EX-10.95




Exhibit 10.95




AMENDED AND RESTATED CREDIT AGREEMENT




dated as of September 29, 2004




among




RAILAMERICA, INC.,




PALM BEACH RAIL HOLDING, INC.




RAILAMERICA TRANSPORTATION CORP.,

as a Borrower,




RAILAMERICA CANADA CORP.,

as the Canadian Term Borrower,




RAILINK CANADA LTD.,

as the Canadian Revolver Borrower,




The LENDERS referred to herein,




UBS SECURITIES LLC,

as Sole Lead Arranger and Bookrunner,




UBS AG, STAMFORD BRANCH,

as Administrative Agent,




and




THE BANK OF NOVA SCOTIA,

as Collateral Agent




1



TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	Page

	ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.1. Defined Terms.2

SECTION 1.2. Use of Defined Terms.35

SECTION 1.3. Cross-References.35

SECTION 1.4. Accounting and Financial Determinations.35

ARTICLE 2

COMMITMENTS, BORROWING AND ISSUANCE

SECTION 2.1. Commitments.38
	 	 	 	 	 	 	 	 	 	 	 	 
	2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment.
	 	 	38	 	 	 	 	 
	2.1.2. Letter of Credit Commitment.38

2.1.3. Term Loan Commitment.39
	 	 	 	 	 	 	 	 	 	 	 	 
	2.1.4. Lenders Not Permitted or Required to Make the Loans.40
	 	 	 	 	 	 	 	 
	2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.41
	 	 	 	 	 	 	 	 
	SECTION 2.2. Reduction of the Commitment Amounts.41

2.2.1. Optional.41

2.2.2. Mandatory.42

SECTION 2.3. Borrowing Procedures.42

2.3.1. Borrowing Procedure.
	 	 	42	 	 	 	 	 	 	 	 	 
	2.3.2. Swing Line Loans.
	 	 	42	 	 	 	 	 	 	 	 	 
	SECTION 2.4. Continuation and Conversion Elections.44
	 	 	 	 	 	 	 	 	 	 	 	 
	2.4.1. Converting Canadian BAs to Canadian Prime Rate Loans.44
	 	 	 	 	 	 	 	 
	SECTION 2.5. Funding.
	 	 	44	 	 	 	 	 	 	 	 	 
	SECTION 2.6. Issuance Procedures.45

2.6.1. Other Lenders’ Participation.45

2.6.2. Disbursements.46

2.6.3. Reimbursement.
	 	 	46	 	 	 	 	 	 	 	 	 
	2.6.4. Obligation to Cash Collateralize.46

2.6.5. Nature of Reimbursement Obligations.47

SECTION 2.7. Register; Notes.47

SECTION 2.8. Canadian BAs.49

2.8.1. Funding of Canadian BAs.49

2.8.2. Acceptance Fees.
	 	 	49	 	 	 	 	 	 	 	 	 
	2.8.3. Execution of Canadian BAs.49
	 	 	 	 	 	 	 	 	 	 	 	 
	2.8.4. Special Provisions Relating to Acceptance Notes.50
	 	 	 	 	 	 	 	 
	2.8.5. Payments by Canadian Lenders and the Canadian Revolver Borrower.
	 	 	51	 	 	 	 	 
	2.8.6. Sale of Canadian BAs.
	 	 	51	 	 	 	 	 	 	 	 	 







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE 3

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

SECTION 3.1. Repayments and Prepayments; Application.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	51	 
	3.1.1. Repayments and Prepayments.
	 	 	 	 	 	 	 	 	 	 	51	 	 	 	 	 
	3.1.2. Application.57

SECTION 3.2. Interest Provisions.
	 	 	 	 	 	 	57	 	 	 	 	 	 	 	 	 
	3.2.1. Rates.57

3.2.2. Post-Default Rates.
	 	 	58	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.2.3. Payment Dates.
	 	 	58	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECTION 3.3. Fees.59

3.3.1. Commitment Fee.
	 	 	59	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.3.2. Administrative Agent’s Fee.
	 	 	 	 	 	 	59	 	 	 	 	 	 	 	 	 
	3.3.3. Letter of Credit Fee.
	 	 	59	 	 	 	 	 	 	 	 	 	 	 	 	 







	 	 	 	 	 
	ARTICLE 4

CERTAIN LIBO RATE AND OTHER PROVISIONS

SECTION 4.1. LIBO Rate Lending Unlawful.
	 	 	60	 







SECTION 4.2. Deposits Unavailable; Circumstances making Canadian BAs Unavailable. 60



	 	 	 	 	 	 	 	 	 	 	 	 	 
	SECTION 4.3. Increased LIBO Rate Loan Costs, etc.
	 	 	 	 	 	 	 	 	 	 	61	 
	SECTION 4.4. Funding Losses.61

SECTION 4.5. Increased Capital Costs.
	 	 	62	 	 	 	 	 	 	 	 	 
	SECTION 4.6. Taxes.62

SECTION 4.7. Payments, Computations, etc.
	 	 	 	 	 	 	64	 	 	 	 	 
	SECTION 4.8. Sharing of Payments.
	 	 	65	 	 	 	 	 	 	 	 	 
	SECTION 4.9. Setoff.65

SECTION 4.10. Replacement of Lenders.
	 	 	66	 	 	 	 	 	 	 	 	 







ARTICLE 5


CONDITIONS


SECTION 5.1. Amendment Effective Date and Extensions of Credit on the Amendment Effective Date. 67



	 	 	 	 	 	 	 	 	 	 	 	 	 
	5.1.1. Resolutions, etc.67

5.1.2. Agreement and Guarantor Confirmation Agreements.
	 	 	 	 	 	 	 	 	 	 	67	 
	5.1.3. Tender Offer.67

5.1.4. Amendment Effective Date Certificate.68

5.1.5. Delivery of Notes.68

5.1.6. Closing Fees, Expenses, etc.68

5.1.7. Material Adverse Change.68

5.1.8. Opinions of Counsel.68

5.1.9. Filings68

5.1.10. Litigation.69

5.1.11. Corporate, Tax and Capital Structure.69

5.1.12. Approvals.69

SECTION 5.2. All Credit Extensions.
	 	 	69	 	 	 	 	 	 	 	 	 
	5.2.1. Compliance with Warranties, No Default, etc.
	 	 	 	 	 	 	69	 	 	 	 	 
	5.2.2. Credit Extension Request, etc.
	 	 	69	 	 	 	 	 	 	 	 	 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	ARTICLE 6

REPRESENTATIONS AND WARRANTIES

SECTION 6.1. Organization, etc.70

SECTION 6.2. Due Authorization, Non-Contravention, etc.70

SECTION 6.3. Government Approval, Regulation, etc.
	 	 	 	 	 	 	70	 	 	 	 	 
	SECTION 6.4. Validity, etc.71

SECTION 6.5. Financial Information.
	 	 	71	 	 	 	 	 	 	 	 	 
	SECTION 6.6. No Material Adverse Change.71

SECTION 6.7. Litigation, Labor Controversies, etc.
	 	 	 	 	 	 	71	 	 	 	 	 
	SECTION 6.8. Subsidiaries.72

SECTION 6.9. Ownership of Properties.
	 	 	72	 	 	 	 	 	 	 	 	 
	SECTION 6.10. Taxes.72

SECTION 6.11. Pension and Welfare Plans.72

SECTION 6.12. Environmental Warranties.
	 	 	72	 	 	 	 	 	 	 	 	 
	SECTION 6.13. Accuracy of Information.
	 	 	74	 	 	 	 	 	 	 	 	 
	SECTION 6.14. Regulations T, U and X.
	 	 	74	 	 	 	 	 	 	 	 	 
	SECTION 6.15. Representations in Other Loan Documents.75

SECTION 6.16. Status of Obligations as Senior Indebtedness, etc.75

SECTION 6.17. Solvency.75

ARTICLE 7

COVENANTS

SECTION 7.1. Affirmative Covenants.
	 	 	75	 	 	 	 	 	 	 	 	 
	7.1.1. Financial Information, Reports, Notices, etc.75

7.1.2. Maintenance of Existence; Compliance with Laws, etc.78

7.1.3. Maintenance of Properties.78

7.1.4. Insurance.79

7.1.5. Books and Records.79

7.1.6. Environmental Law Covenant.
	 	 	80	 	 	 	 	 	 	 	 	 
	7.1.7. Use of Proceeds.80

7.1.8. Modification of Mortgages81

7.1.9. Future Guarantors, Security, etc.
	 	 	81	 	 	 	 	 	 	 	 	 
	7.1.10. Rate Protection Agreements.82

SECTION 7.2. Negative Covenants.82

7.2.1. Business Activities.82

7.2.2. Indebtedness.83

7.2.3. Liens.85

7.2.4. Financial Covenants.88

7.2.5. Investments.89

7.2.6. Restricted Payments, etc.91

7.2.7. Capital Expenditures, etc.91

7.2.8. No Prepayment of Certain Debt.
	 	 	92	 	 	 	 	 	 	 	 	 
	7.2.9. Capital Stock of Subsidiaries.92

7.2.10. Consolidation, Merger, etc.92

7.2.11. Permitted Dispositions.93

7.2.12. Modification of Certain Agreements.94

7.2.13. Transactions with Affiliates.94

7.2.14. Restrictive Agreements, etc.95

7.2.15. Sale and Leaseback.95

7.2.16. Change of Fiscal Year.95

ARTICLE 8

EVENTS OF DEFAULT

SECTION 8.1. Listing of Events of Default.95

8.1.1. Non-Payment of Obligations.95

8.1.2. Breach of Warranty.96

8.1.3. Non-Performance of Certain Covenants and Obligations.96

8.1.4. Non-Performance of Other Covenants and Obligations.96

8.1.5. Default on Other Indebtedness.
	 	 	96	 	 	 	 	 	 	 	 	 
	8.1.6. Judgments.96

8.1.7. Pension Plans.97

8.1.8. Change in Control.97

8.1.9. Bankruptcy, Insolvency, etc.97

8.1.10. Impairment of Security, etc.98

8.1.11. Failure of Subordination.98

8.1.12. Guarantee Invalid.98

SECTION 8.2. Action if Bankruptcy.
	 	 	98	 	 	 	 	 	 	 	 	 
	SECTION 8.3. Action if Other Event of Default.98

ARTICLE 9

THE ADMINISTRATIVE AGENT

SECTION 9.1. Actions.99

SECTION 9.2. Funding Reliance, etc.
	 	 	99	 	 	 	 	 	 	 	 	 
	SECTION 9.3. Exculpation.100

SECTION 9.4. Subagents and Related Parties.100

SECTION 9.5. Successor.100

SECTION 9.6. Credit Extensions by the Administrative Agent and Issuer.
	 	 	 	 	 	 	 	 	 	 	101	 
	SECTION 9.7. Credit Decisions.101

SECTION 9.8. Copies, etc.101

SECTION 9.9. Reliance by the Administrative Agent.
	 	 	 	 	 	 	101	 	 	 	 	 
	SECTION 9.10. Defaults.102

SECTION 9.11. Collateral Agent.102

ARTICLE 10

[INTENTIONALLY OMITTED]

ARTICLE 11

MISCELLANEOUS PROVISIONS

SECTION 11.1. Waivers, Amendments, etc.102

SECTION 11.2. Notices; Time.104

SECTION 11.3. Payment of Costs and Expenses.104

SECTION 11.4. Indemnification.105

SECTION 11.5. Survival.106

SECTION 11.6. Severability.107

SECTION 11.7. Headings.107

SECTION 11.8. Execution in Counterparts.
	 	 	107	 	 	 	 	 	 	 	 	 
	SECTION 11.9. Governing Law; Entire Agreement.
	 	 	 	 	 	 	107	 	 	 	 	 
	SECTION 11.10. Successors and Assigns.
	 	 	107	 	 	 	 	 	 	 	 	 







SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in Credit Extensions and
Notes. 107



	 	 	 	 	 
	SECTION 11.12. Other Transactions.111
	 	 
	 
	 	 	 	 
	SECTION 11.13. Judgment Currency.112
	 	 
	 
	 	 	 	 
	SECTION 11.14. Forum Selection and Consent to Jurisdiction.112
	 	 
	 
	 	 	 	 
	SECTION 11.15. Waiver of Jury Trial.113
	 	 
	 
	 	 	 	 
	SECTION 11.16. Independence of Covenants.113
	 	 
	 
	 	 	 	 
	SECTION 11.17. Certain Matters Related to Collateral Sharing.114
	 	 
	 
	 	 	 	 
	SECTION 11.18. USA PATRIOT Act Notice.114
	 	 
	 
	 	 	 	 
	SCHEDULE I

SCHEDULE II

SCHEDULE III

	 	–

–
	 	Disclosure Schedule

Percentages and Administrative Information

Pricing Schedule
	 
	 	 	 	 
	EXHIBIT A–1

EXHIBIT A–2

EXHIBIT A–3

EXHIBIT A–4

EXHIBIT A–5

EXHIBIT A–6

EXHIBIT B–1

EXHIBIT B–2

EXHIBIT C

EXHIBIT D

EXHIBIT E–1

EXHIBIT E–2

EXHIBIT F

EXHIBIT G–1

EXHIBIT G–2

EXHIBIT H–1

EXHIBIT H–2

EXHIBIT I

EXHIBIT J

EXHIBIT K

EXHIBIT L

EXHIBIT M

	 	–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–
	 	Form of U.S. Revolving Note

Form of Canadian Revolving Note

Form of Acceptance Note

Form of U.S. Term Note

Form of Canadian Term Note

Form of Swing Line Note

Form of Borrowing Request

Form of Issuance Request

Form of Continuation/Conversion Notice

Form of Amendment Effective Date Certificate

Form of Compliance Certificate

Form of U.S. Dollar Equivalent Certificate

Form of Guarantor Confirmation Agreement

Form of U.S. Guarantee and Security Agreement

Form of Canadian Debenture

Form of Mortgage

Form of Deed of Trust

Form of Lender Assignment Agreement

Form of New York Counsel Opinion

Form of Regulatory Counsel Opinion

Form of Canadian Counsel Opinion

Form of Local Counsel Opinion
	 
	 	 	 	 
	ANNEX I

	 	–
	 	Corporate Structure







2



AMENDED AND RESTATED CREDIT AGREEMENT




AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 29, 2004 among RAILAMERICA, INC.,
a Delaware corporation (“Holdings”), PALM BEACH RAIL HOLDING, INC., a wholly owned
Subsidiary of Holdings (“Intermediate Holdings”), RAILAMERICA TRANSPORTATION CORP., a
wholly owned Subsidiary of Intermediate Holdings (the “Company”), RAILAMERICA CANADA CORP.,
an unlimited liability company organized and existing under the laws of the Province of Nova
Scotia, Canada (the “Canadian Term Borrower”), and RAILINK CANADA LTD., a federal
corporation organized and existing under the laws of the Province of Alberta, Canada (the
“Canadian Revolver Borrower” and, together with the Company and the Canadian Term Borrower,
the “Borrowers”), the lenders from time to time party hereto (the “Lenders”), UBS
SECURITIES LLC, as sole Lead Arranger and Bookrunner (in such capacity, the “Lead
Arranger”), UBS AG, STAMFORD BRANCH (“UBS”), as administrative agent (in such capacity, the
“Administrative Agent”) for the Lenders, and THE BANK OF NOVA SCOTIA, as collateral agent
(in such capacity, the “Collateral Agent”) for the Lenders.



RECITALS




1. Certain of the parties to this Agreement have heretofore entered into a Credit Agreement
dated as of May 23, 2002, as amended from time to time thereafter (the “Existing Credit
Agreement”), pursuant to which (i) the Lenders thereunder made term loans to the Borrowers
thereunder, (ii) the Lenders thereunder agreed to make, from time to time, revolving loans to the
Borrowers thereunder, (iii) the Lenders thereunder agreed to lend, from time to time, and the
Issuer thereunder agreed to issue, from time to time, Letters of Credit to the Borrowers thereunder
and (iv) the Swingline Lender thereunder agreed to make, from time to time, Swingline Loans to the
Borrowers thereunder.



2. The Borrowers have prepaid the Australian Term Loans under the Existing Credit Agreement
and wish to maintain the loan facilities and borrow additional loans under this Agreement, as
amended and restated as reflected hereby (such amendment and restatement of the Existing Credit
Agreement effected hereby, the “Amendment and Restatement”) and in the manner set forth
herein. The parties hereto desire to effect the Amendment and Restatement and to agree to the
other matters set forth in this Agreement and, in consideration of the mutual covenants and
agreements herein contained, hereby agree that, on and as of the Amendment Effective Date, the
Existing Credit Agreement will be hereby amended and restated in its entirety as provided in this
Agreement.



4. Now, therefore, the parties hereto agree as follows:



3



ARTICLE 1




DEFINITIONS AND ACCOUNTING TERMS




SECTION 1.1. Defined Terms. The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):




“Acceptance Note” is defined in clause (b) of Section 2.8.4.




“Additional Term Loans” is defined in clause (a) of Section 7.2.2.



“Administrative Agent” is defined in the preamble and includes each other Person
appointed as the successor Administrative Agent pursuant to Section 9.5.



“Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person. “Control” of a Person
means the power, directly or indirectly,




(a) to vote 20% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors, managing members or general partners (as
applicable); or




(b) to direct or cause the direction of the management and policies of such Person
(whether by contract or otherwise).



“Agreement” means this Amended and Restated Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.



“Alternate Base Rate” means, on any date and with respect to all Base Rate Loans
(other than Canadian Revolving Loans at the Canadian Prime Rate), a fluctuating rate of interest
per annum (rounded upward, if necessary, to the next highest 1/16 of 1%) equal to the higher of




(a) the Base Rate in effect on such day; and




(b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.



Changes in the rate of interest on that portion of any Loans maintained as Base Rate Loans will
take effect simultaneously with each change in the Alternate Base Rate. The Administrative Agent
will give notice promptly to the Company and the Lenders of changes in the Alternate Base Rate;
provided that the failure to give such notice shall not affect the Alternate Base Rate in effect
after such change.



“Amendment Documents” means this Agreement, the Guarantor Confirmation Agreements and
each Mortgage Amendment.




“Amendment Effective Date” has the meaning set-forth in SECTION 5.1.



“Amendment Effective Date Certificate” means a certificate of an Authorized Officer of
Holdings, Intermediate Holdings and the Company substantially in the form of Exhibit D hereto,
delivered pursuant to Section 5.1.4.



“Applicable Canadian BA Stamping Fee” means, at any time the applicable rate
determined in accordance with the Pricing Schedule attached hereto as Schedule III.



“Applicable Commitment Fee Rate” means, at any time, the applicable rate determined in
accordance with the Pricing Schedule attached hereto as Schedule III.



“Applicable Margin” means, at any time and for any Loan, the applicable rate
determined in accordance with the Pricing Schedule attached hereto as Schedule III.



“Approved Fund” means any Person (other than a natural Person) that (i) is or will be
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business, and (ii) is administered or managed by
a Lender, an Affiliate of a Lender which is controlled by such Lender or its parent company or an
entity or an Affiliate of an entity that administers or manages a Lender.




“Assignee Lender” is defined in Section 11.11.




“Assignor Lender” is defined in Section 11.11.



“Authorized Officer” means with respect to any action taken or to be taken or document
signed or to be signed on behalf of any party to any Loan Document, any officer of such party
authorized to take such action or sign such document on behalf of such party; provided, however,
that the Company may from time to time designate additional authorized signatories to execute
Borrowing Requests, Continuation/Conversion Notices and notices with respect to repayments by
providing notice thereof to the Administrative Agent.




“Base Amount” is defined in Section 7.2.7.



“Base Rate” means, at any time, the rate of interest then most recently established by
the Administrative Agent in New York as its prime rate for U.S. Dollars loaned in the United
States. The Base Rate is not necessarily intended to be the lowest rate of interest determined by
the Administrative Agent in connection with extensions of credit.



“Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by
reference to the Alternate Base Rate or the Canadian Prime Rate, as the case may be.




“Borrowers” is defined in the preamble.



“Borrowing” means the Loans of the same type and, in the case of LIBO Rate Loans,
having the same Interest Period made by all Lenders required to make such Loans on the same
Business Day and pursuant to the same Borrowing Request in accordance with Section 2.3.



“Borrowing Request” means a Loan request and certificate duly executed by an
Authorized Officer of the applicable Borrower, substantially in the form of Exhibit B-1 hereto.




“Business Day” means




(a) any day which is neither a Saturday or Sunday nor a legal holiday on which banks
are authorized or required to be closed in New York, New York;




(b) relative to the making, continuing, prepaying or repaying of any LIBO Rate Loans,
any day which is a Business Day described in clause (a) above and which is also a day on
which dealings in U.S. Dollars are carried on in the London interbank eurodollar market; and




(c) with respect to any Borrowings of, and Interest Periods with respect to, Canadian
Revolving Loans, any day which is a Business Day described in clause (a) above and which is
also not a day on which banks are authorized or required to be closed in Toronto.




“Canada” means Canada, its ten provinces and territories.



“Canadian BA” means a depository bill as defined in the Depository Bills and Notes Act
(Canada) in Canadian Dollars that is in the form of an order drawn by the Canadian Revolver
Borrower and accepted by a Canadian Lender pursuant to this Agreement or, for Canadian Lenders not
participating in clearing services contemplated in that Act, a draft or bill of exchange in
Canadian Dollars that is drawn by the Canadian Revolver Borrower and accepted by a Canadian Lender
pursuant to this Agreement. Orders that become depositary bills, drafts and bills of exchange are
sometimes collectively referred to in this Agreement as “drafts”; provided, however, that,




(a) to the extent the context shall require, each Acceptance Note shall be deemed to be
a Canadian BA; and




(b) references to outstanding principal amounts relating to Canadian BAs shall refer to
the undiscounted face amount of unmatured Canadian BAs which have not been cash
collateralized pursuant to, and in accordance with, the terms of clause (a) of Section
3.1.1.



“Canadian BA Rate” means, (a) with respect to any Canadian BA accepted by a Canadian
Lender named on Schedule I to the Bank Act (Canada), the rate determined by the Administrative
Agent as being the arithmetic average (rounded upward to the nearest multiple of 0.01%) of the
discount rates, calculated on the basis of a year of 365 days and determined in accordance with
normal market practice at or about 10:00 a.m. (Toronto time) on the date of acceptance, for
bankers’ acceptances of those Lenders having a comparable face amount and identical maturity date
to the face amount and maturity date of such Canadian BA, and (b) with respect to any Canadian BA
accepted by any other Canadian Lender, the rate determined by the Administrative Agent in
accordance with (a) above plus 0.10% per annum.



“Canadian Borrowers” means the Canadian Term Borrower and the Canadian Revolver
Borrower.



“Canadian Debentures” means the Debentures executed and delivered by the Canadian
Borrowers and each of their respective Affiliates that is a Restricted Subsidiary and is organized
in, or a resident of, Canada, pursuant to the Existing Credit Agreement or Section 7.1.9,
substantially in the form of Exhibit G-2 hereto, as amended, amended and restated, supplemented or
otherwise modified from time to time pursuant to the terms hereof.




“Canadian Dollar” and “Cdn $” each mean the lawful currency of Canada.



“Canadian Dollar Equivalent” means the Exchange Equivalent in Canadian Dollars of any
amount of U.S. Dollars.



“Canadian Guarantees” shall mean the guarantees granted by the Obligors organized
under the laws of Alberta, Ontario, Nova Scotia, British Columbia and Canada, dated on or about May
23, 2002, in form and substance satisfactory to the Administrative Agent.



“Canadian Guarantor Confirmation Agreement” means the Canadian Guarantor Confirmation
Agreement executed and delivered on the date hereof by the Canadian Term Borrower, the Canadian
Revolver Borrower and the Canadian Guarantors substantially in the form of Exhibit F-2 hereto.



“Canadian Lender” means each Lender that has a Canadian Revolving Loan Percentage in
excess of zero.



“Canadian Loans” as the context may require, Canadian Term Loans and/or Canadian
Revolving Loans.



“Canadian Pledge Agreement” means the Canadian Pledge Agreements executed and
delivered by the Canadian Borrowers and each of their respective Affiliates that own shares in
another Affiliate of a Canadian Borrower, pursuant to the Existing Credit Agreement or 7.1.9, as
amended, supplemented, amended and restated or otherwise modified from time to time.




“Canadian Prime Rate” means, on any day, the greater of:




(a) the variable annual rate of interest expressed as a percentage per annum announced
by the Administrative Agent that day as its reference rate for Canadian Dollar commercial
loans made by it in Toronto, Canada, repayable in Canadian Dollars and designated as its
Canadian prime rate from time to time; and




(b) the average rate for 30 day Canadian Dollar bankers’ acceptances that appears on
the Reuters Screen CDOR Page (or on any successor or substitute page of such service, or any
successor or substitute service, as determined by the Administrative Agent) at 10:00 a.m.
Toronto time on that day, plus 1.0% per annum.



The Canadian Prime Rate is not necessarily intended to be the lowest rate of interest determined by
the Administrative Agent in connection with extensions of credit. Changes in the rate of interest
on that portion of any Canadian Revolving Loans maintained at the Canadian Prime Rate will take
effect simultaneously with each change in the Canadian Prime Rate. The Administrative Agent will
give notice promptly to the Canadian Revolver Borrower of changes in the Canadian Prime Rate;
provided that the failure to give such notice shall not affect the Canadian Prime Rate in effect
after such change.



“Canadian Prime Rate Loan” means a Loan bearing interest at a fluctuating rate
determined by reference to the Canadian Prime Rate.



“Canadian Restricted Subsidiary” means a Restricted Subsidiary organized under the
laws of Canada, or one of its provinces.




“Canadian Revolver Borrower” is defined in the preamble.




“Canadian Revolving Loan Commitment” is defined in clause (b) of Section 2.1.1.



“Canadian Revolving Loan Commitment Amount” means $10,000,000 (with Canadian Revolving
Loans to be denominated in Canadian Dollars), as such amount may be reduced pursuant to the terms
hereof.



“Canadian Revolving Loan Percentage” means, relative to any Lender, the applicable
percentage relating to Canadian Revolving Loans set forth opposite its name on Schedule II hereto
under the Canadian Revolving Loan Commitment column or set forth in a Lender Assignment Agreement
under the Canadian Revolving Loan Commitment column, as such percentage may be adjusted from time
to time pursuant to Lender Assignment Agreements executed by such Lender and its Assignee Lender
and delivered pursuant to Section 11.11. A Lender shall not have any Canadian Revolving Loan
Commitment if its percentage under the Canadian Revolving Loan Commitment column is zero or is
blank.




“Canadian Revolving Loans” is defined in clause (b) of Section 2.1.1.



“Canadian Revolving Note” means a promissory note of the Canadian Revolver Borrower
payable to any Canadian Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness
of the Canadian Revolver Borrower to such Canadian Lender resulting from outstanding Canadian
Revolving Loans, and also means all other promissory notes issued from time to time in substitution
therefor or renewal thereof.



“Canadian Security Documents” shall mean the Canadian Pledge Agreement, the Canadian
Guarantees and the Canadian Debentures.



“Canadian Subsidiary” means any Subsidiary of the Company that is organized under the
laws or is a resident of Canada, or one of its provinces.




“Canadian Term Borrower” is defined in the preamble.




“Canadian Term Loans” is defined in Section 2.1.3. (b)(ii).




“Canadian Term Loan Commitment Amount” means, on any date, $37,000,000.



“Canadian Term Note” means a promissory note of the Canadian Term Borrower payable to
any Lender, in the form of Exhibit A-5 hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate indebtedness of the Canadian Term
Borrower to such Lender resulting from outstanding Canadian Term Loans, and also means all other
promissory notes issued from time to time in substitution therefor or renewal thereof.



“Capital Expenditures” means, for any period, the aggregate amount of all expenditures
of Holdings, Intermediate Holdings, the Company and the Restricted Subsidiaries for fixed or
capital assets made during such period which, in accordance with GAAP, would be classified as
capital expenditures.



“Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued after the Amendment Effective Date.



“Capitalized Lease Liabilities” means all monetary obligations of Holdings,
Intermediate Holdings, the Company or any of the Restricted Subsidiaries under any leasing or
similar arrangement which have been (or, in accordance with GAAP, should be) classified as
capitalized leases, and for purposes of each Loan Document the amount of such obligations shall be
the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment of a premium or a
penalty.



“Cash Collateralize” means, with respect to a Letter of Credit, the deposit of
immediately available funds into a cash collateral account solely to secure the obligation of the
Company, as account party, to reimburse the Issuer of such Letter of Credit and maintained with (or
on behalf of) the Administrative Agent on terms satisfactory to the Administrative Agent in an
amount equal to the Stated Amount of such Letter of Credit.




“Cash Equivalent Investment” means, at any time:




(a) any direct obligation of (or unconditionally guaranteed by) the United States or a
State thereof (or any agency or political subdivision thereof, to the extent such
obligations are supported by the full faith and credit of the United States or a State
thereof) maturing not more than nine months after such time;




(b) commercial paper maturing not more than 270 days from the date of issue, which is
issued by




(i) a corporation (other than an Affiliate of any Obligor) organized under the
laws of any state of the United States or of the District of Columbia and rated A-1
or higher by S&P or P-1 or higher by Moody’s, or




(ii) any Lender (or its holding company);




(c) any certificate of deposit, time deposit or bankers acceptance, maturing not more
than nine months after its date of issuance, which is issued by either




(i) any bank organized under the laws of the United States (or any state
thereof) and which has (x) a credit rating of A2 or higher from Moody’s or A or
higher from S&P and (y) a combined capital and surplus greater than $500,000,000, or




(ii) any Lender;




(d) any repurchase agreement having a term of 30 days or less entered into with any
Lender or any commercial banking institution satisfying the criteria set forth in clause
(c)(i) which




(i) is secured by a fully perfected security interest in any obligation of the
type described in clause (a), and




(ii) has a market value at the time such repurchase agreement is entered into
of not less than 100% of the repurchase obligation of such Lender or commercial
banking institution thereunder; or




(e) in the case of any Subsidiary of Holdings organized or having its principal place
of business outside the United States, investments denominated in the Currency of the
jurisdiction in which such Subsidiary is organized or has its principal place of business
which are similar to the items specified in clauses (a) through (d) above.



“Casualty Event” means the damage, destruction, expropriation or condemnation, as the
case may be, of any property of the Company or any of the Restricted Subsidiaries.



“Casualty Proceeds” means, with respect to any Casualty Event, the amount of any
insurance proceeds or condemnation or expropriation awards received by the Company or any of the
Restricted Subsidiaries in connection therewith, net of (i) any proceeds or awards required to be
paid to a creditor (other than the Lenders) which holds a Lien on the property which is the subject
of such Casualty Event which Lien (x) is permitted by Section 7.2.3 and (y) has priority over the
Liens securing the Obligations and (ii) reasonable costs and expenses incurred by such Obligor or
Restricted Subsidiary for the collection or realization of such proceeds or awards.



“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. §§ 9601 et seq., as amended.



“CERCLIS” means the Comprehensive Environmental Response Compensation Liability
Information System List.




“Change in Control” means




(a) the failure of (i) Holdings at any time to directly own beneficially and of record
on a fully diluted basis 100% of the outstanding Capital Stock of Intermediate Holdings, or
(ii) Intermediate Holdings at any time to directly own beneficially and of record on a fully
diluted basis 100% of the outstanding Capital Stock of the Company, in each case, all such
Capital Stock to be held free and clear of all Liens (other than Liens granted under a Loan
Document); or




(b) the failure of the Company (directly or through its wholly owned Subsidiaries) at
any time to own on a fully diluted basis 100% of the outstanding Capital Stock of each
Canadian Borrower, such Capital Stock to be held free and clear of all Liens (other than
Liens granted under a Loan Document and Permitted Liens); or




(c) any person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act), shall become the ultimate “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Capital Stock representing more
than 35% of the Capital Stock of Holdings on a fully diluted basis; or




(d) during any period of 24 consecutive months, individuals who at the beginning of
such period constituted the Board of Directors of Holdings (together with any new directors
whose election to such Board or whose nomination for election by the stockholders of
Holdings was approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination for
election was previously so approved), cease for any reason to constitute a majority of the
Board of Directors of Holdings then in office; or




(e) the occurrence of any “Change of Control” (or similar term) under (and as defined
in) any Subordinated Debt Document.



“Code” means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.



“Collateral Agent” is defined in the preamble and includes each other person appointed
as a successor Collateral Agent pursuant to Section 25 of the U.S. Guarantee and Security
Agreement.



“Collateral Documents” means each agreement pursuant to which the Administrative Agent
or the Collateral Agent is granted a Lien to secure any or all of the Obligations, including
without limitation each Pledge and Security Agreement, each Mortgage and the Canadian Security
Documents, and each other document or instrument incidental thereto or executed in connection with
the foregoing.



“Commitment” means, as the context may require, (i) a Lender’s Term Loan Commitment,
Revolving Loan Commitment or Letter of Credit Commitment or (ii) the Swing Line Lender’s Swing Line
Loan Commitment.



“Commitment Amount” means, as the context may require, the U.S. Term Loan Commitment
Amount, the U.S. Revolving Loan Commitment Amount, the Canadian Term Loan Commitment Amount, the
Canadian Revolving Loan Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line
Loan Commitment Amount.



“Commitment Letter” means the commitment letter dated September 8, 2004 among the Lead
Arranger, UBS Loan Finance LLC, UBS Securities LLC, Holdings and the Company.



“Commitment Termination Date” means, as the context may require, the Term Loan
Commitment Termination Date or the Revolving Loan Commitment Termination Date.




“Commitment Termination Event” means




(a) the occurrence of any Event of Default described in clauses (a) through (d) of
Section 8.1.9 with respect to Holdings, Intermediate Holdings or any Borrower; or




(b) the occurrence and continuance of any other Event of Default and either




(i) the declaration of all or any portion of the Loans to be due and payable
pursuant to Section 8.3, or




(ii) the giving of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrowers that the Commitments have been terminated.




“Company” is defined in the preamble.



“Compliance Certificate” means a certificate duly completed and executed by an
Authorized Officer of Holdings that is the president, the chief executive officer, the chief
financial officer or chief accounting officer or the Treasurer of Holdings substantially in the
form of Exhibit E-1 hereto, together with such changes thereto as the Administrative Agent may from
time to time request for the purpose of monitoring the Company’s compliance with the financial
covenants contained herein.



“Contingent Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the Capital Stock of any other
Person. The amount of any Person’s obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding principal amount of the debt,
obligation or other liability guaranteed thereby.



“Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of a Borrower, substantially in the form of
Exhibit C hereto.



“Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with Holdings, Intermediate Holdings, the Company or any Subsidiary, are
treated as a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.




“Credit Extension” means, as the context may require,




(a) the making of a Loan by a Lender (including the acceptance of a Canadian BA); or




(b) the issuance of any Letter of Credit, or the extension of any Stated Expiry Date of
any existing Letter of Credit, by an Issuer.



“Credit Extension Request” means, as the context may require, any Borrowing Request or
Issuance Request.




“Currency” means, as the context may require, U.S. Dollars or Canadian Dollars.



“Default” means any Event of Default or any condition, occurrence or event which,
after notice or lapse of time or both, would constitute an Event of Default.




“Disbursement” is defined in Section 2.6.2.




“Disbursement Date” is defined in Section 2.6.2.



“Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule I, as
it may be amended, supplemented, amended and restated or otherwise modified from time to time by
Holdings, Intermediate Holdings and the Borrowers with the written consent of the Required Lenders.



“Disposition” (or similar words such as “Dispose”) means any sale, transfer,
lease, contribution or other conveyance (including by way of merger) of, or the granting of
options, warrants or other rights to, any of Holdings’, Intermediate Holdings’, the Company’s or
the Restricted Subsidiaries’ assets (including accounts receivables and Capital Stock of
Subsidiaries) to any other Person (other than to another Obligor) in a single transaction or series
of transactions.



“Domestic Office” means the office of a Lender designated as its “Domestic Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office within the
United States as may be designated from time to time by notice from such Lender to the
Administrative Agent and the Company.



“Domestic Subsidiary” and “Domestic Restricted Subsidiary” mean any Subsidiary
or Restricted Subsidiary, respectively, of the Company that is not a Foreign Subsidiary.



“Domestic Subsidiary Guarantor” means any Domestic Restricted Subsidiary that is a
Subsidiary Guarantor.



“EBITDA” means, for any applicable period, subject to clause (b) of Section 1.4, the
sum (without duplication) for the Company and the Restricted Subsidiaries on a consolidated basis
of




(a) Net Income



plus



(b) to the extent deducted in determining Net Income, the sum of (i) amounts attributable to
amortization, (ii) Income Tax Expense, (iii) Interest Expense, (iv) depreciation of assets, (v) all
other non-cash charges, and (vi) amounts resulting from changes in accounting, but only to the
extent not included in clause (v) above,



	 	 	 	 	 
	plus

	 	

	 	

	 

	 	

	 	

	
 
	 	(c)
	 	the excess of








(i) dividends received by the Company in cash, which dividends are made in respect of
the Capital Stock of any Unrestricted Subsidiary which is directly or indirectly owned by
the Company,




over




(ii) Income Tax Expense in respect of the dividends referred to in clause (c)(i) above.



minus



(d) Restricted Payments made by the Company or any of its Subsidiaries pursuant to clauses
(b)(ii), (b)(iii) and (b)(iv) of Section 7.2.6.



“Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender which is
controlled by such Lender or its parent company, (iii) an Approved Fund or (iv) any other Person
(other than a natural Person) approved (in the case of this clause (iv)) by the Administrative
Agent, such approval not to be unreasonably withheld; provided that in the case of any assignment
of U.S. Revolving Loan Commitments and related participations in Letters of Credit, Letter of
Credit Outstandings and Swing Line Loans to any Person described in clauses (i), (ii), (iii) or
(iv) above (other than a Lender that, immediately prior to such assignment, has a U.S. Revolving
Loan Commitment), such Person shall not be an Eligible Assignee without the approval of the
Administrative Agent, the Issuer and the Swing Line Lender, in each case, such approval not to be
unreasonably withheld.



“Environmental Laws” means all applicable federal, state, provincial, local,
supranational or foreign statutes, laws (including common law), ordinances, codes, rules,
regulations, guidelines, treaties, permits, requirements of Governmental Authorities or any
agreement with any Person (including consent decrees and administrative orders) relating to public
health and safety, Hazardous Materials or the protection of the environment.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to Sections of ERISA also refer to any successor
Sections thereto.



	 	 	 	 	 
	
 
	 	“Event of Default” is defined in Section 8.1.
	 	

	 
	 	 	 	 
	 	 	 

	 
	 	 	 	 
	 	 	“Excess Cash Flow” means, for any Fiscal Year, the excess (if any), of

	 
	 	 	 	 
	 	 	 

	 
	 	 	 	 
	minus

	 	(a)



	 	EBITDA for such Fiscal Year



	 

	 	

	 	

	
 
	 	(b)
	 	the sum (for such Fiscal Year) of








(i) Interest Expense actually paid in cash by the Company and the Restricted
Subsidiaries,



plus




(ii) scheduled principal repayments, to the extent actually made, of Term Loans
pursuant to clause (c) of Section 3.1.1 and scheduled payments of other funded debt
permitted under Section 7.2.2 actually paid in cash,



plus




(iii) all income taxes actually paid in cash by the Company and the Restricted
Subsidiaries (less the sum of (x) any cash tax refunds received and (y) any income taxes
actually paid in cash in respect of the dividends referred to in clause (c)(i) of the
definition of the term “EBITDA”),



plus




(iv) Capital Expenditures actually made by the Company and the Restricted Subsidiaries
in such Fiscal Year (other than Capital Expenditures funded with Casualty Proceeds or Net
Disposition Proceeds or through the incurrence of Indebtedness, other than a Revolving Loan
or Swing Line Loan),



plus




(v) $10,000,000.




“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“Exchange Equivalent” means, on any date of determination, (a) with respect to
Canadian Dollars, the equivalent amount in U.S. Dollars, and (b) with respect to U.S. Dollars, the
equivalent amount in Canadian Dollars of such U.S. Dollars, in each case as determined by reference
to the New York foreign exchange selling rates, as determined by the Administrative Agent (in
accordance with its standard practices).




“Exemption Certificate” is defined in clause (e) of Section 4.6.




“Existing Credit Agreement” has the meaning defined in the RECITALS hereto.



“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to




(a) the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or




(b) if such rate is not so published for any day which is a Business Day, the average
of the quotations for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.



“Fee Letter” means the confidential fee letter, dated September 8, 2004, among the
Lead Arranger, UBS Loan Finance LLC, UBS Securities LLC, Holdings and the Company.



“Filing Statements” means all Uniform Commercial Code financing statements and other
similar financing statements in other jurisdictions required to create, perfect or continue the
security interests under the Collateral Documents.



“Fiscal Quarter” means a quarter ending on the last day of March, June, September or
December.



“Fiscal Year” means any period of twelve consecutive calendar months ending on
December 31; references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the “2004 Fiscal Year”) refer to the Fiscal Year ending on December 31 of such
calendar year.



“Fixed Charge Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:




(a) the sum of:




(i) EBITDA (for all such Fiscal Quarters);




plus




(ii) Rental Expense paid or payable in cash for all such Fiscal Quarters;



to




(b) the sum (without duplication) of




(i) Interest Expense paid or payable in cash for all such Fiscal Quarters;




plus




(ii) all scheduled principal repayments of Indebtedness of the Company and the
Restricted Subsidiaries made during such period (including repayments of the Term
Loans pursuant to clause (c) of Section 3.1.1, after giving effect to any reductions
in such scheduled principal repayments attributable to any optional or mandatory
prepayments of the Term Loans) during all such Fiscal Quarters;




plus




(iii) all Income Tax Expense actually paid in cash for all such Fiscal
Quarters;




plus




(iv) Restricted Payments made by the Company or any of its Subsidiaries
pursuant to clause (b)(i) and (vii) of Section 7.2.6 (for all such Fiscal Quarters);




plus




(v) all dividends paid or payable in cash in respect of preferred Capital Stock
of Holdings (for all such Fiscal Quarters);




plus




(vi) Rental Expense paid or payable in cash for all such Fiscal Quarters.



“Foreign Pledge Agreement” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States or a state thereof executed and delivered by
the Company or any of the Restricted Subsidiaries pursuant to the terms of this Agreement, in form
and substance satisfactory to the Administrative Agent, as may be necessary or desirable under the
laws of organization or incorporation of a Restricted Subsidiary to further protect or perfect the
Lien on and security interest in any Collateral (as defined in the U.S. Guarantee and Security
Agreement).



“Foreign Subsidiary” means any Subsidiary of Holdings (a) which is organized under the
laws of any jurisdiction outside of the United States, (b) which conducts the major portion of its
business outside of the United States and (c) all or substantially all of the property and assets
of which are located outside of the United States.



“F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.




“GAAP” is defined in Section 1.4.



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



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




“Guarantor” means, as the context may require, each party which provides a Guarantee.



“Guarantor Confirmation Agreements” means each of the Guarantor Confirmation
Agreements dated as of September 29, 2004 among the Guarantors party thereto and the Administrative
Agent, each substantially in the form of Exhibit F.




“Hazardous Material” means




(a) any “hazardous substance”, as defined by CERCLA;




(b) any “hazardous waste”, as defined by the Resource Conservation and Recovery Act; or




(c) any pollutant or contaminant or hazardous, dangerous or toxic chemical, waste,
material or substance (including any petroleum product) within the meaning of any other
applicable supranational, foreign, federal, provincial, state or local statute, law
(including common law), code, rule, treaty, permit, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning any pollutant or hazardous, toxic or dangerous chemical,
waste, substance or material, all as amended.



“Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under currency exchange agreements, interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, and all other agreements or arrangements designed
to protect such Person against fluctuations in interest rates or currency exchange rates.



“herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in any Loan Document refer to such Loan Document as a whole and not to any particular
section, paragraph or provision of such Loan Document.




“Holdings” is defined in the preamble.



“Impermissible Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial statement of Holdings




(a) which is of a “going concern” or similar nature;




(b) which relates to the limited scope of examination of matters relevant to such
financial statement; or




(c) which relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment to such item
the effect of which would be to cause Holdings, Intermediate Holdings or any Borrower to be
in Default.



“including” and “include” mean including without limiting the generality of
any description preceding such term, and, for purposes of each Loan Document, the parties hereto
agree that the rule of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.



“Income Tax Expense” means the sum of (i) all federal, state, local and foreign income
tax expense of the Company and the Restricted Subsidiaries and (ii) without duplication, payments
under the Tax Sharing Agreement by the Company and the Restricted Subsidiaries for the federal
income tax liability of the affiliated group as defined in Section 1504(a) of the Code, of which
the Company and the Restricted Subsidiaries are members.




“Indebtedness” of any Person means:




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




(b) all obligations, contingent or otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and banker’s acceptances issued for the account of
such Person;




(c) all Capitalized Lease Liabilities of such Person;




(d) for purposes of Section 8.1.5 only, all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the balance sheet of such Person
as of the date at which Indebtedness is to be determined;




(e) net liabilities of such Person under all Hedging Obligations;




(f) whether or not so included as liabilities in accordance with GAAP, all obligations
of such Person to pay the deferred purchase price of property or services excluding trade
accounts payable in the ordinary course of business which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of such Person,
and indebtedness secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) a Lien on property owned or being acquired
by such Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;




(g) obligations arising under Synthetic Leases; and




(h) all Contingent Liabilities of such Person in respect of any of the foregoing with
respect to another Person.



The Indebtedness of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not liable therefor.




“Indemnified Liabilities” is defined in Section 11.4.




“Indemnified Parties” is defined in Section 11.4.



“Interest Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio
computed for the period consisting of such Fiscal Quarter and each of the three immediately
preceding Fiscal Quarters of:




(a) EBITDA (for all such Fiscal Quarters)




to




(b) the sum (for all such Fiscal Quarters) of (i) Interest Expense (for all such Fiscal
Quarters paid or payable in cash), (ii) all dividends paid or payable in cash in respect of
preferred Capital Stock of Holdings (for all such Fiscal Quarters) and (iii) Restricted
Payments made by the Company or any of its Subsidiaries pursuant to clause (b)(i) and
(b)(vii) of Section 7.2.6.



“Interest Expense” means, for any Fiscal Quarter, the aggregate interest expense (both
accrued and paid) of the Company and the Restricted Subsidiaries for such Fiscal Quarter, including
the portion of any payments made in respect of Capitalized Lease Liabilities allocable to interest
expense (net of interest income paid during such period to the Company and the Restricted
Subsidiaries) and excluding fees and costs relating to the termination of the Company’s interest
rate swap agreements in effect prior to the Original Effective Date.



“Interest Period” means, (a) as to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or converted into, a LIBO
Rate Loan pursuant to Sections 2.3 or 2.4 and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month) or, pursuant to the first
proviso clause in Section 2.3.1, to such date one week thereafter, as the applicable Borrower may
select in its relevant notice pursuant to Sections 2.3 or 2.4; and (b) as to any Canadian BA or
Acceptance Note, the period beginning on (and including) the date on which such Canadian BA is
accepted or rolled over pursuant to Section 2.4 or 2.8 or such Acceptance Note is issued pursuant
to Section 2.8 and continuing to (but excluding) the date which is 30, 60, 90 or 180 days
thereafter as the Canadian Revolver Borrower may select in its relevant notice pursuant to Section
2.4 or 2.8; provided, however, that




(a) the Borrowers shall not be permitted to select Interest Periods to be in effect at
any one time which have expiration dates occurring on more than ten different dates for U.S.
Revolving Loans and Term Loans and three different dates for Canadian Revolving Loans;




(b) if such Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day); and




(c) no Interest Period for any Loan may end later than the Stated Maturity Date for
such Loan.




“Intermediate Holdings” is defined in the preamble.




“Investment” means, relative to any Person,




(a) any loan, advance or extension of credit made by such Person to any other Person,
including the purchase by such Person of any bonds, notes, debentures or other debt
securities of any other Person; and




(b) any Capital Stock held by such Person in any other Person.



The amount of any Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or capital amount equal to
the fair market value of such property at the time of such Investment.




“ISP Rules” is defined in Section 11.9.



“Issuance Request” means a Letter of Credit request and certificate duly executed by
an Authorized Officer of the Company, substantially in the form of Exhibit B-2 hereto.



“Issuer” means the Administrative Agent in its capacity as Issuer of the Letters of
Credit. At the request of the Administrative Agent and with the Company’s consent (not to be
unreasonably withheld), another Lender or an Affiliate of the Administrative Agent may issue one or
more Letters of Credit hereunder.



“Lender Assignment Agreement” means an assignment agreement substantially in the form
of Exhibit I hereto.




“Lenders” is defined in the preamble.



“Lender’s Environmental Liability” means any and all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages
(including consequential damages), disbursements or expenses of any kind or nature whatsoever
(including reasonable attorneys’ fees at trial and appellate levels and experts’ fees and
disbursements and expenses incurred in investigating, defending against or prosecuting any
litigation, claim or proceeding) which may at any time be imposed upon, incurred by or asserted or
awarded against any Secured Party or any of such Person’s Affiliates, shareholders, directors,
officers, employees, investment advisors and agents by virtue of the Lien granted by Obligors in
connection with or arising from:




(a) any Hazardous Material on, in, from, under or affecting all or any portion of any
property owned, leased or operated upon (including rights of way easements) of Holdings,
Intermediate Holdings, the Borrowers or any of their respective Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent caused by Releases
from Holdings’, Intermediate Holdings’, the Borrowers’ or any of their respective
Subsidiaries’ or any of their respective predecessors’ properties owned, leased or operated
upon (including right of way easements);




(b) any misrepresentation, inaccuracy or breach of any warranty contained in Section
6.12;




(c) any violation or claim of violation by Holdings, Intermediate Holdings, the
Borrowers or any of their respective Subsidiaries of any Environmental Laws; or




(d) the imposition of any lien for damages caused by, or the recovery of any costs for,
the cleanup, Release or threatened Release of a Hazardous Material by Holdings, Intermediate
Holdings, the Borrowers or any of their respective Subsidiaries, or in connection with any
property owned, leased or operated upon (including rights of way easements) or formerly
owned, leased or operated upon (including rights of way easements) by Holdings, the
Borrowers or any of their respective Subsidiaries.




“Letter of Credit” is defined in Section 2.1.2.



“Letter of Credit Commitment” means, with respect to an Issuer, such Issuer’s
obligation to issue Letters of Credit pursuant to Section 2.1.2 and, with respect to each U.S.
Revolving Lender, the obligations of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.



“Letter of Credit Commitment Amount” means, on any date, a maximum amount of
$10,000,000, as such amount may be permanently reduced from time to time pursuant to Section 2.2.



“Letter of Credit Outstandings” means, on any date, an amount equal to the sum
(without duplication) of (i) the stated amount of all issued and outstanding Letters of Credit, and
(ii) the then aggregate amount of all unpaid and outstanding Reimbursement Obligations.




“Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of




(a) Total Debt outstanding on the last day of such Fiscal Quarter to




(b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.



“LIBO Rate” means, relative to any Interest Period for LIBO Rate Loans in any
Currency,




(a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on Page 3750 of the Dow Jones Markets Service (or on any
successor or substitute page of such service, or any successor or substitute service, as
determined by the Administrative Agent) for deposits in such Currency (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or




(b) if the rates referenced in the preceding subsection (a) are not available, the rate
of interest per annum determined by the Administrative Agent to be the arithmetic mean
(rounded upward to the next 1/16th of 1%) of the rates of interest per annum at which
deposits in such Currency in the approximate amount of the Loan to be made or continued as,
or converted into, a LIBO Rate Loan by the Administrative Agent (or, in the case of any LIBO
Rate in respect of any LIBO Rate Loans in which the Administrative Agent will not
participate, $1,000,000 or the Canadian Dollar Equivalent thereof) and having a maturity
comparable to such Interest Period would be offered to the Administrative Agent in the
London interbank market at its request in the case of LIBO Rate Loans denominated in any
Currency, at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.



“LIBO Rate Loan” means a Loan bearing interest, at all times during an Interest Period
applicable to such Loan, at a rate of interest determined by reference to the LIBO Rate (Reserve
Adjusted).



“LIBO Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued or
maintained as, or converted into, a LIBO Rate Loan for any Interest Period, a rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:



	 	 	 	 	 
	LIBO Rate

	 	=
	 	LIBO Rate
	
 
	 	 	 	 
	 
	 	 	 	 
	(Reserve Adjusted)

	 	 	 	1.00 – LIBOR Reserve Percentage







The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be determined by
the Administrative Agent on the basis of the LIBOR Reserve Percentage in effect two Business Days
before the first day of such Interest Period.



“LIBOR Office” means the office of a Lender designated as its “LIBOR Office” on
Schedule II hereto or in a Lender Assignment Agreement, or such other office designated
from time to time by notice from such Lender to the Borrowers and the Administrative Agent, whether
or not outside the United States, which shall be making or maintaining the LIBO Rate Loans of such
Lender.



“LIBOR Reserve Percentage” means, relative to any Interest Period for LIBO Rate Loans,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate reserve requirements
(including all basic, emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including “Eurocurrency Liabilities”, as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.



“Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit, encumbrance, lien (statutory or otherwise), charge against or interest in property, or
other priority or preferential arrangement of any kind or nature whatsoever, to secure payment of a
debt or performance of an obligation.



“Loan Documents” collectively means this Agreement, the Letters of Credit, each Rate
Protection Agreement, the Fee Letter, each Collateral Document, and each other agreement,
certificate, document or instrument delivered in connection with any other Loan Document, whether
or not specifically mentioned herein or therein.



“Loans” means, as the context may require, a Revolving Loan, a Term Loan or a Swing
Line Loan.



“Local Time” means, with respect to a specified time, New York time when relevant to a
Term Loan or a U.S. Revolving Loan and Toronto time when relevant to a Canadian Revolving Loan.



“Material Adverse Effect” means a material adverse effect on (i) the business, assets,
condition (financial or otherwise), operations, performance, properties, or prospects of Holdings,
Intermediate Holdings, the Company and the Restricted Subsidiaries taken as a whole, (ii) the
rights and remedies of any Secured Party under any Loan Document or (iii) the ability of any
Obligor to perform its Obligations under any Loan Document.



“Material Documents” means the Organic Documents of Holdings, Intermediate Holdings
and each Borrower, the Subordinated Debt Documents and the Tax Sharing Agreement, in each case as
amended, supplemented, amended and restated or otherwise modified from time to time in accordance
with Section 7.2.12.




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



“Mortgage” means each mortgage, deed of trust, Canadian equivalent to a mortgage
(including debentures, hypothecs or charges) or other agreement executed and delivered by any
Obligor in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the
requirements of this Agreement in substantially the form of Exhibit H-1 or H-2 hereto, as the case
may be, as applicable, under which a Lien is granted on the real property and fixtures described
therein, in each case as amended, supplemented, amended and restated or otherwise modified from
time to time.




“Mortgagee” is defined in Section 7.2.3(l).




“Mortgagor” is defined in Section 7.2.3(l).



“Net Debt Proceeds” means with respect to the sale or issuance by Holdings,
Intermediate Holdings, the Company or the Restricted Subsidiaries to any Person of any of its
Indebtedness not permitted pursuant to Section 7.2.2 (other than clause (f)) or any of its
preferred stock (other than Qualified Preferred Stock), the excess of:




(a) the gross cash proceeds received by such Person from such sale or issuance,



over




(b) the sum of all underwriting commissions and legal, investment banking, brokerage
and accounting and other professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been paid to Affiliates of
Holdings in connection therewith.



“Net Disposition Proceeds” means, with respect to any sale, transfer or other
disposition of any assets of Holdings, Intermediate Holdings, the Company or any of the Restricted
Subsidiaries (other than sales permitted pursuant to clause (a), (b), (d) or (g) of Section
7.2.11), the excess of




(a) the gross cash proceeds received by Holdings, Intermediate Holdings, the Company or
any such Restricted Subsidiary, as the case may be, from any such Disposition and any cash
payments received in respect of promissory notes or other non-cash consideration delivered
to Holdings, Intermediate Holdings, the Company or such Restricted Subsidiary, as the case
may be, in respect thereof,



over




(b) the sum (without duplication) of (i) all fees and expenses with respect to legal,
investment banking, brokerage, accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and charges, in each case actually
incurred in connection with such Disposition which have not been paid to Affiliates of
Holdings, Intermediate Holdings or the Company, (ii) all taxes and other governmental costs
and expenses actually paid or estimated by such Person (in good faith) to be payable in cash
in connection with such Disposition, and (iii) payments made by Holdings, Intermediate
Holdings, the Company or any of the Restricted Subsidiaries to retire Indebtedness (other
than the Credit Extensions) of Holdings, Intermediate Holdings, the Company or any of the
Restricted Subsidiaries where payment of such Indebtedness is required in connection with
such Disposition;



provided, however, that if, after the payment of all taxes with respect to such Disposition, the
amount of estimated taxes, if any, pursuant to clause (b)(ii) above exceeded the tax amount in
respect of such Disposition, the aggregate amount of such excess shall, at such time, constitute
Net Disposition Proceeds.



“Net Equity Proceeds” means with respect to any sale or issuance by Holdings,
Intermediate Holdings, the Company or the Restricted Subsidiaries to any Person of any Capital
Stock (excluding, for purposes of this definition, preferred stock which is not Qualified Preferred
Stock) or, warrants or options for such Capital Stock or the exercise of any such warrants or
options, the excess of:




(a) the gross cash proceeds received by Holdings, Intermediate Holdings, the Company or
any such Restricted Subsidiary from such sale, exercise or issuance; provided, however, that
the Company may exclude up to $500,000 in aggregate of such gross proceeds in each Fiscal
Year,



over




(b) the sum of all underwriting commissions and legal, investment banking, brokerage,
accounting and other professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been paid to Affiliates of
Holdings, Intermediate Holdings, or the Company in connection therewith.



“Net Income” means, for any period, the aggregate of all amounts (exclusive of all
amounts in respect of any extraordinary gains but including extraordinary losses) which would be
included as net income on the consolidated financial statements of the Company and the Restricted
Subsidiaries for such period.



“Non-Domestic Lender” means any Lender that is not a “United States person”, as
defined under Section 7701(a)(30) of the Code.



“Non-Excluded Taxes” means any Taxes other than net income and franchise taxes imposed
with respect to any Secured Party by a Governmental Authority under the laws of which such Secured
Party is organized or in which it maintains its applicable lending office.



“Note” means, as the context may require, a Revolving Note, a U.S. Term Note, a
Canadian Term Note, a Swing Line Note or an Acceptance Note.



“Notional BA Proceeds” means, relative to a particular Canadian Borrowing of Canadian
BAs, the aggregate face amount of such Canadian BAs less the aggregate of:




(a) a discount from the aggregate face amount of such Canadian BAs calculated in
accordance with normal market practice based on the Canadian BA Rate for the term of such
Canadian BAs; and




(b) the amount of the Applicable Canadian BA Stamping Fees in respect of such Canadian
BAs.



“Obligations” means all obligations (monetary or otherwise, whether absolute or
contingent, matured or unmatured) of Holdings, Intermediate Holdings, the Borrowers and each other
Obligor arising under or in connection with a Loan Document, including the principal of and
premium, if any, and interest (including interest accruing during the pendency of any proceeding of
the type described in Section 8.1.9, whether or not allowed in such proceeding) on the Loans and
all Reimbursement Obligations.



“Obligor” means, as the context may require, Holdings, Intermediate Holdings, the
Borrowers and each other Person (other than a Secured Party) obligated under any Loan Document.



“Organic Document” means, relative to any Obligor, as applicable, its certificate of
incorporation, by-laws, certificate of partnership, partnership agreement, certificate of
formation, limited liability agreement and all shareholder agreements, voting trusts and similar
arrangements applicable to any of such Obligor’s partnership interests, limited liability company
interests or authorized shares of Capital Stock.



“Original Effective Date” means May 23, 2002, the first date all the conditions
precedent in Article 5 of the Existing Credit Agreement were satisfied or waived in accordance with
the terms thereof.



“Other Taxes” means any and all stamp, documentary or similar taxes, or any other
excise or property taxes or similar levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration, recording or
enforcement of any Loan Document.




“Participant” is defined in Section 11.11.



“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
or all of its functions under ERISA.



“Pension Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in Section
4001(a)(3) of ERISA), and to which Holdings, the Company or any corporation, trade or business that
is, along with Holdings and the Company, a member of a Controlled Group, may have liability,
including any liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to
be a contributing sponsor under Section 4069 of ERISA.



“Percentage” means, as the context may require, any Lender’s U.S. Revolving Loan
Percentage, Canadian Revolving Loan Percentage and/or Term Loan Percentage.



“Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
Capital Stock, assets or otherwise) by the Company or any of the Restricted Subsidiaries from any
Person of a business in which the following conditions are satisfied:




(a) immediately before and after giving effect to such acquisition no Default shall
have occurred and be continuing or would result therefrom (including under Section 7.2.1);
and




(b) Holdings shall have delivered to the Administrative Agent a Compliance Certificate
for the period of four full Fiscal Quarters immediately preceding such acquisition (prepared
in good faith and in a manner and using such methodology which is consistent with the most
recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to
the consummation of such acquisition and evidencing compliance with the covenants set forth
in Section 7.2.4.




“Permitted Senior Easement” is defined in Section 7.2.3(l).



“Person” means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary or other capacity.



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



“Pledged Subsidiary” means each Subsidiary of the Company in respect of which the
Administrative Agent has been granted a security interest in or a pledge of any of the Capital
Stock of such Subsidiary.



“P.P.S.A.” means the Personal Property Security Act (Ontario), as in effect from time
to time in the Province of Ontario; provided that if, with respect to any Filing Statement or by
reason of any provisions of law, the perfection or the effect of perfection or non-perfection of
the security interests granted to the Administrative Agent pursuant to the applicable Loan Document
is governed by the Personal Property Security Act (or other similar legislation) as in effect in a
jurisdiction of Canada other than Ontario, “P.P.S.A.” means the Personal Property Security Act (or
other similar legislation) as in effect from time to time in such other jurisdiction for purposes
of the provisions of this Agreement, each Loan Document and any Filing Statement relating to such
perfection or effect of perfection or non-perfection.




“pro forma” has the meaning set forth in Section 1.4(b).




“PwC” means PricewaterhouseCoopers LLC.



“Qualified Preferred Stock” means preferred stock issued by Holdings that does not
require any (i) cash dividends or (ii) redemption, maturity, repurchase or similar retirement prior
to the earlier of (x) one year after the Stated Maturity Date of the Term Loans and (y) one year
after the maturity date of any then outstanding Additional Term Loans, except at the sole option of
Holdings.



“Quarterly Payment Date” means the last Business Day of March, June, September and
December.



“RailAmerica Australia Companies” means RAAI Delaware LLC, a Delaware limited
liability company, and its Subsidiaries.




“RailAmerica de Chile” means RailAmerica de Chile S.A., a Chilean Corporation.



“Rate Protection Agreement” means, collectively, any interest rate swap, cap, collar,
foreign currency exchange agreement, foreign currency exchange hedge agreement or similar agreement
entered into by the Company or any of its Subsidiaries under which the counterparty of such
agreement is (or at the time such agreement was entered into, was) a Lender or an Affiliate of a
Lender.




“Refinancing Indebtedness” is defined in clause (b) of Section 7.2.2.




“Refunded Swing Line Loans” is defined in clause (b) of Section 2.3.2.




“Register” is defined in clause (b) of Section 2.7.




“Reimbursement Obligation” is defined in Section 2.6.3.



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



“Release” means any discharge, disposal, dumping, injection, pumping, depositing,
seepage, spilling, leaking, emission, including, without limitation, a “release”, as such
term is defined in CERCLA.



“Rental Expense” means, for any Fiscal Quarter, the aggregate rental expense (both
accrued and paid) of the Company and the Restricted Subsidiaries for such Fiscal Quarter.




“Replacement Lender” is defined in Section 4.10.




“Replacement Notice” is defined in Section 4.10.




“Required Lenders” means, at any time,




(a) prior to the Amendment Effective Date, Lenders having at least 51% of the Term Loan
Commitments and the Revolving Loan Commitments; and




(b) on and after the Amendment Effective Date, Lenders holding at least 51% of the
Total Exposure Amount.



“Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., as amended.



“Responsible Officer” means, with respect to any Person, its chief executive officer,
its president or any vice president, managing director, treasurer, controller or other officer
thereof having substantially the same authority and responsibility.



“Restricted Payment” means the declaration or payment of any dividend (other than
dividends payable solely in Capital Stock of Holdings) on, or the making of any payment or
distribution on account of, or setting apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of any class of Capital Stock of
Holdings, Intermediate Holdings, the Company or any Restricted Subsidiary or any warrants or
options to purchase any such Capital Stock, whether now or hereafter outstanding, or the making of
any other distribution in respect thereof, either directly or indirectly, whether in cash or
property, obligations of Holdings, Intermediate Holdings, the Company or any Restricted Subsidiary
or otherwise.



“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.



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



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



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




“Revolving Loan Commitment Termination Date” means the earliest of




(a) October 31, 2004 (if the initial Credit Extension has not occurred on or prior to
such date);




(b) the sixth anniversary of the Amendment Effective Date;




(c) the date on which each Revolving Loan Commitment Amount is terminated in full or
reduced to zero pursuant to the terms of this Agreement; and




(d) the date on which any Commitment Termination Event occurs.



Upon the occurrence of any event described in the preceding clauses (c) or (d), the Revolving Loan
Commitments shall terminate automatically and without any further action.



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




“Sale Leasebacks” is defined in Section 7.2.15.




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




“SEC” means the Securities and Exchange Commission.



“Secured Parties” means, collectively, the Lenders, the Issuers, the Administrative
Agent, each counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof and (in each case),
each of their respective successors, transferees and assigns.




“Senior Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of




(a) Total Debt (excluding Subordinated Debt) outstanding on the last day of such Fiscal
Quarter to




(b) EBITDA computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.



“Senior Subordinated Notes” means the 12 7/8% Senior Subordinated Notes Due August 15,
2010, issued by the Company in August 2000 in an initial aggregate principal amount of $130,000,000
and, if then outstanding, Additional Senior Subordinated Notes issued in accordance with Section
7.2.2(f).



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



“Specified Default” means any Event of Default, any Default under Section 8.1.1 or any
Default under clause (c) or (d) of Section 8.1.9.



“Stated Amount” means, on any date and with respect to a particular Letter of Credit,
the total amount then available to be drawn under such Letter of Credit.




“Stated Expiry Date” is defined in Section 2.6.




“Stated Maturity Date” means




(a) with respect to all Term Loans, the seventh anniversary of the Amendment Effective
Date; and




(b) with respect to all Revolving Loans and Swing Line Loans, the sixth anniversary of
the Amendment Effective Date;



provided that if any such date is not a Business Day, the stated Maturity Date for such Loans shall
be the next following Business Day, or, if such next Business Day falls in the next calendar month,
the next preceding Business Day.




“Subject Lender” is defined in Section 4.10.




“STB” means the Surface Transportation Board.



“Subordinated Debt” means unsecured Indebtedness of Holdings, Intermediate Holdings or
the Company or the Restricted Subsidiaries (including the Indebtedness evidenced by the Senior
Subordinated Notes) subordinated in right of payment to the Obligations pursuant to documentation
containing (in the case of any such Indebtedness issued, incurred or assumed after the Original
Effective Date) redemption and other prepayment events, maturities, amortization schedules,
covenants, events of default, remedies, acceleration rights, subordination provisions and other
material terms satisfactory to the Required Lenders.



“Subordinated Debt Documents” means, collectively, the loan agreements, indentures,
note purchase agreements, promissory notes, guarantees, and other instruments (including the Senior
Subordinated Notes) and agreements evidencing the terms of Subordinated Debt, as amended,
supplemented, amended and restated or otherwise modified in accordance with Section 7.2.12.



“Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership or other entity of which more than 50% of the outstanding securities (or other
ownership interest) having ordinary voting power to elect the board of directors, managers or other
voting members of the governing body of such corporation, limited liability company, partnership or
other entity (irrespective of whether at the time securities (or other ownership interest) of any
other class or classes of such corporation, limited liability company, partnership or other entity
shall or might have voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more other Subsidiaries of
such Person, or by one or more other Subsidiaries of such Person. Unless the context otherwise
specifically requires, the term “Subsidiary” shall be a reference to a Subsidiary of Holdings,
Intermediate Holdings or the Company.



“Subsidiary Guarantor” means each Subsidiary of the Company (other than Unrestricted
Subsidiaries) that has executed and delivered to the Collateral Agent the U.S. Guarantee and
Security Agreement or a Canadian Guarantee (or, in each case, a supplement thereto).



“Swing Line Lender” means UBS Loan Finance LLC in its capacity as Swing Line Lender
hereunder.




“Swing Line Loan” is defined in clause (c) of Section 2.1.1.




“Swing Line Loan Commitment” is defined in clause (c) of Section 2.1.1.



“Swing Line Loan Commitment Amount” means, on any date, $5,000,000, as such amount may
be reduced from time to time pursuant to Section 2.2.



“Swing Line Note” means a promissory note of the Company payable to the Swing Line
Lender, in the form of Exhibit A-6 hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate Indebtedness of the Company to the
Swing Line Lender resulting from outstanding Swing Line Loans, and also means all other promissory
notes issued from time to time in substitution therefor or renewal thereof.



“Synthetic Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (i)
that is not a capital lease in accordance with GAAP and (ii) in respect of which the lessee retains
or obtains ownership of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.



“Tax Sharing Agreement” means the Tax Sharing Agreement, dated as of February 4, 2000,
as amended to the Amendment Effective Date, executed and delivered by the Company and the
Restricted Subsidiaries.



“Taxes” means any and all taxes, duties, levies, imposts, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, and all interest, penalties or similar liabilities with respect thereto.



“Tender Offer” means the tender offer launched August 31, 2004 by the Company relating
to the purchase of up to all of the outstanding Senior Subordinated Notes, including without
limitation the consent solicitation with respect to amendments and modification of the terms of the
Senior Subordinated Notes.



“Term Loan Commitment” means, relative to any Lender, such Lender’s obligation (if
any) to make Term Loans pursuant to Section 2.1.3(a); provided that each Lender with a Term Loan
Percentage shall be obligated to make Term Loans up to a percentage of the U.S. Term Loan
Commitment Amount and the Canadian Term Loan Commitment Amount which, in each case, is equal to
such Lender’s percentage of the aggregate Term Loans.



“Term Loan Commitment Amount” means, as the context may require, the U.S. Term Loan
Commitment Amount and/or the Canadian Term Loan Commitment Amount.




“Term Loan Commitment Termination Date” means the earliest of




(a) October 31, 2004 (if the Term Loans have not been made on or prior to such date);




(b) the Amendment Effective Date (immediately after the making of the Term Loans on
such date); and




(c) the date on which any Commitment Termination Event occurs.



Upon the occurrence of any event described in clauses (b) or (c), the Term Loan Commitments shall
terminate automatically and without any further action.



“Term Loan Percentage” means, relative to any Lender, the applicable percentage
relating to Term Loans set forth opposite its name on Schedule II hereto under the Term Loan
Commitment column or set forth in a Lender Assignment Agreement under the Term Loan Commitment
column, as such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its Assignee Lender and delivered pursuant to Section 11.11.
A Lender shall not have any Term Loan Commitment if its percentage under the Term Loan Commitment
column is zero or is blank.



“Term Loans” means, collectively, the U.S. Term Loans, the Canadian Term Loans and the
Additional Term Loans, if any.



“Termination Date” means the date on which all Obligations have been paid in full in
cash, all Letters of Credit have been terminated or expired or Cash Collateralized and all Canadian
BAs have matured or been cash collateralized pursuant to, and in accordance with, the terms of
clause (a) of Section 3.1.1, all Rate Protection Agreements have been terminated and all
Commitments shall have terminated.



“Total Debt” means, on any date, the outstanding balance (determined in accordance
with GAAP) of all Indebtedness of the Company and the Restricted Subsidiaries of the type referred
to in clause (a), clause (b) and clause (c), in each case of the definition of “Indebtedness” and
any Contingent Liability in respect of any of the foregoing; provided, however, “Total Debt” shall
not include Indebtedness in respect of Synthetic Leases.



“Total Exposure Amount” means, on any date of determination (and without duplication),
the outstanding principal amount of all Loans, the aggregate amount of all Letter of Credit
Outstandings and the unfunded amount of the Commitments.



“Trademark Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor substantially in the form of Exhibit E to the U.S. Guarantee and Security
Agreement, as amended, supplemented, amended and restated or otherwise modified from time to time.



“Tranche” means, as the context may require, the Loans constituting Term Loans,
Revolving Loans or Swing Line Loans.



“Transaction Documents” means, collectively, each of the Material Documents and all
other agreements, documents, instruments, certificates, filings, consents, approvals, board of
directors resolutions and opinions furnished pursuant to or in connection with the transactions
contemplated hereby, in each case as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with Section 7.2.12.



“TRT” means Trois-Rivières Trailers inc./Remorques Trois-Rivières inc., a corporation
organized and existing under the laws of the Province of Quebec, Canada.



“type” means (i) relative to any Loan, the portion thereof, if any, being maintained
as a Base Rate Loan or a LIBO Rate Loan, (ii) in the case of Term Loans, made or being maintained
as U.S. Term Loans or Canadian Term Loans and (iii) in the case of Revolving Loans, made or being
maintained as U.S. Revolving Loans or Canadian Revolving Loans.




“UBS” is defined in the preamble hereto.



“U.C.C.” means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to any Filing Statement or by reason of any provisions
of law, the perfection or the effect of perfection or non-perfection of the security interests
granted to the Collateral Agent pursuant to the applicable Loan Document is governed by the Uniform
Commercial Code as in effect in a jurisdiction of the United States other than New York, U.C.C.
means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions of this Agreement, each Loan Document and any Filing Statement relating
to such perfection or effect of perfection or non-perfection.



“United States” or “U.S.” means the United States of America, its fifty states
and the District of Columbia.



“Unrestricted Subsidiary” means (i) RailAmerica de Chile, (ii) the RailAmerica
Australia Companies, (iii) TRT and (iv) each Subsidiary which Holdings or Intermediate Holdings
acquires after the Amendment Effective Date and designates as an Unrestricted Subsidiary as
permitted by Section 7.2.5(j).




“U.S. Dollar” and the sign “$” mean the lawful currency of the United States.



“U.S. Dollar Equivalent” means the Exchange Equivalent in U.S. Dollars of any amount
of Canadian Dollars.



“U.S. Guarantee and Security Agreement” means the U.S. Guarantee and Security
Agreement executed and delivered by an Authorized Officer of Holdings, Intermediate Holdings, the
Company and each other Domestic Subsidiary Guarantor pursuant to the Existing Credit Agreement or
7.1.9, substantially in the form of Exhibit G-1 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time.



“U.S. Guarantor Confirmation Agreement” means the U.S. Guarantor Confirmation
Agreement executed and delivered on the date hereof by Holdings, Intermediate Holdings, the Company
and each Domestic Subsidiary Guarantor substantially in the form of Exhibit F-1 hereto.




“U.S. Revolving Loan Commitment” is defined in clause (a) of Section 2.1.1.



“U.S. Revolving Loan Commitment Amount” means $90,000,000, as such amount may be
reduced pursuant to the terms hereof.



“U.S. Revolving Loan Lender” means each Lender that has a percentage of the U.S.
Revolving Loan Commitment in excess of zero.



“U.S. Revolving Loan Percentage” means, relative to any Lender, the applicable
percentage relating to U.S. Revolving Loans set forth opposite its name on Schedule II hereto under
the U.S. Revolving Loan Commitment column or set forth in a Lender Assignment Agreement under the
U.S. Revolving Loan Commitment column, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreements executed by such Lender and its Assignee Lender and
delivered pursuant to Section 11.11. A Lender shall not have any U.S. Revolving Loan Commitment if
its percentage under the U.S. Revolving Loan Commitment column is zero or is blank.




“U.S. Revolving Loans” is defined in clause (a) of Section 2.1.1.



“U.S. Revolving Note” means a promissory note of the Company payable to any U.S.
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the
Company to such U.S. Revolving Loan Lender resulting from outstanding U.S. Revolving Loans, and
also means all other promissory notes issued from time to time in substitution therefor or renewal
thereof.




“U.S. Term Loans” is defined in Section 2.1.3(a)(i).




“U.S. Term Loan Commitment Amount” means, on any date, $313,000,000.



“U.S. Term Note” means a promissory note of the Company payable to any Lender, in the
form of Exhibit A-4 hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), evidencing the aggregate Indebtedness of the Company to such Lender resulting
from outstanding U.S. Term Loans, and also means all other promissory notes issued from time to
time in substitution therefor or renewal thereof.



“Voting Stock” means, with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



“Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1)
of ERISA.



“wholly owned” means any Subsidiary all of the outstanding common stock (or similar
equity interest) of which (other than any director’s qualifying shares or investments by foreign
nationals mandated by applicable laws) is owned directly or indirectly by Holdings or the Company.



SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in each other Loan Document and the Disclosure Schedule.



SECTION 1.3. Cross-References. Unless otherwise specified, references in a Loan
Document to any Article or Section are references to such Article or Section of such Loan Document,
and references in any Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.



SECTION 1.4. Accounting and Financial Determinations. (a) Unless otherwise
specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting
determinations and computations thereunder (including under Section 7.2.4 and the definitions used
in such calculations) shall be made, in accordance with those generally accepted accounting
principles (“GAAP”) as in effect from time to time in the United States, applied on a basis
consistent (except for changes concurred in by Holdings’ independent public accountants) with the
most recent audited consolidated financial statements of Holdings and its consolidated Subsidiaries
delivered to the Lenders; provided that, if Holdings notifies the Administrative Agent that
Holdings requests an amendment of any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof (or if the Administrative
Agent notifies Holdings that the Required Lenders request an amendment of any provision hereof for
such purpose), regardless of whether such notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be applied on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith. Unless otherwise expressly
provided, all financial covenants and defined financial terms shall be computed on a consolidated
basis for the Company and the Restricted Subsidiaries, in each case without duplication.




(b) Any determination of the Fixed Charge Coverage Ratio, Interest Coverage Ratio,
Leverage Ratio and Senior Leverage Ratio and any other determination hereunder specified as
being made on a pro forma basis, shall be determined in accordance with the following
principles (collectively, a “pro forma” basis):




(i) EBITDA and Rental Expense attributable to any business or assets that have
been acquired (an “Acquisition” and the “Acquired Business”) or
disposed of (a “Disposition”) by the Company or any of the Restricted
Subsidiaries (including through mergers or consolidations) after the first day of
the four Fiscal Quarters for which such determination is to be made (any such
period, the “Test Period”) and on or prior to the end of such Test Period
(or, in the case of a Transaction Determination, on or prior to the related
Transaction Date (each as defined below)) shall be determined as if such Acquisition
or Disposition had occurred on such first day of such period, on the basis of
historical financial statements of the relevant Acquired Business and with such pro
forma adjustments as shall be permitted in accordance with Regulation S-X
promulgated by the SEC or otherwise necessary to conform the presentation of such
historical financial statements to GAAP as applied by the Company and its
consolidated Subsidiaries in the most recent audited consolidated financial
statements of the Company delivered to the Lenders hereunder; provided that in the
case of an Acquisition of an Acquired Business for which no separate historical
financial statements have been prepared, pro forma EBITDA attributable to such
Acquired Business for the Test Period shall be deemed to be:




(A) for any determination thereof made prior to the end of the first
Fiscal Quarter beginning on or after the date on which such Acquisition was
made (the “First Quarter End Date”), the product of:




(1) the average contractual freight rate agreed for such
Acquired Business with the seller thereof for the first year after
such Acquisition;




(2) the aggregate volume for such Acquired Business and during
such Test Period of all freight operations to which such contractual
freight applies; and




(3) the Relevant EBITDA Margin (as defined below) for such Test
Period multiplied by 90%;




(B) for any determination thereof made on or after the First Quarter
End Date but after the first day of the Test Period, (1) the contribution of
the Acquired Business to EBITDA for the number of full Fiscal Quarters that
have begun on or after the date of such Acquisition (in any case, the
“Number of Included Quarters”), divided by (2) the Number of
Included Quarters and multiplied by (3) four.




(ii) In determining Total Debt in connection with any Transaction
Determination, any Indebtedness incurred or assumed, directly or indirectly,
including through a merger or consolidation or outstanding at the time an Acquired
Business becomes a Subsidiary (“incurred”) after the last day of such Test
Period but on or prior to the related Transaction Date shall be deemed to have been
incurred on the last day of such Test Period.




(iii) In determining Interest Expense, any Indebtedness incurred in connection
with an Acquisition or permanently repaid or discharged in connection with a
Disposition after the first day but on or prior to the last day of such Test Period
(or, in the case of a Transaction Determination, on or prior to the related
Transaction Date) shall be deemed to have been incurred or repaid or discharged (as
the case may be) on the first day of such Test Period, and any such Indebtedness
bearing a floating interest rate shall, for any Indebtedness incurred in connection
with an Acquisition and for the period prior to such Acquisition, be deemed to be
equal to the rate in effect on the date of determination (taking into account any
hedging arrangement with respect thereto).



As used above:



“Relevant EBITDA Margin” means, with respect to any Acquisition and for any related
Test Period, the product (expressed as a percentage) of (i) EBITDA divided by (ii) consolidated
operating revenue, in each case determined for the Company and its consolidated Restricted
Subsidiaries for such Test Period, but determined solely for the geographic segment in which such
Acquisition occurs (in accordance with the Company’s reporting practice as in effect on the date of
this Agreement).



“Transaction Date” means, with respect to any Transaction Determination, the date of
the transaction or event for which such determination is being made.



“Transaction Determination” means a pro forma determination required to establish
compliance with the definition of “Permitted Acquisition”, or with the requirements of Section
7.2.2(a) or 7.2.5(j).



If the Company prepares any pro forma computation pursuant to clause (b)(ii) above, the Company
shall provide schedules supporting such calculations with detail reasonably satisfactory to the
Administrative Agent.



ARTICLE 2




COMMITMENTS, BORROWING AND ISSUANCE




SECTION 2.1. Commitments. On the terms and subject to the conditions of this
Agreement, the Lenders and the Issuers severally agree to make Credit Extensions as set forth
below.



2.1.1. Revolving Loan Commitment and Swing Line Loan Commitment. From time to time
on any Business Day occurring on or after the Amendment Effective Date but prior to the Revolving
Loan Commitment Termination Date,




(a) each Lender having a U.S. Revolving Loan Commitment will make loans denominated in
U.S. Dollars (relative to such Lender, its “U.S. Revolving Loans”) to the Company
equal to such Lender’s U.S. Revolving Loan Percentage, if any, of the aggregate amount of
the Borrowing or Borrowings of U.S. Revolving Loans requested by the Company to be made on
such day (with the commitment of each such Lender described in this clause (a) herein
referred to as its “U.S. Revolving Loan Commitment”). On the terms and subject to
the conditions hereof, the Company may from time to time borrow, prepay and reborrow U.S.
Revolving Loans;




(b) each Canadian Lender will make loans (or accept Canadian BAs) denominated in
Canadian Dollars (such loans and Canadian BAs relative to such Lender, its “Canadian
Revolving Loans”) to the Canadian Revolver Borrower equal to such Lender’s Canadian
Revolving Loan Percentage, if any, of the aggregate amount of the Borrowing or Borrowings of
Canadian Revolving Loans requested by the Canadian Revolver Borrower to be made on such day
(with the commitment of each such Lender described in this clause (b) herein referred to as
its “Canadian Revolving Loan Commitment”). Canadian Revolving Loans may only be
borrowed as Base Rate Loans or as Canadian BAs. On the terms and subject to the conditions
hereof, the Canadian Revolver Borrower may from time to time borrow, prepay (or, in the case
of Canadian BAs, cash collateralize pursuant to, and in accordance with, the terms of clause
(a) of Section 3.1.1) and reborrow Canadian Revolving Loans; and




(c) the Swing Line Lender agrees that it will make loans (its “Swing Line
Loans”) to the Company equal to the principal amount of the Swing Line Loan requested by
the Company to be made on such day. The Commitment of the Swing Line Lender described in
this clause is herein referred to as its “Swing Line Loan Commitment”. Swing Line
Loans may only be borrowed as Base Rate Loans. On the terms and subject to the conditions
hereof, the Company may from time to time borrow, prepay and reborrow Swing Line Loans.



2.1.2. Letter of Credit Commitment. From time to time on any Business Day occurring
from and after the Amendment Effective Date but prior to the Revolving Loan Commitment Termination
Date and subject to Section 2.1.5, the relevant Issuer agrees that it will




(a) issue one or more standby letters of credit (relative to such Issuer, its
“Letter of Credit”) for the account of the Company or any other Domestic Subsidiary
Guarantor in the Stated Amount requested by the Company on such day; or




(b) extend the Stated Expiry Date of an existing standby Letter of Credit previously
issued hereunder.



No Stated Expiry Date shall extend beyond the earlier of (i) the fifth Business Day prior to the
sixth anniversary of the Amendment Effective Date and (ii) unless otherwise agreed to by the Issuer
in its sole discretion, one year from the date of such issuance or extension.



2.1.3. Term Loan Commitment. (a) On the Original Effective Date, each Lender on
such date made loans:




(i) to the Company equal to such Lender’s Term Loan Percentage of the
aggregate amount of the Borrowing of U.S. Term Loans not exceeding the U.S. Term
Loan Commitment Amount requested by the Company to be made on such day,




(ii) to the Canadian Term Borrower equal to such Lender’s Term Loan
Percentage of the aggregate amount of the Borrowing of Canadian Term Loans not
exceeding the Canadian Term Loan Commitment Amount requested by the Canadian Term
Borrower to be made at such time and




(iii) to the Australian Term Borrower (as defined in this Agreement on the
Original Effective Date) equal to such Lender’s Term Loan Percentage of the
aggregate amount of the Borrowing of Australian Term Loans not exceeding the
Australian Term Loan Commitment Amount requested by the Australian Term Borrower
(each as so defined) to be made at such time.




Such Term Loans shall be repaid in full, in cash, together with accrued and unpaid interest
thereon, on the Amendment Effective Date, and from and after the Amendment Effective Date,
all references to “U.S. Term Loans”, “Canadian Term Loans” shall refer to such U.S. Term
Loans and Canadian Term Loans made on the Amendment Effective Date, and correlative terms
shall have correlative meanings.




(b) In a single Borrowing occurring on the Amendment Effective Date (and, in any event,
prior to the Term Loan Commitment Termination Date), each Lender that has a Term Loan
Commitment agrees that it will




(i) make loans (relative to such Lender, its “U.S. Term Loans”) to the
Company equal to such Lender’s Term Loan Percentage of the aggregate amount of the
Borrowing of U.S. Term Loans not exceeding the U.S. Term Loan Commitment Amount
requested by the Company to be made on such day, and




(ii) make loans (relative to such Lender, its “Canadian Term Loans”) to
the Canadian Term Borrower equal to such Lender’s Term Loan Percentage of the
aggregate amount of the Borrowing of Canadian Term Loans not exceeding the Canadian
Term Loan Commitment Amount requested by the Canadian Term Borrower to be made at
such time.




(c) With regard to the cash repayments and new borrowings contemplated in the foregoing
clauses (a) and (b) of Section 2.1.3, any Lender that has a Term Loan Percentage on the
Amendment Effective Date and has “Term Loans” (as defined in the Existing Credit Agreement
immediately before the Amendment and Restatement) may make arrangements with the
Administrative Agent and the Company such that the cash repayments and borrowings required
by clauses 2.1.3(a) and (b) may be paid in full or funded, as applicable, in whole or in
part by set-off such that only the net amount of any U.S. Term Loans or Canadian Term Loans
to be received or funded by such Lender, after giving effect to the repayments to and
borrowings by such Lender under clauses (a) and (b) above shall be so received or funded, as
applicable, and the amount netted thereby shall be deemed to be repayment in cash or funding
in cash, as applicable, of such Lender’s Term Loans.




(d) No amounts paid or prepaid with respect to Term Loans after the Amendment Effective
Date may be reborrowed.



2.1.4. Lenders Not Permitted or Required to Make the Loans. No Lender shall be
permitted or required to, and the applicable Borrower shall not request any Lender to, make any
Loan if, after giving effect thereto, the aggregate outstanding principal amount of




(a) all U.S. Revolving Loans




(i) of all U.S. Revolving Loan Lenders, together with the aggregate outstanding
principal amount of all Swing Line Loans and the aggregate amount of all Letter of
Credit Outstandings, would exceed the then existing U.S. Revolving Loan Commitment
Amount; or




(ii) of any such U.S. Revolving Loan Lender, together with such Lender’s
Percentage of the aggregate outstanding principal amount of all Swing Line Loans and
the Letter of Credit Outstandings, would exceed such Lender’s Percentage of the then
existing U.S. Revolving Loan Commitment Amount;




(b) all Canadian Revolving Loans




(i) of all Canadian Lenders would exceed the then existing Canadian Revolving
Loan Commitment Amount; or




(ii) of any such Canadian Lender would exceed such Lender’s Percentage of the
then existing Canadian Revolving Loan Commitment Amount;




(c) all Term Loans




(i) of all Lenders made on the Amendment Effective Date would exceed the Term
Loan Commitment Amount; or




(ii) of any such Lender with a Term Loan Commitment made on the Amendment
Effective Date would exceed such Lender’s Term Loan Percentage of the Term Loan
Commitment Amount;




(d) all Swing Line Loans




(i) would exceed the then existing Swing Line Loan Commitment Amount; or




(ii) together with the aggregate outstanding principal amount of all U.S.
Revolving Loans and the Letter of Credit Outstandings, would exceed the then
existing U.S. Revolving Loan Commitment Amount.



2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit. No Issuer shall
be permitted or required to, and the Company shall not request any Issuer to, issue any Letter of
Credit if, after giving effect thereto, the Letter of Credit Outstandings (a) would exceed the
Letter of Credit Commitment Amount or (b) together with the aggregate outstanding principal amount
of all U.S. Revolving Loans and Swing Line Loans would exceed the then existing U.S. Revolving Loan
Commitment Amount.



SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts are subject
to reduction from time to time pursuant to this Section 2.2.



2.2.1. Optional. The Company may, from time to time on any Business Day occurring
after the Amendment Effective Date, voluntarily reduce the amount of the U.S. Revolving Loan
Commitment Amount, the Canadian Revolving Loan Commitment Amount, the Swing Line Loan Commitment
Amount or the Letter of Credit Commitment Amount on the Business Day so specified by the Company;
provided, however, that all such reductions shall require at least one Business Day’s prior notice
to the Administrative Agent and be permanent, and any partial reduction of any Commitment Amount
shall be in a minimum amount of (i) $1,000,000 and in an integral multiple of $500,000 in the case
of U.S. Revolving Loans and (ii) Cdn $500,000 and in an integral multiple of Cdn $100,000 in the
case of Canadian Revolving Loans. Any optional or mandatory reduction of the U.S. Revolving Loan
Commitment Amount pursuant to the terms of this Agreement which reduces the U.S. Revolving Loan
Commitment Amount below the sum of (i) the Swing Line Loan Commitment Amount and (ii) the Letter of
Credit Commitment Amount shall result in an automatic and corresponding reduction of the Swing Line
Loan Commitment Amount and/or the Letter of Credit Commitment Amount (as directed by the Company in
a notice to the Administrative Agent delivered together with the notice of such voluntary reduction
in the U.S. Revolving Loan Commitment Amount) to an aggregate amount not in excess of the U.S.
Revolving Loan Commitment Amount, as so reduced, without any further action on the part of the
Swing Line Lender or any Issuer.



2.2.2. Mandatory. Following the prepayment in full of the Term Loans, the U.S.
Revolving Loan Commitment Amount shall, without any further action, automatically and permanently
be reduced on the date the Term Loans would otherwise have been required to be prepaid pursuant to
clauses (d), (e), (f) or (g) of Section 3.1.1, in an amount equal to the amount by which the Term
Loans would otherwise be required to be prepaid if Term Loans had been outstanding. Reductions of
the Revolving Loan Commitments will be applied among the Canadian Revolving Loan Commitment and the
U.S. Revolving Loan Commitment as specified by the Company. There will be no prepayment penalties
for prepayments of Base Rate Loans at any time or LIBO Rate Loans at the end of the Interest Period
therefor.



SECTION 2.3. Borrowing Procedures. Loans (other than Swing Line Loans) shall be made
by the Lenders in accordance with Section 2.3.1, and Swing Line Loans shall be made by the Swing
Line Lender in accordance with Section 2.3.2.



2.3.1. Borrowing Procedure. In the case of Loans other than Swing Line Loans, by
delivering a Borrowing Request to the Administrative Agent on or before 10:00 a.m. Local Time on a
Business Day, the applicable Borrower may, at one time in the case of Term Loans (other than any
Additional Term Loans) and from time to time in the case of Revolving Loans, irrevocably request,
on not less than one Business Day’s notice in the case of Base Rate Loans, or three Business Days’
notice in the case of LIBO Rate Loans or Canadian BAs, and in either case not more than five
Business Days’ notice, that a Borrowing be made (a) in the case of LIBO Rate Loans, in a minimum
amount of $500,000 and an integral multiple of $100,000 in the case of Term Loans and U.S.
Revolving Loans and (b) in the case of Base Rate Loans, in a minimum amount of (i) $500,000 and an
integral multiple of $100,000 in the case of Term Loans and U.S. Revolving Loans and (ii) Cdn
$500,000 and in an integral multiple of Cdn $100,000 in the case of Canadian Revolving Loans or, in
either case, in the unused amount of the applicable Commitment; provided, however, that all LIBO
Rate Loans shall be made with an Interest Period of one week until the earlier of (i) the date on
which the Lead Arranger notifies the Company in writing that syndication is complete and therefore
Borrowing Requests are no longer subject to this proviso clause or (y) 60 days after the Amendment
Effective Date. On the terms and subject to the conditions of this Agreement, each Borrowing shall
be comprised of the type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. On such Business Day, each Lender that has a Commitment to make the Loans being
requested (other than Swing Line Loans) shall deposit with the Administrative Agent same day funds
in an amount equal to such Lender’s Percentage of the requested Borrowing on or before 11:00 a.m.
Local Time. Such deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received from the Lenders, the
Administrative Agent shall make such funds available to the applicable Borrower by wire transfer to
the accounts such Borrower shall have specified in its Borrowing Request. No Lender’s obligation
to make any Loan shall be affected by any other Lender’s failure to make any Loan.



2.3.2. Swing Line Loans. (a) By telephonic notice to the Swing Line Lender on or
before 12:00 noon Local Time on a Business Day (followed (within one Business Day) by the delivery
of a confirming Borrowing Request), the Company may from time to time irrevocably request that
Swing Line Loans be made by the Swing Line Lender in an aggregate minimum principal amount of
$500,000 and an integral multiple of $100,000. All Swing Line Loans shall be made as Base Rate
Loans and shall not be entitled to be converted into LIBO Rate Loans. The proceeds of each Swing
Line Loan shall be made available by the Swing Line Lender to the Company by wire transfer to the
account the Company shall have specified in its notice therefor by the close of business on the
Business Day telephonic notice is received by the Swing Line Lender.




(b) If (i) any Swing Line Loan shall be outstanding for more than four Business Days,
(ii) any Swing Line Loan is or will be outstanding on a date when the Company requests that
a U.S. Revolving Loan be made, or (iii) any Specified Default shall occur and be continuing,
then each U.S. Revolving Loan Lender (other than the Swing Line Lender) irrevocably agrees
that it will, at the request of the Swing Line Lender, make a U.S. Revolving Loan (which
shall initially be funded as a Base Rate Loan) in an amount equal to such Lender’s U.S.
Revolving Loan Percentage of the aggregate principal amount of all such Swing Line Loans
then outstanding (such outstanding Swing Line Loans hereinafter referred to as the
“Refunded Swing Line Loans”). On or before 11:00 a.m. New York time on the first
Business Day following receipt by each U.S. Revolving Loan Lender of a request to make U.S.
Revolving Loans as provided in the preceding sentence, each U.S. Revolving Loan Lender shall
deposit in an account specified by the Swing Line Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line Lender to repay the Refunded Swing
Line Loans. At the time the U.S. Revolving Loan Lenders make the above referenced U.S.
Revolving Loans, the Swing Line Lender shall be deemed to have made, in consideration of the
making of the Refunded Swing Line Loans, U.S. Revolving Loans in an amount equal to the
Swing Line Lender’s U.S. Revolving Loan Percentage of the aggregate principal amount of the
Refunded Swing Line Loans. Upon the making (or deemed making, in the case of the Swing Line
Lender) of any U.S. Revolving Loans pursuant to this clause, the amount so funded shall
become outstanding under such U.S. Revolving Loan Lender’s U.S. Revolving Note and shall no
longer be owed under the Swing Line Note. All interest payable with respect to any U.S.
Revolving Loans made (or deemed made, in the case of the Swing Line Lender) pursuant to this
clause shall be appropriately adjusted to reflect the period of time during which the Swing
Line Lender had outstanding Swing Line Loans in respect of which such U.S. Revolving Loans
were made. Each U.S. Revolving Loan Lender’s obligation to make the U.S. Revolving Loans
referred to in this clause shall be absolute and unconditional and shall not be affected by
any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Swing Line Lender, any Obligor or any Person
for any reason whatsoever; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the termination of any Commitment after the
making of any Swing Line Loan; (v) any breach of any Loan Document by any Person; or (vi)
any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing.




(c) If at the time U.S. Revolving Loans would otherwise be required to be made to
prepay Refunded Swing Line Loans pursuant to clause (b) of this Section an Event of Default
under Section 8.1.9 hereof has occurred and is continuing, then the Refunded Swing Line
Loans shall not be refunded pursuant to clause (b) of this Section and instead each U.S.
Revolving Loan Lender shall purchase a participation from the Swing Line Lender in the
Refunded Swing Line Loans in an amount equal to such Lender’s U.S. Revolving Loan Percentage
of the aggregate principal amount of all Refunded Swing Line Loans. Each U.S. Revolving
Loan Lender’s obligation to purchase a participation in the Refunded Swing Line Loans
referred to in this clause shall be absolute and unconditional and shall not be affected by
any circumstance, including each of the circumstances specified in the last sentence of
clause (b) of this Section.



SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 11:00 a.m., Local Time on a
Business Day, a Borrower may from time to time irrevocably elect, on not less than one Business
Day’s notice (in the case of a conversion of LIBO Rate Loans into Base Rate Loans) or three
Business Days’ notice (in the case of a continuation of LIBO Rate Loans or a conversion of Base
Rate Loans into LIBO Rate Loans) nor more than five Business Days’ notice (in the case of any
Loans) that all, or any portion in a minimum amount of $500,000 or any larger integral multiple of
$100,000 of, Base Rate Loans be converted into LIBO Rate Loans or LIBO Rate Loans be continued as
LIBO Rate Loans or, in the case of Term Loans and U.S. Revolving Loans only, converted to Base Rate
Loans; provided, however, that, in the absence of delivery of a Continuation/Conversion Notice with
respect to any Loan that is a LIBO Rate Loan at least three Business Days before the last day of
the then current Interest Period with respect thereto, such LIBO Rate Loan shall automatically
convert to a Base Rate Loan, on such last day; provided, further, however, that (x) each such
conversion or continuation of a portion of the Loans of a Borrowing shall be prorated among the
applicable outstanding Loans of the relevant Lenders, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO Rate Loans (i) when
any Default has occurred and is continuing or (ii) on any day other than the last day of the
Interest Period applicable to such LIBO Rate Loan.



2.4.1. Converting Canadian BAs to Canadian Prime Rate Loans. If the Canadian
Revolver Borrower has, by delivering a Continuation/Conversion Notice to the Administrative Agent
on or before 11:00 a.m. Toronto time, not less than three nor more than five Business Days before
the maturity date of a Canadian BA, requested the Canadian Lender which accepted such Canadian BA
to make a Canadian Prime Rate Loan on such maturity date in a principal amount equal to the face
amount of the maturing Canadian BA or a portion thereof and apply the proceeds of such Canadian
Prime Rate Loan to reimburse such Canadian Lender in whole or in part, as the case may be, for its
payment of such maturing Canadian BA, such Lender, upon paying such maturing Canadian BA, shall,
subject to satisfaction of the conditions precedent to such Credit Extension, make such Canadian
Prime Rate Loan and automatically apply the proceeds thereof to reimburse itself for such payment
to the extent of such proceeds. The remainder, if any, of the amount owed to such Canadian Lender
by the Canadian Revolver Borrower shall be immediately due and payable as provided in Section 2.8.5
hereof.



SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert LIBO Rate Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such Lender) to make or maintain such
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall nonetheless be deemed to have
been made and to be held by such Lender, and the obligation of a Borrower to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign branch, Affiliate or
international banking facility. In addition, each Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it shall be
conclusively assumed that each Lender elected to fund all LIBO Rate Loans by purchasing U.S. Dollar
deposits in its LIBOR Office’s interbank eurodollar market. Canadian Revolving Loans shall be
funded by the Canadian Lenders from their offices specified for Canadian Revolving Loans.



SECTION 2.6. Issuance Procedures. By delivering to the Administrative Agent an
Issuance Request on or before 10:00 a.m. New York time on a Business Day, the Company, as account
party, may from time to time irrevocably request on not less than three nor more than ten Business
Days’ notice, in the case of an initial issuance of a Letter of Credit and not less than three
Business Days’ prior notice, in the case of a request for the extension of the Stated Expiry Date
of a standby Letter of Credit (in each case, unless a shorter notice period is agreed to by the
Issuer, in its sole discretion), that an Issuer issue, or extend the Stated Expiry Date of, a
Letter of Credit in such form as may be requested by the Company and approved by such Issuer and
the Administrative Agent, solely for the purposes described in Section 7.1.7(b). Each Letter of
Credit shall by its terms be stated to expire on a date (its “Stated Expiry Date”) no later
than the earlier to occur of (i) five Business Days prior to the sixth anniversary of the Amendment
Effective Date or (ii) (unless otherwise agreed to by an Issuer, in its sole discretion) one year
from the date of its issuance. Each Issuer will make available to the beneficiary thereof the
original of the Letter of Credit which it issues. Each Letter of Credit shall only be denominated
in U.S. Dollars.



2.6.1. Other Lenders’ Participation. Upon the issuance of each Letter of Credit, and
without further action, each U.S. Revolving Loan Lender (other than such Issuer) shall be deemed to
have irrevocably purchased, to the extent of its U.S. Revolving Loan Percentage, from the Issuer of
such Letter of Credit a participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto), and such U.S. Revolving Loan
Lender shall, to the extent of its U.S. Revolving Loan Percentage, be obligated to fund its
purchase of such participation by paying to such Issuer the amount of such participation in
immediately available funds on the next Business Day after a Disbursement is made by such Issuer
under such Letter of Credit if the Company has failed to reimburse such Issuer in full in
accordance with Section 2.6.3. In addition, such U.S. Revolving Loan Lender shall, to the extent
of its U.S. Revolving Loan Percentage, be entitled to receive a ratable portion of the Letter of
Credit fees payable to such Issuer pursuant to Section 3.3.3 with respect to each Letter of Credit
(other than the issuance fees payable to such Issuer of such Letter of Credit pursuant to the last
sentence of Section 3.3.3) and of interest payable pursuant to Section 3.2 with respect to any
Reimbursement Obligation. To the extent that any U.S. Revolving Loan Lender has funded its
purchase of such participation, such Lender shall be entitled to receive its ratable portion of any
amounts subsequently received (from the Company or otherwise) by such Issuer in respect of such
Reimbursement Obligation.



2.6.2. Disbursements. An Issuer will notify the Company and the Administrative Agent
promptly of the presentment for payment of any Letter of Credit issued by such Issuer, together
with notice of the date (the “Disbursement Date”) such payment shall be made (each such
payment, a “Disbursement”). Subject to the terms and provisions of such Letter of Credit,
the applicable Issuer shall make such payment to the beneficiary (or its designee) of such Letter
of Credit. Prior to 11:00 a.m. New York time on the first Business Day following the Disbursement
Date, the Company will reimburse the Administrative Agent, for the account of the applicable
Issuer, for all amounts which such Issuer has disbursed under such Letter of Credit, together with
interest thereon at a rate per annum equal to the rate per annum then in effect for Base Rate Loans
(with the then Applicable Margin for U.S. Revolving Loans accruing on such amount) pursuant to
Section 3.2 for the period from the Disbursement Date through the date of such reimbursement.
Without limiting in any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Company hereby acknowledges and
agrees that it is the account party with respect to such Letter of Credit and it shall be obligated
to reimburse the applicable Issuer upon each Disbursement of a Letter of Credit.



2.6.3. Reimbursement. The obligation (a “Reimbursement Obligation”) of the
Company under Section 2.6.2 to reimburse an Issuer with respect to each Disbursement (including
interest thereon), and, upon the failure of the Company to reimburse an Issuer, each U.S. Revolving
Loan Lender’s obligation under Section 2.6.1 to fund its participation, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Company or such U.S. Revolving Loan Lender, as the case may be, may
have or have had against the Company, such Issuer or any Lender, including any defense based upon
the failure of any Disbursement to conform to the terms of the applicable Letter of Credit (if, in
such Issuer’s good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after the Company pays in full its Reimbursement Obligation hereunder or
such Lender funds its participation, nothing herein shall adversely affect the right of the Company
or such Lender, as the case may be, to commence any proceeding against an Issuer for any wrongful
Disbursement made by such Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the part of such Issuer.



2.6.4. Obligation to Cash Collateralize. Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the Administrative Agent
(acting at the direction of the Required Lenders) to the Company of its obligations under this
Section, following the occurrence and during the continuation of any other Event of Default, the
Company shall be immediately obligated to Cash Collateralize all Letters of Credit then
outstanding. When all Defaults giving rise to the Company’s obligation under this Section to Cash
Collateralize all Letters of Credit then outstanding have been cured or waived, the Administrative
Agent shall return to the Company all amounts then on deposit with the Administrative Agent
pursuant to this Section which have not been applied to the satisfaction of Reimbursement
Obligations which have arisen theretofore.



2.6.5. Nature of Reimbursement Obligations. The Company and each other Obligor shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. No Issuer (except to the extent of its own gross negligence or willful misconduct) shall
be responsible for:




(a) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;




(b) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or the proceeds thereof in whole or in part, which may
prove to be invalid or ineffective for any reason;




(c) failure of the beneficiary to comply fully with conditions required in order to
demand payment under a Letter of Credit;




(d) errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise; or




(e) any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.



None of the foregoing shall affect, impair or prevent the vesting of any of the rights or powers
granted to any Issuer or any U.S. Revolving Loan Lender hereunder. In furtherance and not in
limitation or derogation of any of the foregoing, any action taken or omitted to be taken by an
Issuer in good faith (and not constituting gross negligence or willful misconduct) shall be binding
upon each Obligor and each U.S. Revolving Loan Lender, and shall not put such Issuer under any
resulting liability to any Obligor or any U.S. Revolving Loan Lender, as the case may be.



SECTION 2.7. Register; Notes. (a) Each Lender may maintain in accordance with its
usual practice an account or accounts evidencing the Indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. In the case of a Lender that does not
request, pursuant to clause (c) below, execution and delivery of a Note evidencing the Loans made
by such Lender to such Borrower, such account or accounts shall, to the extent not inconsistent
with the notations made by the Administrative Agent in the Register, be conclusive and binding on
such Borrower absent manifest error; provided, however, that the failure of any Lender to maintain
such account or accounts shall not limit or otherwise affect any Obligations of the Borrower or any
other Obligor.




(b) Each Borrower hereby designates the Administrative Agent to serve as such
Borrower’s agent, solely for the purpose of this clause (b), to maintain a register (the
“Register”) on which the Administrative Agent will record each Lender’s Commitments,
the Loans made by each Lender and each repayment in respect of the principal amount of the
Loans of each Lender and annexed to which the Administrative Agent shall retain a copy of
each Lender Assignment Agreement delivered to the Administrative Agent pursuant to Section
11.11. Failure to make any recordation, or any error in such recordation, shall not affect
such Borrower’s obligation in respect of such Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and the applicable Borrower, the
Administrative Agent and the Lenders shall treat each Person in whose name a Loan (and as
provided in clause (c) the Note evidencing such Loan, if any) is registered as the owner
thereof for all purposes of this Agreement, notwithstanding notice or any provision herein
to the contrary. A Lender’s Commitment and the Loans made pursuant thereto may be assigned
or otherwise transferred in whole or in part only by registration of such assignment or
transfer in the Register. Any assignment or transfer of a Lender’s Commitment or the Loans
made pursuant thereto shall be registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement duly executed by the assignor thereof.
No assignment or transfer of a Lender’s Commitment or the Loans made pursuant thereto shall
be effective unless such assignment or transfer shall have been recorded in the Register by
the Administrative Agent as provided in this Section.




(c) Each Borrower agrees that, upon the request to the Administrative Agent by any
Lender, the applicable Borrower will execute and deliver to such Lender, as applicable, a
U.S. Revolving Note, a Canadian Revolving Note, a U.S. Term Note, a Canadian Term Note and a
Swing Line Note, as the case may be, evidencing the Loans made by such Lender. Each
Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender’s Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest Period applicable to the
Loans evidenced thereby. Such notations shall, to the extent not inconsistent with the
notations made by the Administrative Agent in the Register, be conclusive and binding on
such Borrower absent manifest error; provided, however, that the failure of any Lender to
make any such notations or any error in any such notations shall not limit or otherwise
affect any Obligations of such Borrower or any other Obligor. A Note and the Loan evidenced
thereby may be assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Note and the Loan evidenced thereby in the Register (and
each Note shall expressly so provide). Any assignment or transfer of the entire remaining
amount of a Lender’s Commitments and the Loans made pursuant thereto and evidenced by a Note
shall be registered in the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a Lender Assignment Agreement duly
executed by the assignor thereof, and thereupon, if requested by the assignee, one or more
new Notes shall be issued to the designated assignee and the old Note shall be returned by
the Administrative Agent to the applicable Borrower marked “exchanged”. No assignment of a
Note and the Loan evidenced thereby shall be effective unless it shall have been recorded in
the Register by the Administrative Agent as provided in this Section.



SECTION 2.8. Canadian BAs. Not in limitation of any other provision of this
Agreement, but in furtherance thereof, the provisions of this Section 2.8 shall further apply to
the acceptance, rolling over and conversion of Canadian BAs.



2.8.1. Funding of Canadian BAs. If the Administrative Agent receives a Borrowing
Request from the Canadian Revolver Borrower requesting a Borrowing of Canadian BAs, the
Administrative Agent shall notify each of the applicable Lenders, prior to 11:00 a.m., Toronto
time, on the second Business Day prior to the date of such Credit Extension, of such request and of
each such Lender’s Percentage of such Borrowing. Each applicable Lender shall, not later than
11:00 a.m., Toronto time, on the date of each Borrowing of Canadian BAs, accept drafts of the
Canadian Revolver Borrower which are presented to it for acceptance and which have an aggregate
face amount equal to such Lender’s Percentage of the total Borrowing being made available by way of
Canadian BAs on such date. With respect to each Borrowing of Canadian BAs, each such Lender shall
not be required to accept any draft which has a face amount which is not in a minimum amount of Cdn
$500,000 and in an integral multiple of Cdn $100,000. Concurrent with the acceptance of drafts of
the Canadian Revolver Borrower as aforesaid, each applicable Lender shall, upon fulfillment by the
Canadian Revolver Borrower of the terms and conditions set forth in Article 5, severally and not
jointly, make available to the Canadian Revolver Borrower as set forth in the relevant Borrowing
Request the aggregate Notional BA Proceeds with respect to the Canadian BAs being purchased by such
Lender (net of the aggregate amount required to reimburse such Lender for payments on outstanding
Canadian BAs that are maturing on such date and/or to repay Canadian Prime Rate Loans of such
Lender that are being repaid on such date). Each Canadian BA to be accepted by any Lender shall be
accepted by such Lender at its office located in Canada. Each Canadian BA shall mature on a
Business Day and have a term of at least 30 days and not more than 180 days (or such shorter or
longer term as shall be agreed to by each Canadian Lender).



2.8.2. Acceptance Fees. With respect to each draft of the Canadian Revolver Borrower
accepted pursuant hereto, the Canadian Revolver Borrower shall pay to the Canadian Lenders, in
advance, an acceptance fee calculated at the rate per annum, on the basis of a year of 365 days or
366 days, as the case may be, equal to the Applicable Canadian BA Stamping Fee on the face amount
of such Canadian BA for its term, being the actual number of days in the period commencing on the
date of acceptance of the Canadian Revolver Borrower’s draft and continuing to (but excluding) the
maturity date of such Canadian BA. Such acceptance fee shall be non-refundable and shall be fully
earned when due. Such acceptance fee shall be paid to the Canadian Lenders by deducting the amount
thereof from what would otherwise be Notional BA Proceeds (excluding such fee) funded pursuant to
Section 2.8.1.



2.8.3. Execution of Canadian BAs. (a) To facilitate the acceptance of Canadian BAs
hereunder, the Canadian Revolver Borrower hereby appoints each Canadian Lender as its attorney to
sign and endorse on its behalf, in accordance with clause (d) of Section 2.8.3, an appropriate
number of drafts in the form prescribed by that Canadian Lender.




(b) Each Canadian Lender may, at its option, execute any draft in handwriting or by the
facsimile or mechanical signature of any of its authorized officers, and the Canadian
Lenders are hereby authorized to accept or pay, as the case may be, any draft of the
Canadian Revolver Borrower which purports to bear such a signature notwithstanding that any
such individual has ceased to be an authorized officer of the Canadian Lender.




(c) Any draft or Canadian BA signed by a Canadian Lender as attorney for the Canadian
Revolver Borrower whether signed in handwriting or by the facsimile or mechanical signature
of an authorized officer of a Canadian Lender, may be dealt with by the Agent or any Lender
to all intents and purposes and shall bind the Canadian Revolver Borrower as if duly signed
and issued by the Canadian Revolver Borrower.




(d) The receipt by the Administrative Agent of a request for a Credit Extension by way
of Canadian BAs shall be each Canadian Lender’s sufficient authority to execute, and each
Canadian Lender shall, subject to the terms and conditions of this Agreement, execute drafts
in accordance with such request and the advice of the Administrative Agent pursuant to
Section 2.8.1, and the drafts so executed shall thereupon be deemed to have been presented
for acceptance.




(e) No Canadian Lender shall be liable for any damage, loss or other claim arising by
reason of any loss or improper use of any such Canadian BA except to the extent caused by
gross negligence or willful misconduct of such Lender or its officers, agents or
representatives.




(f) Each Canadian Lender shall maintain a record with respect to Canadian BAs (i)
received by it in blank hereunder, (ii) voided by it for any reason, (iii) accepted and
purchased by it hereunder and (iv) cancelled at their respective maturities. Each Canadian
Lender agrees to retain such records in the manner and for the statutory periods provided in
the various Canadian provincial or federal statutes and regulations which apply to such
Lender. On request by or on behalf of the Canadian Revolver Borrower, a Canadian Lender
shall cancel all forms of Canadian BAs which have been pre-signed or pre-endorsed on behalf
of the Canadian Revolver Borrower and which are held by such Canadian Lender and are not
required to be issued in accordance with the Canadian Revolver Borrower’s irrevocable
notice.



2.8.4. Special Provisions Relating to Acceptance Notes. (a) The Canadian Revolver
Borrower and each applicable Lender hereby acknowledge and agree that from time to time certain
Lenders which are not Canadian chartered banks or which are Canadian chartered banks listed on
Schedule II and Schedule III of the Bank Act (Canada) may not be authorized to or may, as a matter
of general corporate policy, elect not to accept Canadian BA drafts, and the Canadian Revolver
Borrower and each applicable Lender agrees that any such Lender may purchase Acceptance Notes of
the Canadian Revolver Borrower in accordance with the provisions of Section 2.8.4(b) in lieu of
accepting Canadian BAs for its account.




(b) In the event that any Lender described in Section 2.8.4. (a) above is unable to,
or elects as a matter of general corporate policy not to, accept Canadian BAs hereunder,
such Lender shall not accept Canadian BAs hereunder, but rather, if the Canadian Revolver
Borrower requests the acceptance of Canadian BAs, the Canadian Revolver Borrower shall
deliver to such Lender a non-interest bearing promissory note (an “Acceptance Note”)
of the Canadian Revolver Borrower, substantially in the form of Exhibit A-3 hereto, having
the same maturity as the Canadian BA that would otherwise be accepted by such Lender and in
an undiscounted face amount equal to the undiscounted face amount of such Canadian BAs.
Each such Lender hereby agrees to purchase each Acceptance Note from the Canadian Revolver
Borrower at a purchase price equal to the Notional BA Proceeds for a Lender listed on
Schedule II and Schedule III to the Bank Act (Canada) which would have been applicable if a
Canadian BA draft had been accepted by such Lender and such Acceptance Notes shall be
governed by the provisions of this Article 2 as if they were Canadian BAs.



2.8.5. Payments by Canadian Lenders and the Canadian Revolver Borrower. Each
Canadian Lender shall, on the maturity date of each Canadian BA which such Lender has accepted, pay
to the holder thereof (whether such holder is such Canadian Lender or its Affiliate or a third
party) the face amount of such Canadian BA. Prior to 11:00 a.m. Toronto time on the maturity date
of a Canadian BA, the Canadian Revolver Borrower will reimburse the Administrative Agent, for the
account of the Canadian Lender which accepted such Canadian BA, for all amounts which such Canadian
Lender has paid to the holder of such Canadian BA (whether such holder is such Canadian Lender or
its Affiliate or a third party), together with interest thereon at a rate per annum equal to the
rate per annum then in effect for Canadian Base Rate Loans (with the then Applicable Margin for
Canadian Revolving Loans accruing on such amount) pursuant to Section 3.2 for the period from such
maturity date through the date of such reimbursement. Without limiting in any way the foregoing
and notwithstanding anything to the contrary contained herein or in any separate application for
any Canadian BA, the Canadian Revolver Borrower hereby acknowledges and agrees that it shall be
obligated to reimburse each Canadian Lender upon its payment of each Canadian BA accepted by it.



2.8.6. Sale of Canadian BAs. Each Canadian Lender may at any time and from time to
time hold, sell, rediscount or otherwise dispose of any or all Canadian BAs accepted and purchased
by it.



ARTICLE 3




REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




SECTION 3.1. Repayments and Prepayments; Application. The Borrowers agree that the
Loans shall be repaid and prepaid pursuant to the following terms.



3.1.1. Repayments and Prepayments. Each Borrower shall repay in full the unpaid
principal amount of each Loan made to such Borrower upon the applicable Stated Maturity Date
therefor. Prior thereto, payments and prepayments of Loans shall or may be made as set forth
below.




(a) From time to time on any Business Day (which, in the case of LIBO Rate Loans, shall
be the last day of an Interest Period with respect thereto), the Borrowers may make a
voluntary prepayment, in whole or in part, of the outstanding principal amount of any




(i) Loans (other than Swing Line Loans and Canadian BAs); provided, however,
that (A) any such prepayment of Term Loans shall be made as the relevant Borrower
directs pro rata among Term Loans of the same type and, if applicable, having the
same Interest Period of all Lenders that have made such Term Loans (applied to the
remaining amortization payments for the Term Loans pro rata in accordance with the
amount of each such remaining Term Loan amortization payment) and any such
prepayment of Revolving Loans shall be made pro rata among the Revolving Loans of
the same type and, if applicable, having the same Interest Period of all Lenders
that have made such Revolving Loans; (B) all such voluntary prepayments shall
require at least one but no more than five Business Days’ prior written notice to
the Administrative Agent; and (C) all such voluntary partial prepayments shall be,
in the case of (I) LIBO Rate Loans, in an aggregate minimum amount of $500,000 and
an integral multiple of $100,000 in the case of Term Loans and U.S. Revolving Loans
and, (II) in the case of Base Rate Loans, in an aggregate minimum amount of (A)
$500,000 and an integral multiple of $100,000 in the case of Term Loans and U.S.
Revolving Loans and (B) Cdn $500,000 and in an integral multiple of Cdn $100,000 in
the case of Canadian Revolving Loans; and




(ii) Swing Line Loans; provided that (A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line Lender on or before 1:00 p.m. (New
York time) on the day of such prepayment (such notice to be confirmed in writing by
3:00 p.m. (New York time) on such day); and (B) all such voluntary partial
prepayments shall be in an aggregate minimum amount of $500,000 and an integral
multiple of $100,000.




In addition, from time to time on any Business Day, the Canadian Revolver Borrower may, upon
not less than one Business Day’s notice to the Administrative Agent, elect to deposit with
the Administrative Agent Canadian Dollars in immediately available funds to be held by the
Administrative Agent, pursuant to collateral arrangements satisfactory to it, for
application solely to reimburse Lenders which have accepted the Canadian BAs designated by
the Canadian Revolver Borrower in such notice (provided that any such designation shall be
made pro rata among the Canadian Lenders on the basis of the outstanding principal amount of
such Canadian BAs). If such a deposit is made, then such Canadian BAs shall (to the extent
of such deposit) be deemed no longer outstanding for purposes of this Agreement.




(b) On each date when the sum of (i) the aggregate outstanding principal amount of all
U.S. Revolving Loans and Swing Line Loans and (ii) the aggregate amount of all Letter of
Credit Outstandings exceeds the U.S. Revolving Loan Commitment Amount (as it may be reduced
from time to time pursuant to this Agreement), the Company shall make a mandatory prepayment
of Revolving Loans or Swing Line Loans (or both) in an aggregate principal amount at least
equal to such excess.




(c) On each of the dates set forth below (with each month under the “Date” column
corresponding to the relevant calendar month following the Amendment Effective Date, and on
the day in such month corresponding to the numerical date of the Amendment Effective Date
(or if such date is not a Business Day, the next succeeding Business Day, unless such next
Business Day is in the next calendar month, in which case the next preceding Business Day))
the relevant Borrower shall make a scheduled repayment of the aggregate outstanding
principal amount, if any, of its Term Loans in an amount equal to the percentage, set forth
below opposite such date, of the aggregate principal amount of U.S. Term Loans or Canadian
Term Loans (as applicable) immediately after the Borrowing to occur on the Amendment
Effective Date:



	 	 	 	 	 	 	 	 	 
	Date	 	Required Principal Repayment
	 
	 	U.S. Term Loans	 	Canadian Term Loans
	12th month
	 		1	%	 		1	%
	24th month
	 		1	%	 		1	%
	36th month
	 		1	%	 		1	%
	48th month
	 		1	%	 		1	%
	60th month
	 		1	%	 		1	%
	72nd month
	 		1	%	 		1	%
	75th month
	 		23.5	%	 		23.5	%
	78th month
	 		23.5	%	 		23.5	%
	81st month
	 		23.5	%	 		23.5	%
	Term Loan Stated

Maturity Date
	 		23.5	%	 		23.5	%








(d) The Company shall, within one Business Day following the receipt by the
Company or any Restricted Subsidiary of any Casualty Proceeds in excess of $1,000,000
(individually or in the aggregate (when taken together with all other Casualty Proceeds and
all Net Disposition Proceeds) over the course of a Fiscal Year), deliver to the
Administrative Agent a calculation of the amount of such Casualty Proceeds and make a
mandatory prepayment of the Term Loans in an amount equal to 100% of such Casualty Proceeds
within 30 days of the receipt thereof to be applied as set forth in Section 3.1.2; provided,
however, that no mandatory prepayment on account of Casualty Proceeds shall be required
under this clause if the Company informs the Administrative Agent in writing no later than
30 days following the receipt of the Casualty Proceeds resulting in such Casualty Proceeds
of the Company’s or the Restricted Subsidiary’s good faith intention to apply such Casualty
Proceeds to the rebuilding or replacement of the damaged, destroyed, expropriated or
condemned assets or property or the acquisition or construction of other long-term capital
assets useful in the Company’s or such Restricted Subsidiary’s business and the Company or
the Restricted Subsidiary in fact uses such Casualty Proceeds to rebuild or replace such
damaged, destroyed, expropriated or condemned assets or acquire or construct such other
long-term assets within 360 days following the receipt of such Casualty Proceeds, with the
amount of such Casualty Proceeds unused after such 360-day period being applied to the Term
Loans pursuant to Section 3.1.2; provided, further, however, that (i) at any time when any
Specified Default shall have occurred and be continuing, all Casualty Proceeds (together
with Net Disposition Proceeds not applied as provided in clause (e) below) shall be
deposited in an account maintained with, and pledged under the Loan Documents to, the
Collateral Agent, to secure the Borrowers’ obligations hereunder and to pay for such
rebuilding or replacement whenever no Specified Default is then continuing or except as
otherwise agreed to by the Administrative Agent for disbursement at the request of the
Company or the Restricted Subsidiary, as the case may be, or (ii) if all such Casualty
Proceeds (together with Net Disposition Proceeds not applied as provided in clause (e)
below) aggregating in excess of $1,000,000 have not theretofore been applied as described in
the notice required above (or in accordance with clause (e) below), all such Casualty
Proceeds and Net Disposition Proceeds shall be applied to prepay Revolving Loans (which
amount may not be reborrowed except to provide funds for uses permitted for such Casualty
Proceeds or Net Disposition Proceeds, as the case may be) or deposited in an account
maintained with, and pledged under the Loan Documents to, the Collateral Agent to secure the
Borrowers’ obligations hereunder and for disbursement at the request of the Company or the
Restricted Subsidiaries, as the case may be, to be used for the purpose(s) set forth in such
written notice(s) or (iii) if such Casualty Proceeds were related to assets held by (x) a
Canadian Borrower, such Casualty Proceeds shall be reinvested by or disbursed to the
respective Canadian Borrower or applied by the Collateral Agent to repay or secure the Loans
of such Canadian Borrower in accordance with the conditions described above and (y) the
Company or a Domestic Subsidiary, any such reinvestment must be made by the Company or a
Domestic Restricted Subsidiary.




(e) The Company shall, within one Business Day following the receipt by the Company or
any Restricted Subsidiary of any Net Disposition Proceeds in excess of $1,000,000
(individually or in the aggregate (when taken together with all other Net Disposition
Proceeds and all Casualty Proceeds) over the course of a Fiscal Year), deliver to the
Administrative Agent a calculation of the amount of such Net Disposition Proceeds and make a
mandatory prepayment of the Term Loans in an amount equal to 100% of such Net Disposition
Proceeds within 30 days of the receipt thereof to be applied as set forth in Section 3.1.2;
provided, however, that no mandatory prepayment on account of Net Disposition Proceeds shall
be required under this clause if the Company informs the Administrative Agent in writing no
later than 30 days following the receipt of such Net Disposition Proceeds of the Company’s
or a Restricted Subsidiary’s good faith intention to apply such Net Disposition Proceeds to
(i) the replacement of the assets or property that was the subject of the Disposition or the
acquisition or construction of other long-term capital assets useful in the Company’s or
such Restricted Subsidiary’s business that resulted in such Net Disposition Proceeds and/or
(ii) acquire the Capital Stock of a Person in a transaction permitted under clause (g) of
Section 7.2.5 so long as (x) the Disposition giving rise to such Net Disposition Proceeds
complies with clause (e) of Section 7.2.11, (y) the aggregate amount of Net Disposition
Proceeds used for such acquisitions shall not exceed $25,000,000 in the aggregate in any
Fiscal Year and $75,000,000 in the aggregate from the Amendment Effective Date through the
term of this Agreement and (z) as a result of such acquisition, such Person becomes a
Restricted Subsidiary and complies with Section 7.1.9 and the Company or the Restricted
Subsidiary in fact uses such Net Disposition Proceeds to replace, acquire or construct such
assets or property or to make such acquisition of Capital Stock within 360 days following
the receipt of such Net Disposition Proceeds, with the amount of such Net Disposition
Proceeds unused after such 360-day period being applied to the Term Loans pursuant to
Section 3.1.2; provided, further, however, that (i) at any time when any Specified
Default shall have occurred and be continuing, all Net Disposition Proceeds (together with
Casualty Proceeds not applied as provided in clause (d) above) shall be deposited in an
account maintained with, and pledged under the Loan Documents to, the Collateral Agent to
secure the Borrowers’ obligations hereunder and to pay for such replacement, acquisition or
construction whenever no Specified Default is then continuing or except as otherwise agreed
to by the Administrative Agent for disbursement at the request of the Company or the
Restricted Subsidiary, as the case may be, or (ii) if all such Net Disposition Proceeds
(together with Casualty Proceeds not applied as provided in clause (d) above) aggregating in
excess of $1,000,000 have not theretofore been applied as described in the notice required
above (or in accordance with clause (d) above), all such Net Disposition Proceeds and
Casualty Proceeds shall be applied to prepay Revolving Loans (which amount may not be
reborrowed except to provide funds for uses permitted for such Net Disposition Proceeds or
Casualty Proceeds, as the case may be) or deposited in an account maintained with, and
pledged under the Loan Documents to, the Collateral Agent to secure the Borrowers’
obligations hereunder and for disbursement at the request of the Company or the Restricted
Subsidiaries, as the case may be, to be used for the purpose(s) set forth in such written
notice(s) or (iii) if such Net Disposition Proceeds were related to assets held by (x) a
Canadian Borrower, such Casualty Proceeds shall be reinvested by or disbursed to the
respective Canadian Borrower or applied by the Collateral Agent to repay or secure the Loans
of such Canadian Borrower in accordance with the conditions described above and (y) the
Company or a Domestic Subsidiary, any such reinvestment must be made by the Company or a
Domestic Restricted Subsidiary.




(f) The Company shall, no later than five Business Days following the delivery by
Holdings of its annual audited financial reports required pursuant to clause (c) of Section
7.1.1 (beginning with the financial reports delivered in respect of the 2004 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash Flow for the Fiscal
Year last ended (or, in the case of the 2004 Fiscal Year, for the period from the Amendment
Effective Date through the end of such Fiscal Year) and make a mandatory prepayment of the
Term Loans in an amount equal to 50% of the Excess Cash Flow (if any) for such period, to be
applied as set forth in Section 3.1.2.




(g) (i) Except for Net Equity Proceeds with respect to the exercise of options or
warrants, within one Business Day following the receipt by Holdings, Intermediate Holdings,
the Company or any of the Restricted Subsidiaries of any Net Debt Proceeds or Net Equity
Proceeds, or (ii) for Net Equity Proceeds from the exercise of options or warrants, within
30 days of the end of each Fiscal Quarter, Holdings shall deliver to the Administrative
Agent a calculation of the amount of such Net Debt Proceeds or Net Equity Proceeds, as the
case may be, and (x) for Net Equity Proceeds and Net Debt Proceeds described in clause (i)
above, within 30 days of receipt or (y) for Net Equity Proceeds described in clause (ii)
above, concurrent with delivery of the calculation, the Company shall make a mandatory
prepayment of the Term Loans in an amount equal to 100% of such Net Debt Proceeds or 50% of
such Net Equity Proceeds, as the case may be, to be applied as set forth in Section 3.1.2;
provided, however, that Holdings or the Company may use the Net Debt Proceeds from the
issuance of Subordinated Debt permitted by Section 7.2.2(b) to repay in full the principal
of the Senior Subordinated Notes.




(h) On the Business Day following the date upon which Holdings shall have delivered a
certificate required to be delivered pursuant to clause (l) of Section 7.1.1 (or, during a
period that a Specified Default has occurred and is continuing, on each Business Day), the
applicable Canadian Borrower shall, if the U.S. Dollar Equivalent of the aggregate
outstanding principal amount of all Canadian Revolving Loans is equal to or greater than
103% of the Canadian Revolving Loan Commitment Amount, make a prepayment of its Canadian
Revolving Loans in Canadian Dollars (or cash collateralize Canadian BAs pursuant to, and in
accordance with, the terms of clause (a) of Section 3.1.1) in an amount equal to such excess
over the Canadian Revolving Loan Commitment Amount. For purposes of this clause, the
conversion rate of Canadian Dollars into U.S. Dollars shall be determined by the
Administrative Agent for each day.




(i) Immediately upon any acceleration of the Stated Maturity Date of any Loans pursuant
to Section 8.2 or Section 8.3, the Borrowers shall repay all the Loans, unless, pursuant to
Section 8.3, only a portion of all the Loans is so accelerated (in which case the portion so
accelerated shall be so repaid). Each prepayment of any Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by Section 4.4.




(j) If any portion of any prepayment otherwise required pursuant to clause (d), (e),
(f) or (g) of this Section would cause more than 25% of the original outstanding principal
amount of a Canadian Term Loan to be prepaid within five years after the date of issue
thereof, then the Canadian Term Borrower may give written notice thereof to the
Administrative Agent and each Lender holding Canadian Term Loans prior to the date payment
is due, whereupon, notwithstanding such clauses, that portion of the Canadian Term Loans in
excess of such 25% (the “Excess Canadian Principal Amount”) shall not be mandatorily
prepayable pursuant to such clauses and, in lieu thereof, each Lender of Canadian Term Loans
may elect to sell to the Company a portion of its Canadian Term Loan equal to its pro rata
portion of such Excess Canadian Principal Amount by written notice to the Administrative
Agent. Each Lender shall have 10 Business Days after receipt of such notice to make such
election. The Company agrees to purchase the requisite portion of the Canadian Term Loans
held by each Lender who so elects to sell, without representation or warranty by such Lender
except as to its title thereto, by payment, on the first Business Day after expiration of
such ten-day period, to the Administrative Agent for the account of such Lender in
immediately available funds equal to the aggregate principal amount of the Canadian Term
Loan being purchased plus accrued interest thereon. This provision shall not affect the
Canadian Term Borrower’s obligation to pay any accrued but unpaid interest. This provision
may apply to successive events that would result in an Excess Canadian Principal Amount
being created.



3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1 shall be applied as
set forth in this Section.




(a) Subject to clause (b), each prepayment or repayment of the principal of the Loans
shall be applied, to the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate Loans, and second, subject to
the terms of Section 4.4, to the principal amount thereof being maintained as LIBO Rate
Loans.




(b) Subject to clause (j) of Section 3.1.1, (i) each prepayment of Term Loans made
pursuant to clauses (d) and (e) of Section 3.1.1 shall be applied first as set forth in
clause (iii) thereof and then pro rata to a mandatory prepayment of the outstanding
principal amount of the other Term Loans and (ii) each prepayment of Term Loans made
pursuant to clauses (f) and (g) of Section 3.1.1 shall be applied pro rata to a mandatory
prepayment of the outstanding principal amount of all Term Loans, (in each case, with the
amount of such prepayment of the Term Loans being applied to the remaining Term Loan
amortization payment pro rata in accordance with the amount of each such remaining Term Loan
amortization payment); provided that to the extent that after giving effect to any such
prepayment or portion thereof of the Canadian Term Loans pursuant to clause (g) of Section
3.1.1 the aggregate outstanding principal amount of such Loans would be less than 85% of the
aggregate initial principal amount of Canadian Term Loans, that portion of such mandatory
prepayment that would otherwise be applied to the Canadian Term Loans may be applied, in the
discretion of the Company, to prepay an additional amount of U.S. Term Loans.



SECTION 3.2. Interest Provisions. Interest on the outstanding principal amount of
Loans shall accrue and be payable in accordance with the terms set forth below.



3.2.1. Rates. Subject to Section 2.3.2, pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:




(a) on that portion maintained from time to time as a Base Rate Loan, equal to the sum
of the Alternate Base Rate (if such Loan is a Term Loan or U.S. Revolving Loan) or Canadian
Prime Rate (if such loan is a Canadian Revolving Loan) from time to time in effect plus the
Applicable Margin; provided that all Swing Line Loans shall always accrue interest at the
Alternate Base Rate plus the then effective Applicable Margin; and




(b) on that portion maintained as a LIBO Rate Loan, during each Interest Period
applicable thereto, equal to the sum of (x) the LIBO Rate (Reserve Adjusted) for such
Interest Period plus (y) the Applicable Margin.



Interest on Base Rate Loans shall be calculated on the basis of the actual number of days elapsed
in a year of 365 days (or, if appropriate, 366 days) and payable in arrears. Interest on LIBO Rate
Loans shall be calculated on the basis of the actual number of days elapsed in a year of 360 days.
All LIBO Rate Loans shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.



3.2.2. Post-Default Rates. Upon the occurrence and during the continuance of an
Event of Default and after written notice to the Borrowers from the Administrative Agent specifying
that the Loans shall bear interest as provided in this Section, the Borrowers shall pay on demand,
but only to the extent permitted by law, interest (after as well as before judgment) in an amount
equal to (a) in the case of any principal of any Loan or unpaid interest thereon, a rate of 2% per
annum plus the higher of (i) the Base Rate plus the Applicable Margin and (ii) the rate (including
the Applicable Margin) otherwise applicable to such Loan or other amount and (b) in the case of any
accrued and unpaid commitment fees, letter of credit fees or other monetary Obligations, the rate
that would otherwise be applicable to Revolving Loans that are maintained as Base Rate Loans
pursuant to Section 3.2.1 plus 2%.



3.2.3. Payment Dates. Interest accrued on each Loan shall be payable, without
duplication:




(a) on the Stated Maturity Date therefor;




(b) on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan on the principal amount so paid or prepaid;




(c) with respect to Base Rate Loans, which bear interest with respect to (i) the
Alternate Base Rate, on each Quarterly Payment Date and (ii) the Canadian Prime Rate on the
first day of each month occurring after the Amendment Effective Date;




(d) with respect to LIBO Rate Loans, on the last day of each applicable Interest Period
(and, if such Interest Period shall exceed three months, on the date occurring on each
three-month interval occurring after the first day of such Interest Period);




(e) with respect to any Base Rate Loans converted into LIBO Rate Loans on a day when
interest would not otherwise have been payable pursuant to clause (c), on the date of such
conversion; and




(f) on that portion of any Loans the Stated Maturity Date of which is accelerated
pursuant to Section 8.2 or Section 8.3, immediately upon such acceleration.



Interest accrued on Loans or other monetary Obligations after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.



SECTION 3.3. Fees. The Company agrees to pay the fees set forth below. All such
fees shall be non-refundable.



3.3.1. Commitment Fee. (a) The Company agrees to pay to the Administrative Agent for
the account of each U.S. Revolving Loan Lender, for the period (including any portion thereof when
any of its U.S. Revolving Loan Commitments are suspended by reason of the Company’s inability to
satisfy any condition of Article 5 commencing on the Amendment Effective Date and continuing
through the applicable Commitment Termination Date, a commitment fee in an amount equal to the
Applicable Commitment Fee Rate, in each case on such Lender’s Percentage of the sum of the average
daily unused portion of the applicable U.S. Revolving Loan Commitment Amount net of Letter of
Credit Outstandings. The making of Swing Line Loans shall not constitute usage of the U.S.
Revolving Loan Commitment with respect to the calculation of commitment fees to be paid by the
Company to the U.S. Revolving Loan Lenders other than the Swing Line Lender.




(b) The Canadian Revolver Borrower agrees to pay to the Administrative Agent for the
account of each Canadian Lender, for the period (including any portion thereof when its
Canadian Revolving Loan Commitment is suspended by reason of the Canadian Revolver
Borrower’s inability to satisfy any condition of Article 5 commencing on the Amendment
Effective Date and continuing through the Revolving Loan Commitment Termination Date, a
commitment fee in an amount equal to the Applicable Commitment Fee Rate on such Lender’s
Percentage of the sum of the average daily unused portion of the Canadian Revolving Loan
Commitment Amount.




(c) All commitment fees payable pursuant to this Section shall be payable by the
applicable Borrower in arrears (calculated on a 360-day basis) on the Amendment Effective
Date and thereafter on each Quarterly Payment Date, commencing with the first Quarterly
Payment Date following the Amendment Effective Date, and on the Revolving Loan Commitment
Termination Date. Any term or provision hereof to the contrary notwithstanding, commitment
fees payable for any period prior to the Amendment Effective Date shall be payable in
accordance with the Fee Letter.



3.3.2. Administrative Agent’s Fee. The Company agrees to pay to the Administrative
Agent, for its own account, the fees in the amounts and on the dates set forth in the Fee Letter.



3.3.3. Letter of Credit Fee. The Company agrees to pay to the Administrative Agent,
for the pro rata account of the applicable Issuer and each U.S. Revolving Loan Lender, a Letter of
Credit fee in an amount equal to the then effective Applicable Margin for LIBO Rate Loans,
multiplied by the Stated Amount of each Letter of Credit Outstanding, such fees being payable
quarterly in arrears on each Quarterly Payment Date following the date of issuance of each Letter
of Credit and on the Revolving Loan Commitment Termination Date. The Company further agrees to pay
to the applicable Issuer with respect to each issuance or extension of a Letter of Credit a
fronting fee in an amount equal to 1/4 of 1% per annum on the Stated Amount
of such Letter of Credit payable on each Quarterly Payment Date following the date of such issuance
or extension and on the Revolving Loan Commitment Termination Date. In addition, the Company
agrees to pay to the Issuer of each Letter of Credit, for its own account, all customary
administrative, issuance, amendment, payment and negotiation charges.



ARTICLE 4




CERTAIN LIBO RATE AND OTHER PROVISIONS




SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine (which
determination shall, upon notice thereof to the Borrowers and the Administrative Agent, be
conclusive and binding on the Borrowers) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any Governmental Authority asserts that it is
unlawful, for such Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO Rate Loan shall,
upon such determination, forthwith be suspended until such Lender shall notify the Administrative
Agent that the circumstances causing such suspension no longer exist, and all outstanding LIBO Rate
Loans payable to such Lender shall automatically convert into Base Rate Loans at the end of the
then current Interest Periods with respect thereto or sooner, if required by such law or assertion.




SECTION 4.2. Deposits Unavailable; Circumstances making Canadian BAs Unavailable.




(a) If the Administrative Agent shall have determined that




(i) deposits in the relevant Currency and amount and for the relevant Interest
Period are not available to it in its relevant market; or




(ii) by reason of circumstances affecting its relevant market, adequate means
do not exist for ascertaining the interest rate applicable hereunder to LIBO Rate
Loans in a particular Currency;



then, upon notice from the Administrative Agent to the Borrowers and the Lenders, the obligations
of all Lenders under Section 2.3 and Section 2.4 to make or continue any Loans as, or to convert
any Loans into, LIBO Rate Loans shall forthwith be suspended and, in the case of U.S. Loans, such
Loans shall accrue interest at the Base Rate plus the Applicable Margin in respect of such Loans
from the end of the then current Interest Period applicable thereto, until the Administrative Agent
shall notify the applicable Borrowers and the Lenders that the circumstances causing such
suspension no longer exist, and subsequent LIBO Rate Loans in respect of such Currency shall be
made at an interest rate equal to, in the case of Term Loans and U.S. Revolving Loans, the Base
Rate plus the Applicable Margin in respect of such Loans and, in the case of Canadian Revolving
Loans, such Loans shall accrue interest at the Canadian Prime Rate plus the Applicable Margin in
respect of such Loans.




(b) If the Administrative Agent shall have determined that by reason of circumstances
affecting the Canadian money market, there is no market for Canadian BAs, then the right of
the Canadian Revolver Borrower to request the acceptance of Canadian BAs and the acceptance
thereof shall be suspended until the Administrative Agent determines that the circumstances
causing such suspension no longer exist and the Administrative Agent so notifies the
Canadian Revolver Borrower and any Borrowing Request or Continuation/Conversion Notice
requesting the acceptance of Canadian BAs shall be canceled and the Loans requested therein
shall be made as, continued as or converted into Canadian Prime Rate Loans or, in the case
of a Credit Extension, if requested by the Canadian Revolver Borrower at least one Business
Day prior to the scheduled date of the Credit Extension, not be made.



SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The applicable Borrower agrees to
reimburse each Lender and Issuer for any increase in the cost to such Lender or Issuer of, or any
reduction in the amount of any sum receivable by such Secured Party in respect of, such Secured
Party’s Commitments and the making of Credit Extensions hereunder (including the making, continuing
or maintaining (or of its obligation to make or continue) any Loans as, or of converting (or of its
obligation to convert) any Loans into, LIBO Rate Loans) that arise in connection with any change
in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in
after the date hereof of, any law or regulation, directive, guideline, decision or request (whether
or not having the force of law) of any Governmental Authority, except for such changes with respect
to increased capital costs and Taxes which are governed by Sections 4.5 and 4.6, respectively.
Each affected Secured Party shall promptly notify the Administrative Agent and the Borrowers in
writing of the occurrence of any such event, stating the reasons therefor and the additional amount
required fully to compensate such Secured Party for such increased cost or reduced amount. Such
additional amounts shall be payable by the applicable Borrower directly to such Secured Party
within five days of its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrowers.



SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to make or continue any portion of the principal amount of any
Loan as, or to convert any portion of the principal amount of any Loan into, a LIBO Rate Loan) as a
result of




(a) any conversion or repayment or prepayment of the principal amount of any LIBO Rate
Loan on a date other than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Article 3 or 8 or otherwise;




(b) any Loans not being made as LIBO Rate Loans in accordance with the Borrowing
Request therefor (other than as a result of the willful failure of such Lender to fund such
requested LIBO Rate Loan); or




(c) any Loans not being continued as, or converted into, LIBO Rate Loans in accordance
with the Continuation/Conversion Notice therefor;



then, upon the written notice of such Lender to the applicable Borrowers (with a copy to the
Administrative Agent), the applicable Borrower shall, within five days of its receipt thereof, pay
directly to such Lender such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. Such written notice shall, in the absence of
manifest error, be conclusive and binding on the Borrowers.



SECTION 4.5. Increased Capital Costs. If any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of law) of any
Governmental Authority affects or would affect the amount of capital required or expected to be
maintained by any Secured Party or any Person controlling such Secured Party, and such Secured
Party determines (in good faith but in its sole and absolute discretion) that the rate of return on
its or such controlling Person’s capital as a consequence of the Commitments or the Credit
Extensions made, or the Letters of Credit participated in, by such Secured Party is reduced to a
level below that which such Secured Party or such controlling Person could have achieved but for
the occurrence of any such circumstance, then upon notice from time to time by such Secured Party
to the Borrowers, the applicable Borrower shall within five days following receipt of such notice
pay directly to such Secured Party additional amounts sufficient to compensate such Secured Party
or such controlling Person for such reduction in rate of return. A statement of such Secured Party
as to any such additional amount or amounts shall, in the absence of manifest error, be conclusive
and binding on the Borrowers. In determining such amount, such Secured Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall deem applicable.



SECTION 4.6. Taxes. Each Borrower covenants and agrees as follows with respect to
Taxes.




(a) Any and all payments by such Borrower under each Loan Document shall be made
without setoff, counterclaim or other defense, and free and clear of, and without deduction
or withholding for or on account of, any Taxes. In the event that any Taxes are required by
law to be deducted or withheld from any payment required to be made by a Borrower to or on
behalf of any Secured Party under any Loan Document, then:




(i) subject to clause (f), if such Taxes are Non-Excluded Taxes, the amount of
such payment shall be increased as may be necessary such that such payment is made,
after withholding or deduction for or on account of such Taxes (including deductions
applicable to additional sums payable under this Section), in an amount that is not
less than the amount provided for in such Loan Document; and




(ii) such Borrower shall withhold the full amount of such Taxes from such
payment (as increased pursuant to clause (a)(i)) and shall pay such amount to the
Governmental Authority imposing such Taxes in accordance with applicable law.




(b) In addition, such Borrower shall pay any and all Other Taxes imposed to the
relevant Governmental Authority imposing such Other Taxes in accordance with applicable law.




(c) As promptly as practicable after the payment of any Taxes or Other Taxes, and in
any event within 45 days of any such payment being due, the applicable Borrower shall
furnish to the Administrative Agent an official receipt (or a certified copy thereof)
evidencing the payment of such Taxes or Other Taxes. The Administrative Agent shall make
copies thereof available to any Lender upon request therefor.




(d) Subject to clause (f), the Company shall indemnify each Secured Party for any
Non-Excluded Taxes and Other Taxes levied, imposed or assessed on or asserted with respect
to (and whether or not paid directly by) such Secured Party (whether or not such
Non-Excluded Taxes or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority). Promptly upon having knowledge that any such Non-Excluded Taxes or
Other Taxes have been levied, imposed or assessed, and promptly upon notice thereof by any
Secured Party, the Company shall pay such Non-Excluded Taxes or Other Taxes directly to the
relevant Governmental Authority (provided, however, that no Secured Party shall be under any
obligation to provide any such notice to the Company). In addition, the Company shall
indemnify each Secured Party for any incremental Taxes that may become payable by such
Secured Party as a result of any failure of the Company to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative Agent, pursuant to
clause (c), documentation evidencing the payment of Taxes or Other Taxes. With respect to
indemnification for Non-Excluded Taxes and Other Taxes actually paid by any Secured Party or
the indemnification provided in the immediately preceding sentence, such indemnification
shall be made within 30 days after the date such Secured Party makes written demand
therefor. The Company acknowledges that any payment made to any Secured Party or to any
Governmental Authority in respect of the indemnification obligations of the Company provided
in this clause shall constitute a payment in respect of which the provisions of clause (a)
and this clause shall apply.




(e) Each Non-Domestic Lender, on or prior to the date on which such Non-Domestic Lender
becomes a Lender (other than a Lender making only Canadian Revolving Loans) hereunder (and
from time to time thereafter upon the written request of the Borrower or the Administrative
Agent, but only for so long as such non-Domestic Lender is legally entitled to do so), shall
deliver to the Company and the Administrative Agent either




(i) two duly completed copies of either (A) Internal Revenue Service Form
W-8BEN (with respect to treaty benefits only) or (B) Internal Revenue Service Form
W-8ECI, or in either case an applicable successor form; or




(ii) in the case of a Non-Domestic Lender that is not legally entitled to
deliver either form listed in clause (e)(i) for the purposes specified therein, (x)
a certificate of a duly authorized officer of such Non-Domestic Lender to the effect
that such Non-Domestic Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the
meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section 881(c)(3)(C)
of the Code (such certificate, an “Exemption Certificate”) and (y) two duly
completed copies of Internal Revenue Service Form W-8BEN (with respect to Foreign
status) or applicable successor form.




(f) No Borrower shall be obligated to gross up any payments to any Lender pursuant to
clause (a)(i), or to indemnify any Lender pursuant to clause (d), in respect of United
States federal withholding taxes to the extent imposed as a result of (and only in any
period during) (i) the failure of such Lender to deliver to the Company the form or forms
and/or an Exemption Certificate, as applicable to such Lender, pursuant to clause (e), (ii)
the information or certifications made on such form or forms and/or Exemption Certificate by
the Lender being untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it maintains its Loans
which has the effect of causing such Lender to become obligated for tax payments in excess
of those in effect immediately prior to such designation; provided, however, that the
Borrowers shall be obligated to gross up any payments to any such Lender pursuant to clause
(a)(i), and to indemnify any such Lender pursuant to clause (d), in respect of United States
federal withholding taxes if (i) any such failure to deliver a form or forms or an Exemption
Certificate or inaccuracy or untruth contained therein resulted from a change in any
applicable statute, treaty, regulation or other applicable law or any interpretation of any
of the foregoing occurring after the date hereof, which change rendered such Lender no
longer legally entitled to deliver such form or forms or Exemption Certificate, or rendered
the information or certifications made in such form or forms or Exemption Certificate untrue
or inaccurate in a material respect, (ii) the redesignation of the Lender’s lending office
was made at the request of the Company or (iii) the obligation to gross up payments to any
such Lender pursuant to clause (a)(i) or to indemnify any such Lender pursuant to clause (d)
is with respect to an Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of the Company.




(g) Upon the written request of the Borrower or the Administrative Agent, each Lender
that is entitled to an exemption from or reduction of a withholding tax otherwise imposed
under the laws of Canada, or pursuant to any treaty to which Canada is a party, with respect
to payments under this agreement, shall use reasonable efforts (consistent with applicable
legal and regulatory restrictions) to deliver to the Administrative Agent, any certificate
or document requested by the Borrower or the Administrative Agent if (i) the delivery of
such certificate or document would avoid the need for making any payment, or reduce the
amount of any payment, which may thereafter accrue to or for the account of such Lender
pursuant to this Section with respect to Canadian Taxes and (ii) such filing would not, in
the sole judgment of such Lender, require such Lender to disclose any confidential or
proprietary information or be otherwise disadvantageous to such Lender.



SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly provided in a
Loan Document, all payments by the Borrowers pursuant to each Loan Document shall be made by the
Borrowers to the Administrative Agent for the pro rata account of the Secured Parties entitled to
receive such payment. All payments shall be made without setoff, deduction or counterclaim not
later than 11:00 a.m. Local Time on the date due in same day or immediately available funds to such
account as the Administrative Agent shall specify from time to time by notice to the Borrowers.
Except as otherwise expressly provided herein and except with respect to principal of and interest
on Loans denominated in Canadian Dollars (which shall be made in Canadian Dollars), all payments by
the Borrowers hereunder shall be made in U.S. Dollars. Funds received after that time shall be
deemed to have been received by the Administrative Agent, or such Lenders as the case may be, on
the next succeeding Business Day. The Administrative Agent shall promptly remit in same day funds
to each Secured Party its share, if any, of such payments received by the Administrative Agent for
the account of such Secured Party. All interest (including interest on LIBO Rate Loans), and fees
shall be computed on the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of interest on a Base Rate Loan (calculated at other than
the Federal Funds Rate) 365 days or, if appropriate, 366 days. Payments due on other than a
Business Day shall (except as otherwise required by clause (c) of the definition of the term
“Interest Period”) be made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees in connection with that payment.



SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account
of any Credit Extension or Reimbursement Obligation (other than pursuant to the terms of Sections
4.3, 4.4, 4.5 or 4.6) in excess of its pro rata share of payments obtained by all Secured Parties,
such Secured Party shall purchase from the other Secured Parties such participations in Credit
Extensions made by them as shall be necessary to cause such purchasing Secured Party to share the
excess payment or other recovery ratably (to the extent such other Secured Parties were entitled to
receive a portion of such payment or recovery) with each of them; provided, however, that if all or
any portion of the excess payment or other recovery is thereafter recovered from such purchasing
Secured Party, the purchase shall be rescinded and each Secured Party which has sold a
participation to the purchasing Secured Party shall repay to the purchasing Secured Party the
purchase price to the ratable extent of such recovery together with an amount equal to such selling
Secured Party’s ratable share (according to the proportion of (a) the amount of such selling
Secured Party’s required repayment to the purchasing Secured Party to (b) total amount so
recovered from the purchasing Secured Party) of any interest or other amount paid or payable by the
purchasing Secured Party in respect of the total amount so recovered. Each Borrower agrees that
any Secured Party purchasing a participation from another Secured Party pursuant to this Section
may, to the fullest extent permitted by law, exercise all its rights of payment (including pursuant
to Section 4.9) with respect to such participation as fully as if such Secured Party were the
direct creditor of such Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law any Secured Party receives a secured claim in lieu of a
setoff to which this Section applies, such Secured Party shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the rights of the Secured
Parties entitled under this Section to share in the benefits of any recovery on such secured claim.



SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and during the
continuance of any Default described in clauses (b) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence and during the continuance of any other Event
of Default, have the right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) Holdings and each Borrower hereby
grants to each Secured Party a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of Holdings or such Borrower then or thereafter maintained with such
Secured Party; provided, however, that any such appropriation and application shall be subject to
the provisions of Section 4.8. Each Secured Party agrees promptly to notify Holdings and the
Company and the Administrative Agent after any such setoff and application made by such Secured
Party; provided, however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Secured Party under this Section are in addition
to other rights and remedies (including other rights of setoff under applicable law or otherwise)
which such Secured Party may have. Notwithstanding the foregoing, no Secured Party shall
appropriate or apply to the payment of Obligations owed to it by Holdings, Intermediate Holdings,
the Company or any Domestic Subsidiary Guarantor (each, a “U.S. Person”) (but only to the
extent such Obligation is owed by any such U.S. Person, and without limitation of any Foreign
Subsidiary’s Obligations as to which such U.S. Person may be a guarantor) and no security interest
is granted by any Canadian Borrower or other Canadian Subsidiary that is an Obligor with respect to
such Obligations in, any balances, credits, deposits, accounts or moneys of such Canadian Borrower
or other Canadian Subsidiary at any time maintained with a Secured Party.



SECTION 4.10. Replacement of Lenders. Each Lender hereby severally agrees as set
forth in this Section. If any Lender (a “Subject Lender”) (i) makes demand upon a Borrower
for (or if such Borrower is otherwise required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6
or (ii) gives notice pursuant to Section 4.1 requiring a conversion of such Subject Lender’s LIBO
Rate Loans to Base Rate Loans or any change in the basis upon which interest is to accrue in
respect of such Subject Lender’s LIBO Rate Loans or suspending such Lender’s obligation to make
Loans as, or to convert Loans into, LIBO Rate Loans, the Company may, within 180 days of receipt by
such Borrower of such demand or notice (or the occurrence of such other event causing such Borrower
to be required to pay such compensation) as the case may be, give notice (a “Replacement
Notice”) in writing to the Administrative Agent and such Subject Lender of its intention to
replace such Subject Lender with a financial institution (a “Replacement Lender”)
designated in such Replacement Notice. If the Administrative Agent shall, in the exercise of its
reasonable discretion and within 30 days of its receipt of such Replacement Notice, notify the
Company and such Subject Lender in writing that the designated financial institution is
satisfactory to the Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Subject Lender shall, subject to the payment of any amounts
due pursuant to Section 4.4, assign, in accordance with Section 11.11, all of its Commitments,
Loans and other rights and obligations under this Agreement and all other Loan Documents (including
Reimbursement Obligations) to such designated financial institution; provided, however, that (i)
such assignment shall be without recourse, representation or warranty (except as to title) and
shall be on terms and conditions reasonably satisfactory to such Subject Lender and such designated
financial institution and (ii) the purchase price paid by such designated financial institution
shall be in the amount of such Subject Lender’s Loans and its funded participations in unreimbursed
Disbursements, if any, together with all accrued and unpaid interest and fees in respect thereof,
plus all other amounts (including the amounts demanded and unreimbursed under Sections 4.3, 4.5 and
4.6), owing to such Subject Lender hereunder. Upon the effective date of an assignment described
above, the designated financial institution or Replacement Lender shall become a “Lender” for all
purposes under this Agreement and the other Loan Documents.



ARTICLE 5




CONDITIONS




SECTION 5.1. Amendment Effective Date and Extensions of Credit on the Amendment Effective
Date. The effectiveness of this Agreement shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 5.1. (such date , the
“Amendment Effective Date”). On the Amendment Effective Date, provided that such
conditions precedent have been satisfied or waived, without further action by any of the parties to
this Agreement, the Existing Credit Agreement will be automatically amended and restated to read as
this Agreement reads.



5.1.1. Resolutions, etc. The Administrative Agent shall have received from each
Obligor, as applicable, (i) a copy of a good standing certificate dated a date reasonably close to
the Amendment Effective Date, for each such Person (or other confirmation of good standing as
agreed to by the Administrative Agent) and (ii) a certificate, dated the Amendment Effective Date
and with counterparts for each Lender, duly executed and delivered by such Person’s Secretary or
Assistant Secretary, managing member or general partner, as applicable, as to




(a) resolutions of each such Person’s Board of Directors (or other managing body, in
the case of other than a corporation) then in full force and effect authorizing, the
execution, delivery and performance of each Loan Document to be executed by such Person and
the transactions contemplated hereby and thereby;




(b) the incumbency and signatures of those of its officers, managing member or general
partner, as applicable, authorized to act with respect to each Loan Document to be executed
by such Person; and




(c) the full force and validity of each Organic Document of such Person and attaching
true and complete copies thereof;



upon which certificates each Secured Party may conclusively rely until it shall have received a
further certificate of the Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Person canceling or amending the prior certificate of such Person.



5.1.2. Agreement and Guarantor Confirmation Agreements. The Administrative Agent
shall have received duly executed counterparts from each party thereto of each of this Agreement
and each Guarantor Confirmation Agreement.



5.1.3. Tender Offer. The Administrative Agent shall have received evidence
reasonably acceptable to it that the Tender Offer is expected to close within five Business Days
after the Amendment Effective Date.



5.1.4. Amendment Effective Date Certificate. The Administrative Agent shall have
received, with counterparts for each Lender, the Amendment Effective Date Certificate, dated the
Amendment Effective Date and duly executed and delivered by an Authorized Officer, of each of
Holdings, Intermediate Holdings and the Company, in which certificate each of Holdings,
Intermediate Holdings and the Company shall agree and acknowledge that the statements made therein
are true and correct representations and warranties of each of Holdings, Intermediate Holdings and
the Company as of such date, and, at the time each such certificate is delivered, such statements
shall in fact be true and correct. All documents and agreements required to be appended to the
Amendment Effective Date Certificate shall be in form and substance reasonably satisfactory to the
Administrative Agent.



5.1.5. Delivery of Notes. The Administrative Agent shall have received, for the
account of each Lender that has requested a Note in writing two Business Days prior to the
Amendment Effective Date, such Lender’s Notes duly executed and delivered by an Authorized Officer
of the applicable Borrower.



5.1.6. Closing Fees, Expenses, etc. The Administrative Agent have received for its
account, or for the account of each Lender, as the case may be, all fees, costs and expenses due
and payable pursuant to Sections 3.3 and 11.3, to the extent then invoiced.



5.1.7. Material Adverse Change. Since December 31, 2003, there shall not have been
any material adverse change in the business, assets, condition (financial or otherwise),
operations, performance, properties, projections or prospects of Holdings, Intermediate Holdings,
the Company and the Restricted Subsidiaries, taken as a whole.



5.1.8. Opinions of Counsel. The Administrative Agent shall have received opinions,
dated the Amendment Effective Date and addressed to the Administrative Agent and all of the
Lenders, from




(a) Greenberg Traurig, P.A., counsel to the Obligors, in form and substance
satisfactory to the Administrative Agent;




(b) Ball Janik LLP, counsel to the Obligors, in form and substance satisfactory to the
Administrative Agent; and




(c) Heenan Blaikie LLP, Canadian counsel to the Obligors, in form and substance
satisfactory to the Administrative Agent.



5.1.9. Filings Any Filing Statements required pursuant to the Amendment Documents
shall have been delivered to the Administrative Agent or other arrangements acceptable to the
Administrative Agent for such filings shall have been made. All filings with the STB (if any)
required pursuant to the Amendment Documents shall have been executed and delivered to Ball Janik.
Ball Janik shall have submitted all such filings (if any) to the STB on the Amendment Effective
Date or within five days following the Amendment Effective Date. If such filing is made after the
Amendment Effective Date, Ball Janik shall notify the Administrative Agent and its counsel when the
filing has been made.



5.1.10. Litigation. There shall exist no pending or threatened action, suit,
investigation, litigation or proceeding in any court or before any arbitrator or Governmental
Authority which (x) purports to affect the consummation of the transactions contemplated hereby or
the legality or validity of the Amended and Restated Credit Agreement, any other Loan Document or
any Material Document or (y) except as disclosed in Item 6.7 of the Disclosure Schedule, could
reasonably be expected to have a Material Adverse Effect.



5.1.11. Corporate, Tax and Capital Structure. The corporate and capital structure of
Holdings, Intermediate Holdings, the Company and such Subsidiaries shall be as set forth in Annex I
hereto.



5.1.12. Approvals. All governmental, shareholder and third party consents (including
STB clearance) and approvals necessary or desirable in connection with the execution and delivery
of the Amendment Documents by the Obligors and the performance of their obligations thereunder and
hereunder shall have been duly obtained and all applicable waiting periods shall have expired,
without any action being taken by any competent authority that could restrain, prevent or impose
any materially adverse conditions on the execution and delivery of the Amendment Documents by the
Obligors and the performance of their Obligations thereunder and hereunder, and no such law or
regulation shall be applicable which in the judgment of the Administrative Agent could have any
such effect.



SECTION 5.2. All Credit Extensions. The obligation of each Lender and each Issuer to
make any Credit Extension (including the initial Credit Extension) shall be subject to the
satisfaction of each of the conditions precedent set forth below.



5.2.1. Compliance with Warranties, No Default, etc. Both before and after giving
effect to any Credit Extension (but, if any Default of the nature referred to in Section 8.1.5
shall have occurred with respect to any other Indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the following statements shall be
true and correct:




(a) the representations and warranties set forth in each Loan Document shall, in each
case, be true and correct with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date) and




(b) no Default shall have then occurred and be continuing.



5.2.2. Credit Extension Request, etc. Subject to Section 2.3.2, the Administrative
Agent shall have received a Borrowing Request if Loans are being requested, or an Issuance Request
if a Letter of Credit is being requested or extended. Each of the delivery of a Borrowing Request
or Issuance Request and the acceptance by a Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by such Borrower that on the date of such Credit Extension
(both immediately before and after giving effect to such Credit Extension and the application of
the proceeds thereof) the statements made in Section 5.2.1 are true and correct in all material
respects.



ARTICLE 6




REPRESENTATIONS AND WARRANTIES




In order to induce the Secured Parties to enter into this Agreement and to make Credit
Extensions hereunder, each of Holdings, Intermediate Holdings and the Company, jointly and
severally, represents and warrants to each Secured Party as set forth in this Article.



SECTION 6.1. Organization, etc. Holdings, Intermediate Holdings, each Borrower and
each of the Restricted Subsidiaries is validly organized and existing and in good standing under
the laws of the state or jurisdiction of its incorporation or organization, except in the case of
good standing as set forth in Item 6.1 of the Disclosure Schedule; is qualified to do business and
is in good standing as a foreign entity in each jurisdiction where the nature of its business
requires such qualification, except where the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect and as set forth in Item 6.1 of the Disclosure Schedule;
and has full power and authority and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its Obligations under each Loan Document to which it is a party
and to own and hold under lease its property and to conduct its business substantially as currently
conducted by it, except such licenses, permits and approvals the failure of which to have could not
reasonably be expected to have a Material Adverse Effect.



SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by each of Holdings, Intermediate Holdings, each Borrower and each other Obligor of
each Loan Document executed or to be executed by it are in each case within each such Person’s
powers, have been duly authorized by all necessary action, and do not




(a) contravene any (i) Obligor’s Organic Documents, (ii) contractual restriction
binding on or affecting any Obligor which contravention could reasonably be expected to have
a Material Adverse Effect, (iii) court decree or order binding on or affecting any Obligor
or (iv) law or governmental regulation binding on or affecting any Obligor which
contravention could reasonably be expected to have a Material Adverse Effect; or




(b) result in, or require the creation or imposition of, any Lien on any Obligor’s
properties (except as permitted by this Agreement).



SECTION 6.3. Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with (except for filings and recordations required in
connection with the Mortgage Amendments as described in Section 7.1.8) any Governmental Authority
or other Person (other than those that have been, or on the Amendment Effective Date will be, duly
obtained or made and which are, or on the Amendment Effective Date will be, in full force and
effect) is required for the due execution, delivery or performance by each of Holdings,
Intermediate Holdings, any Borrower or any other Obligor of any Loan Document to which it is a
party. Neither Holdings, Intermediate Holdings, the Company nor any of their respective
Subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940,
as amended, or a “holding company”, or a “subsidiary company” of a “holding company”, or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company”, within the
meaning of the Public Utility Holding Company Act of 1935, as amended. Without limitation of the
foregoing, neither any Obligor nor any of their respective Subsidiaries is in violation of the
Trading with the Enemy Act, as amended, the United States Treasury Department foreign assets
control regulations and Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism.



SECTION 6.4. Validity, etc. This Agreement and each other Loan Document to which
Holdings, Intermediate Holdings, a Borrower or any other Obligor is a party has been duly executed
and delivered by such Obligor and constitutes the legal, valid and binding obligations of each such
Obligor, enforceable against such Obligor in accordance with their respective terms (except, in any
case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and by principles of equity).



SECTION 6.5. Financial Information. All balance sheets, all statements of
operations, shareholders’ equity and cash flow and all other financial information of each of
Holdings and its Subsidiaries furnished pursuant to Section 7.1.1 have been and will for periods
following the Amendment Effective Date be prepared in accordance with GAAP consistently applied,
and do or will present fairly the consolidated financial condition of the Persons covered thereby
as at the dates thereof and the results of their operations for the periods then ended, subject in
the case of interim financial statements to normal year-end adjustments. None of Holdings or its
Subsidiaries has, as of the Amendment Effective Date, any material contingent liability, unusual
long-term commitments or unrealized losses, except as disclosed in the financial statements
referred to above or the notes thereto.



SECTION 6.6. No Material Adverse Change. There has been no material adverse change
in the business, assets, condition (financial or otherwise), operations, performance, properties,
or prospects of Holdings, Intermediate Holdings, the Company, any other Obligor or any of the
Restricted Subsidiaries since December 31, 2003.



SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or, to the
knowledge of Holdings, Intermediate Holdings, any Borrower or any of their respective Restricted
Subsidiaries, threatened litigation, action, proceeding or labor controversy




(a) except as disclosed in Item 6.7 of the Disclosure Schedule, affecting Holdings or
any of its Restricted Subsidiaries or any other Obligor, or any of their respective
properties, businesses, assets or revenues, which could reasonably be expected to have a
Material Adverse Effect, and no material adverse development has occurred in any labor
controversy, litigation, arbitration or governmental investigation or proceeding disclosed
in Item 6.7; or




(b) which purports to affect the legality, validity or enforceability of any Loan
Document.



SECTION 6.8. Subsidiaries. Neither Holdings, Intermediate Holdings nor the Company
has any Subsidiaries, except those Subsidiaries




(a) which are identified in Item 6.8 of the Disclosure Schedule; or




(b) which are permitted to have been organized or acquired in accordance with Sections
7.2.5 or 7.2.10 or are organized or acquired by an Unrestricted Subsidiary.



SECTION 6.9. Ownership of Properties. Each of Holdings, Intermediate Holdings, the
Company and each of the Restricted Subsidiaries possesses (i) in the case of real property, good
and valid fee title, leasehold, easement, right of way or other similar estate which is sufficient
to permit such Persons to operate as railroads and conduct such other business as is currently
conducted or carried on without undue charge or expense, and (ii) in the case of owned personal
property, good and valid title to, or, in the case of leased personal property, valid and
enforceable leasehold interests (as the case may be) in, all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever, free and clear in each case of all
Liens or claims, except for Liens permitted pursuant to Section 7.2.3.



SECTION 6.10. Taxes. Holdings and each of its Subsidiaries have filed all material
tax returns and reports required by law to have been filed by it and have paid all taxes and
governmental charges thereby shown to be due and owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on the relevant party’s books.



SECTION 6.11. Pension and Welfare Plans. From and after the Original Effective Date
and prior to the date of any Credit Extension hereunder, no steps have been taken to terminate any
Pension Plan, and no contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under Section 302(f) of ERISA. Except as disclosed in Item 6.11 of the
Disclosure Schedule, no condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by Holdings, the Company or any member of the
Controlled Group of any material liability, fine or penalty. Except as disclosed in Item 6.11 of
the Disclosure Schedule, neither Holdings, the Company nor any member of the Controlled Group has
any contingent liability with respect to any post-retirement benefit under a Welfare Plan, other
than liability for continuation coverage described in Part 6 of Title I of ERISA. Holdings does
not and will not have any Pension Plan.



SECTION 6.12. Environmental Warranties. Except (i) as set forth in Item 6.12 of the
Disclosure Schedule or (ii) for any individual matter arising at or relating to a particular
facility or property, as could not reasonably be expected to (x) give rise to liabilities of
Holdings or any of its Subsidiaries in excess of $250,000 or (y) result in an involuntary shutdown,
or closure of a facility or other asset:




(a) each of Holdings, each of its Subsidiaries, and each facility and property
(including underlying groundwater) owned, leased, or operated upon (including all right of
way easements) by Holdings or any of its Subsidiaries has been, and continue to be, in
compliance with all Environmental Laws;




(b) there have been no past governmental, and there are no pending or, to the best
knowledge of the Company, threatened (i) claims, complaints, notices, penalties,
investigations, orders or requests for information received by Holdings, Intermediate
Holdings, the Company or any of the Subsidiaries with respect to any alleged violation of
any Environmental Law, or (ii) claims, complaints, notices, requests for information,
investigations or orders to Holdings or any of its Subsidiaries regarding potential
liability under any Environmental Law;




(c) there have been no Releases of Hazardous Materials at, on or under any property now
or (with respect to the period of ownership, lease or operation) previously owned, leased or
operated upon (including all rights of way easements) by Holdings or any of its
Subsidiaries;




(d) to the best knowledge of the Company, after all due inquiry Holdings and its
Subsidiaries have been issued and are in compliance with all permits, certificates,
approvals, licenses and other authorizations relating to environmental matters;




(e) no property now or (with respect to the period of ownership, lease or operation)
previously owned or leased or operated upon (including all right of way easements) by
Holdings or any of its Subsidiaries is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state or foreign list
of sites requiring investigation or clean-up or which is the subject of federal, state or
local enforcement actions or other investigations which may lead to claims against Holdings
or such Subsidiary for any remedial work, damage to natural resources or personal injury,
including claims under CERCLA;




(f) to the best knowledge of the Company, there are no underground storage tanks,
active or abandoned, including petroleum storage tanks, on or under any property now or
previously owned, leased or operated upon (including all right of way easements) by Holdings
or any of its Subsidiaries;




(g) to the best knowledge of the Company, neither Holdings nor any Subsidiary has
transported or arranged for the transportation of any Hazardous Material to any location
which is listed or proposed for listing on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state or foreign list or which is the subject of federal,
state or local enforcement actions or other investigations which may lead to claims against
Holdings or such Subsidiary for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA;




(h) there are no polychlorinated biphenyls or friable asbestos present at any property
now or previously owned, leased or operated upon (including right of way easements) by
Holdings or any Subsidiary that, singly or in the aggregate, have, or could reasonably be
expected to have, a Material Adverse Effect;




(i) no conditions exist at, on or under any properties now or previously owned, leased
or operated upon (including right of way easements) by Holdings or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, would singly or in the
aggregate give rise to a material liability to Holdings or any Subsidiary under any
Environmental Law;




(j) There has been no material environmental investigation, study, audit, test, review
or other analysis conducted which is within Holding’s or any Subsidiaries’ possession,
custody or control, which relates to the current or prior business, facilities or properties
of Holdings or any Subsidiary and which has not been delivered to the Administrative Agent
(on behalf of the Lenders) at least ten days prior to the date hereof; and




(k) For the purposes of this Section 6.12 and Sections 11.4(d), (e) and (f) the terms
“Holdings”, “Subsidiary”, “Obligor”, shall include any business or business entity which is,
in whole or in part, a predecessor of Holdings, a Subsidiary or an Obligor, such that
Holdings, a Subsidiary or an Obligor is subject to, by operation of law or otherwise, the
liabilities of such business or business entity as a successor to such business or business
entity.



For purposes of this Section 6.12, “knowledge” means the knowledge, after reasonable
investigation or inquiry, of the employees of Holdings and its Subsidiaries with responsibility for
environmental matters, which reasonable investigation or inquiry shall include, for purposes of the
representations and warranties made on the Amendment Effective Date only, confirmation and inquiry
with outside environmental counsel of Holdings or its Subsidiaries.



SECTION 6.13. Accuracy of Information. None of the factual information heretofore or
contemporaneously furnished in writing to any Secured Party by or on behalf of any Obligor in
connection with any Loan Document or any transaction contemplated hereby contains any untrue
statement of a material fact, or omits to state any material fact necessary to make any information
not misleading in light of the circumstances under which made, and no other factual information
hereafter furnished in connection with any Loan Document by or on behalf of any Obligor to any
Secured Party will contain any untrue statement of a material fact or will omit to state any
material fact necessary to make any information not misleading in light of the circumstances under
which made on the date as of which such information is dated or certified.



SECTION 6.14. Regulations T, U and X. No Obligor is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any
Credit Extensions will be used to purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation T, U or X. Terms for which
meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor,
as from time to time in effect, are used in this Section with such meanings.



SECTION 6.15. Representations in Other Loan Documents. Each of the representations
and warranties made by any Obligor in any of the other Loan Documents is true and correct.



SECTION 6.16. Status of Obligations as Senior Indebtedness, etc. All Obligations,
including those to pay principal of and interest (including post-petition interest, whether or not
allowed as a claim under bankruptcy or similar laws) on the Loans and Reimbursement Obligations,
and fees and expenses in connection therewith, constitute “Senior Indebtedness” (or similar term)
relating to the Obligations (as defined in the Subordinated Debt Documents) and all such
Obligations are entitled to the benefits of the subordination created by the Subordinated Debt
Documents. The Company acknowledges that the Administrative Agent, each Lender and each Issuer is
entering into this Agreement and is extending its Commitments in reliance upon the subordination
provisions of the Subordinated Debt Documents.



SECTION 6.17. Solvency. The incurrence of the Credit Extension on the Amendment
Effective Date and the other transactions contemplated hereby will not involve or result in any
fraudulent transfer or fraudulent conveyance under the provisions of Section 548 of the Bankruptcy
Code (11 U.S.C. §101 et seq., as from time to time hereafter amended, and any
successor or similar statute) or any applicable state law respecting fraudulent transfers or
fraudulent conveyances. On the Amendment Effective Date, after giving effect to the incurrence of
the initial Credit Extension hereunder and the execution and delivery by the Guarantors of the
Guarantees, Holdings and its Subsidiaries, Intermediate Holdings and its Subsidiaries and the
Company and the Restricted Subsidiaries, in each case taken as a whole, are Solvent.



ARTICLE 7




COVENANTS




SECTION 7.1. Affirmative Covenants. Each of Holdings, Intermediate Holdings and each
of the Borrowers agrees with each Lender, each Issuer and the Administrative Agent that until the
Termination Date has occurred, such Obligor will, and will cause its Restricted Subsidiaries to,
perform or cause to be performed the obligations set forth below.



7.1.1. Financial Information, Reports, Notices, etc. Holdings, Intermediate Holdings
and each Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements, reports, notices
and information:




(a) as soon as practicable, and in any event within forty-five (45) days after the end
of each calendar month in each Fiscal Year (except for December of each Fiscal Year which
shall be within ninety (90) days) the unaudited consolidated and consolidating statements of
income of Holdings and its Subsidiaries for such fiscal month and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal month, setting forth in
each case for each month beginning in the month of the Amendment Effective Date in
comparative form and the corresponding figures from the consolidated financial forecast for
the current Fiscal Year delivered pursuant to Section 7.1.1(g), certified as complete and
correct by the chief financial or accounting Authorized Officer of Holdings and including
(in each case), in comparative form the figures for the corresponding calendar month in, and
year to date portion of, the immediately preceding Fiscal Year, certified as complete and
correct by the chief financial or accounting Authorized Officer of Holdings;




(b) as soon as available and in any event within 45 days after the end of each of the
first three Fiscal Quarters of each Fiscal Year, unaudited consolidated and consolidating
balance sheets of Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the
related consolidated and consolidating statements of income and cash flow of Holdings and
its Subsidiaries for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter, setting forth in each
case in comparative form the corresponding figures for the corresponding Fiscal Quarter of
the previous Fiscal Year and the corresponding figures from the consolidated financial
forecast for the current Fiscal Year delivered pursuant to Section 7.1.1(g), certified as
complete and correct by the chief financial or accounting Authorized Officer of Holdings and
including (in each case), in comparative form the figures for the corresponding Fiscal
Quarter in, and year to date portion of, the immediately preceding Fiscal Year, certified as
complete and correct by the chief financial or accounting Authorized Officer of Holdings;
provided, however, that in lieu of delivery of such consolidated financial statements of
Holdings and its Subsidiaries, Holdings may deliver instead a copy of its SEC Form 10-Q for
such Fiscal Quarter;




(c) as soon as available and in any event within 90 days after the end of each Fiscal
Year, a copy of the consolidated and consolidating balance sheets of Holdings and its
Subsidiaries, and the related consolidated and consolidating statements of income and cash
flow of Holdings and its Subsidiaries for such Fiscal Year, setting forth in comparative
form the figures for the immediately preceding Fiscal Year and the corresponding figures
from the consolidated financial forecasts for such Fiscal Year delivered pursuant to Section
7.1.1(g), audited (without any Impermissible Qualification), in the case of the consolidated
financial statements by PwC or such other independent public accountants acceptable to the
Administrative Agent, which shall include a calculation of the financial covenants set forth
in Section 7.2.4 and stating that, in performing the examination necessary to deliver the
audited financial statements of Holdings, no knowledge was obtained of any Event of Default
and, in the case of all other financial statements certified by the chief financial or
accounting Authorized Officer of Holdings; provided, however, that in lieu of delivery of
such consolidated financial statements of Holdings and its Subsidiaries, Holdings may
deliver instead a copy of its SEC Form 10-K for such Fiscal Year;




(d) concurrently with the delivery of the financial information pursuant to clauses
(a), (b) and (c), a Compliance Certificate, executed by the chief financial or accounting
Authorized Officer of Holdings, showing compliance with the financial covenants set forth in
Section 7.2.4 and stating that no Default has occurred and is continuing to the knowledge of
a Responsible Officer (or, if a Default has occurred, specifying the details of such Default
and the action that Holdings or an Obligor has taken or proposes to take with respect
thereto);




(e) as soon as possible and in any event within three Business Days after Holdings or
any other Obligor obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer of Holdings setting forth details of such Default and the action which
Holdings or such Obligor has taken and proposes to take with respect thereto;




(f) as soon as possible and in any event within three Business Days after Holdings or
any other Obligor obtains knowledge of (i) the occurrence of any material adverse
development with respect to any litigation, action, proceeding or labor controversy or other
matter described in Item 6.7 or Item 6.12 of the Disclosure Schedule (ii) the commencement
of any litigation, action, proceeding or labor controversy or other matter of the type and
materiality described in Section 6.7 or Section 6.12, notice thereof and, to the extent the
Administrative Agent requests, copies of all documentation relating thereto or (iii) the
occurrence of an event or condition which reasonably can be expected to have a Material
Adverse Effect;




(g) no later than January 31 of each Fiscal Year beginning with Fiscal Year 2004, (i)
an annual consolidated business plan by geographical segment for such Fiscal Year for
Holdings and its Restricted Subsidiaries, substantially in the form of the business plan
heretofore delivered to the Administrative Agent and the Lenders; and (ii) a consolidated
and consolidating (by geographical segment) plan and financial forecast consisting of
balance sheets, income statements and cash flow statements on a monthly basis for the next
12 months and on an annual basis for each Fiscal Year from such Fiscal Year through the 2011
Fiscal Year of Holdings and its Restricted Subsidiaries based upon facts and assumptions
that Holdings believes to be reasonable in light of the then current and foreseeable
business conditions (it being understood that actual results may differ from the
projections);




(h) promptly after the sending or filing thereof, (i) copies of all reports, notices,
prospectuses and registration statements which any Obligor files with the SEC or any
national securities exchange or sends to shareholders or (ii) if available though EDGAR,
notice of such filing and its availability from EDGAR;




(i) promptly upon becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by any Obligor of any material liability, fine or penalty, notice
thereof and copies of all documentation relating thereto;




(j) promptly upon receipt thereof, copies of all “management letters” submitted to
Holdings or any other Obligor by the independent public accountants referred to in clause
(c) in connection with each audit made by such accountants;




(k) promptly following the mailing or receipt of any notice, financial information or
report delivered under the terms of any Subordinated Debt Document that is not otherwise
required to be delivered hereunder, copies of such notice, financial information or report;




(l) within 20 days after the end of each calendar month, a certificate in substantially
the form of Exhibit E-2, executed by the president, chief executive officer, treasurer,
controller or chief financial Authorized Officer of Holdings showing the U.S. Dollar
Equivalent of the aggregate outstanding principal amount of all Canadian Dollar Revolving
Loans, as of the end of such month, for (i) all Canadian Borrowers, taken as a whole, and
(ii) each Canadian Borrower, individually; and




(m) such other financial and other information as any Lender or Issuer through the
Administrative Agent or may from time to time reasonably request (including information and
reports in such detail as the Administrative Agent may request with respect to the terms of
and information provided pursuant to the Compliance Certificate).



7.1.2. Maintenance of Existence; Compliance with Laws, etc. Each of Holdings,
Intermediate Holdings and each Borrower will, and will cause each of the Restricted Subsidiaries
to,




(a) except as otherwise permitted by Section 7.2.10, preserve and maintain its legal
existence;




(b) preserve, renew and keep in full force and effect its rights, licenses, permits,
privileges, franchises, trademarks, trade name and other similar property rights, except to
the extent that the failure to comply with any of the foregoing will not have a Material
Adverse Effect; and




(c) comply in all material respects with all applicable laws, rules, regulations and
orders and material contractual obligations, including the payment (before the same become
delinquent) of all taxes, assessments and governmental charges imposed upon Holdings or its
Subsidiaries or upon their property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance with GAAP
have been set aside on the books of Holdings or its Subsidiaries, as applicable, except to
the extent that the failure to comply with any of the foregoing will not have a Material
Adverse Effect.



7.1.3. Maintenance of Properties. Each of Holdings, Intermediate Holdings and each
Borrower will, and will cause each of the Restricted Subsidiaries to, maintain, preserve, protect
and keep its and their respective properties whether owned, leased or operated upon (including
right of way easements) in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary repairs, renewals and replacements so that the business carried on by
Holdings and its Subsidiaries may be properly conducted at all times, unless Holdings or such
Subsidiary determines in good faith that the continued maintenance of such property is no longer
economically desirable.



7.1.4. Insurance. Each of Holdings, Intermediate Holdings and each Borrower will,
and will cause each of the Restricted Subsidiaries to:




(a) maintain insurance on its property with financially sound and reputable insurance
companies against loss and damage in at least the amounts (and with only those deductibles)
customarily maintained, and against such risks as may be required by law or as are typically
insured against in the same general area, by Persons of comparable size engaged in the same
or similar business as Holdings and its Subsidiaries and will furnish to the Administrative
Agent upon request information in reasonable detail as to the insurance so carried;




(b) all worker’s compensation, employer’s liability insurance or similar insurance as
may be required under the laws of any state or jurisdiction in which it may be engaged in
business; and




(c) obtain flood insurance in such total amount as the Administrative Agent or the
Required Lenders may from time to time require, if at any time the area in which any
improvements located on any real property covered by a Mortgage is designated a “flood
hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management
Agency (or any successor agency), and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1975, as amended from time to
time.



Without limiting the foregoing, all insurance policies required pursuant to this Section shall (i)
name the Administrative Agent on behalf of the Secured Parties as mortgagee (in the case of
property insurance) or additional insured (in the case of liability insurance) or loss payee (in
the case of casualty insurance), as applicable, and (ii) be in addition to any requirements to
maintain specific types of insurance contained in the other Loan Documents. Each such policy
referred to in this Section also shall provide that it shall not be canceled, modified or not
renewed (x) by reason of nonpayment of premium except upon at least 10 days’ prior written notice
thereof by the insurer to the Administrative Agent (giving the Administrative Agent the right to
cure defaults in the payment of premiums) or (y) for any other reason except upon at least 30 days’
prior written notice thereof by the insurer to the Administrative Agent.



7.1.5. Books and Records. Each of Holdings, Intermediate Holdings and each of the
Borrowers will, and will cause each of their respective Subsidiaries to, keep books and records in
accordance with GAAP and/or statutory accounts for the jurisdiction of the Subsidiary which
accurately reflect all of its business affairs and transactions and permit each Secured Party or
any of their respective representatives, at reasonable times and intervals upon reasonable notice
to the Company and, in the case of the Administrative Agent, at the Company’s expense, to visit
each Obligor’s offices, to discuss such Obligor’s financial matters with its officers and
employees, and its independent public accountants (and the Company hereby authorizes such
independent public accountants to discuss the Company’s and each Obligor’s financial matters with
each Secured Party or their representatives whether or not any representative of the Company or
such Obligor is present) and to examine (and photocopy extracts from) any of its books and records.
The Company shall pay any fees of such independent public accountants incurred in connection with
any Secured Party’s exercise of its rights pursuant to this Section.



7.1.6. Environmental Law Covenant. Each of Holdings, Intermediate Holdings and each
of the Borrowers will, and will cause each of their respective Subsidiaries to,




(a) use and operate all of its and their facilities and properties owned, leased or
operated upon (including right of way easements) in material compliance with all
Environmental Laws, keep all necessary material permits, approvals, certificates, licenses
and other authorizations relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material compliance with all
applicable Environmental Laws; and




(b) promptly notify the Administrative Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries of any Person alleging a material liability
or violation of an Environmental Law and relating to the condition of its facilities and
properties whether owned, leased or operated upon (including right of way easements) in
respect of, or as to compliance with, Environmental Laws, and shall promptly resolve any
non-compliance with Environmental Laws and keep such property free of any Lien imposed by
any Environmental Law. The parties hereto agree that “material” as used in this Section
7.1.6(b) shall mean any liability or violation that could reasonably be expected to result
in costs, damages, losses, expenses or liabilities in excess of $250,000, for any individual
matter arising at or related to a particular facility or property.



7.1.7. Use of Proceeds. The Borrowers will apply the proceeds of the Credit
Extensions as follows:




(a) apply the proceeds of the Loans




(i) in the case of the U.S. Term Loans made on the Amendment Effective Date (A)
to repay Indebtedness under the Existing Credit Agreement, (B) to pay the purchase
price and premium of and accrued and unpaid interest on Senior Subordinated Notes
pursuant to the Tender Offer, together with fees and expenses thereof and (C) for
working capital and general corporate purposes of the Company and its Restricted
Subsidiaries;




(ii) in the case of U.S. Revolving Loans and Swing Line Loans, for working
capital and general corporate purposes (including funding Permitted Acquisitions) of
the Company and its Restricted Subsidiaries; and




(iii) in the case of Canadian Loans, for working capital and general corporate
purposes (including funding Permitted Acquisitions) of the Canadian Borrowers and
their Restricted Subsidiaries; and




(b) use Letters of Credit only for purposes of supporting working capital and general
corporate purposes of the Company and the Restricted Subsidiaries.



7.1.8. Modification of Mortgages Within 90 days of the Amendment Effective Date, the
Company will deliver to Administrative Agent counterparts of a modification to each Mortgage duly
executed by the applicable Borrower and/or the applicable Subsidiary Guarantor, together with
evidence of the completion of all recordings and filings as may be necessary or desirable to
confirm and extend the lien of such Mortgage, including satisfactory arrangements for payment of
mortgage recording or similar taxes and charges, and an opinion of local counsel in form and
substance reasonably satisfactory to the Administrative Agent, including as to the enforceability
of such Mortgage, as amended.



7.1.9. Future Guarantors, Security, etc.Each of Holdings, Intermediate Holdings and
each Borrower will, and will cause each Domestic Restricted Subsidiary and Canadian Restricted
Subsidiary to execute any documents, Filing Statements, agreements and instruments, and take all
further action (including filing Mortgages) that may be required under applicable law, or that the
Administrative Agent may reasonably request, in order to effectuate the transactions contemplated
by the Loan Documents and in order to grant, preserve, protect and perfect the validity and first
priority of the security interests created or intended to be created by the Loan Documents. Each
Borrower will cause any subsequently acquired or organized Domestic Subsidiary and Canadian
Subsidiary to execute the U.S. Guarantee and Security Agreement and the Canadian Guarantee,
respectively (or, in each case, a supplement thereto); provided that no such Restricted Subsidiary
that is a Domestic Subsidiary shall be required to pledge more than 65% of the Voting Stock of any
directly held Foreign Subsidiary. If any Domestic Restricted Subsidiary or Canadian Restricted
Subsidiary (including any subsequently acquired Domestic Subsidiary or Canadian Subsidiary as
described above) acquires any owned real property (including easements), the Company will notify
the Administrative Agent thereof promptly (but in any event within 20 Business Days of the
occurrence of such event) and if requested by the Administrative Agent or the Required Lenders,
will cause such real property (unless the granting of a Lien on such real property would violate
applicable law or any contract existing on the date hereof or otherwise permitted by Section 7.2.3)
to be subjected to a Lien securing the Obligations and will take, or cause the relevant Guarantor
to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to
grant and perfect or record such Lien, all at the Company’s expense. In addition, from time to
time, each of Holdings, Intermediate Holdings and each Borrower will, at its cost and expense,
promptly secure the Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties as the
Administrative Agent or the Required Lenders shall designate (it being understood that it is the
intent of the parties that (i) all of the Obligations shall be secured by, among other things, all
of the Capital Stock of the Company and substantially all the assets of the Company and its
Domestic Subsidiaries that are Restricted Subsidiaries; provided that neither the Company nor any
such Domestic Subsidiary shall be required to pledge more than 65% of the Voting Stock of any
directly held Foreign Subsidiary and (ii) the Obligations of each Canadian Borrower will also be
secured by substantially all of the assets of such Canadian Borrower and each of its Affiliates
that is a Canadian Restricted Subsidiary and is organized in, or a resident of, Canada, in each
case including real and other properties acquired subsequent to the Amendment Effective Date). Such
security interests and Liens will be created under the Loan Documents in form and substance
satisfactory to the Administrative Agent, and each of Holdings and the Company shall deliver or
cause to be delivered to the Lenders all such instruments and documents (including legal opinions,
title insurance policies and lien searches), as the Administrative Agent shall reasonably request
to evidence compliance with this Section.



7.1.10. Rate Protection Agreements. Within 90 days after the Amendment Effective
Date, the Company will enter into and/or extend existing interest rate swaps, caps, collars or
similar arrangements designed to protect the Company against fluctuations in interest rates to the
extent necessary to provide on a net basis that at least 40% of the aggregate principal amount then
outstanding of Term Loans, the outstanding Senior Subordinated Notes and Indebtedness permitted
under clause (a) of Section 7.2.2 is subject to a fixed interest rate (after giving effect to each
such arrangement) for a minimum period of two years from the Amendment Effective Date (but not
beyond the Stated Maturity Date of the Term Loans), with the terms and conditions of such
arrangement being reasonably satisfactory to the Administrative Agent.



SECTION 7.2. Negative Covenants. Each of Holdings, Intermediate Holdings and the
each Borrower covenants and agrees with each Lender, each Issuer and the Administrative Agent that
until the Termination Date has occurred, Holdings, Intermediate Holdings and each Borrower will,
and will cause the Restricted Subsidiaries to, perform or cause to be performed the obligations set
forth below.



7.2.1. Business Activities. (a) Each Borrower will not, and each of Holdings,
Intermediate Holdings and each Borrower will not permit any of the Restricted Subsidiaries to,
engage in any business activity except those business activities engaged in on the date of this
Agreement and activities reasonably related thereto;




(b) Holdings will not engage in any business activity other than (i) its direct
ownership of the Capital Stock of Intermediate Holdings and its indirect ownership of the
Capital Stock of the Company, the Canadian Borrowers and each Subsidiary of each Borrower,
(ii) its employment and provision of benefits to certain employees, (iii) its ownership and
management of Unrestricted Subsidiaries and (iv) its compliance with the obligations
applicable to it under the Loan Documents; and




(c) Intermediate Holdings will not engage in any business activity other than (i) its
direct ownership of the Capital Stock of the Company and its indirect ownership of the
Capital Stock of the Canadian Borrowers and each Subsidiary of each Borrower, (ii) its
ownership and management of Unrestricted Subsidiaries and (iii) its compliance with the
obligations applicable to it under the Loan Documents and the Transaction Documents.



7.2.2. Indebtedness. Each of Holdings, Intermediate Holdings and each Borrower will
not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness, other than:




(a) Indebtedness in respect of the Obligations and up to $100,000,000 aggregate
principal amount of additional term loans under this Agreement, either as additional Term
Loans or another tranche of term loans (the “Additional Term Loans”), to the
Company, provided that (i) the Administrative Agent and the Lead Arranger consent to such
borrowing of Additional Term Loans, (ii) two borrowings may be made and the first borrowing
shall be for a minimum of $50,000,000 and no Default exists at the time of either borrowing,
(iii) all financial covenants in Section 7.2.4 are satisfied on a pro forma basis on the
date of such borrowing and for the then most recent determination period after giving effect
to such Additional Term Loans and any acquisition funded in whole or in part by such
Additional Term Loans, (iv) the Additional Term Loans do not mature or require any
amortization payments prior to the Stated Maturity Date of the existing Term Loans (other
than de minimis amortization payments similar to those of the existing Term Loans) and are
otherwise no more than pari passu with the Term Loans with respect to mandatory prepayments
and other payment rights, (v) the Company seeks commitments for the Additional Term Loans
first from existing Lenders (each of which may agree or decline to participate in its sole
discretion) and, thereafter if necessary, additional financial institutions, (vi) this
Agreement and the other Loan Documents are amended as necessary to provide fully for such
Additional Term Loans and the Lenders thereof by amendments satisfactory to each Obligor,
the Required Lenders and the Administrative Agent and (vii) all conditions precedent to such
borrowing (including compliance with the Senior Leverage Ratio in Section 7.2.4(b) hereof)
set forth in this Agreement as so amended are satisfied or waived by the Lenders;




(b) in the case of Holdings, the Borrowers and the Restricted Subsidiaries,
Indebtedness existing as of the Amendment Effective Date which is identified in Item 7.2.2.
(b) of the Disclosure Schedule, and Indebtedness constituting a refinancing of such
Indebtedness so identified (“Refinancing Indebtedness”), provided that (i) the
principal amount of any Refinancing Indebtedness will have an aggregate principal amount not
exceeding the aggregate outstanding principal amount plus outstanding accrued interest and
fees and expenses relating to the refinancing of the refinanced Indebtedness at the time of
such refinancing, (ii) in the case of the Senior Subordinated Notes, the terms of such
Refinancing Indebtedness, including the terms of subordination, are no less favorable in any
material respect to the Lenders than those of the Senior Subordinated Notes and the related
Subordinated Debt Documents (and, without limitation of the foregoing, do not provide for
any security interests), (iii) the obligors in respect of such Refinancing Indebtedness
shall not include any Restricted Subsidiary that was not an obligor in respect of the
refinanced Indebtedness at the time of such refinancing (excluding any guarantees or other
obligations created in contemplation of such refinancing) and (iv) such Refinancing
Indebtedness does not mature or require any amortization, redemption, defeasance, repayment
or acquisition prior to the date required in the debt being refinanced;




(c) in the case of the Company and the Restricted Subsidiaries, unsecured Indebtedness
of the Company and the Restricted Subsidiaries (i) incurred in the ordinary course of
business of the Company and the Restricted Subsidiaries (including open accounts extended by
suppliers on normal trade terms in connection with purchases of goods and services which are
not overdue for a period of more than 90 days or, if overdue for more than 90 days, as to
which a dispute exists and adequate reserves in conformity with GAAP have been established
on the books of the Company or such Restricted Subsidiary) and (ii) in respect of
performance, surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case), Indebtedness incurred through the borrowing of money or Contingent
Liabilities in respect thereof;




(d) in the case of the Company and the Restricted Subsidiaries, Indebtedness of the
Company and the Restricted Subsidiaries (i) in respect of industrial revenue bonds or other
similar governmental or municipal bonds, (ii) evidencing the deferred purchase price of
newly acquired property or incurred to finance the acquisition of equipment of the Company
and the Restricted Subsidiaries (pursuant to purchase money mortgages or otherwise, whether
owed to the seller or a third party) used in the ordinary course of business of the Company
and the Restricted Subsidiaries (provided that such Indebtedness is incurred within 60 days
of the acquisition of such property) and (iii) Capitalized Lease Liabilities; provided that
the aggregate amount of all Indebtedness outstanding pursuant to this clause (d) shall not
at any time exceed $20,000,000;




(e) Indebtedness of any Subsidiary owing to the Company or any other Restricted
Subsidiary, which Indebtedness




(i) shall, if payable to the Company or a Domestic Subsidiary, be evidenced, if
requested by the Administrative Agent, by one or more promissory notes in form and
substance satisfactory to the Administrative Agent, duly executed and delivered in
pledge to the Administrative Agent pursuant to a Loan Document and shall not be
forgiven or otherwise discharged for any consideration other than payment in full or
in part (provided that only the amount repaid in part shall be discharged); and




(ii) if incurred by a Foreign Subsidiary owing to the Company or a Domestic
Subsidiary Guarantor, shall not (when aggregated with the amount of Investments made
by the Company and such Domestic Subsidiary Guarantors in Foreign Subsidiaries under
clause (e)(iii) of Section 7.2.5) at any time exceed $15,000,000 for all such
Subsidiaries (provided that such limit shall not include amounts loaned or
contributed to the Canadian Term Borrower to pay Obligations hereunder, Indebtedness
pursuant to intercompany interest rate swap arrangements and Indebtedness incurred
primarily for tax planning purposes);




(f) subject to application of the Net Debt Proceeds thereof pursuant to Section
3.1.1(g), up to $150,000,000 aggregate principal amount of senior subordinated notes (the
“Additional Senior Subordinated Notes”), provided that any Additional Senior
Subordinated Notes shall (i) have terms, including the terms of subordination for both the
issuer and any guarantor thereof, no less favorable to the Lenders than those contained in
the Subordinated Debt Documents governing the Senior Subordinated Notes (and, without
limitation of the foregoing, do not provide for any security interests), (ii) not be
guaranteed by any Restricted Subsidiary that is not a Subsidiary Guarantor and (iii) have no
required amortization, redemption, defeasance, repayment or acquisition prior to the first
anniversary of the latest scheduled maturity of the Loans hereunder (including any
Additional Term Loans);




(g) Indebtedness of a Person existing at the time such Person became a Subsidiary of
the Company in an aggregate amount of all such Persons not to exceed $20,000,000, but only
to the extent that such Indebtedness was not created or incurred in contemplation of such
Person becoming a Subsidiary;




(h) Indebtedness of the Company and the Restricted Subsidiaries owing to a Governmental
Authority, bearing a low interest rate or subsidized interest rate in an aggregate principal
amount not to exceed $15,000,000 per loan or $40,000,000 at any time outstanding;




(i) other Indebtedness of the Company and its Subsidiaries (other than Indebtedness of
Foreign Subsidiaries owing to the Company or any of its Domestic Subsidiaries) in an
aggregate principal amount at any time outstanding not to exceed $50,000,000 in aggregate
principal amount, provided that such Indebtedness is unsecured;




(j) Indebtedness of the Company and any of its Subsidiaries incurred in connection with
“fuel rate hedging agreements” entered into by the Company or any of its Subsidiaries in
the ordinary course of business and not for speculative purposes in an aggregate notional
amount not to exceed 60% of the annual amount of fuel consumption at any time outstanding;
and




(k) Indebtedness of the Company and the Restricted Subsidiaries incurred in respect of
Synthetic Leases not to exceed $10,000,000 at any time outstanding.



provided, however, that no Indebtedness otherwise permitted by clauses (d), (e)(ii), (f), (g), (h),
(i) or (j) shall be assumed or otherwise incurred if a Specified Default has occurred and is then
continuing or would result therefrom.



7.2.3. Liens. Each of Holdings, Intermediate Holdings and each Borrower will not,
and will not permit any of the Restricted Subsidiaries to, create, incur, assume or permit to exist
any Lien upon any of its property (including Capital Stock of any Person), revenues or assets,
whether now owned or hereafter acquired, except:




(a) Liens securing payment of the Obligations;




(b) Liens existing as of the Amendment Effective Date and disclosed in Item 7.2.3(b) of
the Disclosure Schedule securing Indebtedness described in clause (b) of Section 7.2.2, and
refinancings of such Indebtedness; provided that no such Lien shall encumber any additional
property and the amount of Indebtedness secured by such Lien is not increased from that
existing on the Amendment Effective Date except for undrawn amounts indicated on Section
7.2.2. (b) of the Disclosure Schedule and increases for accrued interest (as such
Indebtedness may have been permanently reduced subsequent to the Original Effective Date);




(c) Liens securing Indebtedness of the type permitted under clause (d) of Section
7.2.2; provided that (i) such Lien is granted within 60 days after such Indebtedness is
incurred, (ii) the Indebtedness secured thereby does not exceed 100% of the lesser of the
cost or the fair market value of the applicable property, improvements or equipment at the
time of such acquisition (or construction) and (iii) such Lien secures only the assets that
are the subject of the Indebtedness referred to in such clause;




(d) Liens securing Indebtedness of the type permitted under clause (h) of Section
7.2.2; provided that such Indebtedness may be secured (i) on a first lien basis by the
assets that are subject to the Indebtedness referred to in clause (h) of Section 7.2.2 and
(ii) by a second lien on other fixed assets of such Person with an aggregate value
(determined at the greater of the cost or the fair market value thereof) not to exceed the
principal amount of the applicable Loan less the value of the assets secured by the first
lien;




(e) Liens securing Indebtedness permitted by clause (g) of Section 7.2.2; provided that
such Liens existed prior to such Person becoming a Subsidiary, were not created in
anticipation thereof and attach only to specific tangible assets of such Person (and not
assets of such Person generally);




(f) Liens on the stock and assets of Unrestricted Subsidiaries;




(g) Liens in favor of carriers, warehousemen, mechanics, materialmen and landlords
granted in the ordinary course of business for amounts not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;




(h) Liens incurred or deposits made in the ordinary course of business in connection
with worker’s compensation, unemployment insurance or other forms of governmental insurance
or benefits, or to secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety and appeal bonds or performance bonds;




(i) judgment Liens in existence for less than 45 days after the entry thereof or with
respect to which execution has been stayed or the payment of which is covered in full
(subject to a customary deductible) by insurance maintained with responsible insurance
companies and which do not otherwise result in an Event of Default under Section 8.1.6;




(j) easements, rights-of-way, zoning restrictions, minor defects or irregularities in
title and other similar encumbrances not interfering in any material respect with the value
for railroad property or use of the property to which such Lien is attached;




(k) Liens for taxes, assessments or other governmental charges or levies not at the
time delinquent or thereafter payable without penalty or being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books; and




(l) Permitted Senior Easements; provided that the Mortgagor shall have first delivered
to the Mortgagee a certificate of an Authorized Officer describing in reasonable detail the
proposed easement, certifying that such easement is a Permitted Senior Easement and
attaching thereto the requested form of subordination agreement. The Mortgagee shall,
within ten (10) business days’ after the Mortgagor’s request, execute and deliver to the
grantee of any such Permitted Senior Easement an agreement subordinating the lien of such
Mortgage to such Permitted Senior Easement. The Mortgagor shall pay all fees and expenses
related to the granting of a Permitted Senior Easement, including the Mortgagee’s
out-of-pocket expenses incurred in connection therewith. The Mortgagee may conclusively
rely on a certificate of the Mortgagor stating that the Permitted Senior Easement is
permitted by the terms of this Agreement and such Mortgage. For purposes of this Section,
“Mortgagee” means, with respect to any Mortgage, the Collateral Agent as the
mortgagee or the beneficiary named therein; “Mortgagor” means, with respect to any
Mortgage, an Obligor as mortgagor or grantor named therein; and “Permitted Senior
Easements” means in respect of any real property used by an Obligor in the operation of
a shortline railroad (a) easements that burden solely an asset which is not used in the
operation of a shortline railroad, (b) underground easements, (c) access, pedestrian and
vehicular crossing, longitudinal driveway, public and private grade crossing and similar
easements, (d) aerial easements or rights (including leases) granted in connection with
communications, fiber optic or utility facilities (including easements for installation of
cellular towers), (e) pylon sign and billboard easements and leases, (f) above-ground
drainage or slope easements, (g) scenic and clear vision easements, (h) liens and easements
given to a public utility or any municipality or governmental or other public authority when
required or requested, (i) easements, licenses, rights of way or similar encumbrances
granted in the ordinary course of business, or (j) easements permitted under Section
7.2.11(g); provided that in any case except clause (h), in the judgment of the Mortgagee no
material adverse impact on the fair market value of the property or the use of the property
for railroad operations or the operation of the railroad line would result from the granting
of such easement or other right.



7.2.4. Financial Covenants. The Company and the Restricted Subsidiaries will not
permit to occur any of the events set forth below.




(a) The Company and the Restricted Subsidiaries will not permit the Leverage Ratio as
of the last day of any Fiscal Quarter occurring during any period set forth below to be
greater than the ratio set forth opposite such period:



	 	 	 
	Period	 	Leverage Ratio
	Amendment Effective Date – 6/30/05

	 	4.25 : 1.0
	 
	 	 
	7/1/05 – 3/31/06

	 	4.00 : 1.0
	 
	 	 
	4/1/06 – 12/31/06

	 	3.75 : 1.0
	 
	 	 
	1/1/07 – 12/31/07

	 	3.50 : 1.0
	 
	 	 
	1/1/08 – 12/31/08

	 	3.25 : 1.0
	 
	 	 
	1/1/09 – thereafter

	 	3.00 : 1.0








(b) So long as any Additional Term Loans are outstanding, the Company and the
Restricted Subsidiaries will not permit the Senior Leverage Ratio as of the last day of any
Fiscal Quarter occurring during any period set forth below to be greater than the ratio set
forth opposite such period:



	 	 	 
	Period	 	Senior Leverage Ratio
	Amendment Effective Date – 06/30/05

	 	4.00 : 1.0
	 
	 	 
	7/1/05 – 3/31/06

	 	3.75 : 1.0
	 
	 	 
	4/1/06 – 12/31/06

	 	3.50 : 1.0
	 
	 	 
	1/1/07 – 12/31/07

	 	3.25 : 1.0
	 
	 	 
	1/1/08 – 12/31/08

	 	3.00 : 1.0
	 
	 	 
	1/1/09 – thereafter

	 	2.75 : 1.0








(c) The Company and the Restricted Subsidiaries will not permit the Fixed Charge
Coverage Ratio as of the last day of any Fiscal Quarter occurring during any period set
forth below to be less than the ratio set forth opposite such period:



	 	 	 
	 	 	Fixed Charge
	Period	 	Coverage Ratio
	Amendment Effective Date – 6/30/05

	 	1.30 : 1.0
	 
	 	 
	7/1/05 – 12/31/05

	 	1.40 : 1.0
	 
	 	 
	1/1/06 – 6/30/06

	 	1.50 : 1.0
	 
	 	 
	7/1/06 – 12/31/06

	 	1.60 : 1.0
	 
	 	 
	1/1/07 – 6/30/07

	 	1.70 : 1.0
	 
	 	 
	7/1/07 – 12/31/07

	 	1.80 : 1.0
	 
	 	 
	1/1/08 – 6/30/08

	 	1.90 : 1.0
	 
	 	 
	7/1/08 – thereafter

	 	2.00 : 1.0








(d) The Company and the Restricted Subsidiaries will not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter occurring during any period set forth below
to be less than the ratio set forth opposite such period:



	 	 	 
	Period	 	Interest Coverage Ratio
	Amendment Effective Date – 6/30/05

	 	2.50 : 1.0
	 
	 	 
	7/1/05 – 12/31/05

	 	2.75 : 1.0
	 
	 	 
	1/1/06 – 6/30/06

	 	3.00 : 1.0
	 
	 	 
	7/1/06 – 12/31/06

	 	3.25 : 1.0
	 
	 	 
	1/1/07 – 6/30/07

	 	3.50 : 1.0
	 
	 	 
	7/1/07 – 12/31/07

	 	3.75 : 1.0
	 
	 	 
	1/1/08 – thereafter

	 	4.00 : 1.0







7.2.5. Investments. Each of Holdings, Intermediate Holdings and each Borrower will
not, and will not permit any of the Restricted Subsidiaries to, purchase, make, incur, assume or
permit to exist any Investment in any other Person, except:




(a) Investments existing on the Amendment Effective Date and identified in Item
7.2.5(a) of the Disclosure Schedule;




(b) Cash Equivalent Investments;




(c) Investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;




(d) Investments permitted as Capital Expenditures pursuant to Section 7.2.7;




(e) Investments by way of contributions to capital or purchases of Capital Stock




(i) by Holdings in Intermediate Holdings or Intermediate Holdings in the
Company,




(ii) by any Subsidiary in the Company, or




(iii) by the Company in any Restricted Subsidiary or by any Subsidiary in other
Restricted Subsidiaries; provided that the aggregate amount of intercompany loans
made pursuant to clause (e)(ii) of Section 7.2.2 and Investments under this clause
made by the Company and Domestic Subsidiary Guarantors in Subsidiaries that are not
Domestic Subsidiary Guarantors shall not exceed $15,000,000 at any time; provided
further that such limit shall not include




(x) amounts loaned or contributed to the Canadian Term Borrower to pay
Obligations hereunder or




(y) amounts contributed, in connection with a restructuring, by an
existing Subsidiary to the Canadian Term Borrower or to a newly formed
Canadian Restricted Subsidiary which was formed solely for the purpose of
holding such Capital Stock, so long as such contributions do not increase
the aggregate amount of Investments in Canadian Restricted Subsidiaries and
Holdings makes arrangements satisfactory to the Lead Arranger for the
Canadian Term Borrower and such newly formed entities to provide guarantees
and grant security interests consistent with those being provided by the
Canadian Term Borrower and the Canadian Restricted Subsidiaries on the
Original Effective Date (including as set forth in Section 7.1.9. );




(f) Investments by Subsidiaries of Holdings constituting (i) accounts receivable
arising, (ii) trade debt granted, or (iii) deposits made in connection with the purchase
price of goods or services, in each case in the ordinary course of business;




(g) Investments by the Company or any Restricted Subsidiary by way of the acquisition
of Capital Stock constituting Permitted Acquisitions in an amount not to exceed $50,000,000
in any one transaction, but in any event not to exceed $300,000,000 from the Amendment
Effective Date through the term of this Agreement; provided that (i) such Investments shall
result in the acquisition of a wholly owned Subsidiary and (ii) upon making such
Investments, the provisions of Section 7.1.9 are complied with;




(h) Investments consisting of any deferred portion of the sales price received by the
Company or any Restricted Subsidiary in connection with any Disposition permitted under
Section 7.2.11;




(i) other Investments by the Company or any Restricted Subsidiary in an amount not to
exceed $20,000,000 from the Amendment Effective Date through the term of this Agreement;




(j) Holdings and Intermediate Holdings may acquire or invest in additional Unrestricted
Subsidiaries, provided that (w) the source of funds is the 50% of Net Equity Proceeds which
is not required to be used to repay Loans under Section 3.1.1(g), or cash received in
respect of, or in connection with a Disposition of, an Investment in an Unrestricted
Subsidiary, (x) prior to, and after giving effect to such acquisition or investment on a pro
forma basis, no Default exists, (y) no subsidiary of the Company may be an Unrestricted
Subsidiary except for RailAmerica de Chile and the RailAmerica Australia Companies and (z)
Holdings or Intermediate Holdings, as applicable, designates such Subsidiary as an
Unrestricted Subsidiary in a notice to the Administrative Agent; and




(k) Any Rate Protection Agreement entered into for the purposes of Section 7.1.10 of
this Agreement;



provided, however, that




(x) any Investment which when made complies with the requirements of
clauses (a), (b) or (c) of the definition of the term “Cash Equivalent
Investment” may continue to be held notwithstanding that such Investment if
made thereafter would not comply with such requirements; and




(y) no Investment otherwise permitted by clauses (e)(i), (g) or (i)
shall be permitted to be made if any Specified Default has occurred and is
continuing or would result therefrom.



7.2.6. Restricted Payments, etc. Each of Holdings, Intermediate Holdings and each
Borrower will not, and will not permit any of the Restricted Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment, other than (a) Restricted
Payments made by Subsidiaries to the Company or wholly owned Subsidiaries of the Company, (b) the
Company may make Restricted Payments to Intermediate Holdings and Intermediate Holdings may make
Restricted Payments to Holdings in amounts sufficient to pay (i) so long as no Specified Default
has occurred and is continuing or would be created thereby, scheduled payments of interest on and,
when due, principal of Senior Subordinated Notes, (ii) salaries, wages, employee benefits and
direct expenses for Holdings’ employees, (iii) insurance, (iv) public company expenses, including
but not limited to, accounting fees, director’s fees, legal fees and printing fees and related
expenses, (v) payments under the Tax Sharing Agreement, (vi) any amounts paid to the Company from
RailAmerica de Chile or any of the RailAmerica Australia Companies and (vii) so long as no
Specified Default has occurred and is continuing or would be created thereby, up to $10,000,000 per
Fiscal Year (including up to $5,000,000 per year to buy back Holdings’ common stock under Holdings’
stock buyback program) for various other expenses and (c) Intermediate Holdings may make Restricted
Payments to Holdings of any amounts not received from the Company and the Restricted Subsidiaries.



7.2.7. Capital Expenditures, etc. (a) Subject (in the case of Capitalized Lease
Liabilities) to clause (d) of Section 7.2.2, each of Holdings, Intermediate Holdings and each
Borrower will not, and will not permit any of the Restricted Subsidiaries to, make or commit to
make Capital Expenditures in any Fiscal Year which aggregate in excess of 17.0% of the revenues
(the “Base Amount”) of the Company and the Restricted Subsidiaries for such Fiscal Year;
provided, that with respect to any business acquired during such Fiscal Year, both capital
expenditures and revenue will be included as of the date of acquisition; provided, further, that,
to the extent the Base Amount for such Fiscal Year exceeds the aggregate amount of Capital
Expenditures actually made during such Fiscal Year, such excess amount (up to an aggregate of 50%
of the amount of the Base Amount for such Fiscal Year) may be carried forward to (but only to) the
next succeeding Fiscal Year (any such amount to be certified by Holdings to the Administrative
Agent in the Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal Year, and
any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used prior to the
Company and the Restricted Subsidiaries using the Base Amount for such succeeding Fiscal Year,
without giving effect to such carry-forward).




(b) The parties acknowledge and agree that the permitted Capital Expenditure level set
forth in clause (a) above shall be exclusive of the amount of Capital Expenditures actually
made with Casualty Proceeds or Net Disposition Proceeds that are reinvested by the Company
or any of the Restricted Subsidiaries after the Amendment Effective Date in accordance with
Section 3.1.1(d) or (e), as applicable, and specifically identified in a certificate
delivered by an Authorized Officer of the Company to the Administrative Agent on or about
the time such reinvestment is made (but in any event prior to the time of the Capital
Expenditure made with such reinvestment).



7.2.8. No Prepayment of Certain Debt. Each of Holdings, Intermediate Holdings and
each Borrower will not, and will not permit any of the Restricted Subsidiaries to,




(a) make any payment or prepayment of principal of, or premium or interest on, any
Subordinated Debt (i) which would violate the terms of this Agreement or the applicable
Subordinated Debt Documents or (ii) other than (A) the scheduled payments of interest on
and, when due, principal of Subordinated Debt and (B) pursuant to Refinancing Indebtedness
permitted by Section 7.2.2(b), in each case so long as no Specified Default has occurred and
is continuing or would be created thereby;




(b) redeem, retire, purchase, defease or otherwise acquire any Subordinated Debt,
except for the purchase by the Company of up to $130,000,000 principal amount of Senior
Subordinated Notes pursuant to the Tender Offer and the payment of premiums, fees and
expenses related thereto; or




(c) make any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes.



Furthermore, neither Holdings, Intermediate Holdings, the Company nor any Restricted Subsidiary
will designate any Indebtedness other than the Obligations as “Designated Senior Debt” (or any
analogous term) in any Subordinated Debt Document.



7.2.9. Capital Stock of Subsidiaries. Each of Intermediate Holdings and the
Borrowers will not, and will not permit any of the Restricted Subsidiaries to, (i) issue any
Capital Stock (whether for value or otherwise) to any Person other than (x) in the case of any
Restricted Subsidiary, to the Company or another wholly owned Restricted Subsidiary of the Company
or (y) in the case of the Company, to Intermediate Holdings or (z) in the case of Intermediate
Holdings, to Holdings or (ii) become liable in respect of any obligation (contingent or otherwise)
to purchase, redeem, retire, acquire or make any other payment in respect of any Capital Stock of
Holdings, any Borrower or any Restricted Subsidiary or any option, warrant or other right to
acquire any such Capital Stock.



7.2.10. Consolidation, Merger, etc. Each of Holdings, Intermediate Holdings and the
Borrowers will not, and will not permit any of the Restricted Subsidiaries to, liquidate or
dissolve, complete a share exchange with, consolidate with, or merge into or with, any other
Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or
any division thereof), except




(a) any Restricted Subsidiary may liquidate or dissolve voluntarily into, and may merge
with and into, the Company or any other Restricted Subsidiary (provided, however, that a
Domestic Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into,
the Company or another Domestic Subsidiary Guarantor), and the assets or Capital Stock of
any Subsidiary may be purchased or otherwise acquired by the Company or any other Restricted
Subsidiary (provided, however, that the assets or Capital Stock of any Domestic Subsidiary
Guarantor may only be purchased or otherwise acquired by the Company or another Domestic
Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary
consolidate with or merge with and into any Subsidiary (other than another Subsidiary the
Capital Stock of which is pledged to the Administrative Agent for the benefit of the same
Secured Parties to which the Capital Stock of such Pledged Subsidiary are pledged) unless
after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and
security interest in and to, at least the same percentage of the issued and outstanding
interests of Capital Stock (on a fully diluted basis) of the surviving Person as the
Administrative Agent had immediately prior to such merger or consolidation pursuant to such
documentation and opinions, in form and substance satisfactory to the Administrative Agent
and its counsel, as shall be necessary in the opinion of the Administrative Agent to create,
perfect or maintain the collateral position of the Secured Parties therein; and




(b) so long as no Specified Default has occurred and is continuing or would occur after
giving effect thereto, the Company or any of its Subsidiaries may (to the extent permitted
by clause (g) of Section 7.2.5) purchase all or substantially all of the assets or Capital
Stock of any Person (or any division thereof), or acquire such Person by merger.



7.2.11. Permitted Dispositions. Each of Holdings, Intermediate Holdings and each
Borrower will not, and will not permit any of the Restricted Subsidiaries to, Dispose of any of
such Obligor’s or such Restricted Subsidiaries’ assets (including accounts receivable and Capital
Stock of Subsidiaries) to any Person in one transaction or a series of transactions unless such
Disposition is either (a) inventory Disposed of in the ordinary course of its business or is of
obsolete or worn-out property, (b) permitted by Section 7.2.10, (c) between the Company and
Domestic Restricted Subsidiaries, between Canadian Restricted Subsidiaries or between Domestic
Restricted Subsidiaries, (d) a Disposition of the Capital Stock of any Unrestricted Subsidiary made
for fair market value, (e) a Disposition for fair market value, including a Disposition
constituting a Permitted Senior Easement as defined in Section 7.2.3(l) (which does not constitute
a Disposition of all or a substantial part of the Company’s and its Subsidiaries’ assets, taken as
a whole) (provided that the consideration to be received by the Company or the Restricted
Subsidiaries is at least 75% cash, however for purposes of calculating this percentage any non-cash
consideration received in the form of seller notes or similar instruments shall be excluded to the
extent that the aggregate outstanding amount of seller notes or similar instruments held by the
Company and the Restricted Subsidiaries at any time does not exceed $20,000,000) the aggregate
value of which (to be determined by the greater of net book value or the fair market value) is not
to exceed $50,000,000 in the aggregate in any Fiscal Year and $150,000,000 in the aggregate from
the Amendment Effective Date through the term of this Agreement and the Net Disposition Proceeds
are applied pursuant to clause (e) of Section 3.1.1, (f) a Sale Leaseback permitted under Section
7.2.15, and the Net Disposition Proceeds are applied pursuant to clause (e) of Section 3.1.1, or
(g) the disposition of the capital stock or assets (including the granting of easements) of E&N
Railway Company (1998) Ltd. and other assets (including capital stock) of the Company and its
Subsidiaries, provided that (I) an Authorized Officer has determined that the disposition of such
shares or assets on the terms contemplated by such disposition, taking into account the amount and
form of consideration (including any tax benefits) are not disadvantageous to the Company and its
Subsidiaries and (II) the aggregate value of all assets disposed of pursuant to this clause (g) (if
such assets were sold to third parties in arms-length transactions for cash) after the Amendment
Effective Date (including E&N Railway Company (1998) Ltd.) does not exceed $7,500,000.



7.2.12. Modification of Certain Agreements. Each of Holdings, Intermediate Holdings
and each Borrower will not, and will not permit any of the Restricted Subsidiaries to, consent to
any amendment, supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in (a) the Subordinated
Debt Documents, other than any amendment, supplement, waiver or modification (x) pursuant to the
Tender Offer or (y) for which no fee is payable to the holders of the Subordinated Debt and which
(i) extends the date or reduces the amount of any required repayment, prepayment or redemption of
the principal of such Subordinated Debt, (ii) reduces the rate or extends the date for payment of
the interest, premium (if any) or fees payable on such Indebtedness or (iii) makes the covenants,
events of default or remedies in such Subordinated Debt Documents less restrictive on Holdings,
Intermediate Holdings or the Company, as the case may be or (b) the Organic Documents, except to
the extent that such amendment, supplement, waiver or other modification or forebearance pursuant
to such documents could not reasonably be expected to materially adversely affect the rights and
remedies of any Secured Party under any Loan Documents or the ability of any Obligor to perform its
Obligations under any Loan Document.



7.2.13. Transactions with Affiliates. Each of Holdings, Intermediate Holdings and
each Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into or
cause or permit to exist any arrangement, transaction or contract (including for the purchase,
lease or exchange of property or the rendering of services) with any of its other Affiliates),
unless such arrangement, transaction or contract (i) is on fair and reasonable terms no less
favorable to Holdings and Intermediate Holdings, the Company or such Restricted Subsidiary than it
could obtain in an arm’s-length transaction with a Person that is not an Affiliate and (ii) is of
the kind which would be entered into by a prudent Person in the position of Holdings, the Company
or such Restricted Subsidiary with a Person that is not one of its Affiliates or unless such
arrangement, transaction, or contract is (i) an Investment made in accordance with Section 7.2.5 or
(ii) is between the Company and Domestic Restricted Subsidiaries, between Canadian Restricted
Subsidiaries or between Domestic Restricted Subsidiaries.



7.2.14. Restrictive Agreements, etc. Each of Holdings, Intermediate Holdings and
each Borrower will not, and will not permit any of the Restricted Subsidiaries to, enter into any
agreement prohibiting




(a) the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired;




(b) the ability of any Obligor to amend or otherwise modify any Loan Document; or




(c) the ability of any Restricted Subsidiary to make any payments, directly or
indirectly, to the Company, including by way of dividends, advances, repayments of loans,
reimbursements of management and other intercompany charges, expenses and accruals or other
returns on investments.



The foregoing prohibitions shall not apply to restrictions contained (i) in any Loan Document or
any of the Subordinated Debt Documents or (ii) in the case of clause (a), any agreement governing
any Indebtedness permitted by clause (d) of Section 7.2.2 as to the assets financed with the
proceeds of such Indebtedness.



7.2.15. Sale and Leaseback. Each of Holdings, Intermediate Holdings and each
Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or
indirectly enter into any agreement or arrangement (“Sale Leasebacks”) providing for the
sale or transfer by it of any property (now owned or hereafter acquired) to a Person and the
subsequent lease or rental of such property or other similar property from such Person other than
Sale Leasebacks for fair market value provided that the consideration to be received is solely
comprised of cash and the aggregate value (to be determined by the greater of net book value or the
fair market value thereof) does not exceed $50,000,000 in the aggregate from the Amendment
Effective Date through the term of this Agreement and the Net Disposition Proceeds are applied
pursuant to clause (e) of Section 3.1.1.



7.2.16. Change of Fiscal Year. Neither Holdings, Intermediate Holdings or the
Company will, or will permit any of its Subsidiaries to, change its Fiscal Year.



ARTICLE 8




EVENTS OF DEFAULT




SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Article shall constitute an “Event of Default”.



8.1.1. Non-Payment of Obligations. Any Borrower shall default in the payment or
prepayment when due of




(a) any principal of any Loan, or any Reimbursement Obligation or any deposit of cash
to Cash Collateralize a Letter of Credit pursuant to Section 2.6.4;




(b) any interest on any Loan or Reimbursement Obligation and such default shall
continue unremedied for a period of three Business Days after such amount was due; or




(c) any fee described in Article 3, or any other monetary Obligation, and such default
shall continue unremedied for a period of three Business Days after such amount was due.



8.1.2. Breach of Warranty. Any representation or warranty of any Obligor made or
deemed to be made in any Loan Document (including any certificates delivered pursuant to Article 5
is or shall be incorrect when made or deemed to have been made in any material respect.



8.1.3. Non-Performance of Certain Covenants and Obligations. Holdings, Intermediate
Holdings or any Borrower shall default in the due performance or observance of any of its
obligations under Section 7.1.1(e), Section 7.1.7 or Section 7.2.



8.1.4. Non-Performance of Other Covenants and Obligations. Any Obligor shall default
in the due performance and observance of any other agreement contained in any Loan Document
executed by it, and such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to Holdings, Intermediate Holdings or the Company by the
Administrative Agent or any Lender.



8.1.5. Default on Other Indebtedness. A default shall occur in the payment of any
amount when due (subject to any applicable grace period), whether by acceleration or otherwise, of
any principal or stated amount of, or interest or fees on, any Indebtedness (other than
Indebtedness described in Section 8.1.1) of Holdings, Intermediate Holdings or the Company or any
of the Restricted Subsidiaries or any other Obligor having a principal or stated amount,
individually or in the aggregate, in excess of $5,000,000, or a default shall occur in the
performance or observance of any obligation or condition with respect to such Indebtedness if the
effect of such default is to accelerate the maturity of any such Indebtedness or such default shall
continue unremedied for any applicable period of time sufficient to permit the holder or holders of
such Indebtedness, or any trustee or agent for such holders, to cause or declare such Indebtedness
to become due and payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be made, prior to its
expressed maturity.



8.1.6. Judgments. Any judgment or order for the payment of money individually or in
the aggregate in excess of $5,000,000 (exclusive of any amounts fully covered by insurance (less
any applicable deductible) and as to which the insurer has acknowledged its responsibility to cover
such judgment or order) shall be rendered against Holdings, Intermediate Holdings or the Company or
any of the Restricted Subsidiaries or any other Obligor and such judgment shall not have been
vacated or discharged or stayed or bonded pending appeal within 30 days after the entry thereof or
enforcement proceedings shall have been commenced by any creditor upon such judgment or order.



8.1.7. Pension Plans. Any of the following events shall occur with respect to any
Pension Plan




(a) the institution of any steps by Holdings, any member of its Controlled Group or any
other Person to terminate a Pension Plan if, as a result of such termination, Holdings or
any such member could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension Plan, in excess of
$5,000,000; or




(b) a contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under section 302(f) of ERISA.




8.1.8. Change in Control. Any Change in Control shall occur.



8.1.9. Bankruptcy, Insolvency, etc. Holdings, Intermediate Holdings, the Company or
any of the Restricted Subsidiaries or any other Obligor shall




(a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, debts as they become due;




(b) apply for, consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any thereof, or
make a general assignment for the benefit of creditors;




(c) permit or suffer to exist the appointment of a trustee, receiver, sequestrator or
other custodian for a substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within 60 days; provided
that Holdings, Intermediate Holdings, the Company each Restricted Subsidiary and each other
Obligor hereby expressly authorizes each Secured Party to appear in any court conducting any
relevant proceeding during such 60-day period to preserve, protect and defend their rights
under the Loan Documents;




(d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law or any
dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case
or proceeding is not commenced by Holdings, Intermediate Holdings, the Company any
Restricted Subsidiary or any Obligor, such case or proceeding shall be consented to or
acquiesced in by Holdings, Intermediate Holdings, the Company, such Restricted Subsidiary or
such Obligor, as the case may be, or shall result in the entry of an order for relief or
shall remain for 60 days undismissed; provided that Holdings, Intermediate Holdings,
each Restricted Subsidiary and each Obligor hereby expressly authorizes each Secured Party
to appear in any court conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or




(e) take any action authorizing, or in furtherance of, any of the foregoing.



8.1.10. Impairment of Security, etc. Any Loan Document or any Lien granted
thereunder shall (except in accordance with its terms), in whole or in any material part,
terminate, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; any Obligor or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability;
or, except as permitted under any Loan Document, any Lien securing any Obligation shall, in whole
or in part, cease to be a perfected first priority Lien.



8.1.11. Failure of Subordination. Unless otherwise waived or consented to by the
Administrative Agent, all of the Lenders and the Issuers in writing, the subordination provisions
relating to any Subordinated Debt (the “Subordination Provisions”) shall fail to be
enforceable by the Administrative Agent, the Lenders and the Issuers in accordance with the terms
thereof or the monetary Obligations shall fail to constitute “Senior Indebtedness” or similar term
referring to the Obligations in the Subordinated Debt Documents or Holdings, the Company or any of
their respective Restricted Subsidiaries shall, directly or indirectly, disavow or contest in any
manner (i) the effectiveness, validity or enforceability of any of the Subordination Provisions,
(ii) that the Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the Issuers or (iii) that all payments of principal of or premium and interest on the
Subordinated Debt, or realized from the liquidation of any property of any Obligor, shall be
subject to any of such Subordination Provisions.



8.1.12. Guarantee Invalid. Any Guarantor’s Guarantee shall at any time fail to
constitute a valid and binding agreement of such Guarantor or any party shall so assert in writing.



SECTION 8.2. Action if Bankruptcy. If any Event of Default described in clauses (a)
through (d) of Section 8.1.9 with respect to Holdings, Intermediate Holdings or any Borrower shall
occur, the Commitments (if not theretofore terminated) shall automatically terminate and the
outstanding principal amount of all outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become immediately due and payable, without
notice or demand to any Person and the Company shall automatically and immediately be obligated to
Cash Collateralize all Letter of Credit Outstandings.



SECTION 8.3. Action if Other Event of Default. If any Event of Default (other than
any Event of Default described in clauses (a) through (d) of Section 8.1.9 with respect to Holdings
or any Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing,
the Administrative Agent, upon the direction of the Required Lenders, shall by notice to the
Borrowers declare all or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or the Commitments (if
not theretofore terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become immediately due
and payable, without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Company shall automatically and immediately be obligated to
Cash Collateralize all Letter of Credit Outstandings.



ARTICLE 9




THE ADMINISTRATIVE AGENT




SECTION 9.1. Actions. Each Lender hereby appoints UBS as Administrative Agent under
and for purposes of each Loan Document. Each Lender authorizes the Administrative Agent to act on
behalf of such Lender under each Loan Document and, in the absence of other written instructions
from the Required Lenders received from time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will comply, except as otherwise provided in this
Section or as otherwise advised by counsel in order to avoid contravention of applicable law), to
exercise such powers hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent, pro rata according to such Lender’s
proportionate Total Exposure Amount, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, the Administrative Agent in any way relating to or
arising out of any Loan Document, including reasonable attorneys’ fees, and as to which the
Administrative Agent is not reimbursed by Holdings or the Company; provided, however, that no
Lender shall be liable for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent jurisdiction in a
final proceeding to have resulted from the Administrative Agent’s gross negligence or willful
misconduct. The Administrative Agent shall not be required to take any action under any Loan
Document, or to prosecute or defend any suit in respect of any Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the Administrative Agent
shall be or become, in the Administrative Agent’s determination, inadequate, the Administrative
Agent may call for additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.



SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall have been
notified in writing by any Lender by 3:00 p.m. on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage of such Borrowing
on the date specified therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such assumption, make available
to the applicable Borrower a corresponding amount. If and to the extent that such Lender shall not
have made such amount available to the Administrative Agent, such Lender and Holdings and the
Company severally agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the Administrative Agent made
such amount available to the applicable Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans comprising such
Borrowing (in the case of a Borrower) and (in the case of a Lender), at the Federal Funds Rate for
the first two Business Days after which such amount has not been repaid, and thereafter at the
interest rate applicable to Loans comprising such Borrowing.



SECTION 9.3. Exculpation. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken or omitted to be
taken by it under any Loan Document, or in connection herewith or therewith, except for its own
willful misconduct or gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of any Loan Document,
nor for the creation, perfection or priority of any Liens purported to be created by any of the
Loan Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by any Obligor of its
Obligations. Any such inquiry which may be made by the Administrative Agent shall not obligate it
to make any further inquiry or to take any action. The Administrative Agent shall be entitled to
rely upon advice of counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine and to have been
presented by a proper Person.



SECTION 9.4. Subagents and Related Parties. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers by or through one or more subagents
appointed by it. The Administrative Agent and any such subagent may perform any and all its duties
and exercise its rights and powers through their respective Related Parties. The exculpatory and
indemnity provisions of the preceding Sections of this Article shall apply mutatis mutandis to any
such subagent and to the Related Parties of the Administrative Agent and any subagent.



SECTION 9.5. Successor. The Administrative Agent may resign as such at any time upon
at least 30 days’ prior notice to Holdings and the Borrowers and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may appoint another Lender as a
successor Administrative Agent which shall thereupon become the Administrative Agent hereunder. If
no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving
notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any state thereof) or a U.S. branch or agency
of a commercial banking institution, and having a combined capital and surplus of at least
$250,000,000; provided, however that if, such retiring Administrative Agent is unable to find a
commercial banking institution which is willing to accept such appointment and which meets the
qualifications set forth above, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor
as provided above. Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall be entitled to receive
from the retiring Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under the Loan Documents, and Section 11.3 and
Section 11.4 shall continue to inure to its benefit.



SECTION 9.6. Credit Extensions by the Administrative Agent and Issuer. The
Administrative Agent and each Issuer shall have the same rights and powers with respect to (x)(i)
in the case of the Administrative Agent, the Credit Extensions made by it or any of its Affiliates
and (ii) in the case of an Issuer, the Loans made by it or any of its Affiliates, and (y) the Notes
held by it or any of its Affiliates as any other Lender and may exercise the same as if it were not
an Agent or Issuer. The Administrative Agent, each Issuer and each of their respective Affiliates
may accept deposits from, lend money to, and generally engage in any kind of business with
Holdings, the Company or any Subsidiary or Affiliate of Holdings as if the Administrative Agent or
Issuer were not an Agent or Issuer hereunder.



SECTION 9.7. Credit Decisions. Each Lender acknowledges that it has, independently
of the Administrative Agent and each other Lender, and based on such Lender’s review of the
financial information of Holdings and the Company, the Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents, information and investigations
as such Lender has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of the Administrative Agent and each
other Lender, and based on such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under the Loan Documents.



SECTION 9.8. Copies, etc. The Administrative Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Administrative Agent by
Holdings or any Borrower pursuant to the terms of the Loan Documents (unless concurrently delivered
to the Lenders by Holdings or any Borrower). The Administrative Agent will distribute to each
Lender each document or instrument received for its account and copies of all other communications
received by the Administrative Agent from the Company for distribution to the Lenders by the
Administrative Agent in accordance with the terms of the Loan Documents.



SECTION 9.9. Reliance by the Administrative Agent. The Administrative Agent shall be
entitled to rely upon any certification, notice or other communication (including any thereof by
telephone, telecopy, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the Administrative Agent. As to any
matters not expressly provided for by the Loan Documents, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in
accordance with instructions given by the Required Lenders or all of the Lenders as is required in
such circumstance, and such instructions of such Lenders and any action taken or failure to act
pursuant thereto shall be binding on all Secured Parties. For purposes of applying amounts in
accordance with this Section, the Administrative Agent shall be entitled to rely upon any Secured
Party that has entered into a Rate Protection Agreement with any Obligor for a determination (which
such Secured Party agrees to provide or cause to be provided upon request of the Administrative
Agent) of the outstanding Obligations owed to such Secured Party under any Rate Protection
Agreement. Unless it has actual knowledge evidenced by way of written notice from any such Secured
Party and the Company to the contrary, the Administrative Agent, in acting in such capacity under
the Loan Documents, shall be entitled to assume that no Rate Protection Agreements or Obligations
in respect thereof are in existence or outstanding between any Secured Party and any Obligor.



SECTION 9.10. Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative Agent has received a
written notice from a Lender or Holdings or any Borrower specifying such Default and stating that
such notice is a “Notice of Default”. In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall (subject to Section 11.1) take such action with
respect to such Default as shall be 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 as it shall deem advisable in the best interest of the Lenders except to the extent
that this Agreement expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders or all Lenders, as applicable.



SECTION 9.11. Collateral Agent. The Administrative Agent and each Lender appoint The
Bank of Nova Scotia as Collateral Agent and authorizes it to sign and deliver the Security
Documents and documents reasonably ancillary thereto and to take such actions on its behalf with
respect to the collateral as are delegated to it by the Loan Documents, together with such actions
and powers as are reasonably incidental thereto.



ARTICLE 10




[Intentionally Omitted]




ARTICLE 11




MISCELLANEOUS PROVISIONS




SECTION 11.1. Waivers, Amendments, etc. The provisions of each Loan Document may
from time to time be amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by Holdings, Intermediate Holdings, the Borrowers and the Required
Lenders; provided, however, that no such amendment, modification or waiver shall:




(a) modify this Section without the consent of all Lenders;




(b) increase the aggregate amount of any Credit Extensions required to be made by a
Lender pursuant to its Commitments, extend the final Commitment Termination Date of Credit
Extensions made (or participated in) by a Lender or reduce any fees described in Article 3
payable to any Lender without the consent of such Lender;




(c) extend the final Stated Maturity Date for any Lender’s Loan, or extend the Stated
Expiry Date of a Letter of Credit past the fifth Business Day prior to the Stated Maturity
Date for the Revolving Loans, or reduce the principal amount of, rate of interest or fees on
any Loan or Reimbursement Obligations (which shall in each case include the conversion of
all or any part of the Obligations into equity of any Obligor and which shall not include an
amendment or modification to the financial definitions in this Agreement or to Section 1.4),
or extend the date on which interest or fees are payable in respect of such Loan or
Reimbursement Obligation, or extend the date of any scheduled installment payment of
principal due with respect to the Term Loans, in each case, without the consent of the
Lender which has made such Loan or issued such Letter of Credit or, in the case of a
Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind
any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect
to the Loans and other Obligations shall only require the vote of the Required Lenders);




(d) reduce the percentage set forth in the definition of “Required Lenders” or modify
any requirement hereunder that any particular action be taken by all Lenders without the
consent of all Lenders;




(e) except as otherwise expressly provided in a Loan Document, release (i) Holdings,
Intermediate Holdings or any Borrower from its Obligations under the Loan Documents or any
Guarantor from its Obligations under a Guaranty or (ii) all or substantially all of the
collateral under the Loan Documents, in each case without the consent of all Lenders;




(f) (i) amend, modify or waive clause (b) of Section 3.1.1 or (ii) have the effect
(either immediately or at some later time) of enabling any Borrower to satisfy a condition
precedent to the making of a Revolving Loan or the issuance of a Letter of Credit unless
such amendment, modification or waiver shall have been consented to by the holders of at
least 51% of the Revolving Loan Commitments of the applicable Tranche;




(g) amend, modify or waive the provisions of clause (a)(i) or (c) of Section 3.1.1 or
clause (b) of Section 3.1.2, or effect any amendment, modification or waiver that by its
terms adversely affects the rights of Lenders participating in any Tranche differently from
those of other Lenders participating in other Tranches, unless such amendment, modification
or waiver shall have been consented to by the holders of at least 51% of the aggregate
amount of Loans outstanding under the Tranche or Tranches affected by such modification or,
in the case of a modification affecting any of the Revolving Loan Commitments, the Lenders
holding at least 51% of the Revolving Loan Commitments of the applicable Tranche;




(h) change any of the terms of clause (d) of Section 2.1.4 or Section 2.3.2 without the
consent of the Swing Line Lender; or




(i) affect adversely the interests, rights or obligations of the Administrative Agent
(in its capacity as the Administrative Agent) or any Issuer (in its capacity as an Issuer),
unless consented to by the Administrative Agent or such Issuer, as the case may be.



No failure or delay on the part of the Administrative Agent, any Issuer or any Lender in exercising
any power or right under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand on any Obligor in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, any Issuer or any Lender under any Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.



For purposes of this Section 11.1, the Administrative Agent shall have primary responsibility,
together with Holdings, Intermediate Holdings and the Borrowers, in the negotiation, preparation
and documentation relating to any amendment, modification or waiver under this Agreement, any other
Loan Document or any other agreement or document related hereto or thereto contemplated pursuant to
this Section.



SECTION 11.2. Notices; Time. All notices and other communications provided under
each Loan Document shall be in writing or by facsimile and addressed, delivered or transmitted, if
to the Administrative Agent or to Holdings or a Borrower, to the applicable Person at its address
or facsimile number set forth below its signature in this Agreement, and if to a Lender or Issuer
to the applicable Person at its address or facsimile number set forth below its signature in this
Agreement or set forth in the Lender Assignment Agreement pursuant to which it may become a Lender
hereunder, or at such other address or facsimile number as may be designated by any such party in a
notice to the other parties. Each such notice, request or other communication shall be effective
(i) if given by facsimile, when transmitted to the facsimile number referred to in this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered at the address referred to in this Section; provided that
notices to the Administrative Agent pursuant to Articles 2, 3 and 4 shall not be effective until
received by it. Unless otherwise indicated, all references to the time of a day in a Loan Document
shall refer to New York time.



SECTION 11.3. Payment of Costs and Expenses. Each of Holdings, Intermediate
Holdings and the Company agrees to pay on demand all expenses of the Administrative Agent, the Lead
Arranger and each Lender (including the reasonable fees and expenses of Davis Polk & Wardwell,
counsel to the Administrative Agent, and of local counsel, if any, who may be retained by or on
behalf of the Administrative Agent, the out-of-pocket due diligence and travel expenses of the
Administrative Agent up to $25,000, the expenses of the Filing Agent and the Title Company and the
courier, reproduction, printing and delivery expenses of the Administrative Agent, the Lead
Arranger and the Lenders) in connection with




(a) the negotiation, preparation, execution and delivery of each Loan Document,
including schedules and exhibits, and the syndication of the Commitments and the Loans; and




(b) the filing or recording of any Loan Document (including the Filing Statements) and
all amendments, supplements, amendment and restatements and other modifications to any
thereof, searches made following the Amendment Effective Date in jurisdictions where Filing
Statements (or other documents evidencing Liens in favor of the Secured Parties) have been
recorded and any and all other documents or instruments of further assurance required to be
filed or recorded by the terms of any Loan Document; and




(c) the preparation and review of the form of any document or instrument relevant to
any Loan Document.



Each of Holdings, Intermediate Holdings and the Company further agrees to pay, and to save each
Secured Party harmless from all liability for, any stamp or other taxes which may be payable in
connection with the execution, delivery, recording or filing of each Loan Document, the Credit
Extensions or the issuance of the Notes. Each of Holdings, Intermediate Holdings and the Company
also agrees to reimburse each Secured Party upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys’ fees and legal expenses of counsel to each Secured Party) incurred
by such Secured Party in connection with (x) the negotiation of any restructuring or “work-out”
with Holdings, Intermediate Holdings or any Borrower, whether or not consummated, of any
Obligations, (y) the enforcement of any Obligations and (z) the preparation, execution, delivery,
administration or enforcement of any amendments, waivers, consents, supplements or other
modifications to any Loan Document as may from time to time hereafter be required or requested.



SECTION 11.4. Indemnification. In consideration of the execution and delivery of
this Agreement by each Secured Party, each of Holdings, Intermediate Holdings and the Company,
jointly and severally, hereby indemnifies, exonerates and holds each Secured Party and each of
their respective officers, directors, employees and agents (collectively, the “Indemnified
Parties”) free and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection therewith (irrespective
of whether any such Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys’ fees and disbursements, whether incurred in connection
with actions between or among the parties hereto or the parties hereto and third parties
(collectively, the “Indemnified Liabilities”), incurred by the Indemnified Parties or any
of them as a result of, or arising out of, or relating to




(a) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension or any other actual or proposed use of
the proceeds of any Loan or Letter of Credit;




(b) the entering into and performance of any Loan Document by any of the Indemnified
Parties (including any action brought by or on behalf of Holdings, Intermediate Holdings or
a Borrower as the result of any determination by the Required Lenders pursuant to Article 5
not to fund any Credit Extension, provided that any such action is resolved in favor of such
Indemnified Party);




(c) any investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of the Capital
Stock or assets of any Person, whether or not an Indemnified Party is party thereto;




(d) any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter at, under or arising from any operations (including,
off-site disposal of Hazardous Materials) or property currently or formerly owned, leased or
operated upon (including right of way easements) of Holdings or its Subsidiaries or the
Release by any Obligor or any Subsidiary thereof of any Hazardous Material;




(e) the presence on or under, or the Release from, any operations of Obligor or
Subsidiary or any real property currently or formerly owned, leased, or operated upon
(including right of way easements) by any Obligor or any Subsidiary thereof of any Hazardous
Material (including any losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of whether caused by, or within
the control of, such Obligor or Subsidiary; or




(f) each Lender’s Environmental Liability (the indemnification herein shall survive
repayment of the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control of, such
Obligor or such Subsidiary);



except for Indemnified Liabilities arising for the account of a particular Indemnified Party which
are determined by a final judgment of a court of competent jurisdiction to have been incurred
solely by reason of the relevant Indemnified Party’s gross negligence or willful misconduct. Each
Obligor and its successors and assigns hereby waive, release and agree not to make any claim or
bring any cost recovery action against, any Indemnified Party under CERCLA or any state equivalent,
or any similar law now existing or hereafter enacted. It is expressly understood and agreed that
to the extent that any Indemnified Party is strictly liable under any Environmental Laws, each
Obligor’s obligation to such Indemnified Party under this indemnity shall likewise be without
regard to fault on the part of any Obligor with respect to the violation or condition which results
in liability of an Indemnified Party. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, each Obligor agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.



SECTION 11.5. Survival. The obligations of Holdings, Intermediate Holdings and the
Borrowers under Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, and the obligations of the Lenders
under Section 9.1, shall in each case survive any assignment from one Lender to another (in the
case of Sections 11.3 and 11.4) and the occurrence of the Termination Date. The representations
and warranties made by each Obligor in each Loan Document shall survive the execution and delivery
of such Loan Document.



SECTION 11.6. Severability. Any provision of any Loan Document which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.



SECTION 11.7. Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.



SECTION 11.8. Execution in Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be an original and all of which shall
constitute together but one and the same agreement.



SECTION 11.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT (OTHER THAN THE
LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A
LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS
OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98—INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NUMBER 590 (THE “ISP RULES”)) AND, AS TO MATTERS NOT GOVERNED BY THE
ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter thereof and supersede any
prior agreements, written or oral, with respect thereto.



SECTION 11.10. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither Holdings nor Intermediate Holdings nor the Borrowers may assign or
transfer their rights or obligations hereunder without the consent of all Lenders.



SECTION 11.11. Sale and Transfer of Credit Extensions; Participations in Credit Extensions
and Notes. Each Lender may assign, or sell participations in, its Loans, Letters of Credit
and Commitments to one or more other Persons in accordance with this the terms set forth below.




(a) Any Lender may assign (“Assignor Lender”) to one or more Eligible Assignees
(“Assignee Lender”) 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); provided that




(i) except in the case of an assignment of the entire remaining amount of the
Assignor Lender’s Commitments and the Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund, the
aggregate amount of the Commitments (which for this purpose includes Loans
outstanding thereunder) or principal outstanding balance of the Loans of the
Assignor Lender subject to each such assignment (determined as of the date the
Lender Assignment Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 in the case of Revolving
Loans, Revolving Loan Commitments and Term Loans, unless the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Company,
otherwise consent (each such consent not to be unreasonably withheld or delayed),




(ii) (A) each partial assignment shall be, (w) as among U.S. Revolving Loan
Commitments, U.S. Revolving Loans and participations in Letters of Credit, Letter of
Credit Outstandings and Swing Line Loans, (x) as among Canadian Revolving Loan
Commitments and Canadian Revolving Loans and (y) as among Term Loan Commitments and
participations in the Term Loans, in each case, of a constant, and not a varying,
percentage and (B) each full or partial assignment of Term Loans shall include all
or a portion (as the case may be) of such Assignor Lender’s U.S. Term Loan and
Canadian Term Loan, if applicable, in each case comprising an equal percentage of
the aggregate amount of all outstanding U.S. Term Loans and Canadian Term Loans,
respectively, and




(iii) the parties to each assignment shall execute and deliver to the
Administrative Agent (A) a Lender Assignment Agreement (including, if the Assignee
Lender is not a Lender, the delivery of administrative details information to the
Administrative Agent), together with (B) unless the Assignor Lender or Assignee
Lender is the Administrative Agent or an Affiliate thereof, a processing and
recordation fee of $3,500, to be paid by the Assignor Lender or the Assignee Lender,



provided, further that assignments that are made on the same day to funds that (A) invest in
commercial loans and (B) are managed or advised by the same investment advisor or an Affiliate of
such investment advisor may be treated as a single assignment for purposes of the minimum amounts
described in subclause (i) above and application of the processing fee described in subclause (iii)
above.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (b)
below and the last sentence of clause (b) of Section 2.7, from and after the effective date
specified in each Lender Assignment Agreement, the Assignee Lender thereunder shall be a party
hereto and, to the extent of the interest assigned by such Lender Assignment Agreement, have the
rights and obligations of a Lender under this Agreement, and the Assignor Lender thereunder shall,
to the extent of the interest assigned by such Lender Assignment Agreement, be released from its
obligations under this Agreement (and, in the case of a Lender Assignment Agreement covering all of
the Assignor 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 any provisions of this Agreement
which by their terms survive the termination of this Agreement). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this clause 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 clause (c) below. If the consent of the Company to an
assignment is required hereunder, the Company shall be deemed to have given its consent five
Business Days after the date written notice thereof has been received by the Company from the
Administrative Agent unless such consent is expressly refused by the Company prior to such fifth
Business Day.




(b) The Administrative Agent shall record each assignment made in accordance with this
Section in the Register pursuant to clause (b) of Section 2.7. The Register shall be
available for inspection by the Company, at any reasonable time and from time to time upon
reasonable prior notice.




(c) Any Lender may, without the consent of, or notice to, the Company or the
Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under
this Agreement (including all or a portion of its Commitments and/or the Loans owing to it);
provided that (x) such Lender’s obligations under this Agreement shall remain unchanged, (y)
such Lender shall remain solely responsible to the other parties hereto for the performance
of such obligations and (z) the Company, the Administrative Agent 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; 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 with respect to the following: (i) modification of clauses (a), (b),
(c), (d) or (e) of Section 11.1 (except as otherwise expressly permitted thereby), (ii) any
reduction in the interest rate or amount of fees that such Participant is otherwise entitled
to receive (it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the
interest rate or the fees payable to such Participant), (iii) a decrease in the principal
amount of, or an extension of the final Stated Maturity Date of, any Loan in which such
Participant has purchased a participating interest, (iv) an extension of the date on which
interest or fees are payable in respect of any Loan, (v) a reduction in the percentage set
forth in the definition of “Required Lenders” (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on this Amendment
Effective Date), or (vi) a release of all or substantially all of the collateral security
under the Loan Documents or all or substantially all of the Guarantors from their
obligations under the Guarantees, in each case except as otherwise specifically provided in
the proviso to clause (e) of Section 11.1 or in any Loan Document. Subject to clause (d)
below, the Company agrees that each Participant shall be entitled to the benefits of
Sections 4.3, 4.4, 4.5, 4.6, 7.1.1, 11.3 and 11.4 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to clause (a). To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 4.9 as though it
were a Lender, provided such Participant agrees to be subject to Section 4.8 as though it
were a Lender.




(d) Each Participant shall be indemnified for increased costs and taxes pursuant to
Sections 4.3, 4.5 or 4.6 only if and to the extent that the Lender which sold such
participating interest to such Participant concurrently is entitled to make, and does make,
a claim on the Company for such increased costs. Any Lender that sells a participating
interest in any Loan, Commitment or other interest to a Participant under this Section shall
indemnify and hold harmless the Company and the Administrative Agent from and against any
taxes, penalties, interest or other costs or losses (including reasonable attorneys’ fees
and expenses) incurred or payable by the Company or the Administrative Agent as a result of
the failure of the Company or the Administrative Agent to comply with its obligations to
deduct or withhold any Taxes from any payments made pursuant to this Agreement to such
Lender or the Administrative Agent, as the case may be, which Taxes would not have been
incurred or payable if such Participant complied with clauses (e) and (g) of Section 4.6.




(e) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (i) to secure obligations of such Lender
including without limitation to a Federal Reserve Bank and (ii) in connection with any
securitization of any portfolio loans of such Lender, in each case without the prior written
consent of any other Person; 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.




(f) Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Bank”) may grant to a special purpose funding vehicle (a “SPV”),
identified as such in writing from time to time by the Granting Bank to the Administrative
Agent and the Company, the option to provide to the Company all or any part of any Loan that
such Granting Bank would otherwise be obligated to make to the Company pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make
any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Bank shall be obligated to make such Loan
pursuant to the terms hereof and (iii) such SPV shall be granted no voting rights other than
those permitted to be granted to a Participant pursuant to clause (c) of Section 11.11. The
making of a Loan by a SPV hereunder shall utilize the Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby
agrees that no SPV shall be liable for any indemnity or similar payment obligation under
this Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior indebtedness
of any SPV, it will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section, any SPV may (i) with notice to, but
without the prior written consent of, the Company and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in any Loans to
the Granting Bank or to any financial institutions (consented to by the Company and
Administrative Agent) providing liquidity and/or credit support to or for the account of
such SPV to support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such
SPV.




(g) In the event that S&P, Moody’s or Thompson’s BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best’s Insurance Reports,
if such insurance company is not rated by InsuranceWatch Ratings Service)) shall, after the
date that any Lender with a Commitment to make U.S. Revolving Loans or participate in
Letters of Credit, Letter of Credit Outstandings or Swing Line Loans becomes a Lender,
downgrade the long-term certificate of deposit rating or long-term senior unsecured debt
rating of such Lender, and the resulting rating shall be below BBB+, Baa or B (or BB, in the
case of Lender that is an insurance company (or B++, in the case of an insurance company not
rated by InsuranceWatch Ratings Service)) respectively, then the applicable Borrower or
Holdings shall have the right, but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace such Lender with an Assignee Lender in accordance with and
subject to the restrictions contained in this Section, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the restrictions
contained in this Section) all its interests, rights and obligations in respect of its U.S.
Revolving Loan Commitment under this Agreement to such Assignee Lender; provided, however,
that (i) no such assignment shall conflict with any law, regulation or order of any
Governmental Authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment 100% of the principal of and interest and
fees (if any) accrued to the date of payment on the U.S. Revolving Loans made (including any
fees in respect of Letters of Credit participated in, if any) by such Lender hereunder and
all other amounts accrued for such Lender’s account or owed to it hereunder as a U.S.
Revolving Loan Lender. The Administrative Agent shall, upon request of the Lead Arranger
from time to time, deliver a then-current list of Lenders and their respective Commitments
or Loans.



SECTION 11.12. Other Transactions. Nothing contained herein shall preclude the
Administrative Agent, any Issuer or any other Lender from engaging in any transaction, in addition
to those contemplated by the Loan Documents, with Holdings, Intermediate Holdings, any Borrower or
any of their Affiliates in which such Obligor or such Affiliate is not restricted hereby from
engaging with any other Person.



SECTION 11.13. Judgment Currency. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum due hereunder (including under Section 9.1), under any
Note or under any other Loan Document in another currency into U.S. Dollars or into Canadian
Dollars, as the case may be, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which, in accordance with normal
banking procedures, the applicable Secured Party could purchase such other currency with U.S.
Dollars or with Canadian Dollars, as the case may be, in New York City, New York at the close of
business on the Business Day immediately preceding the day on which final judgment is given,
together with any premiums and costs of exchange payable in connection with such purchase.




(b) The obligation of each Borrower, Intermediate Holdings and Holdings in respect of
any sum due from it to any Agent or any Lender hereunder, under any Note or under any other
Loan Document shall, notwithstanding any judgment in a currency other than U.S. Dollars or
Canadian Dollars, as the case may be, be discharged only to the extent that on the Business
Day next succeeding receipt by such Agent or such Lender of any sum adjudged to be so due in
such other currency, such Agent or such Lender may, in accordance with normal banking
procedures, purchase U.S. Dollars or Canadian Dollars, as the case may be, with such other
currency. If the U.S. Dollars or Canadian Dollars so purchased are less than the sum
originally due to such Agent or such Lender in U.S. Dollars or in Canadian Dollars, such
Borrower and Holdings agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Agent or such Lender against such loss.



SECTION 11.14. Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR ANY OBLIGOR IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT
AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OBLIGOR IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION 11.2. EACH
OBLIGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH OBLIGOR HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS (THE
“PROCESS AGENT”), WITH AN OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE, 13TH FLOOR, NEW
YORK, NEW YORK 10011, UNITED STATES, AS IT’S AGENT TO RECEIVE, ON SUCH OBLIGOR’S BEHALF AND ON
BEHALF OF SUCH OBLIGOR’S PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER
PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING
TO SUCH OBLIGOR AS PROVIDED IN SECTION 11.2 OR DELIVERING A COPY OF SUCH PROCESS TO SUCH OBLIGOR IN
CARE OF THE PROCESS AGENT AT THE PROCESS AGENT’S ABOVE ADDRESS, AND EACH OBLIGOR HEREBY IRREVOCABLY
AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE
METHOD OF SERVICE, EACH OBLIGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
TO THE EXTENT THAT ANY OBLIGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH OBLIGOR
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS.



SECTION 11.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER, EACH
ISSUER AND EACH OBLIGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF PERSON IN CONNECTION
THEREWITH. EACH OBLIGOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, EACH
LENDER AND EACH ISSUER ENTERING INTO THE LOAN DOCUMENTS.



SECTION 11.16. Independence of Covenants. All covenants contained in this Agreement
and each other Loan Document shall be given independent effect such that, in the event a particular
action or condition is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of Default or an Event of
Default if such action is taken or such condition exists.



SECTION 11.17. Certain Matters Related to Collateral Sharing. (a) Each Lender and
each other Secured Party, by accepting the benefits of one or more of the Canadian Security
Documents and the U.S. Security Documents (collectively, the “Security Documents”), hereby
agrees that, in determining the ratable amount of principal, interest and other Secured Obligations
owed to such Secured Party for purposes of Section 21 of the U.S. Guarantee and Security Agreement
or any other distribution or application provision with respect to the Secured Obligations
thereunder or otherwise under any U.S. Security Document (any such provision, an “application
provision”; and such share thereof for any Lender with respect to any U.S. Security Document
application provision, its “Sharing Percentage”), each Secured Party holding Canadian
Secured Obligations shall first be deemed to satisfy such Canadian Secured Obligations from the
Canadian Collateral securing such Canadian Secured Obligations (to the extent such Canadian
Collateral secures such Canadian Secured Obligations and is available therefor) before determining
its Sharing Percentage with respect to any application provision under any U.S. Security Document
or otherwise with respect to Shared Collateral. This Section 11.17 constitutes an agreement among
and for the benefit of the Secured Parties only, and nothing contained in this Section 11.17 shall
be deemed to create any rights for the benefit of, or confer any benefit on, any other party or
Person, and any amendment or waiver of the rights in this Section may be made only with the consent
of the Lenders.




(b) For purposes of this Section 11.17:



“Canadian Collateral” means, collectively, all “Collateral” as defined in the Canadian
Security Documents, and any other collateral secured by a Lien thereunder, whether or not so
defined therein.



“Canadian Secured Obligations” means Obligations with respect to the Canadian Loans
which are secured by the Canadian Security Documents.



“Secured Obligation” has the meaning assigned thereto in the U.S. Guarantee and
Security Agreement.



“Shared Collateral” means all “Collateral” as defined in any U.S. Security Document,
and any other collateral secured by a Lien thereunder, whether or not so defined therein.



“U.S. Mortgages” means the Mortgages governed by the laws of the United States or any
state or other political subdivision thereof.



“U.S. Security Documents” means, collectively, the U.S. Guarantee and Security
Agreement and the U.S. Mortgages, and any other security or collateral document pursuant to which
Obligations with respect to the U.S. Term Loans and U.S. Revolving Loans may from time to time be
secured.



SECTION 11.18. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies all Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies each Borrower, which information includes the
name and address of such Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrowers in accordance with the Act.



4



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



	 	 	 
	RAILAMERICA, INC.

	 	

	 
	 	 
	By:/s/ Larry Bush____________________

	 
	 	 
	 

	 
	 	 
	Name:

Title:

Address:

	 	Larry Bush

Vice President and Treasurer

5300 Broken Sound Blvd. N.W.







5




	 	 	 
	 	 	 	 	 	Boca Raton, FL 33487
	 	 	Facsimile No.: (561) 994-3929	 
	 	 	Attention:	 	 	Michael Howe





	 	 	 
	PALM BEACH RAIL HOLDING, INC.

	 	

	 
	 	 
	By:/s/ Larry Bush____________________

	 
	 	 
	 

	 
	 	 
	Name:

Title:

Address:

	 	Larry Bush

Vice President

5300 Broken Sound Blvd. N.W.








	 	 	 	Boca Raton, FL 33487






Facsimile No.: (561) 994-3929



Attention: Michael Howe



6




RAILAMERICA TRANSPORTATION CORP.



	 	 	 
	By:/s/ Larry Bush____________________

	 
	 	 
	 

	 
	 	 
	Name:

Title:

Address:

	 	Larry Bush

Vice President

5300 Broken Sound Blvd. N.W.








	 	 	 	Boca Raton, FL 33487






Facsimile No.: (561) 994-3929



Attention: Michael Howe



7



	 	 	 
	RAILAMERICA CANADA CORP.

	 	

	 
	 	 
	By:/s/ Larry Bush____________________

	 
	 	 
	 

	 
	 	 
	Name:

Title:

Address:

	 	Larry Bush

Vice President

5300 Broken Sound Blvd. N.W.







8




	 	 	 
	 	 	 	 	 	Boca Raton, FL 33487
	 	 	Facsimile No.: (561) 994-3929	 
	 	 	Attention:	 	 	Michael Howe





	 	 	 
	RAILINK CANADA LTD.

	 	

	 
	 	 
	By:/s/ Larry Bush____________________

	 
	 	 
	 

	 
	 	 
	Name:

Title:

Address:

	 	Larry Bush

Vice President

5300 Broken Sound Blvd. N.W.







9




	 	 	 
	 	 	 	 	 	Boca Raton, FL 33487
	 	 	Facsimile No.: (561) 994-3929	 
	 	 	Attention:	 	 	Michael Howe






	 	 	 	UBS
AG, STAMFORD BRANCH, as the
Administrative Agent





	 	 	 
	By:/s/ Wilfred V. Saint________________

	 
	 	 
	 

	 
	 	 
	Name:

	 	Wifred V. Saint








	 	 	 	Title: Director, Banking Products Services, US






By:/s/ Joseline Fernandes   




	 	 	 	Name: Joseline Fernandes






Title: Associate Director, Banking Products Services, US




Address: 677 Washington Blvd.




Stamford, CT 06901




Facsimile No.: (203) 719-3888



Attention: Vladimira Holeckova



10



	 	 	 
	UBS LOAN FINANCE LLC

	 	

	 
	 	 
	By:/s/ Wilfred V. Saint________________

	 
	 	 
	 

	 
	 	 
	Name:

	 	Wifred V. Saint








	 	 	 	Title: Director, Banking Products Services, US






By:/s/ Joseline Fernandes   




	 	 	 	Name: Joseline Fernandes






Title: Associate Director, Banking Products Services, US




Address: 677 Washington Blvd.




Stamford, CT 06901




Facsimile No.: (203) 719-3888




	 	 	 	Attention: Vladimira Holeckova




11









	 	 	 	 	 
	UBS Canada Branch

	 
	 	 	 	 
	By:	 	/s/ Wilfred V. Saint

	 
	 	 	 	 
	 	 	 

	 
	 	 	 	 
	
 
	 	Name:
	 	Wilfred V. Saint
	 
	 	 	 	 
	
 
	 	Title:
	 	Director, Banking Products Services, US
	 
	 	 	 	 
	By:	 	/s/ Joseline Fernandes

	 
	 	 	 	 
	 	 	 

	 
	 	 	 	 
	
 
	 	Name:
	 	Joseline Fernandes
	 
	 	 	 	 
	
 
	 	Title:
	 	Associate Director Banking Products

Services, US
	 
	 	 	 	 







12




13




	 	 	 	 	 
	The Bank of Nova Scotia	 
	By:	 	/s/ William E. Zarrett	 
	 	 	Name:	 	 	William E. Zarrett
	 	 	Title:	 	 	Managing Director





14




	 	 	 	 	 
	Bank of America, N.A.	 
	By:	 	/s/ John M. Hall	 
	 	 	Name:	 	 	John M. Hall
	 	 	Title:	 	 	Senior Vice President





15




	 	 	 	 	 
	Calyon New York Branch	 	 
	By:	 	/s/ Philippe Soustra	 	 
	 	 	Name:	 	 	 	Philippe Soustra
	 	 	Title:	 	 	 	Executive Vice President
	By:	 	/s/ Attila Coach	 	 	 	 
	 	 	Name:	 	 	 	 	 	Attila Coach
	 	 	Title:	 	 	 	 	 	Senior Vice President





16




	 	 	 	 	 
	Sovereign Bank	 
	By:	 	/s/ Dexter Freeman	 
	 	 	Name:	 	 	Dexter Freeman
	 	 	Title:	 	 	Senior Vice President





17




	 	 	 	 	 
	North Fork Business Capital Corp.	 
	By:	 	/s/ Steve Goetschines	 
	 	 	Name:	 	 	Steve Goetschines
	 	 	Title:	 	 	Senior Vice President





18




	 	 	 	 	 
	Allied Irish Banks PLC	 
	By:	 	/s/ Vaughn Buck	 
	 	 	Name:	 	 	Vaughn Buck
	 	 	Title:	 	 	Senior Vice President
	 	 	 	 	 	/s/ Aidan Lanigan
	By:	 	 	 	 	 
	 	 	Name:	 	 	Aidan Lanigan
	 	 	Title:	 	 	Assistant Vice President





19




	 	 	 	 	 
	Israel Discount Bank of New York	 	 	 	 
	By:	 	/s/ Roberto R. Munoz	 	 	 	 
	 	 	Name:	 	 	 	Roberto R. Munoz
	 	 	Title:	 	 	 	Senior Vice President and Chief
	 	 	 	 	 	 	 	 	Lending Officer for Florida
	By:	 	/s/ Herbert K. Frier	 	 	 	 
	 	 	Name:	 	 	 	 	 	Herbert K. Frier
	 	 	Title:	 	 	 	 	 	Senior Vice President





	 	 	 	 	 
	RZB Finance LLC	 
	By:	 	/s/ Astrid Wilke	 
	 	 	Name:	 	 	Astrid Wilke
	 	 	Title:	 	 	Vice President





20




	 	 	 	 	 
	By:	 	/s/ Christoph Hoedl	 
	 	 	Name:	 	 	Astrid Wilke
	 	 	Title:	 	 	Vice President





21




	 	 	 	 	 
	Comerica Bank	 
	By:	 	/s/ Janet Wheeler	 
	 	 	Name:	 	 	Janet Wheeler
	 	 	Title:	 	 	Corporate Banking Officer





	 	 	 	 	 
	Banco Espirito Santo S.A., Nassau Branch	 
	By:	 	/s/ Cristina M. Ferreira	 
	 	 	Name:	 	 	Cristina M. Ferreira
	 	 	Title:	 	 	Senior Vice President





22




	 	 	 	 	 
	By:	 	/s/ Andrew M. Orsen	 
	 	 	Name:	 	 	Andrew M. Orsen
	 	 	Title:	 	 	Vice President





23




	 	 	 	 	 
	Morgan Stanley Senior Funding, Inc.	 
	By:	 	/s/ Todd Vannucci	 
	 	 	Name:	 	 	Todd Vannucci
	 	 	Title:	 	 	Executive Director





	 	 	 	 	 
	General Electric Capital Corporation	 
	By:	 	/s/ Robert M. Kadlick	 
	 	 	Name:	 	 	Robert M. Kadlick
	 	 	Title:	 	 	Duly Authorized Signatory





24



SCHEDULE I




DISCLOSURE SCHEDULE




	 	 	 
	ITEM 6.1. Organization

ITEM 6.7. Litigation.

ITEM 6.8. Existing Subsidiaries.

ITEM 6.11. Employee Benefit Plans.

ITEM 6.12. Environmental Matters.

ITEM 7.2.2(b) Indebtedness Remaining.

CREDITOR

	 	











OUTSTANDING PRINCIPAL AMOUNT
	 

	 	 







ITEM 7.2.3(b) Ongoing Liens.



ITEM 7.2.5(a) Ongoing Investments.



25



SCHEDULE II




PERCENTAGES; LIBO OFFICE; DOMESTIC OFFICE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name and Notice
	 	 	 	 	 	 	 	 	 	U.S. Revolving Loan	 	Canadian Revolving	 	 	 	 
	Address of Lender
	 	LIBO Office	 	Domestic Office	 	Commitment	 	Loan Commitment	 	Term Loan Commitment
	 	 	 	 	 	 	 	 	 	 	 
	UBS Loan Finance LLC

677 Washington Blvd.

Stamford, CT 06901
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	North Fork Business Capital Corp.

275 Broadhollow Road

Melville, New York 11747
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 









26





SCHEDULE III




PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	LR = 4.0x	 	3.0x = LR < 4.0x	 	2.0x = LR < 3.0x	 	LR < 2.0x
	 
	 	 	 	 	 	 	 	 	 	 
	Applicable Margins: Term Loans


	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LIBO Rate Loans
	 		2.25	%	 		2.00	%	 		2.00	%	 		1.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Base Rate Loans
	 		1.25	%	 		1.00	%	 		1.00	%	 		0.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Margin: Revolving

Loans
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	LIBO Rate Loans /

Applicable Canadian BA

Stamping Fee
	 		2.00	%	 		1.75	%	 		1.50	%	 		1.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Base Rate Loans and

Canadian Prime Rate Loans
	 		1.00	%	 		0.75	%	 		0.50	%	 		0.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Letter of Credit Fee
	 		2.00	%	 		1.75	%	 		1.50	%	 		1.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Commitment Fee Rate
	 		0.50	%	 		0.375	%	 		0.375	%	 		0.250	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







As used above, “LR” means the “Leverage Ratio” at any time. The Leverage Ratio used to
compute the applicable margin or fee for any day shall be the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by Holdings to the Administrative Agent on or prior
to such day pursuant to clause (d) of Section 7.1.1 in respect of a Fiscal Quarter or Fiscal Year
end. Changes in the applicable margin or fee resulting from a change in the Leverage Ratio shall
become effective on the first day following delivery by Holdings to the Administrative Agent of a
new Compliance Certificate pursuant to clause (d) of Section 7.1.1 in respect of a Fiscal Quarter
or Fiscal Year end. If Holdings shall fail to deliver a Compliance Certificate within the number
of days after the end of any Fiscal Quarter as required pursuant to clause (d) of Section 7.1.1
(without giving effect to any grace period) in respect of a Fiscal Quarter or Fiscal Year end, the
applicable margin or fee from and including the first day after the date on which such Compliance
Certificate was required to be delivered to but not including the date Holdings delivers to the
Administrative Agent such Compliance Certificate shall conclusively equal the highest applicable
margin or fee set forth above.



Notwithstanding the foregoing, if at any time any Additional Term Loans are issued with an
“Applicable Margin” at any Leverage Ratio, applicable to such Additional Term Loans as LIBO Rate
Loans, that is more than 25 basis points higher than the Applicable Margin applicable to U.S. Term
Loans and Canadian Term Loans at any comparable Leverage Ratio, then the Applicable Margin for U.S.
Term Loans and Canadian Term Loans shall automatically increase by 25 basis points at each Leverage
Ratio. The Borrowers agree promptly to enter into such amendments, acknowledgments or other
documentation as may be requested by the Administrative Agent upon the occurrence of any such
issuance of Additional Term Loans to evidence the foregoing, provided that the failure to execute
and deliver any such amendment, acknowledgment or other documentation shall not limit the effect of
such increase.




27