
of the Code) or is a Non-US Lender that has fulfilled the requirements of
Section 5.4(b).


 


For the
purpose of this Section 14.6(b), the term “Approved Fund” has the following
meaning:


 


“Approved
Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course of its business and that is administered,
advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers, advises or manages a
Lender.


 


136
















 


(iii)          Subject to acceptance and recording
thereof pursuant to paragraph (b)(v) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.10, 2.11, 3.5, 5.4 and 14.5).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 14.6 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.


 


(iv)          The Administrative Agent, acting for
this purpose as an agent of the Borrower and the Canadian Borrower, shall
maintain at the Administrative Agent’s Office a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans and any payment made by the Letter of Credit Issuer under any Letter of
Credit owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  In the case of
a Lender in respect of a Canadian Revolving Credit Commitment or a Canadian
Letter of Credit Commitment, the Register shall also record the address of the
lending office of the Lender through which such Lender acts under this
Agreement and whether or not the Lender is a Canadian Resident.  Further, the Register shall contain the name
and address of the Administrative Agent and the Canadian Administrative Agent
and the lending office through which each such Person acts under this Agreement.  The entries in the Register shall be
conclusive, and the Borrower, the Canadian Borrower, the Administrative Agent,
the Letter of Credit Issuer and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower, the Canadian Borrower, the Letter of Credit Issuer
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.


 


(v)           Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register.  No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.


 


137
















 


(c)           (i) 
Any Lender may, without the consent of the Borrower, the Canadian
Borrower, the Administrative Agent, the Letter of Credit Issuer or the
Swingline Lender, sell participations to one or more banks or other entities
(each, a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it), provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Canadian Borrower, the Administrative
Agent, the Letter of Credit Issuer and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement or any other Credit Document, provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 14.1 that affects such
Participant.  Subject to
paragraph (c)(ii) of this Section, the Borrower and the Canadian Borrower
agree that each Participant shall be entitled to the benefits of Sections 2.10,
2.11 and 5.4 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section  14.8(b) as though it
were a Lender, provided such Participant agrees to be subject to Section
14.8(a) as though it were a Lender.


 


(ii)           A Participant shall not be entitled
to receive any greater payment under Section 2.10 or 5.4 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent.  A Participant that would be a Non-U.S. Lender
if it were a Lender shall not be entitled to the benefits of Section 5.4
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower and the Canadian
Borrower, to comply with Section 5.4(b) as though it were a Lender.


 


(d)           Any Lender may, without the consent
of the Borrower or the Administrative Agent, at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.  In order to
facilitate such pledge or assignment, the Borrower and the Canadian Borrower
hereby agree that, upon request of any Lender at any time and from time to time
after the Borrower has made its initial borrowing hereunder, the Borrower or
the Canadian Borrower, as the case may be, shall provide to such Lender, at the
Borrower’s or the Canadian Borrower’s own expense, a promissory note,
substantially in the form of Exhibit L-1 or L-2, as the case may be, evidencing
the Tranche C Term


 


138
















 


Loans
and Revolving Credit Loans and Swingline Loans, respectively, owing to such
Lender.


 


(e)           Subject to Section 14.16, the
Borrower and the Canadian Borrower authorize each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a “Transferee”)
and any prospective Transferee any and all financial information in such
Lender’s possession concerning the Borrower and its Affiliates that has been
delivered to such Lender by or on behalf of the Borrower and its Affiliates
pursuant to this Agreement or which has been delivered to such Lender by or on
behalf of the Borrower and its Affiliates in connection with such Lender’s
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.


 


(f)            Each Person that is or becomes a
Lender or Administrative Agent in respect of the Canadian Revolving Credit
Commitment or Canadian Letter of Credit Commitment shall (i) promptly direct
the Administrative Agent to record in the Register the information described in
Section 14.6(b)(iv) of this Agreement, (ii) upon written request made by
Canadian Borrower, deliver to the Canadian Borrower and the Administrative
Agent such certificates, forms, documents, or other evidence as may be
applicable and determined by the Canadian Borrower, acting reasonably, to be
reasonably satisfactory to determine whether such Person is a Canadian
Resident, and (iii) promptly direct the Administrative Agent to amend the
Register to reflect any change in the information contained therein with
respect to such Person.


 


14.7.        Replacements of Lenders under
Certain Circumstances. 
The Borrower (on its own behalf and on behalf of the Canadian Borrower)
shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to Section 2.10, 2.12, 3.5 or 5.4, (b) is affected
in the manner described in Section 2.10(a)(iii) and as a result thereof any of
the actions described in such Section is required to be taken or (c) becomes a
Defaulting Lender, with a replacement bank or other financial institution,
provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Borrower and/or the Canadian Borrower, as
applicable shall repay (or the replacement bank or institution shall purchase,
at par) all Loans and other amounts (other than any disputed amounts), pursuant
to Section 2.10, 2.11, 2.12, 3.5 or 5.4, as the case may be) owing to such
replaced Lender prior to the date of replacement, (iv) the replacement bank or
institution, if not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent, (v)
the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 14.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein) and
(vi) any such replacement shall not be deemed to be a waiver of any rights
that the Borrower, the Canadian Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.


 


14.8.        Adjustments; Set-off.  (a)    
If any Lender (a “benefited Lender”) shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off,


 


139
















 


pursuant to events or proceedings of the nature referred to in Section
11.5, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender’s Loans, or interest thereon, such benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender’s Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.


 


(b)           After the occurrence and during the
continuance of an Event of Default, in addition to any rights and remedies of
the Lenders provided by law, each Lender shall have the right, without prior
notice to the Borrower or the Canadian Borrower, any such notice being
expressly waived by the Borrower and the Canadian Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower or the Canadian Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower or the Canadian
Borrower, as the case may be.  Each
Lender agrees promptly to notify the Borrower or the Canadian Borrower, as the
case may be, and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.


 


14.9.        Counterparts. 
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by facsimile or
other electronic transmission), and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.  A set of the copies of this Agreement signed
by all the parties shall be lodged with the Borrower and the Administrative
Agent.


 


14.10.      Severability. 
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


14.11.      Integration. 
This Agreement and the other Credit Documents represent the agreement of
the Borrower, the Canadian Borrower, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any


 


140
















 


Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.


 


14.12.      GOVERNING LAW. 
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.


 


14.13.      Submission to Jurisdiction; Waivers.  The Borrower and the Canadian Borrower each
hereby irrevocably and unconditionally:


 


(a)           submits for itself and its property
in any legal action or proceeding relating to this Agreement and the other
Credit Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of
America for the Southern District of New York and appellate courts from
any thereof;


 


(b)           consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;


 


(c)           agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its address set forth in Section 14.2 or at
such other address of which the Administrative Agent shall have been notified
pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section 14.13 any special,
exemplary, punitive or consequential damages.


 


14.14.      Acknowledgments.  The Borrower and the Canadian Borrower each
hereby acknowledge that:


 


(a)           it has been advised by counsel in
the negotiation, execution and delivery of this Agreement and the other Credit
Documents;


 


(b)           neither the Administrative Agent nor
any Lender has any fiduciary relationship with or duty to the Borrower or the
Canadian Borrower arising out of or in connection with this Agreement or any of
the other Credit Documents, and the relationship between Administrative Agent
and Lenders, on one hand, and the Borrower or the Canadian Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and


 


141
















 


(c)           no joint venture is created hereby
or by the other Credit Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Borrower, the
Canadian Borrower and the Lenders.


 


14.15.     WAIVERS OF JURY TRIAL.  THE BORROWER,
THE CANADIAN BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.


 


14.16.      Confidentiality.  The Administrative Agent and each Lender
shall hold all non-public information furnished by or on behalf of the Borrower
or the Canadian Borrower in connection with such Lender’s evaluation of whether
to become a Lender hereunder or obtained by such Lender or the Administrative
Agent pursuant to the requirements of this Agreement (“Confidential Information”),
confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a
bank) in accordance with safe and sound banking practices and in any event may
make disclosure as required or requested by any governmental agency or
representative thereof or pursuant to legal process or to such Lender’s or the
Administrative Agent’s attorneys, or to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty’s professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual party agrees to be bound by the provisions of this Section
14.16.) or independent auditors or Affiliates, provided that unless specifically
prohibited by applicable law or court order, each Lender and the Administrative
Agent shall notify the Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure
of such information, and provided further
that in no event shall any Lender or the Administrative Agent be obligated or
required to return any materials furnished by the Borrower or any Subsidiary of
the Borrower.  Each Lender and the
Administrative Agent agrees that it will not provide to prospective Transferees
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection with Loans made hereunder any of
the Confidential Information unless such Person is advises of and agrees to be
bound by the provisions of this Section 14.16.


 


Notwithstanding
anything express or implied to the contrary herein or by the documents referred
to or incorporated by reference herein, or any other prior or future oral or
written statements by any parties hereto with respect to the transactions
contemplated herein or by the other Credit Documents, and whether or not any of
them are legally binding, the obligations of confidentiality contained herein
and therein, as they relate to the transactions contemplated by this Agreement,
shall not apply to the tax structure or tax treatment of such transactions, and
each recipient (and its employees, representatives, or other agents) may
immediately disclose to any and all persons, without limitation of any kind,
the U.S. Federal income tax structure and such recipient’s U.S. Federal income
tax treatment of such transactions and any opinions or other tax analyses that
have been


 


142
















 


provided by
the parties hereto (or any agent thereof) to the recipient regarding such tax
structure or tax treatment.  However, no
such recipient shall disclose any information relating to such tax structure or
tax treatment to the extent that non-disclosure is reasonably necessary to
comply with applicable securities law. 
This paragraph is intended to cause the transactions contemplated by
this Agreement not to be treated as having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended, and shall be construed in a manner
consistent with such purpose.


 


14.17.      Judgment Currency.  (a)    
The obligations of the Borrower and the Canadian Borrower hereunder and
under the other Loan Documents to make payments in Dollars or in Canadian
Dollars, as the case may be (the “Obligation Currency”), shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Canadian Administrative Agent or a
Lender of the full amount of the Obligation Currency expressed to be payable to
the Administrative Agent, the Canadian Administrative Agent or Lender under
this Agreement or the other Credit Documents. 
If, for the purpose of obtaining or enforcing judgment against the
Borrower, the Canadian Borrower or any other Credit Party in any court or in
any jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the “Judgment Currency”) an amount due in the Obligation
Currency, the conversion shall be made, at the rate of exchange prevailing, in
each case, as of the date immediately preceding the day on which the judgment
is given (such Business Day being hereinafter referred to as the “Judgment
Currency Conversion Date”).


 


(b)           If there is a change in the rate of
exchange prevailing between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, the Borrower and the Canadian Borrower
each covenant and agree to pay, or cause to be paid, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.


 


(c)           For purposes of determining the
prevailing rate of exchange, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.


 


14.18.      USA PATRIOT Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name


 


143
















 


and address of the Borrower and other information that will allow such
Lender to identify the Borrower in accordance with the Patriot Act.


 


14.19.      Reaffirmation and Grant of
Security Interest. 
(a)  Each Credit Party has (i)
guarantied the Obligations and (ii) created Liens in favor of Lenders on
certain Collateral to secure its obligations hereunder, under the Guarantee and
the Canadian Guarantee, as the case may be. 
Each Credit Party hereby acknowledges that it has reviewed the terms and
provisions of this Agreement and consents to the amendment and restatement of
the Existing Credit Agreement effected pursuant to this Agreement.  Each Credit Party hereby (i) confirms that
each Credit Document to which it is a party or is otherwise bound and all
Collateral encumbered thereby will continue to guarantee or secure, as the case
may be, to the fullest extent possible in accordance with the Credit Documents,
the payment and performance of the Obligations and all Guarantee Obligations,
as the case may be, including without limitation the payment and performance of
all such Obligations and all Guarantee Obligations which are joint and several
obligations of each grantor now or hereafter existing, and (ii) grants to the
Administrative Agent for the benefit of the Secured Parties a continuing lien
on and security interest in and to such Credit Party’s right, title and
interest in, to and under all Collateral as collateral security for the prompt
payment and performance in full when due of the Obligations and all Guarantee
Obligations (whether at stated maturity, by acceleration or otherwise).


 


(b)           Each Credit Party acknowledges and
agrees that any of the Credit Documents to which it is a party or otherwise
bound shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of the amendment and restatement of the
Existing Credit Agreement.  Each Credit
Party represents and warrants that all representations and warranties contained
in the Credit Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the Effective Date
to the same extent as though made on and as of that date, except to the extent
such representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects on and
as of such earlier date.


 


14.20.           Amendment and Restatement.  It is the intention of each of the parties
hereto that the Existing Credit Agreement be amended and restated so as to
preserve the perfection and priority of all security interests securing
indebtedness and obligations under the Existing Credit Agreement and that all
Indebtedness and Obligations  and
Guarantee Obligations of Borrower and its Subsidiaries hereunder and thereunder
shall be secured by the Security Documents and that this Agreement does not
constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreements.  The parties
hereto further acknowledge and agree that this Agreement constitutes an
amendment of the Existing Credit Agreement made under and in accordance with
the terms of subsection 14.1 of the Existing Credit Agreement.  In addition, unless specifically amended
hereby, each of the Credit Documents, the Exhibits and Schedules to the
Existing Credit Agreement shall continue in full force and effect and


 


144
















 


that, from and after the Effective Date, all references to the “Credit
Agreement” contained therein shall be deemed to refer to this Agreement.


 


145
















 


IN WITNESS WHEREOF, each of the parties
hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.


 


	
   

  	
  SEALY
  MATTRESS COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name: Kenneth L. Walker

  
	
   

  	
   

  	
  Title: Vice President, General Counsel and

  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SEALY
  MATTRESS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name: Kenneth L. Walker

  
	
   

  	
   

  	
  Title: Vice President, General Counsel and

  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SEALY
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name: Kenneth L. Walker

  
	
   

  	
   

  	
  Title: Vice President, General Counsel and

  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SEALY CANADA
  LTD./LTEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name: Kenneth L. Walker

  
	
   

  	
   

  	
  Title: Vice President, General Counsel and

  Secretary

  



 
















 


SUBSIDIARY GUARANTORS:


SEALY MATTRESS COMPANY OF PUERTO RICO


OHIO-SEALY MATTRESS MANUFACTURING CO., INC.


OHIO-SEALY MATTRESS MANUFACTURING CO.


SEALY MATTRESS COMPANY OF KANSAS CITY, INC.


SEALY MATTRESS COMPANY OF MEMPHIS


SEALY MATTRESS COMPANY OF ILLINOIS


SEALY MATTRESS COMPANY OF ALBANY, INC.


SEALY OF MARYLAND AND VIRGINIA, INC.


SEALY OF MINNESOTA, INC.


NORTH AMERICAN BEDDING COMPANY


SEALY, INC.


MATTRESS HOLDINGS INTERNATIONAL LLC


THE OHIO MATTRESS COMPANY LICENSING AND COMPONENTS GROUP


SEALY MATTRESS MANUFACTURING COMPANY, INC.


SEALY TECHNOLOGY LLC


SEALY KOREA, INC.


SEALY REAL ESTATE, INC.


SEALY TEXAS MANAGEMENT, INC.


SEALY TEXAS HOLDINGS LLC


SEALY TEXAS L.P.


WESTERN MATTRESS COMPANY

GESTION CENTURION INC.


 


	
   

  	
  By: 

  	
  /s/ Kenneth L. Walker

  	
   

  
	
   

  	
   

  	
  Name: Kenneth L. Walker

  
	
   

  	
   

  	
  Title: Vice President, General Counsel and

  Secretary

  



 








 


	
   

  	
  JPMORGAN
  CHASE BANK, as Administrative

  Agent and as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kathryn A. Duncan

  	
   

  
	
   

  	
   

  	
  Name: Kathryn A. Duncan

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, TORONTO

  BRANCH, as Canadian Administrative Agent and

  as a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ John C. Riordan

  	
   

  
	
   

  	
   

  	
  Name: John C. Riordan

  
	
   

  	
   

  	
  Title:  Vice President

  



 
















 


	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS, L.P.,

  as Joint Lead Arranger, Joint Bookrunner,

  Syndication Agent and as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William W. Archer

  	
   

  
	
   

  	
   

  	
  Name: William W. Archer

  
	
   

  	
   

  	
  Title: Managing Director

  



 
















 


	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  CORPORATION, as Co-Documentation Agent and

  as a Lender,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert Kadlick

  	
   

  
	
   

  	
   

  	
  Name: Robert Kadlick

  
	
   

  	
   

  	
  Title: Duly Authorized Signatory

  



 
















 


	
   

  	
  Merrill
  Lynch Capital, a division of Merrill Lynch

  Business Financial Services, Inc.,

  as a Lender,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kelli O’Connell

  	
   

  
	
   

  	
   

  	
  Name: Kelli O’Connell

  
	
   

  	
   

  	
  Title: Vice President

  



 
















 


	
   

  	
  Chase
  Lincoln First Commercial Corporation,

  as a Lender,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Louis J. Cerrotta

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Louis J. Cerrotta

  	
   

  
	
   

  	
   

  	
  Title: VP

  
						



 
















 


SCHEDULE
1.1(d)


 


EBITDA ADD-BACKS


 


1.             Costs
associated with the introduction of new products and incurred prior to May 31,
2004.


 


2.             Expenses related to
the implementation of enterprise resource planning systems in an aggregate
amount not greater than $45,000,000 less the amount of expenditures related
thereto that are capitalized.


 


3              The amount of
management, monitoring, consulting and advisory fees and related expenses paid
to Bain Capital, LLC to the extent such fees are incurred prior to the Closing
Date.


 


4.             Expenses associated
with the following items, which expenses are incurred prior to the Closing
Date:


 


a)             Workers compensation expenses;


b)            Facilities
rationalization;


c)             Write-offs
related to Affiliates;


d)            Stock
based compensation;


e)             A/R
process improvement; and


f)             Deferred
debt write-offs.