Exhibit 10.1


 


EXECUTION COPY




 





 


CREDIT
AGREEMENT


 


among


 


LKQ
Corporation,


as US
Borrower,


 


LKQ Delaware
LLP,

as Canadian Borrower,


 


The Several
Lenders

from Time to Time Parties Hereto,


 


LEHMAN
BROTHERS INC.

and

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners,


 


DEUTSCHE BANK
SECURITIES INC.,

as Syndication Agent,


 


DEUTSCHE BANK
AG NEW YORK BRANCH, 

as US Dual Currency RCF Agent,


 


DEUTSCHE BANK
AG CANADA BRANCH, 

as Canadian Agent,


 


and


 


LEHMAN
COMMERCIAL PAPER INC.,

as Administrative Agent


 


Dated as of October 12, 2007




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1. 

  	
   

  	
  DEFINITIONS 

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Defined Terms

  	
  1

  
	
  1.2

  	
   

  	
  Other Definitional Provisions

  	
  42

  
	
  1.3

  	
   

  	
  Exchange Rates; Currency Equivalents

  	
  42

  
	
  1.4

  	
   

  	
  Dual Currency RCF Letter of Credit Amounts

  	
  43

  
	
  1.5

  	
   

  	
  Canadian Loan Currencies

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
   

  	
  AMOUNT AND TERMS OF COMMITMENTS

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Term Loan Commitments

  	
  43

  
	
  2.2

  	
   

  	
  Procedure for Term Loan Borrowing

  	
  44

  
	
  2.3

  	
   

  	
  Repayment of Term Loans

  	
  44

  
	
  2.4

  	
   

  	
  US Dollar RCF Commitments and Dual Currency RCF Commitments

  	
  47

  
	
  2.5

  	
   

  	
  Procedure for US Dollar Revolving Credit Facility Borrowings and Dual
  Currency Revolving Credit Facility Borrowings

  	
  48

  
	
  2.6

  	
   

  	
  Swing Line Commitment

  	
  49

  
	
  2.7

  	
   

  	
  Procedure for Swing Line Borrowing; Refunding of Swing Line Loans

  	
  50

  
	
  2.8

  	
   

  	
  Repayment of Loans; Evidence of Debt

  	
  51

  
	
  2.9

  	
   

  	
  Commitment Fees, etc

  	
  54

  
	
  2.10

  	
   

  	
  Termination or Reduction of Revolving Credit Commitments

  	
  55

  
	
  2.11

  	
   

  	
  Optional Prepayments

  	
  55

  
	
  2.12

  	
   

  	
  Mandatory Prepayments and Commitment Reductions

  	
  56

  
	
  2.13

  	
   

  	
  Conversion and Continuation Options

  	
  59

  
	
  2.14

  	
   

  	
  Minimum Amounts and Maximum Number of Eurodollar Tranches

  	
  60

  
	
  2.15

  	
   

  	
  Interest Rates and Payment Dates

  	
  61

  
	
  2.16

  	
   

  	
  Computation of Interest and Fees

  	
  62

  
	
  2.17

  	
   

  	
  Inability to Determine Interest Rate

  	
  63

  
	
  2.18

  	
   

  	
  Pro Rata Treatment and Payments

  	
  63

  
	
  2.19

  	
   

  	
  Requirements of Law

  	
  67

  
	
  2.20

  	
   

  	
  Taxes

  	
  68

  
	
  2.21

  	
   

  	
  Indemnity

  	
  70

  
	
  2.22

  	
   

  	
  Illegality

  	
  71

  
	
  2.23

  	
   

  	
  Change of Lending Office

  	
  72

  
	
  2.24

  	
   

  	
  Replacement of Lenders under Certain Circumstances

  	
  72

  
	
  2.25

  	
   

  	
  Incremental Credit Extensions

  	
  72

  
	
  2.26

  	
   

  	
  Bankers’ Acceptances.

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3. 

  	
   

  	
  US DOLLAR RCF LETTERS OF CREDIT AND DUAL CURRENCY RCF LETTERS OF
  CREDIT

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  US Dollar RCF L/C Commitments and Dual Currency RCF L/C Commitments

  	
  77

  



 


i

















 


	
  3.2

  	
   

  	
  Procedure for Issuance of US Dollar RCF Letters of Credit and Dual
  Currency RCF Letters of Credit

  	
  78

  
	
  3.3

  	
   

  	
  Fees and Other Charges

  	
  79

  
	
  3.4

  	
   

  	
  L/C Participations and Canadian L/C Participations

  	
  80

  
	
  3.5

  	
   

  	
  US Dollar RCF Reimbursement Obligations and Dual Currency RCF Reimbursement
  Obligations

  	
  82

  
	
  3.6

  	
   

  	
  Obligations Absolute

  	
  83

  
	
  3.7

  	
   

  	
  US Dollar RCF Letter of Credit Payments and Dual Currency RCF Letter
  of Credit Payments

  	
  84

  
	
  3.8

  	
   

  	
  Applications

  	
  85

  
	
  3.9

  	
   

  	
  Records

  	
  85

  
	
  3.10

  	
   

  	
  No Liability

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4. 

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Financial Condition

  	
  86

  
	
  4.2

  	
   

  	
  No Change

  	
  87

  
	
  4.3

  	
   

  	
  Corporate Existence; Compliance with Law

  	
  87

  
	
  4.4

  	
   

  	
  Corporate Power; Authorization; Enforceable Obligations

  	
  88

  
	
  4.5

  	
   

  	
  No Legal Bar

  	
  88

  
	
  4.6

  	
   

  	
  No Material Litigation

  	
  88

  
	
  4.7

  	
   

  	
  No Default

  	
  88

  
	
  4.8

  	
   

  	
  Ownership of Property; Liens

  	
  89

  
	
  4.9

  	
   

  	
  Intellectual Property

  	
  89

  
	
  4.10

  	
   

  	
  Taxes

  	
  89

  
	
  4.11

  	
   

  	
  Federal Regulations

  	
  89

  
	
  4.12

  	
   

  	
  Labor Matters

  	
  89

  
	
  4.13

  	
   

  	
  ERISA

  	
  90

  
	
  4.14

  	
   

  	
  Investment Company Act; Other Regulations

  	
  91

  
	
  4.15

  	
   

  	
  Subsidiaries

  	
  91

  
	
  4.16

  	
   

  	
  Use of Proceeds.

  	
  91

  
	
  4.17

  	
   

  	
  Environmental Matters

  	
  91

  
	
  4.18

  	
   

  	
  Accuracy of Information, etc

  	
  92

  
	
  4.19

  	
   

  	
  Security Documents

  	
  93

  
	
  4.20

  	
   

  	
  Solvency

  	
  94

  
	
  4.21

  	
   

  	
  Regulation H

  	
  94

  
	
  4.22

  	
   

  	
  Insurance

  	
  94

  
	
  4.23

  	
   

  	
  Patriot Act, etc

  	
  94

  
	
  4.24

  	
   

  	
  Acquisition Documentation

  	
  94

  
	
  4.25

  	
   

  	
  Real Estate

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5. 

  	
   

  	
  CONDITIONS PRECEDENT

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Conditions to Initial Extension of Credit

  	
  95

  
	
  5.2

  	
   

  	
  Conditions to Each Extension of Credit

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6. 

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
  99

  



 


ii

















 


	
  6.1

  	
   

  	
  Financial Statements

  	
  99

  
	
  6.2

  	
   

  	
  Certificates; Other Information

  	
  100

  
	
  6.3

  	
   

  	
  Payment of Obligations

  	
  102

  
	
  6.4

  	
   

  	
  Conduct of Business and Maintenance of Existence, etc

  	
  102

  
	
  6.5

  	
   

  	
  Maintenance of Property; Insurance

  	
  102

  
	
  6.6

  	
   

  	
  Inspection of Property; Books and Records; Discussions

  	
  102

  
	
  6.7

  	
   

  	
  Notices

  	
  103

  
	
  6.8

  	
   

  	
  Environmental Laws

  	
  104

  
	
  6.9

  	
   

  	
  [Reserved]

  	
  104

  
	
  6.10

  	
   

  	
  Additional Collateral, etc

  	
  104

  
	
  6.11

  	
   

  	
  Use of Proceeds

  	
  106

  
	
  6.12

  	
   

  	
  ERISA Documents

  	
  106

  
	
  6.13

  	
   

  	
  Further Assurances

  	
  106

  
	
  6.14

  	
   

  	
  Maintenance of Ratings

  	
  107

  
	
  6.15

  	
   

  	
  Post-Closing Requirements

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7. 

  	
   

  	
  NEGATIVE COVENANTS

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Consolidated Senior Secured Debt Ratio

  	
  109

  
	
  7.2

  	
   

  	
  Limitation on Indebtedness

  	
  109

  
	
  7.3

  	
   

  	
  Limitation on Liens

  	
  112

  
	
  7.4

  	
   

  	
  Limitation on Fundamental Changes

  	
  115

  
	
  7.5

  	
   

  	
  Limitation on Disposition of Property

  	
  115

  
	
  7.6

  	
   

  	
  Limitation on Restricted Payments

  	
  116

  
	
  7.7

  	
   

  	
  Limitation on Capital Expenditures

  	
  117

  
	
  7.8

  	
   

  	
  Limitation on Investments

  	
  118

  
	
  7.9

  	
   

  	
  Limitation on Optional Payments and Modifications of Debt Instruments
  Governing Documents

  	
  121

  
	
  7.10

  	
   

  	
  Limitation on Transactions with Affiliates

  	
  121

  
	
  7.11

  	
   

  	
  Limitation on Sales and Leasebacks

  	
  121

  
	
  7.12

  	
   

  	
  Limitation on Changes in Fiscal Periods

  	
  122

  
	
  7.13

  	
   

  	
  Limitation on Negative Pledge Clauses

  	
  122

  
	
  7.14

  	
   

  	
  Limitation on Restrictions on Subsidiary Distributions

  	
  122

  
	
  7.15

  	
   

  	
  Limitation on Lines of Business

  	
  123

  
	
  7.16

  	
   

  	
  Limitation on Amendments to Acquisition Documentation

  	
  123

  
	
  7.17

  	
   

  	
  Limitation on Issuance of Capital Stock

  	
  123

  
	
  7.18

  	
   

  	
  Limitation on Activities of Canadian Holding Companies and Dormant
  Subsidiaries

  	
  124

  
	
  7.19

  	
   

  	
  Limitation on Hedge Agreements

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8. 

  	
   

  	
  EVENTS OF DEFAULT

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9. 

  	
   

  	
  THE AGENTS; THE ARRANGERS

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Appointment

  	
  129

  
	
  9.2

  	
   

  	
  Delegation of Duties

  	
  129

  



 


iii

















 


	
  9.3

  	
   

  	
  Exculpatory Provisions

  	
  129

  
	
  9.4

  	
   

  	
  Reliance by Agents

  	
  129

  
	
  9.5

  	
   

  	
  Notice of Default

  	
  130

  
	
  9.6

  	
   

  	
  Non-Reliance on the Arrangers, the Agents and Other Lenders

  	
  130

  
	
  9.7

  	
   

  	
  Indemnification

  	
  131

  
	
  9.8

  	
   

  	
  Arrangers and Agents in their Individual Capacities

  	
  131

  
	
  9.9

  	
   

  	
  Successor Administrative Agent

  	
  131

  
	
  9.10

  	
   

  	
  Authorization to Release Liens and Guarantees

  	
  132

  
	
  9.11

  	
   

  	
  The Arrangers and the Syndication Agent

  	
  132

  
	
  9.12

  	
   

  	
  Withholding Tax.

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10. 

  	
   

  	
  MISCELLANEOUS

  	
  133

  
	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Amendments and Waivers

  	
  133

  
	
  10.2

  	
   

  	
  Notices

  	
  135

  
	
  10.3

  	
   

  	
  No Waiver; Cumulative Remedies

  	
  137

  
	
  10.4

  	
   

  	
  Survival of Representations and Warranties

  	
  137

  
	
  10.5

  	
   

  	
  Payment of Expenses

  	
  137

  
	
  10.6

  	
   

  	
  Successors and Assigns; Participations and Assignments.

  	
  138

  
	
  10.7

  	
   

  	
  Adjustments; Set-Off.

  	
  143

  
	
  10.8

  	
   

  	
  Counterparts

  	
  143

  
	
  10.9

  	
   

  	
  Severability

  	
  143

  
	
  10.10

  	
   

  	
  Integration

  	
  144

  
	
  10.11

  	
   

  	
  GOVERNING LAW

  	
  144

  
	
  10.12

  	
   

  	
  Submission To Jurisdiction; Waivers

  	
  144

  
	
  10.13

  	
   

  	
  Acknowledgments

  	
  144

  
	
  10.14

  	
   

  	
  Confidentiality

  	
  145

  
	
  10.15

  	
   

  	
  [Reserved]

  	
  145

  
	
  10.16

  	
   

  	
  Release of Collateral and Guarantee Obligations.

  	
  145

  
	
  10.17

  	
   

  	
  Accounting Changes

  	
  146

  
	
  10.18

  	
   

  	
  [Reserved]

  	
  146

  
	
  10.19

  	
   

  	
  WAIVERS OF JURY TRIAL

  	
  146

  
	
  10.20

  	
   

  	
  Judgment Currency.

  	
  146

  



 


iv

















 


	
  ANNEXES:

  	
   

  
	
   

  	
   

  
	
  A

  	
  Pricing Grid

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  
	
  1.1A

  	
  Commitments

  
	
  1.1B

  	
  Mortgaged
  Property

  
	
  1.1C

  	
  Synergies

  
	
  1.1D

  	
  Dormant
  Subsidiaries

  
	
  4.8

  	
  Ownership of
  Property

  
	
  4.9

  	
  Intellectual
  Property

  
	
  4.13

  	
  ERISA
  Matters

  
	
  4.15

  	
  Subsidiaries

  
	
  4.19(a)-1

  	
  UCC Filing
  Jurisdictions

  
	
  4.19(a)-2

  	
  UCC
  Financing Statements to be Terminated

  
	
  4.19(b)

  	
  Mortgage
  Filing Jurisdictions

  
	
  4.22

  	
  Insurance

  
	
  4.25

  	
  Owned and
  Leased Property

  
	
  7.2(d)

  	
  Existing
  Indebtedness

  
	
  7.3(f)

  	
  Existing
  Liens

  
	
  7.5(f)

  	
  Scheduled
  Dispositions

  
	
  7.13

  	
  Existing
  Negative Pledges

  
	
  8(g)(i)

  	
  Required
  Payments to Employee Welfare Benefits Plans

  
	
  8.(g)(ii)

  	
  Required
  Payments to Multiemployer Plans

  
				



 


	
  EXHIBITS:

  
	
   

  	
   

  
	
  A

  	
  Form of
  Guarantee and Collateral Agreement

  
	
  B

  	
  Form of
  Compliance Certificate

  
	
  C

  	
  Form of
  Closing Certificate

  
	
  D

  	
  [Reserved]

  
	
  E-1

  	
  Form of
  General Assignment and Acceptance

  
	
  E-2

  	
  Form of
  Alternate Currency Facilities Assignment and Acceptance

  
	
  F-1

  	
  Form of
  Legal Opinion of Bell, Boyd & Lloyd LLP

  
	
  F-2

  	
  Form of
  Legal Opinion of Victor Cassini, General Counsel of the US Borrower

  
	
  G-1

  	
  Form of
  Initial US Term Note

  
	
  G-2

  	
  Form of US
  Dollar RCF Note

  
	
  G-3

  	
  Form of
  Swing Line Note

  
	
  G-4

  	
  Form of
  Incremental US Term Note

  
	
  G-5

  	
  Form of US
  Borrower Dual Currency RCF Note

  
	
  G-6

  	
  Form of
  Canadian Term Note

  
	
  G-7

  	
  Form of
  Canadian Borrower Dual Currency RCF Note

  
	
  H-1

  	
  Form of
  Canadian Intercompany Note

  
	
  H-2

  	
  Form of
  Canadian Intercompany Collateral Agreements

  
	
  I

  	
  Form of Exemption
  Certificate

  
	
  K-1

  	
  Form of
  General Borrowing Notice

  
	
  K-2

  	
  Form of
  Alternate Currency Facilities Borrowing Notice

  
	
  L

  	
  Form of
  Solvency Certificate

  



 

















 


	
  M

  	
  Form of
  Subordinated Intercompany Note

  
	
  N

  	
  Form of
  Discount Note

  



 

















 


CREDIT AGREEMENT, dated as of October 12,
2007, among LKQ Corporation, a Delaware corporation (the “US Borrower”),
LKQ Delaware LLP, a Delaware limited liability partnership having two Alberta
unlimited liability companies as its partners (the “Canadian Borrower”),
the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”), LEHMAN BROTHERS INC. and
DEUTSCHE BANK SECURITIES INC., as joint lead arrangers and joint bookrunners
(in such capacity, the “Arrangers”), DEUTSCHE BANK SECURITIES INC., as
syndication agent (in such capacity, the “Syndication Agent”), LEHMAN
COMMERCIAL PAPER INC., as administrative agent (in such capacity, the “Administrative
Agent”), DEUTSCHE BANK AG NEW YORK BRANCH, as US sub-agent in respect of
the Dual Currency Revolving Credit Facility referred to herein (in such
capacity, the “US Dual Currency RCF Agent”) and DEUTSCHE BANK AG CANADA
BRANCH (“DB Canada”), as Canadian sub-agent in respect of the Canadian
Term Loan Facility and the Dual Currency Revolving Credit Facility (in such
capacity, the “Canadian Agent” and, together with the Administrative
Agent and the US Dual Currency RCF Agent, the “Facility Agents”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, each Borrower has requested that the
Lenders make certain credit facilities available to such Borrower in order to
finance the Acquisition and/or for the other purposes set forth herein;


 


WHEREAS, the Lenders are willing to make such
credit facilities available upon and subject to the terms and conditions
hereinafter set forth;


 


NOW, THEREFORE, in consideration of the
premises and the agreements hereinafter set forth, the parties hereto hereby
agree as follows:


 


SECTION 1. DEFINITIONS


 


1.1           Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.


 


“Acceptance Fee”:  a fee payable by the Canadian Borrower with
respect to the acceptance of a Bankers’ Acceptance by a Canadian Lender under
this Agreement, as provided in Section 2.15(d), and as such fee is set forth in
the definition of “Applicable Margin”.


 


“Acquired Person or Business”: either
(x) the assets constituting a business, division or product line of any Person
not already a Subsidiary of the US Borrower acquired by the US Borrower or a
Subsidiary or (y) any such Person which shall, as a result of the acquisition
of the Capital Stock of such Person, become a Subsidiary of the US Borrower (or
shall be merged or amalgamated with and into the US Borrower or another
Subsidiary of the US Borrower, with the US Borrower or such Subsidiary being
the surviving or continuing Person).


 


“Acquisition”:  as defined in Section 5.1(b)(i).


 

















 


“Acquisition
Agreement”:  the Agreement and Plan
of Merger, dated as of July 16, 2007, by and among Target, LKQ Acquisition
Company (“Merger Sub”) and the US Borrower, as the same may be amended,
supplemented, replaced or otherwise modified from time to time in accordance
with the terms thereof and this Agreement.


 


“Acquisition Documentation”:
collectively, the Acquisition Agreement and all schedules, exhibits, annexes
and amendments thereto and all side letters and agreements affecting the terms
thereof or entered into in connection therewith, in each case, as amended,
supplemented, replaced or otherwise modified from time to time in accordance
with the terms thereof and this Agreement.


 


“Adjustment Date”:  as defined in the Pricing Grid.


 


“Administrative Agent”:  as defined in the preamble hereto.


 


“Administrative Agent’s Funding Office”:  the office specified from time to time by the
Administrative Agent as its funding office by notice to the US Borrower and the
US Dollar-Denominated Facility Lenders.


 


“Administrative Agent’s Payment Office”:  the office specified from time to time by the
Administrative Agent as its payment office by notice to the US Borrower and the
US Dollar-Denominated Facility Lenders.


 


“Additional Lender”: as defined in
Section 2.25(b).


 


“Adjusted
Excess Cash Flow” shall mean, for any period, the remainder of (i) Excess
Cash Flow for such period minus (ii) the product of (I) the aggregate
amount of all prepayments of Revolving Credit Loans and Swing Line Loans during
such period (to the extent accompanying permanent optional reductions of the
Revolving Credit Commitments) and all optional prepayments of the Term Loans
during such period, in any such case except to the extent financed with the
proceeds of asset sales, sales or issuances of Capital Stock, insurance or
Indebtedness during such period multiplied by (II) the quotient of (x)
100% divided by (y) the ECF Percentage in effect on the relevant Excess
Cash Flow Application Date for such period.


 


“Affiliate”:  as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, “control” of a
Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b)
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.


 


“Agents”:  the collective reference to the Facility
Agents and the Syndication Agent.


 


“Aggregate Consideration” shall mean,
with respect to any Permitted Acquisition, the sum (without duplication) of (i)
the aggregate amount of all cash paid (or to be paid) by the US Borrower or any
of its Subsidiaries in connection with such Permitted Acquisition (including,
without limitation, payments of fees and costs and expenses in connection
therewith) and all 


 


2

















 


contingent
cash purchase price, earn-out, non-compete and other similar obligations of the
US Borrower and its Subsidiaries incurred and reasonably expected to be
incurred in connection therewith (as determined in good faith by the US
Borrower), (ii) the aggregate principal amount of all Indebtedness assumed,
incurred, refinanced and/or issued in connection with such Permitted
Acquisition to the extent permitted by Section 7.2, and (iii) the Fair Market
Value of all other consideration (other than the US Borrower’s common stock)
payable in connection with such Permitted Acquisition.


 


“Aggregate Exposure”:  with respect to any Lender at any time, an
amount equal to (a) until the Closing
Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (i) the aggregate
then unpaid Principal Amount of such Lender’s Term Loans and (ii) the amount of
such Lender’s Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the amount of such Lender’s Revolving
Extensions of Credit then outstanding.


 


“Aggregate Exposure Percentage”:  with respect to any Lender at any time, the
ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such
time to the sum of the Aggregate Exposures of all Lenders at such time.


 


“Agreement”:  this Credit Agreement, as amended,
supplemented, replaced or otherwise modified from time to time.


 


“Alternate Currency Facilities”:  (a) the
Canadian Term Loan Commitments and the Canadian Term Loans made thereunder and
(b) the Dual Currency RCF Commitments and
the extensions of credit made thereunder.


 


“Alternate Currency Facilities Assignment
and Acceptance”:  as defined in
Section 10.6(c).


 


“Alternate Currency Facilities Borrowing
Notice”:  with respect to any request
for borrowing of Canadian Term Loans or Dual Currency RCF Loans hereunder, a
notice from the US Borrower or Canadian Borrower, as applicable, substantially
in the form of, and containing the information prescribed by, Exhibit K-2,
delivered to each of the US Dual Currency RCF Agent and the Canadian Agent.


 


“Alternate Currency Facilities Lenders”:  the collective reference to the Canadian Term
Loan Lenders and the Dual Currency RCF Lenders.


 


“Alternate Currency Facilities Loans”:  the collective reference to the Canadian Term
Loans and the Dual Currency RCF Loans.


 


“Alternate Currency Facilities Register”:  as defined in Section 10.6(d).


 


“Applicable Margin”:  for each Type of Loan under each Facility,
the rate per annum set forth opposite such Facility under the relevant column
heading below:


 


3

















 


	
   

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  Eurodollar

  Loans

  	
   

  	
  Canadian

  Prime Rate

  Loans

  	
   

  	
  Acceptance

  Fee

  	
   

  
	
  US Dollar Revolving Credit Facility

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  Initial US Term Loan Facility

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  Canadian Term Loan Facility

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  Dual Currency Revolving Credit Facility

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  



 


provided, that on
and after the first Adjustment Date occurring after the completion of one full
fiscal quarter of the US Borrower after the Closing Date, the Applicable
Margins with respect to Revolving Credit Loans, Swing Line Loans and the
Acceptance Fee in respect of Canadian Borrower Dual Currency RCF Loans will be
determined pursuant to the Pricing Grid.


 


Notwithstanding anything to the contrary
contained above in this definition, the Pricing Grid or elsewhere in this
Agreement, if it is subsequently determined that the Consolidated Leverage
Ratio set forth in any Compliance Certificate delivered in connection with the
delivery of financial statements pursuant to Section 6.1 for any period is
inaccurate for any reason and the result thereof is that the Lenders received
interest or fees for any period based on an Applicable Margin that is less than
that which would have been applicable had the Consolidated Leverage Ratio been
accurately determined, then, for all purposes of this Agreement, the “Applicable
Margin” for any day occurring within the period covered by such Compliance
Certificate shall retroactively be deemed to be the relevant percentage as
based upon the accurately determined Consolidated Leverage Ratio for such
period, and any shortfall in the interest or fees theretofore paid by a
Borrower for the relevant period pursuant to Sections 2.9(a) and 2.15(a), (b),
(c) and (d) as a result of the miscalculation of the Consolidated Leverage
Ratio shall be deemed to be (and shall be) due and payable under the relevant
provisions of Section 2.9(a), 2.9(b) or 2.15(a), (b), (c) or (d), as
applicable, at the time the interest or fees for such period were required to
be paid pursuant to said Section on the same basis as if the Consolidated
Leverage Ratio had been accurately set forth in such Compliance Certificate
(and shall remain due and payable until paid in full, together with all amounts
owing under Sections 2.15(e) and (f), in accordance with the terms of this
Agreement).


 


“Application”:  an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.


 


“Arrangers”:  as defined in the preamble hereto.


 


“Asset Sale”:  any Disposition of Property or series of
related Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c), (d), (e), (f) and (h) of Section 7.5) which yields gross
proceeds to the US Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes
or other debt securities and valued at Fair Market Value in the case of other
non-cash proceeds) in excess of $1,000,000.


 


“Assignee”:  as defined in Section 10.6(c).


 


4

















 


“Assignment and Acceptance”:  the collective reference to the General
Assignment and Acceptance and the Alternate Currency Facilities Assignment and
Acceptance.


 


“Assignor”:  as defined in Section 10.6(c).


 


“Attributable Debt”:  in respect of any Sale-Leaseback Transaction,
at the time of determination, the present value (discounted at the rate of
interest then borne by the Initial Term Loans and compounded annually,
determined in accordance with GAAP) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
Sale-Leaseback Transaction (including any period for which such lease has been
extended); provided that if such Sale-Leaseback Transaction results in a
Capital Lease Obligation, the amount of Indebtedness represented thereby will
be determined in accordance with the definition of “Capital Lease
Obligations” set forth in this Section 1.1.


 


“Authorized Foreign Bank”:  a Lender which is an “authorized foreign bank”,
as defined in Section 2 of the Bank Act (Canada) and Section 248 of
the Income Tax Act (Canada), which holds Loans to the Canadian Borrower
hereunder and receives all amounts payable by the Canadian Borrower as part of
its “Canadian banking business”, for purposes of the Income Tax Act (Canada),
with the result that such Lender is deemed to be resident in Canada for
purposes of Part XIII of the Income Tax Act (Canada), in respect of any
amount paid or credited or to be paid or credited by the Canadian Borrower to
such Lender.


 


“Available Dual Currency RCF Commitment”:
with respect to any Dual Currency RCF Lender at any time, an amount equal to
the excess, if any, of (a) such Lender’s
Dual Currency RCF Commitment then in effect over (b) such Lender’s Dual Currency RCF Extensions
of Credit then outstanding.


 


“Available US Dollar RCF Commitment”:  with respect to any US Dollar RCF Lender at
any time, an amount equal to the excess, if any, of (a) such Lender’s US Dollar RCF Commitment then in effect over
(b) such Lender’s US Dollar RCF
Extensions of Credit then outstanding; provided, that in calculating any
Lender’s US Dollar RCF Extensions of Credit for the purpose of determining such
Lender’s Available US Dollar RCF Commitment pursuant to Section 2.9(a), the
aggregate principal amount of Swing Line Loans then outstanding shall be deemed
to be zero.


 


“BA
Equivalent Loan”:  a Canadian
Borrower Loan made by a Non-BA Lender evidenced by a Discount Note.


 


“BA Loan”:  a Canadian Borrower Loan made by way of the
issuance of Bankers’ Acceptances.


 


“Bankers’ Acceptance” and “B/A”
each means a bill of exchange, including a depository bill issued in accordance
with the Depository Bills and Notes Act (Canada), denominated in Canadian
Dollars, drawn by the Canadian Borrower and accepted by a Canadian Lender and
includes a Discount Note.


 


“Base Rate”:  for any day, a rate per annum equal to the
greater of (x) the US Prime Rate in
effect on such day and (y) the Federal Funds Effective Rate in effect on such
day


 


5

















 


plus 1⁄2 of 1%.
Any change in the Base Rate due to a change in the US Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the US Prime Rate or the Federal Funds
Effective Rate, respectively.


 


“Base Rate Loans”:  Loans for which the applicable rate of
interest is based upon the Base Rate.


 


“Benefited Lender”:  as defined in Section 10.7.


 


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


 


“Borrowers”:  the US Borrower and the Canadian Borrower.


 


“Borrowing Date”:  any Business Day specified by the relevant
Borrower in a Borrowing Notice as a date on which the relevant Lenders are
requested to make Loans hereunder.


 


“Borrowing Notice”:  a General Borrowing Notice and/or an
Alternate Currency Facilities Borrowing Notice, as the context may require.


 


“Business Day”:  (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close
and (b) (x) with respect to all notices and determinations in connection with,
and payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in Dollar deposits or Canadian Dollar deposits, as applicable, in
the interbank eurodollar market and (y) with respect to all notices,
disbursements or payments by or to the Canadian Agent or the Canadian Borrower
with respect to a Canadian Term Loan, Canadian Borrower Dual Currency RCF Loan
or Dual Currency RCF Letter of Credit, any day other than a Saturday, Sunday or
other day on which commercial banks in Toronto, Canada are authorized or
required by law to close.


 


“Calculation Period” shall mean, with
respect to any Specified Transaction, the Test Period most recently ended prior
to the date of such Specified Transaction for which financial statements have
been delivered to the Lenders pursuant to this Agreement.


 


“Canadian Agent”: as defined in the
preamble hereto.


 


“Canadian Agent’s Funding Office”:  the office specified from time to time by the
Canadian Agent as its funding office by notice to the Alternate Currency
Facilities Lenders.


 


“Canadian Agent’s Payment Office”:  the office specified from time to time by the
Canadian Agent as its payment office by notice to the Canadian Borrower and the
Alternate Currency Facilities Lenders.


 


“Canadian Bank”:  a Lender which is resident in Canada for
purposes of the Income Tax Act (Canada).


 


6

















 


“Canadian
Borrower”: as defined in the preamble hereto.


 


“Canadian Borrower Dual Currency RCF Loans”:  as defined in Section 2.4(b).


 


“Canadian Borrower Dual Currency RCF Note”:  as defined in Section 2.8(h).


 


“Canadian Borrower Facilities”:  (a) the
Canadian Term Loan Commitments and the Canadian Term Loans made thereunder and
(b) the Dual Currency RCF Commitments
made available to the Canadian Borrower and the extensions of credit made
thereunder.


 


“Canadian Borrower Loans”  the collective reference to the Canadian Term
Loans and the Canadian Borrower Dual Currency RCF Loans.


 


“Canadian Borrower Replacement Term Loans”:
as defined in Section 6.15(b).


 


“Canadian Branch”:  the Canadian branch or office of a Canadian
Term Loan Lender or Dual Currency RCF Lender, which branch or office makes
loans in Canadian Dollars of the type being made hereunder in Canada, it being
understood that such Canadian branch or office shall hold all Loans to the
Canadian Borrower hereunder and receive all amounts payable by the Canadian
Borrower hereunder or under the other Loan Documents as part of such Canadian
Term Loan Lender’s or Dual Currency RCF Lender’s “Canadian banking business”,
for purposes of the Income Tax Act (Canada), with the result that the
applicable Canadian Term Loan Lender or Dual Currency RCF Lender, as the case
may be, is deemed to be resident in Canada for the purposes of Part XIII
of the Income Tax Act (Canada), in respect of any amount paid or credited or to
be paid or credited to such Canadian Term Loan Lender or Dual Currency RCF
Lender, as the case may be, hereunder.


 


“Canadian Dollars” and “CDN$”:  lawful currency of Canada.


 


“Canadian Holding Companies”:  collectively, (i) LKQ Ontario LP, a limited
partnership organized under the laws of the province of Ontario, (ii) 1323352
Alberta ULC, an unlimited liability company organized under the laws of the
province of Alberta, (iii) 1323410 Alberta ULC, an unlimited liability company
organized under the laws of the province of Alberta and (iv) 1323342 Alberta
ULC, an unlimited liability company organized under the laws of the province of
Alberta.


 


“Canadian Intercompany Collateral
Agreement”:  each Canadian
Intercompany Collateral Agreement to be executed and delivered by each of
1323342 Alberta ULC, LKQ Dominion Auto Recycling Inc. and LKQ Pintendre Autos
Inc., substantially in the form of Exhibit H-2, as the same may be amended,
restated, supplemented, replaced and/or otherwise modified from time to time.


 


“Canadian Intercompany Loan Documents”:  each Canadian Intercompany Note and each
Canadian Intercompany Collateral Agreement.


 


“Canadian Intercompany Notes”:  each Canadian Intercompany Note to be
executed and delivered by 1323342 Alberta ULC, LKQ Dominion Auto Recycling Inc.
and LKQ


 


7

















 


Pintendre
Autos Inc., substantially in the form of Exhibit H-1, as the same may be
amended, restated, supplemented, replaced and/or otherwise modified from time
to time.


 


“Canadian Lenders”:  the collective reference to (a) with respect
to the Dual Currency RCF Commitments made available to the Canadian Borrower
and the extensions of credit thereunder, the Dual Currency RCF Lenders and (b)
the Canadian Term Loan Lenders.


 


“Canadian Prime Rate” means, for any
day, the rate per annum of interest publicly quoted or established as the “prime
rate” of DB Canada as its reference rate of interest in order to determine
rates of interest for commercial loans in Canadian Dollars to its Canadian
borrowers. The Canadian Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually available.


 


“Canadian Prime Rate Loans”:  Canadian Borrower Loans in respect of which
the Canadian Borrower is obligated to pay interest in accordance with Section
2.15(c) at the Canadian Prime Rate plus the Applicable Margin.


 


“Canadian Subsidiary”:  any Subsidiary of the US Borrower organized
under the laws of Canada or any province or territory thereof.


 


“Canadian Term Loan”:  as defined in Section 2.1(b).


 


“Canadian Term Loan Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make a Canadian Term Loan to the Canadian Borrower hereunder
in a principal amount not to exceed the amount set forth under the heading “Canadian
Term Loan Commitment” opposite such Lender’s name on Schedule 1.1A hereto, or,
as the case may be, in the Alternate Currency Facilities Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Canadian Term Loan Commitments is CDN$40,000,000.


 


“Canadian Term Loan Facility”:  as defined in the definition of “Facility” in
this Section 1.1.


 


“Canadian Term Loan Lender”:  each Lender that has a Canadian Term Loan
Commitment or is the holder of a Canadian Term Loan, it being understood that
(i) each such Lender shall be a Canadian Bank with a US Branch or, if not a
Canadian Bank, an Authorized Foreign Bank and (ii) with respect to the
Commitments to be made available to the Canadian Borrower under the Canadian
Term Loan Facility, the Canadian Term Loans and all interest, fees,
indemnities, costs, expenses and other Obligations owing by the Canadian
Borrower in connection with the Canadian Term Loan Facility, and for all other
related purposes hereunder (as the context may require), the term “Canadian
Term Loan Lender” shall refer to such Canadian Term Loan Lender’s Canadian
Branch (if such Canadian Term Loan Lender is an Authorized Foreign Bank) or
such Canadian Term Loan Lender’s US Branch (if such Canadian Term Loan Lender
is a Canadian Bank).


 


“Canadian Term Loan Percentage”:  as to any Canadian Term Loan Lender at any
time, the percentage which such Lender’s Canadian Term Loan Commitment then
constitutes of


 


8

















 


the aggregate
Canadian Term Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender’s Canadian Term
Loans then outstanding constitutes of the aggregate principal amount of the
Canadian Term Loans then outstanding).


 


“Canadian Term Notes”:  as defined in Section 2.8(h).


 


“Capital Expenditures”:  for any period, with respect to any Person,
the aggregate of all expenditures made by such Person during such period for
the acquisition or leasing (pursuant to a capital lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) which are required to be capitalized under
GAAP for such period on a balance sheet of such Person.


 


“Capital Lease Obligations”:  with respect to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in accordance
with GAAP.


 


“Capital Stock”:  any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.


 


“Cash Collateral Account”:  an account specifically established by the
applicable Borrower with a Facility Agent on terms and conditions reasonably
satisfactory to such Facility Agent, over which the Facility Agent shall have
exclusive dominion and control and a first priority security interest over all
amounts at any time on deposit in such account, including the right of
withdrawal.


 


“Cash Equivalents”:  (a)
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by Standard
& Poor’s Ratings Services (“S&P”) or P-2 by Moody’s Investors
Service, Inc. (“Moody’s”), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term of
not more than 30 days with respect to securities issued or fully guaranteed or
insured by the United States government; (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any


 


9

















 


political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as
the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or
less  from the date of acquisition backed
by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition; and (h) in the case of the Canadian
Borrower or any Canadian Subsidiary only, cash equivalents satisfying the
requirements of clauses (a), (b), (e), (f) or (g) of this definition (but for
such purpose, treating references therein to the United States government or
any such state, commonwealth or territory thereof as a reference to the
government of Canada or any province thereof).


 


“CDOR Rate”:  for any day, the average of the annual rates
for Bankers’ Acceptances having the same specified term and face amount as the
Canadian Borrower Loan to be made (or a term and face amount as closely as
possible comparable to such specified term and face amount) that is reported by
the Reuters Screen CDOR Page as of 10:00 a.m. on such day (or, if such day is
not a Business Day, as of 10:00 a.m. (Toronto time) on the next preceding
Business Day), provided that if such rate is not reported by the Reuters
Screen CDOR Page at such time on such date, CDOR Rate for such date will be the
annual discount rate of interest (rounded upward to the nearest whole multiple
of 1/100 of 1%) as of 10:00 a.m. (Toronto time) on such date at which the
average of the five largest (by assets) Canadian chartered banks are then
offering to purchase bankers’ acceptances accepted by it having a comparable
aggregate face amount and identical maturity date to the aggregate face amount
and maturity date of such BA Loans or BA Equivalent Loans.


 


“Change of Control”:  the occurrence of any of the following
events:   (a)  any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), but excluding
the Flynn Group (and excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan), shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become, the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 30% of the outstanding common stock of the
US Borrower; (b) the board of directors of the US Borrower shall cease to
consist of a majority of Continuing Directors; or (c) a Specified Change of
Control.


 


“Closing Date”:  the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied.


 


“Closing Date Material Adverse Effect”:  a “Company Material Adverse Effect” (as
defined in the Acquisition Agreement).


 


“Code”:  the Internal Revenue Code of 1986, as amended
from time to time.


 


“Collateral”:  all Property of the Loan Parties, now owned
or hereafter acquired, upon which a Lien is purported to be created by any
Security Document.


 


10

















 


“Commitment”:  with respect to any Lender, the sum of the
Initial US Term Loan Commitment, the Canadian Term Loan Commitment and the Revolving
Credit Commitments of such Lender.


 


“Commitment Fee Rate”:  1⁄2 of 1% per annum; provided, that on
and after the first Adjustment Date occurring after the completion of one full
fiscal quarter of the US Borrower after the Closing Date, the Commitment Fee
Rate will be determined pursuant to the Pricing Grid.


 


“Common
Equity Financing” shall have the meaning provided in Section 5.1(b)(ii).


 


“Common
Equity Financing Documents”: the Form S-1, the Rule 424(b) Prospectus, the
Underwriting Agreement, dated as of September 19, 2007, among the US Borrower,
the underwriters named therein and the selling shareholders named therein, and
the “Declaration of Effectiveness” from the SEC.


 


“Commonly Controlled Entity”:  an entity, whether or not incorporated, that
is under common control with the US Borrower within the meaning of Section 4001
of ERISA or is part of a group that includes the US Borrower and that is
treated as a single employer under Section 414 of the Code.


 


“Compliance Certificate”:  a certificate duly executed by a Responsible
Officer, substantially in the form of Exhibit B.


 


“Confidential Information Memorandum”:  the Confidential Information Memorandum dated
September 2007 and furnished to the initial Lenders in connection with the
syndication of the Facilities.


 


“Consolidated Current Assets”:  of any Person at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption “total current assets” (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries at such date.


 


“Consolidated Current Liabilities”:  of any Person at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption “total
current liabilities” (or any like caption) on a consolidated balance sheet of
such Person and its Subsidiaries at such date, but excluding, with respect to
the US Borrower, (a) the current portion of Funded Debt and (b) all
Indebtedness consisting of Revolving Credit Loans or Swing Line Loans.


 


“Consolidated EBITDA”:  of any Person for any period, Consolidated
Net Income of such Person and its Subsidiaries for such period plus,
without duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) Consolidated Interest Expense of such Person and its
Subsidiaries, amortization or write-off of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with Indebtedness,
(c) depreciation and amortization
expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any extraordinary expenses or losses
(including, whether or not otherwise


 


11

















 


includable as
a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business),
and (f) any other non-cash charges and
expenses, and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (a) any extraordinary
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business) and (b) any
other non-cash income, all as determined on a consolidated basis; provided
that for purposes of determining the Consolidated EBITDA of the US Borrower and
its consolidated Subsidiaries for any period, “Consolidated EBITDA” for such
period shall be determined as otherwise provided above and adjusted by adding
thereto (i) in the case of any period which includes any portion of any fiscal
quarter occurring prior to the Closing Date, the actual Consolidated EBITDA of
the Target and its Subsidiaries for such period (determined without regard to
the other adjustments set forth in this proviso), (ii) in the case of any
period which includes any portion of any fiscal quarter ending on or prior to
the last day of FQ4 2009, the aggregate amount of Transaction Restructuring
Charges actually recorded or accrued during such period, so long as (x) the
aggregate amount of all such Transaction Restructuring Charges added back pursuant
to this clause (ii) for all fiscal quarters ending on or prior to the last day
of FQ4 2009 does not exceed $20,000,000 (determined on a pre-tax basis) and (y)
the aggregate amount (and type) of Transaction Restructuring Charges incurred
or accrued during each fiscal quarter included in such period are identified in
the Compliance Certificate covering such period, (iii) in the case of any
period including the fiscal quarter of the US Borrower ended December 31, 2007,
the amount of all fees and expenses incurred in connection with the Transaction
during such fiscal quarter, (iv) the amount of net cost savings projected by
the US Borrower in good faith to be realized as a result of specified actions
commenced during such period in connection with the Transaction (calculated on
a pro  forma basis as though such cost savings had been realized
on the first day of such period), net of the amount of actual benefits realized
during such period from such actions, provided, however, that (A)
such cost savings are reasonably identifiable, factually supportable and
actually achievable (in the good faith judgment of the US Borrower) within 18
months of the first day of the first period in which such cost savings are
added back pursuant to this clause (iv), (B) such actions are completed within
36 months after the Closing Date, (C) no cost savings shall be added pursuant
to this clause (iv) to the extent duplicative of any expenses or charges
relating to such cost savings that are included in clause (ii) above with respect
to such period, and (D) the aggregate amount of all cost savings added pursuant
to this clause (iv) for all fiscal quarters included in all periods shall not
exceed the aggregate amount of synergies set forth on Schedule 1.1C, (v) any
Non-Specified Restructuring Charges and Adjustments of the US Borrower and its
Subsidiaries for such period, provided that the aggregate amount of
Non-Specified Restructuring Charges and Adjustments in any period, together
with the aggregate amount of Non-Regulation S-X Adjustments attributable to
such period, shall not exceed 5.0% of Consolidated EBITDA of the US Borrower
and its Subsidiaries (for such purposes, as determined as provided in this
definition without regard to this clause (v) but otherwise on a Pro  Forma
Basis to the extent provided herein) for such period and (vi) any
one-time write-up of inventory made in accordance with FASB 141 in connection
with the Acquisition during such period, so long as the aggregate amount added
back pursuant to this clause (vi) for all periods does not exceed $2,700,000.


 


“Consolidated Interest Expense”:  of any Person for any period, the sum of (x)
total interest expense (including that attributable to Capital Lease
Obligations) of such Person


 


12

















 


and its
Subsidiaries for such period with respect to all outstanding Indebtedness of
such Person and its Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed by such Person with
respect to letters of credit and bankers’ acceptance financing and net costs of
such Person under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with GAAP) minus
(y) interest income of such Person and its Subsidiaries for such period. Notwithstanding
anything to the contrary contained herein, for purposes of determining
Consolidated Interest Expense for any period ending prior to the first
anniversary of the Closing Date, Consolidated Interest Expense shall be an
amount equal to actual Consolidated Interest Expense from the Closing Date
through the date of determination multiplied by a fraction the numerator of
which is 365 and the denominator of which is the number of days from the
Closing Date through the date of determination.


 


“Consolidated Leverage Ratio”:  on any date of determination, the ratio of
(x) Consolidated Total Debt on such date to (y) Consolidated EBITDA of the US
Borrower and its Subsidiaries for the Test Period most recently ended on or
prior to such date; provided that (i) for purposes of any calculation of
the Consolidated Leverage Ratio pursuant to this Agreement, Consolidated EBITDA
of the US Borrower and its Subsidiaries shall be determined on a Pro  Forma
Basis in accordance with clause (iii) of the definition of “Pro  Forma
Basis” contained herein and (ii) for purposes of any calculation of the
Consolidated Leverage Ratio pursuant to Sections 7.2(f) and 7.2(g) and the
definition of “Permitted Acquisition Basket Amount” only, Consolidated Total
Debt shall be determined on a Pro  Forma Basis in accordance with
the requirements of the definition of “Pro  Forma Basis” contained
herein.


 


“Consolidated Net Income”:  of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the US Borrower and its
consolidated Subsidiaries for any period, there shall be excluded (a), except for determinations required to be
made on Pro Forma Basis, the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the US Borrower or is merged into
or consolidated with the US Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the US Borrower) in which the US Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the US Borrower or such Subsidiary in the form
of dividends or similar distributions and (c)
the undistributed earnings of any Subsidiary of the US Borrower to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary.


 


“Consolidated
Net Worth”: as at any date of determination, the stockholders’ equity of
the US Borrower determined in accordance with GAAP and as would be reflected on
a consolidated balance sheet of the US Borrower and its Subsidiaries prepared
as of such date.


 


“Consolidated Senior Secured Debt”:  at any date, Consolidated Total Debt at such
date secured by a Lien on any Property of the US Borrower or any of its
Subsidiaries.


 


“Consolidated Senior Secured Debt Ratio”:  on any date of determination, the ratio of
(x) Consolidated Senior Secured Debt on such date to (y) Consolidated EBITDA of
the


 


13
















 


US Borrower
and its Subsidiaries for the Test Period most recently ended on or prior to
such date; provided that (i) for purposes of any calculation of the
Consolidated Senior Secured Debt Ratio pursuant to this Agreement, Consolidated
EBITDA of the US Borrower and its Subsidiaries shall be determined on a Pro
Forma Basis in accordance with clause (iii) of the definition of “Pro
Forma Basis” contained herein and (ii) for purposes of any calculation
of the Consolidated Senior Secured Debt Ratio pursuant to Sections 7.2(f),
7.8(i) and 7.9(a) only, Consolidated Senior Secured Debt shall be determined on
a Pro  Forma Basis in accordance with the requirements of the
definition of “Pro  Forma Basis” contained herein.


 


 “Consolidated
Total Debt”:  at any date, the aggregate
principal amount of all Indebtedness of the US Borrower and its Subsidiaries
outstanding at such date, determined on a consolidated basis in accordance with
GAAP (it being understood, for avoidance of doubt, that the undrawn portion of
any outstanding Letters of Credit shall not be included in the determination of
“Consolidated Total Debt”).


 


“Consolidated Working Capital”:  at any date, the difference of (a)
Consolidated Current Assets of the US Borrower on such date less (b)
Consolidated Current Liabilities of the US Borrower on such date.


 


“Continuing Directors”:  the directors of the US Borrower on the
Closing Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director of 
the US Borrower, if, in each case, such other director’s nomination for
election to the board of directors of 
the US Borrower is recommended by at least a majority of the then
Continuing Directors.


 


“Contractual Obligation”:  with respect to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.


 


“Control Investment Affiliate”:  with respect to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, “control” of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.


 


“DB Canada”: as defined in the
preamble hereto.


 


“Default”:  any of the events specified in
Section 8, whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.


 


“Derivatives Counterparty”:  as defined in Section 7.6.


 


“Discount Note”:  a non-interest bearing promissory note denominated
in Canadian Dollars, substantially in the form of Exhibit N, issued by the
Canadian Borrower to a Non-BA Lender to evidence a BA Equivalent Loan.


 


14

















 


“Discount Proceeds”:  for any Bankers’ Acceptance issued hereunder,
an amount calculated on the applicable Borrowing Date by multiplying:


 


(a)           the
face amount of the Bankers’ Acceptance, by


 


(b)           the
quotient obtained by dividing:


 


(i)            one, by


 


(ii)           the sum of one plus the product of:


 


(A)                              the Discount Rate
applicable to the Bankers’ Acceptance, and


 


(B)                                a fraction, the
numerator of which is the applicable Interest Period and the denominator of
which is 365,


 


with the
quotient being rounded up or down to the fifth decimal place and .00005 being
rounded up.


 


“Discount Rate”:  (a) in respect of any Bankers’ Acceptance
accepted by a Canadian Lender that is a Schedule I Lender, the CDOR Rate for
the applicable period; and (b) in respect of any Bankers’ Acceptance accepted
by any other Canadian Lender, the CDOR Rate for the applicable period plus
..10%.


 


“Disposition”:  with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms “Dispose” and “Disposed of”
shall have correlative meanings.


 


“Dollar Equivalent”: at any time, (a)
with respect to any amount denominated in Dollars, such amount, and (b) with
respect to any amount denominated in Canadian Dollars, the equivalent amount
thereof in Dollars as determined by DB Canada or the Dual Currency RCF Issuing
Lender, as applicable, at such time on the basis of the Spot Rate (determined
in respect of the most recent Revaluation Date) for the purchase of Dollars
with Canadian Dollars.


 


“Dollars” and “$”:  lawful currency of the United States of
America.


 


“Domestic Subsidiary”:  any Subsidiary of the US Borrower organized
under the laws of any jurisdiction within the United States of America.


 


“Dormant Subsidiaries”:  the inactive Subsidiaries of the US Borrower
on the Closing Date, as set forth on Schedule 1.1D.


 


“Dual Currency RCF Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make Dual Currency RCF Loans and participate in Dual
Currency RCF Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading “Dual Currency RCF
Commitment” opposite such Lender’s name on Schedule 1.1A hereto, or, as the
case may be, in the Alternate Currency Facilities Assignment and Acceptance


 


15

















 


pursuant to
which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original aggregate amount of the
Total Dual Currency RCF Commitments is $15,000,000.


 


“Dual Currency RCF Commitment Period”:  the period from and including the Closing
Date to the Dual Currency RCF Termination Date.


 


“Dual
Currency RCF Excess Amount”: as defined in Section 2.12(f).


 


“Dual Currency RCF Extensions of Credit”:  as to any Dual Currency RCF Lender at any
time, an amount equal to the sum of (a) the aggregate Principal Amount of all
Dual Currency RCF Loans then outstanding to such Lender (including those made
by way of BA Loans or BA Equivalent Loans calculated at the Dollar Equivalent
of the face amount of the Bankers’ Acceptances issued in connection therewith)
and (b) such Lender’s Dual Currency RCF Percentage of the Dual Currency RCF L/C
Obligations then outstanding.


 


“Dual Currency RCF Issuing Lender”:
any Dual Currency RCF Lender from time to time designated by the Canadian
Borrower as a Dual Currency RCF Issuing Lender with the consent of such Dual
Currency RCF Lender and the Canadian Agent.


 


“Dual Currency RCF L/C Commitment”:  $10,000,000.


 


“Dual Currency RCF L/C Obligations”:  at any time, an amount equal to the sum of
(a) the Dollar Equivalent of the aggregate then undrawn and unexpired amount of
the then outstanding Dual Currency RCF Letters of Credit and (b) the Dollar
Equivalent of the aggregate amount of drawings under Dual Currency RCF Letters
of Credit that have not then been reimbursed pursuant to Section 3.5.


 


“Dual Currency RCF L/C Participants”:   with respect to any Dual Currency RCF Letter
of Credit, the collective reference to all the Dual Currency RCF Lenders (other
than the Dual Currency RCF Issuing Lender that issued such Dual Currency RCF
Letter of Credit).


 


“Dual Currency RCF Lender”:  each Lender that has a Dual Currency RCF
Commitment or holds Dual Currency RCF Extensions of Credit, it being understood
that, with respect to each Lender that is initially a party to this Agreement,
(i) each such initial Lender shall be a Canadian Bank with a US Branch or if
not a Canadian Bank, an Authorized Foreign Bank, (ii) with respect to the
Commitments to be made available to the Canadian Borrower under the Dual
Currency Revolving Credit Facility, the extensions of credit to the Canadian
Borrower thereunder, all Dual Currency RCF Letters of Credit, all Dual Currency
RCF L/C Obligations and all interest, fees, indemnities, costs, expenses and other
Obligations owing by the Canadian Borrower in connection with the Dual Currency
Revolving Credit Facility, and for all other related purposes hereunder (as the
context may require), the term “Dual Currency RCF Lender” shall refer to such
initial Dual Currency RCF Lender’s Canadian Branch (if such Dual Currency RCF
Lender is an Authorized Foreign Bank) or such Dual Currency RCF Lender’s US
Branch (if such Dual Currency RCF Lender is a Canadian Bank) and (iii) with
respect to the Commitments to be made available to the US  Borrower under the Dual Currency Revolving
Credit Facility, the extensions of credit to the US Borrower thereunder and all
interest, fees, indemnities, costs, expenses and other Obligations owing by the
US Borrower in connection with


 


16

















 


the Dual
Currency Revolving Credit Facility, and for all other related purposes
hereunder (as the context may require), the term “Dual Currency RCF Lender”
shall, if such initial Dual Currency RCF Lender is a Canadian Bank, refer to
such Dual Currency RCF Lender’s US Branch.


 


“Dual Currency RCF Letters of Credit”:  as defined in Section 3.1(c).


 


“Dual Currency RCF Loans”:  as defined in Section 2.4(b).


 


“Dual Currency RCF Payment Amount”: as
defined in Section 3.5(b).


 


“Dual Currency RCF Percentage”:  as to any Dual Currency RCF Lender at any
time, the percentage which such Lender’s Dual Currency RCF Commitment then
constitutes of the Total Dual Currency RCF Commitments (or, at any time after
the Dual Currency RCF Commitments shall have expired or terminated, the
percentage which the aggregate amount of such Lender’s Dual Currency RCF
Extensions of Credit then outstanding constitutes of the  amount of the Total Dual Currency RCF
Extensions of Credit then outstanding).


 


“Dual Currency RCF Reimbursement
Obligation”:  the obligation of the
Canadian Borrower to reimburse each Dual Currency RCF Issuing Lender pursuant
to Section 3.5 for amounts drawn under Dual Currency RCF Letters of Credit
issued by such Dual Currency RCF Issuing Lender.


 


“Dual Currency RCF Termination Date”:  October 12, 2013, or if earlier, the date on
which the Dual Currency RCF Commitments are terminated in full pursuant to
Sections 2.10 or 8 hereof.


 


 “Dual
Currency Revolving Credit Facility”: 
as defined in the definition of “Facility” in this Section 1.1.


 


“ECF
Percentage”:  with respect to any
Excess Cash Flow Period of the US Borrower, 50%; provided, that, so long
as no Default or Event of Default is then in existence, with respect to any
Excess Cash Flow Period of the US Borrower ending on or after December 31,
2008, (i) the ECF Percentage shall instead be 25% if the Consolidated Leverage
Ratio as of the last day of such Excess Cash Flow Period is less than 2.75 to
1.0 but greater than or equal to 2.25 to 1.0 and (ii) the ECF Percentage shall
instead be 0% if the Consolidated Leverage Ratio as of the last day of such
Excess Cash Flow Period is less than 2.25 to 1.0.


 


“Environmental
Laws”:  any and all laws, rules,
orders, regulations, statutes, ordinances, guidelines, codes, decrees, or other
legally enforceable requirements (including, without limitation, common law) of
any international authority, foreign government, the United States, or any
state, provincial, local, municipal or other governmental authority,
regulating, relating to or imposing liability or standards of conduct
concerning  protection of the environment
or of human health, or employee health and safety, as has been, is now, or may
at any time hereafter be, in effect.


 


“Environmental Permits”:  any and all permits, licenses,
approvals,  registrations, notifications,
exemptions and other authorizations required under any Environmental Law.


 


17

















 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“Eurocurrency Reserve Requirements”:  for any day, 
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves) under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements prescribed
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities”
in Regulation D of the Board) maintained by a member bank of the Federal
Reserve System.


 


“Eurodollar Base Rate”:  for any day during each Interest Period, the
rate per annum determined on the basis of the rate for deposits in Dollars for
a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Reuters Page LIBOR 01 as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In the
event that such rate does not appear on Reuters Page LIBOR01 (or otherwise on
the Reuters screen), the “Eurodollar Base Rate” for purposes of this
definition shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or the US Dual Currency RCF Agent, as applicable.


 


“Eurodollar Loans”:  Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):


 


	
   

  	
  Eurodollar
  Base Rate

  	
   

  
	
   

  	
  1.00 -
  Eurocurrency Reserve Requirements

  	
   

  



 


“Eurodollar Tranche”:  the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Eurodollar Loans
shall originally have been made on the same day).


 


“Event of Default”:  any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.


 


“Excess Cash Flow”:  for any period, the excess, if any, of (a)
the sum, without duplication, of (i) Consolidated Net Income of the US Borrower
and its Subsidiaries for such period, (ii) the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) the amount of the decrease, if any, in
Consolidated Working Capital for such period, (iv) the aggregate net amount of
non-cash loss on the Disposition of Property by the US Borrower and its
Subsidiaries during such period (other than sales of inventory in the ordinary
course of business), to the extent deducted in arriving at such Consolidated
Net Income, (v) the net increase during such period (if any) in deferred tax


 


18

















 


accounts of
the US Borrower, and (vi) the amount of long-term incentive program expenses of
the US Borrower accrued during such period 
minus (b) the sum, without duplication, of (i) the amount of all
non-cash credits included in arriving at such Consolidated Net Income, (ii) the
aggregate amount actually paid by the US Borrower and its Subsidiaries in cash
during such period on account of Capital Expenditures or Permitted Acquisitions
(other than Capital Expenditures and Permitted Acquisitions, to the extent
financed with equity proceeds, Capital Stock, asset sale proceeds, insurance
proceeds or Indebtedness), (iii) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including, without limitation,
Term Loan payments pursuant to Sections 2.3(a) and (b)) of the US Borrower and
its Subsidiaries made during such period (other than in respect of any
revolving credit facility, to the extent there is not an equivalent permanent
reduction in commitments thereunder), (iv) the amount of the increase, if any,
in Consolidated Working Capital for such period, (v) the aggregate net amount
of non-cash gain on the Disposition of Property by the US Borrower and its
Subsidiaries during such period (other than sales of inventory in the ordinary
course of business), to the extent included in arriving at such Consolidated
Net Income, (vi) the net decrease during such period (if any) in deferred tax
accounts of the US Borrower, (vii) the amount of cash payments made to pay
long-term incentive program expenses the US Borrower accrued prior to or during
such period, and (viii) the amount of Non-Specified Restructuring Charges and
Adjustments of the US Borrower and its Subsidiaries paid in cash during such
period, to the extent (and only to the extent) such Non-Specified Restructuring
Charges and Adjustments did not reduce Consolidated Net Income in such (or any
prior) period.


 


“Excess Cash Flow Application Date”:  the date that is no later than five days
after the earlier of (i) the date on which the financial statements of the US
Borrower referred to in Section 6.1(a) for the fiscal year of the US Borrower
then last ended are required to be delivered to the Lenders and (ii) the date
such financial statements are actually delivered  (commencing, in either case, with the fiscal
year of the US Borrower ended December 31, 2008).


 


“Excess Cash Flow Period” shall mean, with respect to any Excess
Cash Flow Application Date, the immediately preceding fiscal year of the US
Borrower.


 


“Excluded Closing Date Representations”:  all representations and warranties relating
to the Target and its Subsidiaries in Section 4 hereof other than the Target
Closing Date Representations.


 


“Existing
Credit Facilities”: that certain Amended and Restated Credit Agreement,
dated as of May 30, 2007, among the Borrowers, various lenders party thereto
and Bank of America, N.A., as administrative agent thereunder, as in effect on
the Closing Date.


 


“Existing Indebtedness”:  as defined in Section 5.1(e)(ii).


 


“Facility”:  each of (a) the Initial US Term Loan
Commitments and the Initial US Term Loans made thereunder (the “Initial US
Term Loan Facility”), (b) any Incremental US Term Loan Facility, (c) the
Canadian Term Loan Commitments and the Canadian Term Loans made thereunder (the
“Canadian Term Loan Facility”), (d) the US Dollar RCF Commitments and
the extensions of credit made thereunder (the “US Dollar Revolving Credit
Facility”) and (e) the


 


19

















 


Dual Currency
RCF Commitments and the extensions of credit made thereunder (the “Dual Currency
Revolving Credit Facility”).


 


“Facility Agents”:  as defined in the preamble hereto.


 


“Fair Market Value” shall mean, with
respect to any asset (including any Capital Stock of any Person), the price at
which a willing buyer, not an Affiliate of the seller, and a willing seller who
does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or,
pursuant to a specific delegation of authority by such board of directors or
governing body, a designated senior executive officer, of the US Borrower, or
the Subsidiary of the US Borrower selling such asset.


 


“Federal Funds Effective Rate”:  for any day, 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 on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent (in the case of the US Dollar-Denominated Facilities) or
the US Dual Currency RCF Agent (in the case of US Borrower Dual Currency RCF
Loans), in each case from three federal funds brokers of recognized standing
selected by it.


 


“Flynn Group” means (a) Donald Flynn,
(b) the spouse, lineal descendants and spouses of the lineal descendents of
Donald Flynn, (c) trusts created in whole or in part for the benefit of any or
all of the Persons named in clauses (a) and (b) above, and estates and legal
representatives of the Persons named in clauses (a) and (b) above, and (d) any
corporation, limited liability company, partnership, or other entity controlled
by the Persons named in clauses (a) and (b) above.


 


“Foreign Subsidiary”:  any Subsidiary of the US Borrower that is not
a Domestic Subsidiary.


 


“FQ1”, “FQ2 “, “FQ3”,
and “FQ4”: when used with a numerical year designation, means the first,
second, third or fourth fiscal quarters, respectively, of the designated fiscal
year of the US Borrower (e.g., FQ4 2007 means the first fiscal quarter
of the US Borrower’s 2007 fiscal year, which ends December 31, 2007).


 


“FSCO”:  the Financial Services Commission of Ontario,
or other similar body of another Canadian jurisdiction.


 


“Funded Debt”:  with respect to any Person, all Indebtedness
of such Person of the types described in clauses (a) through (e) of the
definition of “Indebtedness” in this Section.


 


“GAAP”:  generally accepted accounting principles in
the United States of America as in effect from time to time.


 


“General Assignment and Acceptance”:  as defined in Section 10.6(c).


 


20

















 


“General Borrowing Notice”:  with respect to any request for borrowing of
US Dollar-Denominated Facilities Loans hereunder, a notice from the US
Borrower, substantially in the form of, and containing the information
prescribed by, Exhibit K-1, delivered to the Administrative Agent.


 


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


 


“Guarantee and Collateral Agreement”:
the Guarantee and Collateral Agreement to be executed and delivered by the US
Borrower, the Canadian Borrower and each Subsidiary Guarantor, substantially in
the form of Exhibit A, as the same may be amended, restated, supplemented,
replaced and/or otherwise modified from time to time.


 


“Guarantee Obligation”:  with respect to any Person (the “guaranteeing
person”), any obligation of such guaranteeing person guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
Property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the US Borrower in good faith.


 


“Hedge Agreements”:  all interest rate or currency swaps, caps or
collar agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the US Borrower or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.


 


“Incremental Amendment”:  as defined in Section 2.25(b).


 


“Incremental Facility Closing Date”: as
defined in Section 2.25(b).


 


21

















 


“Incremental US Term Loan Facility”:  a term loan facility established pursuant to
Section 2.25.


 


“Incremental US Term Loans”:  as defined in Section 2.25(a).


 


“Indebtedness”:  of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than trade payables incurred in the ordinary course of such
Person’s business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), (e) all Capital Lease
Obligations, Synthetic Lease Obligations or Attributable Debt of such Person,
(f) the maximum amount available to be drawn or paid under all letters of
credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and
similar obligations issued for the account of such Person and all unpaid drawings
and unreimbursed payments in respect of such letters of credit, bankers’
acceptances, bank guaranties, surety and appeal bonds and similar obligations,
(g) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of such Person,
(h) all obligations of such Person to pay a specified purchase price for goods
or services, whether or not delivered or accepted, i.e., take-or-pay and
similar obligations, (i) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (h) above; (j) all
obligations of the kind referred to in clauses (a) through (i) above secured by
(or for which the holder of such obligation has an existing right, contingent
or otherwise, to be secured by) any Lien on Property (including, without
limitation, accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation (provided
that, if the Person has not assumed or otherwise become liable in respect of
such indebtedness, such indebtedness shall be deemed to be in an amount equal
to the Fair Market Value of the Property to which such Lien relates), and (k)
for the purposes of Section 8(e) only, all obligations of such Person in
respect of Hedge Agreements. 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 directly 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”:  as defined in Section 10.5.


 


“Indemnitee”:  as defined in Section 10.5.


 


“Initial US Term Loan”:  as defined in Section 2.1(a).


 


“Initial US Term Loan Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make an Initial US Term Loan to the US Borrower hereunder in
a principal amount not to exceed the amount set forth under the heading “Initial
US Term Loan Commitment” opposite such Lender’s name on Schedule 1.1A hereto,
or, as the case may be, in the General Assignment and Acceptance pursuant to
which such Lender became a party hereto,


 


22

















 


as the same
may be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Initial US Term Loan Commitments is $610,000,000.


 


“Initial US Term Loan Facility”:  as defined in the definition of “Facility” in
this Section 1.1.


 


“Initial US Term Loan Lender”:  each Lender that has an Initial US Term Loan
Commitment or is the holder of an Initial US Term Loan.


 


“Initial US Term Loan Percentage”:  as to any Initial US Term Loan Lender at any
time, the percentage which such Lender’s Initial US Term Loan Commitment then
constitutes of the aggregate Initial US Term Loan Commitments (or, at any time
after the Closing Date, the percentage which the aggregate principal amount of
such Lender’s Initial US Term Loans then outstanding constitutes of the
aggregate principal amount of the Initial US Term Loans then outstanding).


 


“Initial US Term Notes”:  as defined in Section 2.8(g).


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


“Intellectual Property”:  the collective reference to all rights, priorities
and privileges relating to intellectual property (whether or not written),
whether arising under United States, state, multinational or foreign laws or
otherwise, including, without limitation, copyrights, copyright licenses,
patents, patent licenses, trademarks, trademark licenses, service- marks, trade
names, franchises, domain names, technology, inventions, know-how and
processes, recipes, formulas, trade secrets, trade secret licenses, proprietary
information (including, but not limited to, rights in computer programs and
databases), and permits, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.


 


“Interest Payment Date”:  (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period,
(d) as to any Canadian Prime Rate Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding, and the final
maturity date of such Loan and (e) as to any Loan (other than any US Dollar RCF
Loan or US Borrower Dual Currency RCF Loan that is a Base Rate Loan (unless all
US Dollar RCF Loans or Dual Currency RCF Loans, as the case may be, are being
repaid in full and the US Dollar RCF Commitments or Dual Currency RCF
Commitments, as the case may be, are terminated) and any Swing Line Loan), the
date of any repayment or prepayment made in respect thereof.


 


23

















 


“Interest Period”:  as to any Eurodollar Loan, BA Loan or BA
Equivalent Loan, (a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan, BA
Loan or BA Equivalent Loan and ending (x) in the case of Eurodollar Loans, one,
two, three or six or (if available to all Lenders under the relevant Facility,
as determined by such Lenders in their sole discretion) nine or twelve months
thereafter, as selected by the relevant Borrower in its Borrowing Notice or
notice of conversion, as applicable, given with respect thereto and (y) in the
case of BA Loans or BA Equivalent Loans, one-week (in the case of Canadian Term
Loans to be incurred or maintained as BA Loans and/or BA Equivalent Loans at
any time prior to the 30th Business Day following the Closing Date) and one,
two, three or six months thereafter, if available to all Canadian Lenders under
the relevant Facility (as determined by such Lenders in their sole discretion),
as selected by the Canadian Borrower in its Borrowing Notice or notice of
conversion, as applicable, given with respect thereto; and (b) thereafter, each
period commencing on the last day of the immediately preceding Interest Period
applicable to such Eurodollar Loan, BA Loan or BA Equivalent Loan and ending
(x) in the case of Eurodollar Loans, one, two, three or six or (if available to
all Lenders under the relevant Facility, as determined by such Lenders in their
sole discretion) nine or twelve months thereafter, as selected by the US
Borrower by irrevocable notice to the relevant Facility Agent not less than
three Business Days prior to the last day of the then current Interest Period
with respect thereto and (y) in the case of BA Loans or BA Equivalent Loans,
one-week (in the case of Canadian Term Loans to be incurred or maintained as BA
Loans and/or BA Equivalent Loans at any time prior to the 30th Business Day
following the Closing Date) and one, two, three or six months thereafter, if
available to all Canadian Lenders under the relevant Facility (as determined by
such Lenders in their sole discretion), as selected by the Canadian Borrower by
irrevocable notice to the Canadian Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:


 


(a)           if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


 


(b)           if
any Interest Period selected in respect of a BA Loan or BA Equivalent Loan
would otherwise end on a day that is not a Business Day, such Interest Period
shall end on the immediately preceding Business Day;


 


(c)           any
Interest Period that would otherwise extend beyond the applicable Revolving
Credit Termination Date or beyond the date final payment is due on the Term
Loans of a given Facility, as the case may be, shall end on the applicable
Revolving Credit Termination Date or such due date, as applicable;


 


(d)           no
Interest Period in respect of a BA Loan or BA Equivalent Loan may extend beyond
the Revolving Credit Termination Date or the date final payment is due on the
Canadian Term Loans, as applicable; and


 


24

















 


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


 


“Investments”:  as defined in Section 7.8.


 


“Issuing Lender”: any US Dollar RCF
Issuing Lender and/or any Dual Currency RCF Issuing Lender, as the context may
require.


 


“Judgment Conversion Date”:  as defined in Section 10.20.


 


“Judgment Currency”:  as defined in Section 10.20.


 


“L/C Fee Payment Date”:  the last day of each March, June, September
and December and the last day of the US Dollar RCF Commitment Period or the
Dual Currency RCF Commitment Period, as the context may require.


 


“L/C Obligations”:  at any time, the US Dollar RCF L/C
Obligations and the Dual Currency RCF L/C Obligations at such time.


 


“Lenders”:  as defined in the preamble hereto and
specifically including each  Issuing
Lender.


 


“Letters of Credit”:  collectively, the US Dollar RCF Letters of
Credit and the Dual Currency RCF Letters of Credit.


 


“Lien”:  any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).


 


“Loan”:  any loan made by any Lender pursuant to this
Agreement.


 


“Loan Documents”:  this Agreement, the Security Documents, the
Canadian Intercompany Loan Documents, the Applications and the Notes.


 


“Loan Parties”:   each Borrower and each Subsidiary of the US
Borrower that is a party to a Loan Document.


 


“Majority Dual Currency RCF Lenders”:  the Majority Facility Lenders in respect of
the Dual Currency Revolving Credit Facility.


 


“Majority Facility Lenders”:  with respect to any Facility, the holders of
more than 50% of the aggregate unpaid principal amount of the Term Loans, the
Total US Dollar RCF Extensions of Credit or the Total Dual Currency RCF
Extensions of Credit, as the case may be, outstanding under such Facility (or,
in the case of the US Dollar Revolving Credit Facility or the


 


25

















 


Dual Currency
Revolving Credit Facility, prior to any termination of the US Dollar RCF
Commitments or the Dual Currency RCF Commitments, as the case may be, the
holders of more than 50% of the Total US Dollar RCF Commitments or the Total
Dual Currency RCF Commitments, as the case may be).


 


“Majority US Dollar RCF Lenders”:  the Majority Facility Lenders in respect of
the US Dollar Revolving Credit Facility.


 


“Material Adverse Effect”:  a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects of
the US Borrower and its Subsidiaries taken as a whole or (b) the validity
or enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agents or the Lenders hereunder or thereunder.


 


“Material Environmental Amount”:  an amount or amounts payable by the US
Borrower and/or any of its Subsidiaries, in the aggregate in excess of
$5,000,000, for: costs to comply with any Environmental Law; costs of any
investigation, and any remediation, of any Material of Environmental Concern;
and compensatory damages (including, without limitation damages to natural
resources), punitive damages, fines, and penalties pursuant to any
Environmental Law.


 


 “Material
Indebtedness”: any Indebtedness in an aggregate principal amount equal to
or greater than $50,000,000.


 


“Materials of Environmental Concern”:  any gasoline or petroleum (including crude
oil or any fraction thereof) or petroleum products, polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos, pollutants, contaminants,
radioactivity, and any other substances or forces of any kind, whether or not
any such substance or force is defined as hazardous or toxic under any
Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.


 


“Mortgaged Properties”: collectively,
(i) the real properties and leasehold estates listed on Schedule 1.1B, as to
which the Administrative Agent for the benefit of the Secured Parties shall be
granted a Lien pursuant to the Mortgages and (ii) such other after-acquired
real properties and leasehold estates as to which the Administrative Agent for
the benefit of the Secured Parties shall be granted a Lien pursuant to the
Mortgages as contemplated by Section 6.10(b).


 


“Merger Sub”:  as defined in the definition of “Acquisition
Agreement” in this Section 1.1.


 


“Mortgages”:  each of the mortgages and deeds of trust made
by any Loan Party in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Secured Parties, in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented, replaced or otherwise modified from time to time.


 


“Multiemployer Plan”:  a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


 


26

















 


“Nashville Headquarters Sale-Leaseback
Transaction”: as defined in Section 7.11.


 


“Net Cash Proceeds”:  (a)  in
connection with any Asset Sale or any Recovery Event, the proceeds thereof in
the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as
and when received) of such Asset Sale or Recovery Event, net of reasonable and
customary attorneys’ fees, accountants’ fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document)
and other reasonable and customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the
incurrence of loans or other Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.


 


“Non-BA Lender”:  a Canadian Lender that cannot or does not as
a matter of policy accept Bankers’ Acceptances.


 


“Non-Excluded Taxes”:  as defined in Section 2.20(a).


 


“Non-Guarantor Investment Basket Amount”:
at any time, the remainder of (x) $25,000,000 less (y) the sum of (i)
the aggregate amount of Investments made in reliance on the proviso appearing
in Section 7.8(c) and outstanding at such time plus (ii) the aggregate
amount of Investments made in reliance on clause (ii) of Section 7.8(g) and
outstanding at such time plus (iii) the aggregate amount of Investments
theretofore made in reliance on clause (I) of Section 7.8(i)(viii).


 


“Non-Regulation
S-X Adjustment” shall have the meaning provided in the definition of “Pro
Forma Basis”.


 


“Non-Specified Restructuring Charges and
Adjustments” shall mean (i) any non-recurring and one-time costs and
expenses incurred by the US Borrower and its Subsidiaries in connection with
any Permitted Acquisition (including, without limitation, charges relating to
facility closures and the consolidation, relocation or elimination of
operations, severance costs and other costs incurred in connection with the
termination, relocation and training of employees and such other charges, costs
and expenses identified to the Administrative Agent) and (ii) certain other
reasonable adjustments made in connection with a Permitted Acquisition and
identified to the Administrative Agent (including adjustments for cost of goods
to a GAAP-based costing method for salvage vehicles and adjustments for
unreported revenue of an Acquired Person or Business that can be reasonably
verified).


 


“Non-US
Person” is a Person that is not a citizen or resident of the United States
of America, or other entity created or organized in or under the laws of the
United States of


 


27

















 


America (or any jurisdiction thereof), or any estate or trust that is
subject to federal income taxation regardless of the source of its income.


 


“Non-US
Plan” shall mean any plan, fund (including, without limitation, any
superannuation fund) or other similar program subject to the PBA, or maintained
in any non-US jurisdiction (other than Canada), which plan, fund or other
similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination
of employment and which is not subject to ERISA or the Code, and to which a
Borrower or any of its Subsidiaries has, or may have, any liability.


 


“Note”:  any promissory note evidencing any Loan.


 


“Obligations”:  the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of each Borrower to any Facility Agent or to any Lender or any
Qualified Counterparty, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, the
Letters of Credit, any Specified Hedge Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and disbursements of
counsel to the Arrangers, to the Agents or to any Lender that are required to
be paid by either Borrower pursuant hereto) or otherwise; provided, that
(i) obligations of the US Borrower or any Subsidiary under any Specified Hedge
Agreement shall be secured and guaranteed pursuant to the Security Documents
only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Subsidiary
Guarantors effected in the manner permitted by this Agreement shall not require
the consent of holders of obligations under Specified Hedge Agreements.


 


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


 


“Participant”:  as defined in Section 10.6(b).


 


“PBA”:
the Pension Benefits Act (Ontario) and all regulations thereunder, as amended
from time to time, and any successor or similar legislation of another Canadian
jurisdiction.


 


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor).


 


28

















 


“Permits”:  the collective reference to (i) Environmental
Permits, and (ii) any and all other franchises, licenses, leases, permits,
approvals, notifications, certifications, registrations, authorizations,
exemptions, qualifications, easements, and rights of way.


 


“Permitted Acquired Debt”: as defined
in Section 7.2(h).


 


“Permitted Acquisition Basket Amount”:
at any time, with respect to the then current fiscal year of the US Borrower
during which a Permitted Acquisition is to be consummated, (i) if the
Consolidated Leverage Ratio for the relevant Calculation Period then last ended
(calculated on a Pro  Forma Basis as if such Permitted Acquisition
(as well as all other Specified Transactions theretofore consummated after the
first day of such Calculation Period) had occurred on the first day of such
Calculation Period) is less than 3.00 to 1.00, $125,000,000 for such fiscal
year, and (ii) if the Consolidated Leverage Ratio for the relevant Calculation
Period then last ended (calculated on a Pro  Forma Basis as if
such Permitted Acquisition (as well as all other Specified Transactions
theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period) is greater than or equal
to 3.00 to 1.00, $75,000,000.


 


“Permitted Acquisitions”:  as defined in Section 7.8(i).


 


“Permitted Encumbrance”:  with respect to any Mortgaged Property, such
exceptions to title as are set forth in the mortgage policy delivered with
respect thereto, all of which exceptions must be acceptable to the
Administrative Agent in its reasonable discretion.


 


“Permitted Liens”:  the collective reference to (i) in the case
of Collateral other than Pledged Stock, Liens permitted by Section 7.3 and (ii)
in the case of Collateral consisting of Pledged Stock, non-consensual Liens
permitted by Section 7.3 to the extent arising by operation of law.


 


“Permitted
Sale-Leaseback Transaction” shall mean any Sale Lease-Back Transaction by
the US Borrower or any of its Subsidiaries, provided that (i) the
proceeds of the respective Sale Lease-Back Transaction shall be entirely cash
and in an amount at least equal to 95% of the aggregate amount expended by the
US Borrower or such Subsidiary in acquiring such asset (or, if not then
acquired, 95% of the Fair Market Value of the Property subject to such
Sale-Leaseback Transaction) and (ii) the respective transaction is otherwise
effected in accordance with the applicable requirements of Section 7.11.


 


“Permitted
Seller Debt” shall mean Indebtedness of the US Borrower or any of its
Subsidiaries incurred in connection with a Permitted Acquisition and issued to
the seller of the Property acquired pursuant to such Permitted Acquisition,
which Permitted Seller Debt and all terms and conditions thereof (including,
without limitation, mandatory repayment provisions, defaults, remedies and subordination
provisions but excluding the maturity date thereof and the interest rate
applicable thereto), and the documentation therefor, shall be reasonably
satisfactory to the Administrative Agent, provided that in any event,
unless the Required Lenders otherwise expressly consent in writing prior to the
incurrence thereof, (i) no such Indebtedness shall be guaranteed by any
Subsidiary of the US Borrower, and (ii) no such Indebtedness shall be secured


 


29

















 


by any Property of the US Borrower or any of its Subsidiaries, except
as permitted by Section 7.3(p).


 


“Person”:  an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.


 


“Plan”:  at a particular time, any employee benefit
plan that is covered by ERISA and in respect of which the US Borrower, any of
its Subsidiaries or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.


 


“Pledged Stock”: as defined in the
Guarantee and Collateral Agreement.


 


“PPSA”:  the Personal Property Security Act as in
effect from time to time in any applicable province or territory of Canada
(including any regulations thereunder or related thereto), and for greater
certainty shall include the “Register of Personal and Movable Real Rights” in
the Province of Quebec.


 


“Preferred Capital Stock”: as applied
to the Capital Stock of any Person, Capital Stock of such Person (other than
common Capital Stock of such Person) of any class or classes (however designed)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.


 


“Principal
Amount” shall mean (i) the stated principal amount of each Loan denominated
in Dollars, and (ii) the Dollar Equivalent of the stated principal amount of
each Loan denominated in Canadian Dollars (or, in the case of a BA Loan, the
Dollar Equivalent of the face amount of the related Bankers’ Acceptance), as
the context may require.


 


“Pricing Grid”:  the pricing grid attached hereto as Annex A.


 


 “Pro
Forma Balance Sheet”:  as defined in
Section 4.1(a).


 


“Pro Forma Basis”: in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro  forma basis to (x) the
incurrence of any Indebtedness (other than revolving Indebtedness, except to
the extent same is incurred to refinance other outstanding Indebtedness or to
finance a Permitted Acquisition) after the first day of the relevant Test
Period or Calculation Period, as the case may be, as if such Indebtedness had
been incurred (and the proceeds thereof applied) on the first day of such Test
Period or Calculation Period, as the case may be, (y) the permanent repayment
of any Indebtedness (other than revolving Indebtedness, except to the extent
accompanied by a corresponding permanent commitment reduction) after the first
day of the relevant Test Period or Calculation Period, as the case may be, as
if such Indebtedness had been retired or repaid on the first day of such Test
Period or Calculation Period, as the case may be, and (z) any Permitted
Acquisition or any Significant Asset Sale then being consummated as well as any
other Permitted Acquisition or any other Significant Asset Sale if consummated
after the first day of the relevant Test Period or Calculation Period, as the
case may be, and on or prior to the date of


 


30

















 


the respective Permitted Acquisition or Significant Asset Sale, as the
case may be, then being effected, with the following rules to apply in
connection therewith:


 


(i)            all
Indebtedness (x) (other than revolving Indebtedness, except to the extent same
is incurred to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant Test
Period or Calculation Period (whether incurred to finance a Permitted
Acquisition, to refinance Indebtedness or otherwise) shall be deemed to have
been incurred or issued (and the proceeds thereof applied) on the first day of
such Test Period or Calculation Period, as the case may be, and remain
outstanding through the date of determination and (y) (other than revolving
Indebtedness, except to the extent accompanied by a corresponding permanent
commitment reduction) permanently retired or redeemed after the first day of
the relevant Test Period or Calculation Period, as the case may be, shall be
deemed to have been retired or redeemed on the first day of such Test Period or
Calculation Period, as the case may be, and remain retired through the date of
determination;


 


(ii)           all
Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall
be deemed to have borne interest at (x) the rate applicable thereto, in the
case of fixed rate indebtedness, or (y) the rates which would have been
applicable thereto during the respective period when same was deemed
outstanding, in the case of floating rate Indebtedness (although interest
expense with respect to any Indebtedness for periods while same was actually
outstanding during the respective period shall be calculated using the actual
rates applicable thereto while same was actually outstanding); provided
that all Indebtedness (whether actually outstanding or deemed outstanding)
bearing interest at a floating rate of interest shall be tested on the basis of
the rates applicable at the time the determination is made pursuant to said
provisions; and


 


(iii)          in
making any determination of Consolidated EBITDA on a Pro  Forma
Basis, pro  forma effect shall be given to any Permitted
Acquisition or any Significant Asset Sale if effected during the respective
Test Period or Calculation Period (or thereafter, for purposes of
determinations pursuant to Sections 7.2(f), 7.2(g), 7.8(i) and 7.9(a) and the
definition of “Permitted Acquisition Basket Amount” only) as if same had
occurred on the first day of the respective Test Period or Calculation Period,
as the case may be, taking into account, in the case of any Permitted
Acquisition, factually supportable and identifiable cost savings and expenses
which would otherwise be accounted for as an adjustment pursuant to Article 11
of Regulation S-X under the Securities Act and such other cost savings and
expenses as may be acceptable to the Administrative Agent in its sole
discretion (any such other cost savings and expenses,  “Non-Regulation S-X Adjustments”), as
if such cost savings or expenses were realized on the first day of the
respective period.


 


“Projections”:  as defined in Section 6.2(c).


 


“Property”:  any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.


 


31

















 


“Qualified
Counterparty”:  with respect to any
Specified Hedge Agreement, any counterparty thereto that, at the time such
Specified Hedge Agreement was entered into, was a Lender or an affiliate of a
Lender, together with its successors and assigns.


 


“Real
Estate”:  All real property held or
used by the US Borrower or its Subsidiaries, which the US Borrower or the
relevant Subsidiary owns in fee or in which it holds a leasehold interest as a
tenant, all of which is more particularly identified in Schedule 4.25.


 


“Recovery Event”:  any settlement of or payment in respect of
any property or casualty insurance claim (other than business interruption) or
any condemnation proceeding relating to any asset of the US Borrower or any of
its Subsidiaries.


 


“Refinanced Term Loans”: as defined in
Section 10.1.


 


“Refinancing”: the refinancing
transactions described in Section 5.1(e).


 


“Refunded Swing Line Loans”:  as defined in Section 2.7(b).


 


“Refunding Date”:  as defined in Section 2.7(c).


 


“Regulation H”:  Regulation H of the Board as in effect from
time to time.


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Reimbursement
Obligations”: the US Dollar RCF Reimbursement Obligations and/or the Dual
Currency RCF Reimbursement Obligations, as the context may require.


 


“Reinvestment Deferred Amount”:  with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by the US Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or to reduce the Revolving Credit Commitments pursuant to Section 2.12(b)
as a result of the delivery of a Reinvestment Notice.


 


“Reinvestment Event”:  any Asset Sale or Recovery Event in respect
of which the US Borrower has delivered a Reinvestment Notice.


 


“Reinvestment Notice”:  a written notice executed by a Responsible
Officer stating that no Default or Event of Default has occurred and is
continuing and that the US Borrower (directly or indirectly through a Wholly Owned
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in
its or such Subsidiary’s business.


 


“Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended
prior to the relevant Reinvestment Prepayment Date to acquire assets useful in
the US Borrower’s business.


 


“Reinvestment Prepayment Date”:  with respect to any Reinvestment Event, the
earlier of (a) the date occurring one year after such Reinvestment Event and
(b) the date on


 


32

















 


which the US
Borrower shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the US Borrower’s business with all or any portion of
the relevant Reinvestment Deferred Amount.


 


“Related Fund”:  with respect to any Lender, any fund that (x)
invests in commercial loans and (y) is managed or advised by the same investment
advisor as such Lender, by such Lender or an Affiliate of such Lender.


 


“Related Person”:  as to each of the Arrangers, the Agents and
the Lenders, each of its officers, directors, stockholders, members, partners,
employees, agents, attorneys and other advisors, controlling persons and
Affiliates of any thereof.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.


 


“Replacement Term Loans”: as defined in
Section 10.1.


 


“Reportable Event”:  any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31 or .32 of PBGC Reg.
§ 4043.


 


“Required Lenders”:  at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments and (b) thereafter, the sum of (i)
the aggregate unpaid Principal Amount of the Term Loans then outstanding, and
(ii) the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.


 


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


 


“Responsible Officer”:  as to any Person, the chief executive
officer, the president or the chief financial officer of the US Borrower or the
Canadian Borrower, as applicable, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer or chief
accounting officer of the US Borrower or the Canadian Borrower, as applicable. Unless
otherwise qualified, all references to a “Responsible Officer” shall refer to a
Responsible Officer of the US Borrower.


 


“Restricted Payments”:  as defined in Section 7.6.


 


“Retained
Excess Cash Flow” shall mean, with respect to any Excess Cash Flow Period
ended after the Closing Date, the amount of Excess Cash Flow for such Excess
Cash Flow Period that the US Borrower was not required to apply to the
repayment of Term Loans and/or the reduction of Revolving Credit Commitments
pursuant to Section 2.12(c).


 


33
















 


“Retained
Excess Cash Flow Amount” shall initially be $0, which amount shall be (A) increased
(i) on each Excess Cash Flow Application Date so long as any repayment required
pursuant to Section 2.12(c) has been made, by an amount equal to the Excess
Cash Flow for the related Excess Cash Flow Period multiplied by a percentage
equal to 100% minus the ECF Percentage as in effect for the respective
Excess Cash Flow Application Date, and (B) reduced (i) on each Excess
Cash Flow Application Date where Excess Cash Flow for the immediately preceding
Excess Cash Flow Period is a negative number, by such amount, (ii) at the time
any Capital Expenditure is made pursuant to Section 7.7(e), by the amount
thereof, and (iii) at the time all or any portion of a Permitted Acquisition is
consummated in reliance on the “Retained Excess Cash Flow Amount” pursuant to
clause (ii)(y) or (viii)(II) of Section 7.8(i), by the amount of Aggregate
Consideration relating to such Permitted Acquisition justified under said
clause (it being understood that the Retained Excess Cash Flow Amount may be
reduced to an amount below zero after giving effect to the reductions
enumerated in clause (B) above).


 


“Reuters
Screen CDOR Page”: the display designated as page CDOR on the Reuters
Monitor Money rates Service or other page as may, from time to time, replace
that page on that service for the purpose of displaying quotations for Bankers’
Acceptances accepted by leading Canadian banks.


 


“Revaluation Date” means (a) with
respect to any Canadian Borrower Dual Currency RCF Loan, each of the
following:  (i) each date of a borrowing
of a Canadian Borrower Dual Currency RCF Loan, (ii) each date of a continuation
of a BA Loan  or BA Equivalent Loan
pursuant to Section 2.13(d), (iii) the last Business Day of each calendar
month, and (iv) such additional dates as DB Canada shall determine or the
Required Lenders shall require; (b) with respect to any Dual Currency RCF
Letter of Credit, each of the following: 
(i) each date of issuance of a Dual Currency RCF Letter of Credit, (ii)
each date of an amendment of any such Dual Currency RCF Letter of Credit having
the effect of increasing the amount thereof (solely with respect to the
increased amount), (iii) each date of any payment by the Dual Currency RCF Issuing
Lender under any Dual Currency RCF Letter of Credit, (iv) the last Business Day
of each calendar month, and (v) such additional dates as DB Canada or the Dual
Currency RCF Issuing Lender shall determine or the Required Lenders shall
require; and (c) with respect to any Canadian Term Loan, the date of any
optional or mandatory prepayment thereof pursuant to Section 2.11 or 2.12, as
the case may be.


 


“Revolving Credit Commitments”: with
respect to any Lender at any time, the US Dollar RCF Commitments and the Dual
Currency RCF Commitments of such Lender at such time.


 


“Revolving
Credit Facility”: the US Dollar Revolving Credit Facility and/or the Dual
Currency Revolving Credit Facility, as the context may require.


 


“Revolving Credit Lender”:  each Dual Currency RCF Lender and/or US
Dollar RCF Lender, as the context may require.


“Revolving Credit Loans”: with respect
to any Lender at any time, the US Dollar RCF Loans and the Dual Currency RCF
Loans of such Lender outstanding at such time.


 


34

















 


“Revolving
Credit Termination Date”: the US Dollar RCF Termination Date and/or the
Dual Currency RCF Termination Date, as the context may require.


 


“Revolving Extensions of Credit”:  as to any Lender at any time, the US Dollar
RCF Extensions of Credit and the Dual Currency RCF Extensions of Credit of such
Lender at such time.


 


“Sale-Leaseback Transaction”:  any arrangement with any Person providing for
the leasing by the US Borrower or any of its Subsidiaries of any real or
personal property, which property has been or is to be sold or transferred by
the US Borrower or such Subsidiary to such Person in contemplation of such
leasing or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the US
Borrower or such Subsidiary.


 


“Schedule I Lender”:  any Lender named on Schedule I to the Bank
Act (Canada).


 


“Scheduled Dispositions”:  the Disposition of the Property described on
Schedule 7.5(f).


 


“SEC”: 
the Securities and Exchange Commission (or successors thereto or an
analogous Governmental Authority).


 


“Secured Parties”:  as defined in the Guarantee and Collateral
Agreement.


 


“Security Documents”:  the collective reference to each Guarantee
and Collateral Agreement, the Mortgages, any intellectual property security
agreements or control agreements required to be delivered pursuant to the
Guarantee and Collateral Agreement or any other Loan Document and all other
security documents hereafter delivered to the Administrative Agent granting a
Lien on any Property of any Person to secure the obligations and liabilities of
any Loan Party under any Loan Document.


 


“Significant Asset Sale” shall mean each Asset Sale which yields
gross proceeds to the US Borrower or any of its Subsidiaries (valued at the
initial principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at Fair Market Value in the case of
other non-cash proceeds) of at least $2,000,000.


 


“Single Employer Plan”:  any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.


 


“Solvent”:  with respect to any Person, as of any date of
determination, (a) the amount of the “present fair saleable value” of the
assets of such Person will, as of such date, exceed the amount of all “liabilities
of such Person, contingent or otherwise”, as of such date, as such quoted terms
are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be greater than the
amount that will be required to pay the liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with which to conduct its
business, (d) such Person will be able to pay its debts as they mature and (e)
such Person is not


 


35

















 


insolvent
within the meaning of any applicable Requirements of Law. For purposes of this
definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Specified Change of Control”:  a “change of control”, or like event, as
defined in any indenture or other agreement governing Material Indebtedness.


 


“Specified Hedge Agreement”:  any Hedge Agreement entered into by either
Borrower or any Subsidiary Guarantor and any Qualified Counterparty providing
for protections against fluctuations of interest rates.


 


“Specified Transaction” means, with respect to any period, any
Permitted Acquisition, Significant Asset Sale, incurrence or repayment of
Indebtedness, Incremental US Term Loan, US Dollar RCF Commitment Increase or
other event expressly required to be calculated on a “Pro Forma Basis” pursuant to the terms of this Agreement.


 


“Spot Rate” means, for any currency,
the rate determined by the Administrative Agent, DB Canada or the Dual Currency
RCF Issuing Lender, as applicable, to be the rate quoted by the Person acting
in such capacity as the spot rate for the purchase by such Person of such
currency with another currency through its principal foreign exchange trading
office at approximately 10:00 a.m. on the applicable Revaluation Date made; provided
that the Administrative Agent, DB Canada or the Dual Currency RCF Issuing
Lender may obtain such spot rate from another financial institution designated
by the Administrative Agent, DB Canada or the Dual Currency RCF Issuing Lender
if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency.


 


“Subordinated Indebtedness”: any
subordinated Indebtedness permitted to be incurred pursuant to Section 7.2
(other than subordinated Indebtedness evidenced by the Subordinated Intercompany
Note).


 


“Subordinated Intercompany Note”: the
Subordinated Intercompany Note, substantially in the form of Exhibit M.


 


“Subsidiary”:  as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a


 


36

















 


“Subsidiary”
or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
Subsidiaries of the US Borrower.


 


“Subsidiary Guarantor”:  each Domestic Subsidiary of the US Borrower
that is a Wholly-Owned Subsidiary of the US Borrower (other than (x) the
Canadian Borrower and (y) each of Alert Bumper Inc. and Keystone Warehouse
Distributors, Inc., Dormant Subsidiaries of the US Borrower).


 


“Swing Line Commitment”:  the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $25,000,000.


 


“Swing Line Lender”:  Lehman Commercial Paper Inc., in its capacity
as the lender of Swing Line Loans.


 


“Swing Line Loans”:  as defined in Section 2.6.


 


“Swing Line Note”: as defined in
Section 2.8(g).


 


“Swing Line Participation Amount”:  as defined in Section 2.7(c).


 


“Syndication Agent”:  as defined in the preamble hereto.


 


“Syndication Date”:  the date on which the Arrangers completed the
syndication of the Facilities and the entities selected in such syndication
process become parties to this Agreement.


 


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


 


“Target”:
Keystone Automotive Industries, Inc., a California corporation and, after the
consummation of the Acquisition, a Wholly-Owned Subsidiary of the US Borrower.


 


“Target Closing Date Representations”:  collectively, (i) all representations and
warranties made by the Target in the Acquisition Agreement as are material to
the interests of the Lenders, except to the extent of any breach of such
representations or warranties shall not give the US Borrower the right to
terminate its obligations under the Acquisition Agreement (determined without
regard to any notice requirement therein) and (ii) the representations and
warranties relating to the Target and its Subsidiaries set forth in Sections
4.3, 4.4, 4.5, 4.11, 4.14, 4.19 and 4.24.


 


“Term Loan 
Facility”:  the collective
reference to the Initial US Term Loan Facility, the Canadian Term Loan Facility
and any Incremental US Term Loan Facility.


 


37

















 


“Term Loan Lenders”:  the collective reference to the Initial US
Term Loan Lenders, the Canadian Term Loan Lenders and the Lenders with respect
to any Incremental US Term Loans.


 


“Term Loan Maturity Date”:  October 12, 2013.


 


“Term Loans”:  the collective reference to the Initial US
Term Loans, the Canadian Term Loans and any Incremental US Term Loans.


 


“Test Period” shall mean each period
of four consecutive fiscal quarters of the US Borrower then last ended, in each
case taken as one accounting period.


 


“Title Insurance Company”:  as defined in Section 6.15(a)(i).


 


“Total Dual Currency RCF Commitments”  at any time, the aggregate amount of the Dual
Currency RCF Commitments then in effect.


 


“Total Dual Currency RCF Extensions of
Credit”:  at any time, the aggregate amount
of the Dual Currency RCF Extensions of Credit of the Dual Currency RCF Lenders
outstanding at such time.


 


“Total Foreign Subsidiary Assets”:  at any time, the total assets of Foreign
Subsidiaries of the US Borrower, determined on a consolidated basis in
accordance with GAAP, as of the most recent balance sheet of the US Borrower.


 


“Total Revolving Credit Commitments”:  at any time, the sum of the Total Dual
Currency RCF Commitments and the Total US Dollar RCF Commitments then in
effect.


 


“Total Revolving Extensions of Credit”:  at any time, the sum of the Total Dual
Currency RCF Extensions of Credit outstanding at such time and the Total US
Dollar RCF Extensions of Credit outstanding at such time.


 


“Total US Dollar RCF Commitments”:  at any time, the aggregate amount of the US
Dollar RCF Commitments then in effect.


 


“Total US Dollar RCF Extensions of Credit”:  at any time, the aggregate amount of the US
Dollar RCF Extensions of Credit of the US Dollar RCF Lenders outstanding at
such time.


 


“Transaction”: collectively, (i) the
consummation of the Acquisition and the other transactions contemplated by the
Acquisition Documentation, (ii) the consummation of the Refinancing, (iii)
the Common Equity Financing, (iv) the execution, delivery and performance by each
Loan Party of the Loan Documents to which it is a party, the incurrence of
Loans on the Closing Date and the use of proceeds thereof and (v) the payment
of all fees and expenses in connection with the foregoing.


 


“Transaction Documents”: collectively,
(i) the Acquisition Documentation, (ii) the Common Equity Financing Documents
and (iii) the Loan Documents.


 


38

















 


“Transaction
Restructuring Charges” shall mean non-recurring and one-time costs  and expenses incurred by the US Borrower and
its Subsidiaries in connection with facility closures, the consolidation,
relocation or elimination of operations, severance costs and other costs
identified to the Facility Agents by the US Borrower and incurred in connection
with the Transaction.


 


“Transferee”:  as defined in Section 10.14.


 


“Type”:  as to any Loan, its nature as a Base Rate
Loan, Eurodollar Loan, Canadian Prime Rate Loan, BA Loan  or BA Equivalent Loan.


 


“UCC”: 
the Uniform Commercial Code, as in effect from time to time in any
jurisdiction.


 


“US
Borrower”:  as defined in the
preamble hereto.


 


“US Borrower Dual Currency RCF Note”:  as defined in Section 2.8(g).


 


“US Borrower Dual Currency RCF Loans”:  as defined in Section 2.4(b).


 


“US Borrower Facilities”:  (a) the Initial US Term Loan Commitments and
the Initial US Term Loans made thereunder, (b) any Incremental US Term Loan
Facility, (c) the US Dollar RCF Commitments and the extensions of credit made
thereunder and (d) the Dual Currency RCF Commitments made available to the US
Borrower and the US Borrower Dual Currency RCF Loans made thereunder.


 


“US Borrower Loans”:  the collective reference to the US
Dollar-Denominated Facilities Loans and the US Borrower Dual Currency RCF
Loans.


 


“US Branch”:  the US branch or office of a Dual Currency
RCF Lender, which branch or office makes loans in Dollars of the type being
made hereunder in the United States.


 


“US
Dollar-Denominated Facilities”:  (a)
the Initial US Term Loan Commitments and the Initial US Term Loans made
thereunder, (b) any Incremental US Term Loan Facility and (c) the US Dollar RCF
Commitments and the extensions of credit made thereunder.


 


“US Dollar-Denominated Facilities Loans”:  the collective reference to the Initial US
Term Loans, Incremental US Term Loans, US Dollar RCF Loans and Swingline Loans.


 


“US Dollar-Denominated Facilities Register”:  as defined in Section 10.6(d).


 


“US Dollar-Denominated Facility Lender”:  each US Dollar RCF Lender and each Term Loan
Lender (other than a Canadian Term Loan Lender).


 


“US Dollar-Denominated Facility Note”:  an Initial US Term Note, Incremental US Term
Note, US Dollar RCF Note or Swing Line Note.


 


39

















 


“US Dollar RCF Commitment”:  as to any Lender, the obligation of such
Lender, if any, to make US Dollar RCF Loans and participate in Swing Line Loans
and US Dollar RCF Letters of Credit, in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading “US Dollar RCF
Commitment” opposite such Lender’s name on Schedule 1.1A hereto, or, as the
case may be, in the General Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Total US
Dollar RCF Commitments is $85,000,000.


 


“US Dollar RCF Commitment Increase”:  as defined in Section 2.25(a).


 


“US Dollar RCF Commitment Increase Lender”:  as defined in Section 2.25(c).


 


“US Dollar RCF Commitment Period”:  the period from and including the Closing
Date to the US Dollar RCF Termination Date.


 


“US Dollar
RCF Excess Amount”: as defined in Section 2.12(e).


 


“US Dollar RCF Extensions of Credit”:  as to any US Dollar RCF Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount of all US
Dollar RCF Loans then outstanding to such Lender, (b) such Lender’s US Dollar
RCF Percentage of the US Dollar RCF L/C Obligations then outstanding and (c)
such Lender’s US Dollar RCF Percentage of the aggregate principal amount of
Swing Line Loans then outstanding.


 


“US Dollar RCF Issuing Lender”:  any US Dollar RCF Lender from time to time
designated by the US Borrower as a US Dollar RCF Issuing Lender with the
consent of such US Dollar RCF Lender and the Administrative Agent.


 


“US Dollar RCF L/C Commitment”:  $35,000,000.


 


“US Dollar RCF L/C Obligations”:  at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding US
Dollar RCF Letters of Credit and (b) the aggregate amount of drawings under US
Dollar RCF Letters of Credit that have not then been reimbursed pursuant to
Section 3.5.


 


“US Dollar RCF L/C Participants”:   with respect to any US Dollar RCF Letter of
Credit, the collective reference to all the US Dollar RCF Lenders (other than
the US Dollar RCF Issuing Lender that issued such US Dollar RCF Letter of
Credit).


 


“US Dollar RCF Lender”:  each Lender that has a US Dollar RCF
Commitment or holds US Dollar RCF Extensions of Credit.


 


“US Dollar RCF Letters of Credit”:  as defined in Section 3.1(a).


 


“US Dollar RCF Loans”:  as defined in Section 2.4(a).


 


“US Dollar RCF Note”:  as defined in Section 2.8(g).


 


40

















 


“US Dollar RCF Payment Amount”: as
defined in Section 3.5(a).


 


“US Dollar RCF Percentage”:  as to any US Dollar RCF Lender at any time,
the percentage which such Lender’s US Dollar RCF Commitment then constitutes of
the Total US Dollar RCF Commitments (or, at any time after the US Dollar RCF Commitments
shall have expired or terminated, the percentage which the aggregate amount of
such Lender’s US Dollar RCF Extensions of Credit then outstanding constitutes
the  amount of the Total US Dollar RCF
Extensions of Credit then outstanding).


 


“US Dollar RCF Reimbursement Obligation”:  the obligation of the US Borrower to
reimburse each US Dollar RCF Issuing Lender pursuant to Section 3.5 for amounts
drawn under US Dollar RCF Letters of Credit issued by such US Dollar RCF
Issuing Lender.


 


“US Dollar RCF Termination Date”:  October 12, 2013, or if earlier, the date on
which the US Dollar RCF Commitments are terminated in full pursuant to Sections
2.10 or 8 hereof.


 


“US Dollar Revolving Credit Facility”:  as defined in the definition of “Facility” in
this Section 1.1.


 


“US Dual
Currency RCF Agent”:  as defined in
the preamble hereto.


 


“US Dual Currency RCF Agent’s Funding
Office”:  the office specified from
time to time by the US Dual Currency RCF Agent as its funding office by notice
to the US Borrower and the Dual Currency RCF Lenders.


 


“US Dual Currency RCF Agent’s Payment
Office”:  the office specified from
time to time by the US Dual Currency RCF Agent as its payment office by notice
to the US Borrower and the Dual Currency RCF Lenders.


 


“US Prime Rate”:  the prime lending rate as set forth on the
British Banking Association Reuters Page 5 (or such other comparable page as
may, in the opinion of the Administrative Agent (with respect to the US
Dollar-Denominated Facilities) or the US Dual Currency RCF Agent (with respect
to US Borrower Dual Currency RCF Loans), replace such page for the purpose of
displaying such rate), as in effect from time to time. The US Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually available.


 


“Weighted Average Life to Maturity”:  when applied to any Indebtedness at any date,
the number of years obtained by dividing: 
(i) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by (ii) the
then outstanding principal amount of such Indebtedness.


 


“Wholly Owned Subsidiary”:  as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.


 


41

















 


1.2           Other Definitional Provisions.
(a)  Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used
in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.


 


(b)           As used herein and in the other Loan
Documents, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to 
the US Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined,
shall have the respective meanings given to them under GAAP, subject to Section
10.17.


 


(c)           The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.


 


(d)           The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.


 


(e)           All calculations of financial ratios
hereunder shall be calculated to the same number of decimal places as the
relevant ratios are expressed in and shall be rounded upward if the number in
the decimal place immediately following the last calculated decimal place is
five or greater. For example, if the relevant ratio is to be calculated to the
hundredth decimal place and the calculation of the ratio is 5.126, the ratio
will be rounded up to 5.13.


 


(f)            The expressions “payment in full,” “paid
in full” and any other similar terms or phrases when used herein with respect
to the Obligations shall mean the payment in full, in immediately available
funds, of all of the Obligations.


 


(g)           The term “including”, “include” and “includes”
is not limiting and shall be deemed to be followed by the phrase “without
limitation”.


 


(h)           References to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer
to such agreements or Contractual Obligations as amended, supplemented,
restated or otherwise modified from time to time.


 


(i)            A reference to any Requirement of
Law includes all Requirements of Law varying, amending, modifying,
supplementing, interpreting, consolidating or replacing the same from time to
time, and a reference to a statute includes all regulations, rules, policies,
protocols, codes, proclamations and ordinances issued or otherwise applicable
under the statute unless, in any such case, otherwise expressly provided in any
such statute.


 


1.3           Exchange Rates; Currency
Equivalents. (a) The Administrative Agent, the Canadian Agent or any Dual
Currency RCF Issuing Lender, as applicable, shall determine the Spot Rates as
of each Revaluation Date to be used for calculating Dollar Equivalent amounts
of Loans and other Obligations denominated in Canadian Dollars. Such Spot Rates
shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between Canadian Dollars and Dollars until
the next Revaluation Date to occur. Except for purposes of financial statements
delivered by Loan Parties hereunder or calculating financial


 


42

















 


covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so
determined by the Administrative Agent, the Canadian Agent or any Dual Currency
RCF Issuing Lender, as applicable.


 


(b)           Wherever in this Agreement in
connection with a borrowing, conversion, continuation or prepayment of a Loan
or the issuance, amendment or extension of a Dual Currency RCF Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such borrowing, Loan or Dual Currency RCF Letter of Credit is
denominated in Canadian Dollars, such amount shall be the Dollar Equivalent of
such Dollar amount (rounded to the nearest Canadian Dollar, with 0.5 of a
Canadian Dollar being rounded upward), as determined by the Administrative
Agent, the Canadian Agent or any Dual Currency RCF Issuing Lender, as the case
may be.


 


1.4           Dual
Currency RCF Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Dual Currency RCF Letter of Credit issued in Canadian Dollars
at any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Dual Currency RCF Letter of Credit in effect at such time; provided,
however, that with respect to any Dual Currency RCF Letter of Credit
that, by its terms, provides for one or more automatic increases in the stated
amount thereof, the amount of such Dual Currency RCF Letter of Credit shall be
deemed to be the Dollar Equivalent of the maximum stated amount of such Dual
Currency RCF Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such time.


 


1.5           Canadian
Loan Currencies. All BA Loans, BA Equivalent Loans and Canadian Prime Rate
Loans shall be made and denominated in Canadian Dollars. BA Loans, BA
Equivalent Loans and Canadian Prime Rate Loans, interest on such Loans and any
applicable fees shall be payable in Canadian Dollars.


 


SECTION 2. AMOUNT
AND TERMS OF COMMITMENTS


 


2.1           Term
Loan Commitments. (a) Subject to the terms and conditions hereof, the
Initial US Term Loan Lenders severally agree to make term loans (each, an “Initial
US Term Loan”) to the US Borrower on the Closing Date in an amount for each
Initial US Term Loan Lender not to exceed the amount of the Initial US Term
Loan Commitment of such Lender. Initial US Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the US Borrower and
notified to the Administrative Agent in accordance with Sections 2.2
and 2.13.


 


(b)           Subject
to the terms and conditions hereof, the Canadian Term Loan Lenders severally
agree to make term loans (each, a “Canadian Term Loan”) to the Canadian
Borrower on the Closing Date in an amount for each Canadian Term Loan Lender
not to exceed the amount of the Canadian Term Loan Commitment of such Lender. Subject
to the terms hereof,  Canadian Term Loans
may from time to time be BA Loans (or BA Equivalent Loans) or Canadian Prime
Rate Loans, as determined by the Canadian Borrower and notified to the Canadian
Agent in accordance with Sections 2.2 and 2.13.


 


43

















 


2.2           Procedure for Term Loan Borrowing.
(a)  The US Borrower shall deliver to the
Administrative Agent a General Borrowing Notice (which General Borrowing Notice
must be received by the Administrative Agent prior to 2:00 P.M., New York City
time, one Business Day prior to the anticipated Closing Date) requesting that
the Initial US Term Loan Lenders make the Initial US Term Loans on the Closing
Date and specifying the amount to be borrowed. Upon receipt of such General
Borrowing Notice, the Administrative Agent shall promptly notify each Initial US
Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on the
Closing Date, each Initial US Term Loan Lender shall make available to the
Administrative Agent at the Administrative Agent’s Funding Office an amount in
Dollars and immediately available funds equal to the Initial US Term Loan or
Initial US Term Loans to be made by such Lender. The Administrative Agent shall
make available to the US Borrower the aggregate of the amounts made available
to the Administrative Agent by the Initial US Term Loan Lenders, in like funds
as received by the Administrative Agent.


 


(b)           The Canadian Borrower shall deliver
to the Canadian Agent an Alternate Currency Facilities Borrowing Notice (which
Alternate Currency Facilities Borrowing Notice must be received by the Canadian
Agent prior to 2:00 P.M., Toronto time, one Business Day prior to the
anticipated Closing Date) requesting that the Canadian Term Loan Lenders make
the Canadian Term Loans on the Closing Date and specifying the amount (in
Canadian Dollars) to be borrowed and whether such Canadian Term Loans shall be
incurred as BA Loans (and/or BA Equivalent Loans) or Canadian Prime Rate Loans;
provided that Canadian Term Loans to be incurred as BA Loans and/or BA
Equivalent Loans at any time prior to the 30th Business Day following the
Closing Date shall be subject to an Interest Period of one-week. Upon receipt
of such Alternate Currency Facilities Borrowing Notice, the Canadian Agent
shall promptly notify each Canadian Term Loan Lender thereof. Not later than
12:00 Noon, Toronto time, on the Closing Date, each Canadian Term Loan Lender
shall make available to the Canadian Agent at the Canadian Agent’s Funding
Office an amount in Canadian Dollars and immediately available funds equal to
the Canadian Term Loan or Canadian Term Loans to be made by such Lender. The
Canadian Agent shall make available to the Canadian Borrower the aggregate of
the amounts made available to the Canadian Agent by the Canadian Term Loan
Lenders, in like funds as received by the Canadian Agent.


 


2.3           Repayment of Term Loans. (a)  On each date set forth below, the US Borrower
shall be required to repay that principal amount of Initial US Term Loans, to
the extent then outstanding, as is set forth opposite each such date below (as each
such payment may be reduced as provided in Section 2.18(b)):


 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2008

  	
   

  	
  $

  	
  2,345,691.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2008

  	
   

  	
  $

  	
  2,345,691.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2008

  	
   

  	
  $

  	
  2,345,691.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2008

  	
   

  	
  $

  	
  2,345,691.00

  	
   

  



 


44

















 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2009

  	
   

  	
  $

  	
  4,691,383.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2009

  	
   

  	
  $

  	
  4,691,383.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2009

  	
   

  	
  $

  	
  4,691,383.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2009

  	
   

  	
  $

  	
  4,691,383.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2010

  	
   

  	
  $

  	
  7,037,075.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2010

  	
   

  	
  $

  	
  7,037,075.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2010

  	
   

  	
  $

  	
  7,037,075.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2010

  	
   

  	
  $

  	
  7,037,075.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2011

  	
   

  	
  $

  	
  11,728,459.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2011

  	
   

  	
  $

  	
  11,728,459.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2011

  	
   

  	
  $

  	
  11,728,459.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2011

  	
   

  	
  $

  	
  11,728,459.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2012

  	
   

  	
  $

  	
  17,592,689.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2012

  	
   

  	
  $

  	
  17,592,689.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2012

  	
   

  	
  $

  	
  17,592,689.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2012

  	
   

  	
  $

  	
  17,592,689.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2013

  	
   

  	
  $

  	
  19,938,381.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2013

  	
   

  	
  $

  	
  19,938,381.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2013

  	
   

  	
  $

  	
  19,938,381.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  October 12, 2013

  	
   

  	
  $

  	
  376,603,669.00

  	
   

  



 


(b)           On each date set forth below, the
Canadian Borrower shall be required to repay that principal amount of Canadian
Term Loans, to the extent then outstanding, as is set forth opposite each such
date below (as each such payment may be reduced as provided in Section
2.18(b)):


 


45

















 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2008

  	
   

  	
  CDN$

  	
  153,815.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2008

  	
   

  	
  CDN$

  	
  153,815.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2008

  	
   

  	
  CDN$

  	
  153,815.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2008

  	
   

  	
  CDN$

  	
  153,815.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2009

  	
   

  	
  CDN$

  	
  307,631.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2009

  	
   

  	
  CDN$

  	
  307,631.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2009

  	
   

  	
  CDN$

  	
  307,631.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2009

  	
   

  	
  CDN$

  	
  307,631.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2010

  	
   

  	
  CDN$

  	
  461,447.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2010

  	
   

  	
  CDN$

  	
  461,447.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2010

  	
   

  	
  CDN$

  	
  461,447.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2010

  	
   

  	
  CDN$

  	
  461,447.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2011

  	
   

  	
  CDN$

  	
  769,079.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2011

  	
   

  	
  CDN$

  	
  769,079.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2011

  	
   

  	
  CDN$

  	
  769,079.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2011

  	
   

  	
  CDN$

  	
  769,079.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2012

  	
   

  	
  CDN$

  	
  1,153,618.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2012

  	
   

  	
  CDN$

  	
  1,153,618.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2012

  	
   

  	
  CDN$

  	
  1,153,618.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ4 2012

  	
   

  	
  CDN$

  	
  1,153,618.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ1 2013

  	
   

  	
  CDN$

  	
  1,307,434.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ2 2013

  	
   

  	
  CDN$

  	
  1,307,434.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The last Business Day of FQ3 2013

  	
   

  	
  CDN$

  	
  1,307,434.00

  	
   

  



 


46

















 


	
  Scheduled Repayment Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Term Loan Maturity Date

  	
   

  	
  CDN$

  	
  24,695,338.00

  	
   

  
					



 


(c)           Notwithstanding anything to the
contrary in Sections 2.3(a) or (b) above, (i) if the aggregate principal amount
of Initial US Term Loans made on the Closing Date is less than the aggregate
amount of the Initial US Term Loan Commitments, the amount of each relevant
principal installment set forth in paragraph (a) above shall be proportionally
reduced to reflect such lesser amount so borrowed and (ii) if the aggregate
principal amount of Canadian Term Loans made on the Closing Date is less than
the aggregate amount of the Canadian Term Loan Commitments, the amount of each
relevant principal installment set forth in paragraph (b) above shall be
proportionally reduced to reflect such lesser amount so borrowed.


 


2.4           US Dollar RCF Commitments and Dual
Currency RCF Commitments. (a) Subject to the terms and conditions hereof,
the US Dollar RCF Lenders severally agree to make revolving credit loans (“US
Dollar RCF Loans”) to the US Borrower from time to time during the US
Dollar RCF Commitment Period in an aggregate principal amount at any one time
outstanding for each US Dollar RCF Lender which, when added to such Lender’s US
Dollar RCF Percentage of the sum of (i) the US Dollar RCF L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swing Line Loans
then outstanding, does not exceed the amount of such Lender’s US Dollar RCF
Commitment. During the US Dollar RCF Commitment Period, the US Borrower may use
the US Dollar RCF Commitments by borrowing, prepaying the US Dollar RCF Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The US Dollar RCF Loans may from time to time be Eurodollar
Loans or Base Rate Loans, as determined by the US Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.13, provided
that no US Dollar RCF Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the US Dollar RCF Termination Date.


 


(b)           Subject to the terms and conditions
hereof, the Dual Currency RCF Lenders severally agree to make (I) revolving
credit loans to the US Borrower (“US Borrower Dual Currency RCF Loans”)
and (II) revolving credit loans to the Canadian Borrower (“Canadian Borrower
Dual Currency RCF Loans” and, together with the US Borrower Dual Currency
RCF Loans, the “Dual Currency RCF Loans”) from time to time during the
Dual Currency RCF Commitment Period in an aggregate Principal Amount at any one
time outstanding for each Dual Currency RCF Lender which, when added to such
Lender’s Dual Currency RCF Percentage of the Dual Currency RCF L/C Obligations then
outstanding, does not exceed the amount of such Lender’s Dual Currency RCF
Commitment, which Dual Currency RCF Loans:


 


(i)            in the case US
Borrower Dual Currency RCF Loans, shall be made and maintained in Dollars;


 


(ii)           in the case of
Canadian Borrower Dual Currency RCF Loans, shall be made and maintained in
Canadian Dollars;


 


47

















 


(iii)          during the Dual
Currency RCF Commitment Period, may be borrowed, prepaid in whole or in part,
and reborrowed by the applicable Borrower, all in accordance with the terms and
conditions hereof;


 


(iv)          subject to Section
2.26(l), in the case of US Borrower Dual Currency RCF Loans, may from time to
time be Eurodollar Loans or Base Rate Loans as determined by the US Borrower
and notified to the US Dual Currency RCF Agent in accordance with Sections 2.5
and 2.13, provided that no US Borrower Dual Currency RCF Loan shall be
made as a Eurodollar Loan after the day that is one month prior to the Dual
Currency RCF Termination Date;


 


(v)           in the case of
Canadian Borrower Dual Currency RCF Loans, subject to the terms hereof, may
from time to time be BA Loans (or BA Equivalent Loans) or Canadian Prime Rate
Loans as determined by the Canadian Borrower and notified to the Canadian Agent
in accordance with Sections 2.5 and 2.13, provided that no Canadian
Borrower Dual Currency RCF Loan shall be made as a BA Loan (or BA Equivalent
Loan) after the day that is one month prior to the Dual Currency RCF
Termination Date.


 


(c)           The US Borrower shall repay all
outstanding US Dollar RCF Loans on the US Dollar RCF Termination Date. The US
Borrower shall repay all outstanding US Borrower Dual Currency RCF Loans, and
the Canadian Borrower shall repay all outstanding Canadian Borrower Dual
Currency RCF Loans, in each case on the Dual Currency RCF Termination Date.


 


2.5           Procedure for US Dollar Revolving
Credit Facility Borrowings and Dual Currency Revolving Credit Facility
Borrowings. (a) The US Borrower may borrow under the US Dollar RCF
Commitments on any Business Day during the US Dollar RCF Commitment Period, provided
that the US Borrower shall deliver to the Administrative Agent a General
Borrowing Notice (which General Borrowing Notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans). Each borrowing of US Dollar RCF Loans under the US
Dollar RCF Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or $500,000 integrals in excess thereof (or, if the then
aggregate Available US Dollar RCF Commitments are less than $500,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $2,000,000 or $500,000
integrals in excess thereof; provided, that the Swing Line Lender may
request, on behalf of the US Borrower, borrowings of Base Rate Loans under the
US Dollar RCF Commitments in other amounts pursuant to Section 2.7. Upon
receipt of any such General Borrowing Notice from the US Borrower, the
Administrative Agent shall promptly notify each US Dollar RCF Lender thereof. Each
US Dollar RCF Lender will make its US Dollar RCF Percentage of the amount of each
borrowing of US Dollar RCF Loans available to the Administrative Agent in
Dollars for the account of the US Borrower at the Administrative Agent’s
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the US Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the US
Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.


 


48

















 


(b)           Subject to the provisions of Section
2.4(b), the US Borrower or the Canadian Borrower may borrow under the Dual
Currency RCF Commitments on any Business Day during the Dual Currency RCF
Commitment Period, provided that the US Borrower or the Canadian
Borrower, as the case may be, shall deliver (x) in the case of any US Borrower
Dual Currency RCF Loan, an Alternate Currency Facilities Borrowing Notice to
the US Dual Currency RCF Agent (with a copy to each other Facility Agent),
which Alternate Currency Facilities Borrowing Notice must be received by the US
Dual Currency RCF Agent prior to 12:00 Noon, New York time, (I) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans or
(II) one Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans and (y) in the case of any Canadian Borrower Dual Currency RCF
Loan, an Alternate Currency Facilities Borrowing Notice to the Canadian Agent
(with a copy to each other Facility Agent), which Alternate Currency Facilities
Borrowing Notice must be received by the Canadian Agent prior to 12:00 Noon,
Toronto time, (I) three Business Days prior to the requested Borrowing Date, in
the case of BA Loans or BA Equivalent Loans or (II) one Business Day prior to
the requested Borrowing Date, in the case of Canadian Prime Rate Loans. Each
borrowing of Dual Currency RCF Loans under the Dual Currency RCF Commitments
shall be in an amount (or face amount in the case of BA Loans) equal to (w) in
the case of  Base Rate Loans, $1,000,000
or $500,000 integrals in excess thereof (or, if the then aggregate Available
Dual Currency RCF Commitments are less than the $1,000,000, such lesser
amount), (x) in the case of Eurodollar Loans, $2,000,000 or $500,000 integrals
in excess thereof, (y) in the case of 
Canadian Prime Rate Loans, CDN$1,000,000 or CDN$500,000 integrals in
excess thereof (or, if the then aggregate Available Dual Currency RCF
Commitments are less than the Dollar Equivalent of CDN$1,000,000, such lesser
amount) and (z) in the case of BA Loans or BA Equivalent Loans, CDN$2,000,000
or CDN$500,000 integrals in excess thereof. Upon receipt of any such Alternate
Currency Facilities Borrowing Notice from the US Borrower or the Canadian
Borrower, as the case may be, the US Dual Currency RCF Agent or the Canadian
Agent, as the case may be, shall promptly notify each Dual Currency RCF Lender
thereof. Each Dual Currency RCF Lender will make its Dual Currency RCF
Percentage of the amount of each borrowing of Dual Currency RCF Loans available
(x) in the case of US Borrower Dual Currency RCF Loans, to the US Dual Currency
RCF Agent for the account of the US Borrower at the US Dual Currency RCF Agent’s
Funding Office prior to 12:00 Noon, New York time, on the Borrowing Date
requested by the US Borrower in funds immediately available to the US Dual
Currency RCF Agent and (y) in the case of Canadian Borrower Dual Currency RCF
Loans, to the Canadian Agent for the account of the Canadian Borrower at the
Canadian Agent’s Funding Office prior to 12:00 Noon, Toronto time, on the
Borrowing Date requested by the Canadian Borrower in funds immediately
available to the Canadian Agent. Such borrowing will then be made available to
the US Borrower or the Canadian Borrower, as the case may be, by the US Dual
Currency RCF Agent in like funds as received by the US Dual Currency RCF Agent
(in the case of US Borrower Dual Currency RCF Loans) or by the Canadian Agent
in like funds as received by the Canadian Agent (in the case of Canadian
Borrower Dual Currency RCF Loans).


 


2.6           Swing Line Commitment. (a)  Subject to the terms and conditions hereof,
the Swing Line Lender agrees that, during the US Dollar RCF Commitment Period,
it will make available to the US Borrower in the form of swing line loans (“Swing
Line Loans”) a portion of the credit otherwise available to the US Borrower
under the US Dollar RCF Commitments; provided that (i) the aggregate
principal amount of Swing Line Loans outstanding at any time shall not exceed
the Swing Line Commitment then in effect (notwithstanding that the Swing Line


 


49

















 


Loans outstanding at any time, when
aggregated with the Swing Line Lender’s other outstanding US Dollar RCF Loans
hereunder, may exceed the Swing Line Commitment then in effect or the Swing
Line Lender’s US Dollar RCF Commitment then in effect) and (ii) the US Borrower
shall not request, and the Swing Line Lender shall not make, any Swing Line
Loan if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available US Dollar RCF Commitments would be less than
zero. During the US Dollar RCF Commitment Period, the US Borrower may use the
Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans
only.


 


(b)           The US Borrower shall repay all
outstanding Swing Line Loans on the US Dollar RCF Termination Date.


 


2.7           Procedure for Swing Line
Borrowing; Refunding of Swing Line Loans. (a)  The US Borrower may borrow under the Swing
Line Commitment on any Business Day during the US Dollar RCF Commitment Period,
provided, the US Borrower shall give the Swing Line Lender irrevocable
written notice (which written notice must be received by the Swing Line Lender
not later than 1:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date.
Each borrowing under the Swing Line Commitment shall be in an amount equal to
$500,000 or $100,000 integrals in excess thereof. Not later than 3:00 P.M., New
York City time, on the Borrowing Date specified in the borrowing notice in
respect of any Swing Line Loan, the Swing Line Lender shall make available to
the Administrative Agent at the Administrative Agent’s Funding Office an amount
in immediately available funds equal to the amount of such Swing Line Loan. The
Administrative Agent shall make the proceeds of such Swing Line Loan available
to the US Borrower on such Borrowing Date in like funds as received by the
Administrative Agent.


 


(b)           The Swing Line Lender, at any time
and from time to time in its sole and absolute discretion may, on behalf of the
US Borrower (which hereby irrevocably directs the Swing Line Lender to act on
its behalf), on one Business Day’s notice given by the Swing Line Lender no
later than 12:00 Noon, New York City time, request each US Dollar RCF Lender to
make, and each US Dollar RCF Lender hereby agrees to make, a US Dollar RCF Loan
(which shall initially be a Base Rate Loan), in an amount equal to such US
Dollar RCF Lender’s US Dollar RCF Percentage of the aggregate amount of the
Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the
date of such notice, to repay the outstanding Swing Line Loans. Each US Dollar
RCF Lender shall make the amount of such US Dollar RCF Loan available to the
Administrative Agent at the Administrative Agent’s Funding Office in
immediately available funds, not later than 10:00 A.M., New York City time, one
Business Day after the date of such notice. The proceeds of such US Dollar RCF
Loans shall be made immediately available by the Administrative Agent to the
Swing Line Lender for application by the Swing Line Lender to the repayment of
the Refunded Swing Line Loans. The US Borrower irrevocably authorizes the Swing
Line Lender to charge the US Borrower’s accounts with the Administrative Agent
(up to the amount available in each such account) in order to immediately pay
the amount of such Refunded Swing Line Loans to the extent amounts received
from the US Dollar RCF Lenders are not sufficient to repay in full such
Refunded Swing Line Loans.


 


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(c)           If prior to the time a US Dollar RCF
Loan would have otherwise been made pursuant to Section 2.7(b), one of the
events described in Section 8(f) shall exist and be continuing with respect to
the US Borrower, or if for any other reason, as determined by the Swing Line
Lender in its sole discretion, US Dollar RCF Loans may not be made as
contemplated by Section 2.7(b), each US Dollar RCF Lender shall, on the date
such US Dollar RCF Loan was to have been made pursuant to the notice referred
to in Section 2.7(b) (the “Refunding Date”), purchase for cash in
Dollars an undivided participating interest in the then outstanding Swing Line
Loans by paying to the Swing Line Lender an amount (the “Swing Line
Participation Amount”) equal to (i) such US Dollar RCF Lender’s US Dollar
RCF Percentage times (ii) the sum of the aggregate principal amount of
Swing Line Loans then outstanding which were to have been repaid with such US
Dollar RCF Loans.


 


(d)           Whenever, at any time after the Swing
Line Lender has received from any US Dollar RCF Lender such Lender’s Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s pro  rata portion
of such payment if such payment is not sufficient to pay the principal of and
interest on all Swing Line Loans then due); provided, however,
that in the event that such payment received by the Swing Line Lender is
required to be returned, such US Dollar RCF Lender will return to the Swing
Line Lender any portion thereof previously distributed to it by the Swing Line
Lender.


 


(e)           Each US Dollar RCF Lender’s
obligation to make the Loans referred to in Section 2.7(b) and to purchase
participating interests pursuant to Section 2.7(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right
which such US Dollar RCF Lender or the US Borrower may have against the Swing
Line Lender, the US Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii)
any adverse change in the condition (financial or otherwise) of the US
Borrower; (iv) any breach of this Agreement or any other Loan Document by the
US Borrower, any other Loan Party or any other US Dollar RCF Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.


 


2.8           Repayment of Loans; Evidence of
Debt. (a)  The US Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate US Dollar RCF Lender or the Swing Line Lender and to the
Administrative Agent for the account of the appropriate Term Loan Lender, as
the case may be, (i) the then unpaid principal amount of each US Dollar RCF
Loan of such US Dollar RCF Lender on the US Dollar RCF Termination Date (or on
such earlier date on which such Loans become due and payable pursuant to Section
8), (ii) the then unpaid principal amount of each Swing Line Loan of such Swing
Line Lender on the US Dollar RCF Termination Date (or on such earlier date on
which such Loans become due and payable pursuant to Section 8), (iii) the
principal amount of each Initial US Term Loan of such Initial US Term Loan
Lender in installments according to the amortization schedule set forth in
Section 2.3 (or on such earlier date on which such Loans


 


51

















 


become due and payable pursuant to Section 8)
and (iv) with respect to any Incremental US Term Loan under an Incremental US
Term Loan Facility, the principal amount of each Incremental US Term Loan of
the relevant series of Incremental US Term Loans according to the relevant
repayment schedule agreed to by the Lenders of such Incremental US Term Loan
pursuant to Section 2.25 (or on such earlier date on which such Loans become
due and payable pursuant to Section 8). The US Borrower hereby further agrees
to pay interest on the unpaid principal amount of the US Dollar-Denominated
Facilities Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.15.


 


(b)           The US Borrower hereby unconditionally
promises to pay to the US Dual Currency RCF Agent for the account of the
appropriate Dual Currency RCF Lender the then unpaid principal amount of each
US Borrower Dual Currency RCF Loan of such Dual Currency RCF Lender on the Dual
Currency RCF Termination Date (or on such earlier date on which the US Borrower
Dual Currency RCF Loans become due and payable pursuant to Section 8). The US
Borrower hereby further agrees to pay interest on the unpaid principal amount
of the US Borrower Dual Currency RCF Loans from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum, and on
the dates, set forth in Section 2.15.


 


(c)           The Canadian Borrower hereby
unconditionally promises to pay to the Canadian Agent for the account of the
appropriate Dual Currency RCF Lender or Canadian Term Loan Lender, as the case
may be, (i) the then unpaid principal amount of each Canadian Borrower Dual
Currency RCF Loan of such Dual Currency RCF Lender on the Dual Currency RCF
Termination Date (or on such earlier date on which such Loans become due and
payable pursuant to Section 8) and (ii) the principal or face amount, as
applicable, of each Canadian Term Loan of such Canadian Term Loan Lender in
installments according to the amortization schedule set forth in Section 2.3
(or on such earlier date on which such Loans become due and payable pursuant to
Section 8). The Canadian Borrower hereby further agrees to pay interest on the
unpaid principal or face amount, as applicable, of the Canadian Borrower Loans
from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.15.


 


(d)           Each US Dollar-Denominated Facility
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the US Borrower to such US
Dollar-Denominated Facility Lender resulting from each US Dollar-Denominated
Facilities Loan of such US Dollar-Denominated Facility Lender from time to
time, including the amounts of principal and interest payable and paid to such
US Dollar-Denominated Facility Lender from time to time under this Agreement. Each
Alternate Currency Facilities Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the US
Borrower or the Canadian Borrower, as applicable, to such Alternate Currency
Facilities Lender resulting from each Alternate Currency Facilities Loan of
such Alternate Currency Facilities Lender from time to time, including the
amounts of principal and interest payable and paid to such Alternate Currency
Facilities Lender from time to time under this Agreement.


 


(e)           The Administrative Agent, on behalf
of the US Borrower, shall maintain the US Dollar-Denominated Facilities
Register pursuant to Section 10.6(d), and a subaccount


 


52

















 


therein for each US Dollar-Denominated
Facility Lender, in which shall be recorded (i) the amount of each US
Dollar-Denominated Facilities Loan made hereunder and any Note evidencing such
US Dollar-Denominated Facilities Loan, the Facility under which such US
Dollar-Denominated Facilities Loan was made, the Type of such US
Dollar-Denominated Facilities Loan and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the US Borrower to each US Dollar-Denominated Facility Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the US Borrower and each US Dollar-Denominated Facility
Lender’s share thereof. Each of the US Dual Currency RCF Agent and the Canadian
Agent, on behalf of the US Borrower and the Canadian Borrower, shall maintain
the Alternate Currency Facilities Register pursuant to Section 10.6(d), and a
subaccount therein for each Alternate Currency Facilities Lender, in which
shall be recorded (i) the amount of each Alternate Currency Facilities Loan
made hereunder and any Canadian Term Note, US Borrower Dual Currency RCF Note
or Canadian Borrower Dual Currency RCF Note, as the case may be, evidencing
such Alternate Currency Facilities Loan, the Type of such Alternate Currency
Facilities Loan, the Borrower thereof and each Interest Period applicable
thereto, (ii) the amount of any principal (or face amount) or interest due and
payable or to become due and payable from the US Borrower or the Canadian
Borrower, as applicable, to each Alternate Currency Facilities Lender hereunder
and (iii) both the amount of any sum received by the US Dual Currency RCF Agent
or the Canadian Agent, as applicable, hereunder from the US Borrower or the
Canadian Borrower, as applicable, and each Alternate Currency Facilities Lender’s
share thereof.


 


(f)            The entries made in the US Dollar-Denominated
Facilities Register and the accounts of each US Dollar-Denominated Facility
Lender maintained pursuant to Section 2.8(d) shall, to the extent permitted by
applicable law, be prima  facie evidence of the existence and
amounts of the obligations of the US Borrower therein recorded; provided,
however, that the failure of any US Dollar-Denominated Facility Lender
or the Administrative Agent to maintain the Register or any such account, or
any error therein, shall not in any manner affect the obligation of the US
Borrower to repay (with applicable interest) the US Dollar-Denominated
Facilities Loans made to the US Borrower by such US Dollar-Denominated Facility
Lender in accordance with the terms of this Agreement. The entries made in the
Alternate Currency Facilities Register and the accounts of each Alternate
Currency Facilities Lender maintained pursuant to Section 2.8(d) shall, to the
extent permitted by applicable law, be prima  facie evidence of
the existence and amounts of the obligations of the US Borrower and the
Canadian Borrower therein recorded; provided, however, that the
failure of any Alternate Currency Facilities Lender, the US Dual Currency RCF
Agent or the Canadian Agent to maintain the Alternate Currency Facilities
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the US Borrower or the Canadian Borrower, as the case
may be, to repay (with applicable interest) the Alternate Currency Facilities
Loans made to it by such Alternate Currency Facilities Lender in accordance
with the terms of this Agreement.


 


(g)           The US Borrower agrees that (x) upon
the request to the Administrative Agent by any US Dollar-Denominated Facility
Lender, the US Borrower will promptly execute and deliver to such Lender a
promissory note of the US Borrower evidencing any Initial US Term Loans, US
Dollar RCF Loans, Swing Line Loans or Incremental US Term Loans, as the case
may be, of such Lender, substantially in the forms of Exhibit G-1, G-2, G-3 or
G-4, respectively (an “Initial US Term Note”, “US Dollar RCF Note”,
“Swing Line Note” or


 


53
















 


“Incremental US Term Note”,
respectively), with appropriate insertions as to date and principal amount, provided
that the obligations of the US Borrower in respect of each US
Dollar-Denominated Facilities Loan shall be enforceable in accordance with the
Loan Documents whether or not evidenced by any US Dollar-Denominated Facility
Note and (y) upon the request to the US Dual Currency RCF Agent by any Dual
Currency RCF Lender, the US Borrower will promptly execute and deliver to such
Lender a promissory note of the US Borrower evidencing any US Borrower Dual
Currency RCF Loans of such Lender, substantially in the form of Exhibit G-5 (a “US
Borrower Dual Currency RCF Note”), with appropriate insertions as to date
and principal amount, provided that the obligations of the US Borrower
in respect of each US Borrower Dual Currency RCF Loan shall be enforceable in
accordance with the Loan Documents whether or not evidenced by any US Borrower
Dual Currency RCF Note.


 


(h)           The Canadian Borrower
agrees that, upon the request to the Canadian Agent by any Alternate Currency
Facilities Lender, the Canadian Borrower will promptly execute and deliver to
such Lender a promissory note of the Canadian Borrower evidencing any Canadian
Term Loans or Canadian Borrower Dual Currency RCF Loans, as the case may be, of
such Lender, substantially in the form of Exhibit G-6 or G-7, respectively (a “Canadian
Term Note” or “Canadian Borrower Dual Currency RCF Note”), with
appropriate insertions as to date and principal or face amount, as applicable, provided
that the obligations of the Canadian Borrower in respect of each Canadian
Borrower Loan shall be enforceable in accordance with the Loan Documents
whether or not evidenced by any Canadian Term Note or Canadian Borrower Dual
Currency RCF Note, as applicable.


 


2.9           Commitment Fees, etc.
(a)  The US Borrower agrees to pay (x) to
the Administrative Agent for the account of each US Dollar RCF Lender a
commitment fee for the period from and including the date hereof to the last
day of the US Dollar RCF Commitment Period, computed at the Commitment Fee Rate
on the average daily amount of the Available US Dollar RCF Commitment of such
Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
US Dollar RCF Termination Date, commencing on the first of such dates to occur
after the date hereof and (y) to the US Dual Currency RCF Agent for the account
of each Dual Currency RCF Lender a commitment fee for the period from and
including the date hereof to the last day of the Dual Currency RCF Commitment
Period, computed at the Commitment Fee Rate on the average daily amount of the
Available Dual Currency RCF Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Dual Currency RCF Termination
Date, commencing on the first of such dates to occur after the date hereof.


 


(b)           The US Borrower agrees
to pay on the Closing Date to the Arrangers the facilities fees in the amounts
and on the dates previously agreed to in writing by the US Borrower and the
Arrangers.


 


(c)           The US Borrower agrees
to pay to the Administrative Agent and the US Dual Currency RCF Agent the
agency fees in the amounts and on the dates from time to time agreed to in
writing by the US Borrower and the Administrative Agent or the US Dual Currency
RCF Agent, as the case may be.


 


54

















 


(d)           The Canadian Borrower
agrees to pay to the Canadian Agent the fees in the amounts and on the dates
from time to time agreed to in writing by the Canadian Borrower and the
Canadian Agent.


 


2.10         Termination or Reduction of Revolving
Credit Commitments. The US Borrower shall have the right, upon not less
than three Business Days’ notice to each Facility Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the aggregate
amount of the Revolving Credit Commitments, with the amount of each reduction
pursuant to this Section 2.10 to apply to reduce, on a pro  rata
basis (based upon the relative amounts of the US Dollar RCF Commitments and the
Dual Currency RCF Commitments, in each case before giving effect to such
reduction), the US Dollar RCF Commitments and the Dual Currency RCF
Commitments; provided that no such termination or reduction pursuant to
this Section 2.10 shall be permitted if either (x) after giving effect thereto
and to any prepayments of the US Dollar RCF Loans and Swing Line Loans made on
the effective date thereof, the Total US Dollar RCF Extensions of Credit would
exceed the Total US Dollar RCF Commitments or (y) after giving effect thereto
and to any prepayments of the Dual Currency RCF Loans on the effective date
thereof, the Total Dual Currency RCF Extensions of Credit would exceed the
Total Dual Currency RCF Commitments. Any reduction in the Revolving Credit
Commitments pursuant to this Section 2.10 shall be in an amount equal to
$500,000 or a whole multiple thereof, and shall reduce permanently the US
Dollar RCF Commitments or the Dual Currency RCF Commitments, as applicable,
then in effect.


 


2.11         Optional Prepayments.
(a)  The US Borrower may at any time and
from time to time prepay the US Dollar-Denominated Facilities Loans, in whole
or in part, without premium or penalty (except as otherwise provided herein),
upon irrevocable notice delivered to the Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and at least one
Business Day prior thereto in the case of Base Rate Loans, which notice shall
specify the date and amount of such prepayment, whether such prepayment is of
Initial US Term Loans, Incremental US Term Loans under a given Incremental US
Term Loan Facility, US Dollar RCF Loans or Swing Line Loans, and whether such
prepayment is of Eurodollar Loans or Base Rate Loans; provided, that (i)
if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the US Borrower shall also pay any amounts
owing pursuant to Section 2.21 and (ii) same day notice is required for the
prepayment of Swing Line Loans. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each relevant US Dollar-Denominated
Facility Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with (except in the case of US Dollar RCF Loans that are Base Rate Loans and
Swingline Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of US Dollar-Denominated Facilities Loans (other than Swingline
Loans) shall be in an aggregate principal amount of $500,000 or a whole
multiple thereof. Partial prepayments of Swing Line Loans shall be in an
aggregate principal amount of $100,000 or a whole multiple thereof.


 


(b)           The US Borrower may at
any time and from time to time prepay the US Borrower Dual Currency RCF Loans,
in whole or in part, without premium or penalty (except as otherwise provided
herein), upon irrevocable notice delivered to the US Dual Currency RCF Agent
(with a copy to the Canadian Agent) at least three Business Days prior thereto
in the case of Eurodollar Loans and at least one Business Day prior thereto in
the case of Base Rate Loans,


 


55

















 


which notice shall specify the date and
amount of such prepayment and whether such prepayment is of Eurodollar Loans or
Base Rate Loans; provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the US
Borrower shall also pay any amounts owing pursuant to Section 2.21. Upon
receipt of any such notice, the US Dual Currency RCF Agent shall promptly
notify each Dual Currency RCF Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of US Borrower Dual Currency RCF
Loans that are Base Rate Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of US Borrower Dual Currency RCF Loans shall be in
an aggregate principal amount of $500,000 or a whole multiple thereof.


 


(c)           The Canadian Borrower
may at any time and from time to time prepay the Canadian Borrower Loans, in
whole or in part, without premium or penalty (except as otherwise provided
herein), upon irrevocable notice delivered to the Canadian Agent (with a copy
to the US Dual Currency RCF Agent, in the case of a prepayment of Canadian Borrower
Dual Currency RCF Loans,) at least three Business Days prior thereto in the
case of BA Loans or BA Equivalent Loans and at least one Business Day prior
thereto in the case of Canadian Prime Rate Loans, which notice shall specify
the date and amount of such prepayment, whether such prepayment is of Canadian
Term Loans or Canadian Borrower Dual Currency RCF Loans and whether such
prepayment is of BA Loans (or BA Equivalent Loans) or Canadian Prime Rate
Loans; provided, that no optional prepayments of Canadian Borrower Loans
maintained as BA Loans (or BA Equivalent Loans) shall be made prior to the last
day of the Interest Period applicable thereto. Upon receipt of any such notice,
the Canadian Agent shall promptly notify each relevant Alternate Currency Facilities
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
(except in the case of Canadian Borrower Dual Currency RCF Loans that are
Canadian Prime Rate Loans, BA Loans or BA Equivalent Loans) accrued interest to
such date on the amount prepaid. Partial prepayments of Canadian Borrower Loans
shall be in an aggregate principal amount of CDN$500,000 or a whole multiple
thereof.


 


2.12         Mandatory Prepayments
and Commitment Reductions. (a) If any Indebtedness shall be incurred by any
Loan Party or its Subsidiaries (excluding any Indebtedness incurred in
accordance with Section 7.2 as in effect on the Closing Date (other than
Indebtedness incurred pursuant to clause (f) thereof in circumstances where
clause (vii) thereof requires the Net Cash Proceeds of such Indebtedness to be
applied pursuant to this Section 2.12(a)), then on the date of such issuance or
incurrence, the Term Loans shall be prepaid, and/or the Revolving Credit
Commitments shall be reduced, by an amount equal to the amount of the Net Cash
Proceeds of such issuance or incurrence, as set forth in Section 2.12(d). The
provisions of this Section do not constitute a consent to the incurrence of any
Indebtedness by the US Borrower or any of its Subsidiaries.


 


(a)           If on any date the US
Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any
Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, on the date of receipt by the US Borrower or such
Subsidiary of such Net Cash Proceeds, the Term Loans shall be prepaid, and/or
the Revolving Credit Commitments shall be reduced, by an amount equal to the
amount of such Net Cash Proceeds, as set forth in Section 2.12(d); provided,
that, notwithstanding the foregoing, (i) the aggregate Net


 


56

















 


Cash Proceeds of Asset Sales and Recovery
Events that may be excluded from the foregoing requirement pursuant to a Reinvestment
Notice shall not exceed $20,000,000 in any fiscal year of the US Borrower and
(ii) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid,
and/or the Revolving Credit Commitments shall be reduced, by an amount equal to
the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event, as set forth in Section 2.12(d). The provisions of this Section do not
constitute a consent to the consummation of any Disposition not permitted by
Section 7.5


 


(b)           On each Excess Cash
Flow Application Date, if there shall be Excess Cash Flow for the related
Excess Cash Flow Period, the Term Loans shall be prepaid and/or the Revolving
Credit Commitments shall be reduced, by an amount equal to the ECF Percentage
of the Adjusted Excess Cash Flow for such Excess Cash Flow Period, as set forth
in Section 2.12(d).


 


(c)           Amounts to be applied
in connection with prepayments and/or Commitment reductions made pursuant to
clauses (a), (b) and (c) of this Section 2.12 shall be applied, first,
to the prepayment of the Term Loans in accordance with the requirements of
Section 2.18(b) and, second, pro  rata to reduce
permanently the US Dollar RCF Commitments and the Dual Currency RCF Commitments.
Any such reduction of the US Dollar RCF Commitments or the Dual Currency RCF
Commitments shall be accompanied by the prepayment of the US Dollar RCF Loans,
Swing Line Loans and/or Dual Currency RCF Loans to the extent, if any, that the
Total US Dollar RCF Extensions of Credit or the Total Dual Currency RCF Extensions
of Credit, as the case may be, exceed the amount of the Total US Dollar RCF
Commitments or the Total Dual Currency RCF Commitments, as the case may be, as
so reduced; provided that if the aggregate Principal Amount of US Dollar
RCF Loans and Swing Line Loans or Dual Currency RCF Loans, as the case may be,
then outstanding is less than the amount of such excess (because US Dollar RCF
L/C Obligations or Dual Currency RCF L/C Obligations, as the case may be,
constitute a portion thereof), the US Borrower or the Canadian Borrower, as
applicable, shall, to the extent of the balance of such excess, replace
outstanding US Dollar RCF Letters of Credit or Dual Currency RCF Letters of
Credit, as the case may be, and/or deposit an amount in cash (in the relevant
currency) in a Cash Collateral Account established with the Administrative
Agent or the Canadian Agent, as the case may be, for the benefit of the Secured
Parties on terms and conditions satisfactory to the Administrative Agent or the
Canadian Agent, as the case may be.


 


(d)           If the US Dollar RCF
Extensions of Credit exceed the Total US Dollar RCF Commitments at any time,
the US Borrower shall, without notice or demand, immediately repay such of its
outstanding US Dollar RCF Loans and/or Swing Line Loans in an aggregate
principal amount such that, after giving effect thereto, the US Dollar RCF
Extensions of Credit do not exceed the Total US Dollar RCF Commitments,
together with interest accrued to the date of such payment or prepayment on the
principal so prepaid and any amounts payable under Section 2.21 in connection
therewith; provided that, if the aggregate principal amount of US Dollar
RCF Loans then outstanding is less than the Total US Dollar RCF Commitments
(because US Dollar RCF L/C Obligations constitute a portion of US Dollar RCF
Extensions of Credit), the US Borrower shall, to the extent of the balance of
such excess (the “US Dollar RCF Excess Amount”), replace outstanding US
Dollar RCF Letters of Credit and/or deposit an amount in Dollars and in immediately
available funds into a Cash Collateral Account; provided, further


 


57

















 


that, if the Administrative Agent determines
(i) that the total amount of funds on deposit in the Cash Collateral Account is
less than the US Dollar RCF Excess Amount, the US Borrower shall forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in such account, an amount equal to
the excess of (A) the US Dollar RCF Excess Amount over (B) the total amount of
funds, if any, held in such account or (ii) that the US Dollar RCF Excess
Amount has been reduced to zero (or less than zero), the amount of funds on
deposit in the Cash Collateral Account shall be released and returned to the US
Borrower. Any prepayments required by this Section 2.12(e) shall be applied first
to outstanding Base Rate Loans, up to the full amount of each thereof, before
they are applied to Eurodollar Loans.


 


(e)           Subject to Section
2.12(g), if the Dual Currency RCF Extensions of Credit exceed the Total Dual
Currency RCF Commitments at any time, the US Borrower and/or the Canadian
Borrower shall, without notice or demand, immediately repay such of its
outstanding Dual Currency RCF Loans in an aggregate principal amount such that,
after giving effect thereto, the Dual Currency RCF Extensions of Credit do not
exceed the Total Dual Currency RCF Commitments, together with interest accrued
to the date of such payment or prepayment on the principal so prepaid and any
amounts payable under Section 2.21 in connection therewith; provided
that, if the aggregate Principal Amount of Dual Currency RCF Loans then
outstanding is less than the Total Dual Currency RCF Commitments (because Dual
Currency RCF L/C Obligations constitute a portion of Dual Currency RCF
Extensions of Credit), the Canadian Borrower shall, to the extent of the
balance of such excess (the “Dual Currency RCF Excess Amount”), replace
outstanding Dual Currency RCF Letters of Credit and/or deposit an amount in
Canadian Dollars and in immediately available funds into a Cash Collateral
Account; provided, further that, if the Canadian Agent determines
(i) that the total amount of funds on deposit in the Cash Collateral Account is
less than the Dual Currency RCF Excess Amount, the Canadian Borrower shall
forthwith upon demand by the Canadian Agent, pay to the Canadian Agent, as
additional funds to be deposited and held in such account, an amount equal to
the excess of (A) the Dual Currency RCF Excess Amount over (B) the total amount
of funds, if any, held in such account or (ii) that the Dual Currency RCF
Excess Amount has been reduced to zero (or less than zero), the amount of funds
on deposit in the Cash Collateral Account shall be released and returned to the
Canadian Borrower. Any prepayments required by this Section 2.12(f) shall be
applied first to outstanding Base Rate Loans, up to the full amount of
each thereof, before they are applied to Eurodollar Loans, BA Loans and/or BA
Equivalent Loans.


 


(f)            If, due to any
prepayment required pursuant to Section 2.12 it is necessary to repay BA Loans
or BA Equivalent Loans prior to the maturity thereof, the Canadian Borrower
will not be required to repay such BA Loans or BA Equivalent Loans until the maturity
thereof, provided, however, that at the request of the Canadian
Agent, the Canadian Borrower shall forthwith pay to the Canadian Agent for
deposit into a Cash Collateral Account maintained by and in the name of the
Canadian Agent, as agent for and on behalf of the Dual Currency RCF Lenders
(and the Canadian Borrower will grant to the Canadian Agent, for the ratable
benefit of the Dual Currency RCF Lenders, a continuing security interest in all
amounts at any time on deposit in such Cash Collateral Account to secure the
amount of each such BA Loan or BA Equivalent Loan required to be prepaid), an
amount equal to the principal amount to otherwise be prepaid, to be held by the
Canadian Agent for set-off against future Obligations owing by the Canadian Borrower
in respect of such BA Loans or BA Equivalent Loans and, pending such


 


58

















 


application, such amount will bear interest
at the rate declared by the Canadian Agent from time to time as that payable by
it in respect of deposits for such amount and for the period from the date of
deposit to the end of the date of maturity of each such BA Loan or BA
Equivalent Loan.


 


2.13         Conversion and
Continuation Options. (a)  The US
Borrower may elect from time to time to convert Eurodollar Loans under a given
US Borrower Facility to Base Rate Loans under such Facility by giving the
Administrative Agent or (in the case of US Borrower Dual Currency RCF Loans
maintained as Eurodollar Loans) the US Dual Currency RCF Agent at least two
Business Days’ prior irrevocable notice of such election, provided that
any such conversion of Eurodollar Loans may be made only on the last day of an
Interest Period with respect thereto. The US Borrower may elect from time to
time to convert Base Rate Loans under a given US Borrower Facility to
Eurodollar Loans under such Facility by giving the Administrative Agent or (in
the case of US Borrower Dual Currency RCF Loans maintained as Base Rate Loans)
the US Dual Currency RCF Agent at least three Business Days’ prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a
particular US Borrower Facility may be converted into a Eurodollar Loan (i) when
any Event of Default has occurred and is continuing and the Administrative
Agent or (in the case of US Borrower Dual Currency RCF Loans maintained as Base
Rate Loans) the US Dual Currency RCF Agent has, or the Majority Facility
Lenders in respect of such US Borrower Facility have, determined in its or
their sole discretion not to permit such conversions or (ii) after the date
that is one month prior to the final scheduled termination or maturity date of
such US Borrower Facility. Upon receipt of any such notice, the Administrative
Agent or the US Dual Currency RCF Agent, as the case may be, shall promptly
notify each relevant US Dollar-Denominated Facility Lender or Dual Currency RCF
Lender, as the case may be, thereof.


 


(b)           The US Borrower may
elect to continue any Eurodollar Loan under a given US Borrower Facility as
such upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent (or, in the
case of US Borrower Dual Currency RCF Loans maintained as Eurodollar Loans, the
US Dual Currency RCF Agent), in accordance with the applicable provisions of
the term “Interest Period” set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Eurodollar Loans, provided that
no Eurodollar Loan under a particular US Borrower Facility may be continued as
such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent (or, in the case of US
Borrower Dual Currency RCF Loans maintained as Eurodollar Loans, the US Dual
Currency RCF Agent) has, or the Majority Facility Lenders in respect of such US
Borrower Facility have, determined in its or their sole discretion not to
permit such continuations or (ii) after
the date that is one month prior to the final scheduled termination or maturity
date of such US Borrower Facility, and provided, further, that if
the US Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso, such Eurodollar Loans shall be converted automatically to
Base Rate Loans under such US Borrower Facility on the last day of such then
expiring Interest Period. Upon receipt of any such notice, the Administrative
Agent or the US Dual Currency RCF Agent, as the case may be, shall promptly
notify each relevant US Dollar-Denominated Facility Lender or Dual Currency RCF
Lender, as the case may be, thereof.


 


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(c)           The Canadian Borrower
may elect from time to time to convert Bankers’ Acceptances under a given
Canadian Borrower Facility (upon the maturity of such Bankers’ Acceptances) to
Canadian Prime Rate Loans by giving the Canadian Agent at least two Business
Days’ prior irrevocable notice of such election. Subject to Section 2.26(l),
the Canadian Borrower may elect from time to time to convert Canadian Prime
Rate Loans under a given Canadian Borrower Facility to BA Loans and/or BA
Equivalent Loans, as applicable, under such Facility by giving the Canadian
Agent at least three Business Days’ prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period
therefor), provided that (x) in the case of any conversion of Canadian
Term Loans maintained as Canadian Prime Rate Loans to BA Loans (and/or BA
Equivalent Loans) at any time prior to the 30th Business Day following the
Closing Date, the length of the Interest Period therefor shall be one-week and
(y) no Canadian Prime Rate Loan may be converted into a BA Loan or BA
Equivalent Loan (i) when any Event of Default has occurred and is continuing
and the Canadian Agent has, or the Majority Facility Lenders in respect of such
Canadian Borrower Facility have, determined in its or their sole discretion not
to permit such conversions or (ii) after the date that is one month prior to
the final scheduled termination or maturity date of such Canadian Borrower
Facility. Upon receipt of any such notice, the Canadian Agent shall promptly
notify each relevant Alternate Currency Facilities Lender thereof.


 


(d)           Subject to Section
2.26(l), the Canadian Borrower may elect to continue any BA Loan or BA
Equivalent Loan under a given Canadian Borrower Facility as such upon the
expiration of the then current Interest Period with respect thereto by giving
irrevocable notice to the Canadian Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.1, of the
length of the next Interest Period to be applicable to such BA Loan or BA
Equivalent Loan, provided that (x) in the case of any continuation of
Canadian Term Loans theretofore maintained as BA Loans (and/or BA Equivalent
Loans) as Canadian Term Loans of such Type(s) at any time prior to the 30th
Business Day following the Closing Date, the length of the Interest Period
therefor shall be one-week and (y) no BA Loan or BA Equivalent Loan under a
given Canadian Borrower Facility may be continued as such (i) when any Event of Default has occurred and
is continuing and the Canadian Agent has, or the Majority Facility Lenders in
respect of such Canadian Borrower Facility have, determined in its or their
sole discretion not to permit such continuations or (ii) after the date that is one month prior to the final scheduled
termination or maturity date of such Canadian Borrower Facility, and provided,
further, that if the Canadian Borrower shall fail to give any required
notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso and Section 2.26(l), such BA Loans
or BA Equivalent Loans shall be converted automatically to Canadian Prime Rate
Loans under such Canadian Borrower Facility on the last day of such then
expiring Interest Period. Upon receipt of any such notice, the Canadian Agent
shall promptly notify each relevant Alternate Currency Facilities Lender
thereof.


 


2.14         Minimum Amounts and Maximum Number of
Eurodollar Tranches. (a) 
Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans and all selections of Interest Periods in respect thereof shall be in
such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche
shall be equal to $2,000,000 or $500,000 integrals in excess thereof and (b) no more than ten Eurodollar Tranches shall
be outstanding at any one time.


 


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(b)           Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of BA Loans and BA Equivalent Loans, and
all selections of Interest Periods in respect thereof, shall be in such amounts
and be made pursuant to such elections so that (i) after giving effect thereto,
the aggregate face amount of any BA Loan or BA Equivalent Loan shall be equal
to CDN$2,000,000 or CDN$500,000 integrals in excess thereof and (ii) no more
than five BA Loans and/or BA Equivalent Loans shall be outstanding at any one
time.


 


2.15         Interest Rates and
Payment Dates. (a)  Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin in effect for such day.


 


(b)           Each Base Rate Loan
shall bear interest for each day on which it is outstanding at a rate per annum
equal to the Base Rate in effect for such day plus the Applicable Margin
in effect for such day.


 


(c)           Each Canadian Prime
Rate Loan shall bear interest for each day on which it is outstanding at a rate
per annum equal to the Canadian Prime Rate in effect for such day plus the
Applicable Margin in effect for such day.


 


(d)           Upon acceptance of a
Bankers’ Acceptance by a Canadian Lender, the Canadian Borrower shall pay to
the Canadian Agent on behalf of the Canadian Lender the Acceptance Fee
calculated on the face amount of the Bankers’ Acceptances at a rate per annum
equal to the Applicable Margin on the basis of the number of days in the
Interest Period for the Bankers’ Acceptance and a year of 365 days.


 


(e)           (i)  If all or a portion of the principal amount
of any US Dollar-Denominated Facilities Loan or US Dollar RCF Reimbursement
Obligation shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), all outstanding US Dollar-Denominated Facilities
Loans and US Dollar RCF Reimbursement Obligations (whether or not overdue) (to
the extent legally permitted) shall bear interest at a rate per annum that is
equal to (x) in the case of the US Dollar-Denominated Facilities Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2.0% or (y) in the case of US Dollar RCF
Reimbursement Obligations, the rate applicable to Base Rate Loans under the US
Dollar Revolving Credit Facility plus 2.0%, and (ii) if all or a portion
of any interest payable on any US Dollar-Denominated Facilities Loan or US
Dollar RCF Reimbursement Obligation or any commitment fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum equal to the rate then applicable to Base Rate Loans under the
relevant US Dollar-Denominated Facility plus 2.0% (or, in the case of
any such other amounts that do not relate to a particular US Dollar-Denominated
Facility, the rate then applicable to Base Rate Loans under the US Dollar
Revolving Credit Facility plus 2.0%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).


 


(f)            (i)  If all or a portion of the principal amount
of any Alternate Currency Facilities Loan or Dual Currency RCF Reimbursement
Obligation shall not be paid when due


 


61

















 


(whether at the stated maturity, by
acceleration or otherwise), all outstanding Alternate Currency Facilities Loans
and Dual Currency RCF Reimbursement Obligations (whether or not overdue) (to
the extent legally permitted) shall bear interest at a rate per annum that is
equal to (x) in the case of the Alternate Currency Facilities Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2.0% or (y) in the case of Dual Currency RCF
Reimbursement Obligations, the rate applicable to Canadian Prime Rate Loans
under the Dual Currency Revolving Credit Facility plus 2.0%, and (ii) if
all or a portion of any interest payable on any Alternate Currency Facilities
Loan or Dual Currency RCF Reimbursement Obligation or any commitment fee or
other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of US Borrower Dual
Currency RCF Loans, the rate then applicable to Base Rate Loans under the Dual
Currency Revolving Credit Facility plus 2.0% and (y) in the case of
Canadian Borrower Loans and Dual Currency RCF Reimbursement Obligations, the
rate then applicable to Canadian Prime Rate Loans under the relevant Canadian
Borrower Facility plus 2.0% (or, in the case of any such other amounts
that do not relate to a particular Alternate Currency Facility, the rate then
applicable to Base Rate Loans under the Dual Currency Revolving Credit Facility
plus 2.0%), in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in full (after as
well as before judgment).


 


(g)           Interest shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (e) or (f) of this Section shall be payable from
time to time on demand.


 


2.16         Computation of
Interest and Fees. (a)  Interest,
fees and commissions payable pursuant hereto shall be calculated on the basis
of a 360-day year for the actual days elapsed, except that, with respect to
Base Rate Loans on which interest is calculated on the basis of the US Prime
Rate and the Canadian Prime Rate Loans, the interest thereon shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. The relevant Facility Agent shall as soon as
practicable notify the US Borrower and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Canadian Prime Rate, the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The relevant
Facility Agent shall as soon as practicable notify the US Borrower or the
Canadian Borrower, as applicable, and the relevant Lenders of the effective
date and the amount of each such change in interest rate.


 


(b)           For the purposes of the
Interest Act (Canada) and
disclosure thereunder, whenever any interest or any fee to be paid hereunder or
in connection herewith by the Canadian Borrower is to be calculated on the
basis of a 360-, 365- or 366-day year, the yearly rate of interest to which the
rate used in such calculation is equivalent is the rate so used multiplied by
the actual number of days in the calendar year in which the same is to be
ascertained and divided by 360, 365 or 366, as applicable. The rates of
interest under this Agreement are nominal rates, and not effective rates or
yields. The principle of deemed reinvestment of interest does not apply to any
interest calculation under this Agreement.


 


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(c)           Each determination of
an interest rate (including the Discount Rate) by the relevant Facility Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the US Borrower, the Canadian Borrower, the US Dollar-Denominated Facility
Lenders and the Alternate Currency Facilities Lenders, as applicable, in the
absence of manifest error. The relevant Facility Agent shall, at the request of
the US Borrower or the Canadian Borrower, as the case may be, deliver to the US
Borrower or the Canadian Borrower, as the case may be, a statement showing the
quotations used by such Facility Agent in determining any interest rate or Discount
Rate pursuant to Section 2.15.


 


2.17         Inability to Determine Interest Rate. If
prior to the first day of any Interest Period:


 


(a)           the
relevant Facility Agent shall have determined (which determination shall be
conclusive and binding upon each affected Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or


 


(b)           the
relevant Facility Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Loans during such Interest Period,


 


the relevant Facility Agent shall give
telecopy or telephonic notice thereof to the US Borrower and the relevant
Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and
(z) any outstanding Eurodollar Loans under the relevant Facility shall be
converted, on the last day of the then current Interest Period with respect
thereto, to Base Rate Loans. Until such notice has been withdrawn by the
relevant Facility Agent, no further Eurodollar Loans under the relevant
Facility shall be made or continued as such, nor shall the affected Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.


 


2.18         Pro Rata Treatment and
Payments. (a)  Each borrowing of US
Dollar-Denominated Facilities Loans by the US Borrower from the US
Dollar-Denominated Facility Lenders hereunder, each payment by the US Borrower
on account of any commitment fee in respect of the US Dollar RCF Commitments or
on account of any US Dollar RCF Letter of Credit fee, and any reduction of the
Commitments of the US Dollar-Denominated Facility Lenders, shall be made pro
rata according to the respective Initial US Term Loan Percentages or US
Dollar RCF Percentages, as the case may be, of the relevant US
Dollar-Denominated Facility Lenders. Each borrowing of Dual Currency RCF Loans
by either Borrower from the Dual Currency RCF Lenders hereunder, each payment
by either Borrower on account of any commitment fee in respect of the Dual
Currency RCF Commitments, or on account of any Acceptance Fee or Dual Currency
RCF Letter of Credit fee, and any reduction of the Dual Currency RCF
Commitments of the Dual Currency RCF Lenders, shall be made pro  rata



 


63

















 


according to the respective Dual Currency RCF
Percentages of the Dual Currency RCF Lenders. Each borrowing of Canadian Term
Loans by the Canadian Borrower from the Canadian Term Loan Lenders hereunder
and any reduction of the Canadian Term Loan Commitments of the Canadian Term
Loan Lenders, shall be made pro  rata according to the respective
Canadian Term Loan Percentages of the Canadian Term Loan Lenders. Each payment
of interest in respect of the Loans and each payment in respect of fees,
premiums or expenses payable hereunder shall be applied to the amount of such
obligations owing to the Lenders pro  rata according to the
respective amounts then due and owing to the Lenders.


 


(b)           Each mandatory
prepayment required by Section 2.12 to be applied to Term Loans and each
optional prepayment in respect of the Term Loans shall be allocated among the
Term Loan Facilities pro  rata according to the respective
outstanding Principal Amounts of Term Loans under such Facilities. Each payment
(including each prepayment) of the Term Loans outstanding under any Term Loan
Facility shall be allocated among the Term Loan Lenders holding such Term Loans
pro  rata based on the principal amount of such Term Loans held by
such Term Loan Lenders, and shall be applied to the scheduled installments of
such Term Loans (i) in the case of any mandatory prepayment of such Term Loans,
pro  rata based on the remaining outstanding principal amount of
such installments and (ii) in the case of any voluntary prepayment of such Term
Loans, (i) first, to the next six scheduled installments thereof due
pursuant to Section 2.3(a) or (b), as applicable, in direct order of maturity
and (ii) second, pro  rata based on the remaining
outstanding principal amount of such installments. Amounts prepaid on account
of the Term Loans may not be reborrowed.


 


(c)           Each payment (including
each prepayment) by the US Borrower on account of principal of and interest on
the US Dollar RCF Loans shall be made pro  rata according to the
respective outstanding principal amounts of the US Dollar RCF Loans then held
by the US Dollar RCF Lenders. Each payment (including each prepayment) by the
US Borrower or the Canadian Borrower on account of principal of and interest on
the Dual Currency RCF Loans shall be made pro  rata according to
the respective outstanding principal amounts of the Dual Currency RCF Loans
then held by the Dual Currency RCF Lenders. Each payment in respect of US
Dollar RCF Reimbursement Obligations in respect of any US Dollar RCF Letter of
Credit shall be made to the US Dollar RCF Issuing Lender that issued such US
Dollar RCF Letter of Credit. Each payment in respect of Dual Currency RCF
Reimbursement Obligations in respect of any Dual Currency RCF Letter of Credit
shall be made to the Dual Currency RCF Issuing Lender that issued such Dual
Currency RCF Letter of Credit.


 


(d)           The application of any
payment of Loans under any Facility (including optional and mandatory
prepayments) shall be made, first, to Base Rate Loans and/or Canadian
Prime Rate Loans under such Facility and, second, to Eurodollar Loans,
BA Loans and/or BA Equivalent Loans under such Facility in direct order of
maturity of the Interest Period applicable thereto. Each payment of the Loans
(except in the case of Swing Line Loans and Revolving Credit Loans that are
Base Rate Loans or Canadian Prime Rate Loans) shall be accompanied by accrued
interest to the date of such payment on the amount paid.


 


(e)           All payments (including
prepayments) to be made by the US Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 1:00 p.m., New York City time, on the
due date


 


64

















 


thereof to (i) in the case of payments with
respect to the US Dollar-Denominated Facilities, to the Administrative Agent,
for the account of the relevant US Dollar-Denominated Facility Lenders, at the
Administrative Agent’s Payment Office, in Dollars and in immediately available
funds and (ii) in the case of payments with respect to the Dual Currency
Revolving Credit Facility, to the US Dual Currency RCF Agent, for the account
of the relevant Dual Currency RCF Lenders, at the US Dual Currency RCF Agent’s
Payment Office, in Dollars and in immediately available funds. Any payment made
by the US Borrower after 1:00 p.m., New York City time, on any Business Day
shall be deemed to have been on the next following Business Day. The
Administrative Agent or the US Dual Currency RCF Agent, as the case may be,
shall distribute such payments in respect of US Dollar-Denominated Facilities
or the Dual Currency Revolving Credit Facility, as the case may be, to the
relevant US Dollar-Denominated Facility Lenders or the Dual Currency RCF
Lenders, as the case may be, promptly upon receipt in like funds as received. If
any payment by the US Borrower hereunder (other than payments on Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment by the US
Borrower on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day. In the case of any extension of any
payment of principal pursuant to the preceding two sentences, interest thereon
shall be payable at the then applicable rate during such extension.


 


(f)            All payments
(including prepayments) to be made by the Canadian Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 1:00 p.m., Toronto time, on
the due date thereof to the Canadian Agent, for the account of the relevant
Alternate Currency Facilities Lenders, at the Canadian Agent’s Payment Office,
in Canadian Dollars and in immediately available funds. Any payment made by the
Canadian Borrower after 1:00 p.m., Toronto time, on any Business Day shall be
deemed to have been on the next following Business Day. The Canadian Agent
shall distribute such payments to the relevant Alternate Currency Facilities
Lenders promptly upon receipt in like funds as received. If any payment by the
Canadian Borrower hereunder (other than payments on BA Loans and BA Equivalent
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension. BA Loans and BA Equivalent Loans may only be prepaid, and payments
to be made on account thereof shall be handled, in accordance with Section
2.26(k).


 


(g)           Unless the
Administrative Agent shall have been notified in writing by any US Dollar-Denominated
Facility Lender prior to a borrowing of US Dollar-Denominated Facilities Loans
that such Lender will not make the amount that would constitute its share of
such borrowing available to the Administrative Agent, the Administrative Agent
may assume that such US Dollar-Denominated Facility Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the US Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
US Dollar-Denominated Facility Lender shall pay to the Administrative Agent, on
demand, such


 


65

















 


amount with interest thereon at a rate equal
to the daily average Federal Funds Effective Rate for the period until such US
Dollar-Denominated Facility Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted
to any US Dollar-Denominated Facility Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such US Dollar-Denominated Facility Lender’s share of such borrowing is not made
available to the Administrative Agent by such US Dollar-Denominated Facility
Lender within three Business Days after such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans under the relevant US
Dollar-Denominated Facility, on demand, from the US Borrower.


 


(h)           Unless the
Administrative Agent shall have been notified in writing by the US Borrower
prior to the date of any payment due to be made by the US Borrower hereunder in
respect of any US Dollar-Denominated Facility that the US Borrower will not
make such payment to the Administrative Agent, the Administrative Agent may
assume that the US Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the relevant US Dollar-Denominated Facility Lenders their
respective pro  rata shares of a corresponding amount. If such
payment is not made to the Administrative Agent by the US Borrower within three
Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each US Dollar-Denominated Facility Lender to which
any amount which was made available pursuant to the preceding sentence, such
amount with interest thereon at the rate per annum equal to the daily average
Federal Funds Effective Rate. Nothing herein shall be deemed to limit the
rights of the Administrative Agent or any US Dollar-Denominated Facility Lender
against the US Borrower.


 


(i)            Unless the US Dual
Currency RCF Agent or the Canadian Agent, as applicable, shall have been
notified in writing by any Alternate Currency Facilities Lender prior to a
borrowing of Alternate Currency Facilities Loans that such Lender will not make
the amount that would constitute its share of such borrowing available to such
Facility Agent, such Facility Agent may assume that such Alternate Currency
Facilities Lender is making such amount available to such Facility Agent, and
such Facility Agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such amount is not made
available to such Facility Agent by the required time on the Borrowing Date
therefor, such Alternate Currency Facilities Lender shall pay to such Facility
Agent, on demand, such amount with interest thereon at a rate equal to (i) in
the case of US Borrower Dual Currency RCF Loans, the daily average Federal
Funds Effective Rate for the period until such Dual Currency RCF Lender makes
such amount immediately available to such Facility Agent and (ii) in the case
of Canadian Borrower Loans, the interbank offered rate quoted by the Canadian
Agent for the period until such Alternate Currency Facilities Lender makes such
amount immediately available to such Facility Agent. A certificate of the
respective Facility Agent submitted to any Alternate Currency Facilities Lender
with respect to any amounts owing under this paragraph shall be conclusive in
the absence of manifest error. If such Alternate Currency Facilities Lender’s
share of such borrowing is not made available to the relevant Facility Agent by
such Alternate Currency Facilities Lender within three Business Days after such
Borrowing Date, such Facility Agent shall also be entitled to recover such
amount with interest thereon (i) in the case of US Borrower Dual Currency RCF
Loans, at the rate per annum applicable to Base Rate Loans under the Dual
Currency Revolving Credit Facility and (ii) in the case of Canadian Borrower Loans,
at


 


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the rate per annum applicable to Canadian
Prime Rate Loans under the relevant Alternate Currency Facility, in each case
on demand, from the relevant Borrower.


 


(j)            Unless the US Dual
Currency RCF Agent or Canadian Agent, as applicable, shall have been notified
in writing by the US Borrower or the Canadian Borrower, as the case may be,
prior to the date of any payment due to be made by such Borrower hereunder in
respect of any Alternate Currency Facility that such Borrower will not make
such payment to such Facility Agent, such Facility Agent may assume that such
Borrower is making such payment, and such Facility Agent may, but shall not be
required to, in reliance upon such assumption, make available to the relevant
Alternate Currency Facilities Lenders their respective pro  rata
shares of a corresponding amount. If such payment is not made to such Facility
Agent by such Borrower within three Business Days after such due date, such
Facility Agent shall be entitled to recover, on demand, from each Alternate
Currency Facilities Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the
rate per annum equal to (i) in the case of US Borrower Dual Currency RCF Loans,
the daily average Federal Funds Effective Date and (ii) in the case of Canadian
Borrower Loans, the interbank offered rate quoted by the Canadian Agent. Nothing
herein shall be deemed to limit the rights of the US Dual Currency RCF Agent,
the Canadian Agent or any Alternate Currency Facilities Lender against either
Borrower.


 


2.19         Requirements of Law.
(a)  If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:


 


(i)            shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan, BA
Loan or BA Equivalent Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 2.20 and changes in the rate of tax on the overall net
income of such Lender);


 


(ii)           shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurodollar Rate hereunder; or


 


(iii)          shall
impose on such Lender any other condition;


 


and the result
of any of the foregoing is to increase the cost to such Lender, by an amount
which such Lender deems to be material, of making, converting into, continuing
or maintaining Eurodollar Loans, BA Loans or BA Equivalent Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the US Borrower (in the
case of any such increase or reduction with respect to the US Borrower
Facilities) or the Canadian Borrower (in the case of any such increase or
reduction with respect to Canadian Borrower Facilities) shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender on an after-tax basis for such increased


 


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cost or
reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section, it shall promptly notify the US
Borrower or the Canadian Borrower, as applicable (with a copy to each relevant
Facility Agent) of the event by reason of which it has become so entitled.


 


(b)           If any Lender shall
have determined that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date hereof
shall have the effect of reducing the rate of return on such Lender’s or such
corporation’s capital as a consequence of its obligations hereunder or under or
in respect of any Letter of Credit to a level below that which such Lender or
such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such Lender to the
US Borrower (in the case of any such reduction relating to such Lender’s
obligations with respect to the US Borrower Facilities) or the Canadian
Borrower (in the case of any such reduction relating to such Lender’s
obligations with respect to the Canadian Borrower Facilities) (in each case,
with a copy to each relevant Facility Agent) of a written request therefor, the
US Borrower or the Canadian Borrower, as the case may be, shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
corporation for such reduction on an after-tax basis.


 


(c)           If any Governmental
Authority in Canada (or any other jurisdiction in which the funding operations
of any Canadian Lender shall be conducted with respect to Canadian Dollars)
shall have in effect any reserve, liquid asset or similar requirement with
respect to any category of deposits or liabilities customarily used to fund
loans in Canadian Dollars (excluding any Eurodollar Reserve Requirements), or
by reference to which interest rates applicable to loans in Canadian Dollars
are determined, and the result of such requirement shall be to increase the
cost to such Canadian Lender of making or maintaining any Loan in Canadian
Dollars, and such Canadian Lender shall deliver to the Canadian Borrower a
notice requesting compensation under this paragraph, then the Canadian Borrower
will pay to such Canadian Lender on each Interest Payment Date with respect to
each affected Loan an amount that will compensate such Canadian Lender for such
additional cost.


 


(d)           A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender to
the US Borrower or the Canadian Borrower, as applicable (with a copy to each
relevant Facility Agent) shall be conclusive in the absence of manifest error. The
obligations of the US Borrower and the Canadian Borrower pursuant to this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.


 


2.20         Taxes. (a)  All payments made by the Borrowers under this
Agreement or any other Loan Documents shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes


 


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(imposed in lieu of net income taxes) imposed
on any Arranger, any Agent or any Lender as a result of a present or former
connection between such Arranger, such Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from such Arranger’s, such Agent’s or such Lender’s
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to
be withheld from any amounts payable to any Arranger, any Agent or any Lender
hereunder, the amounts so payable to such Arranger, such Agent or such Lender
shall be increased to the extent necessary to yield to such Arranger, such
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement; provided, however, that
neither any Borrower nor any Subsidiary Guarantor shall be required to increase
any such amounts payable to any Arranger, any Agent or any Lender with respect
to any Non-Excluded Taxes (i) that are
attributable to such Arranger’s, such Agent’s or such Lender’s failure to
comply with the requirements of paragraph (d) or (e) of this Section, or (ii) in the case of any Lender that is a Non-US
Person, that are United States withholding taxes imposed on amounts payable to
such Arranger, such Agent or such Lender at the time such Arranger, such Agent
or such Lender becomes a party to this Agreement, except to the extent that such
Arranger’s, such Agent’s or such Lender’s assignor (if any) was entitled, at
the time of assignment, to receive additional amounts from either Borrower with
respect to such Non-Excluded Taxes pursuant to this paragraph (a). Each
Borrower or the applicable Subsidiary Guarantor shall make any required
withholding and pay the full amount withheld to the relevant tax authority or
other Governmental Authority in accordance with applicable Requirements of Law.


 


(b)           In addition, the
Borrowers shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.


 


(c)           Whenever any
Non-Excluded Taxes or Other Taxes are payable by either Borrower, as promptly
as possible thereafter the US Borrower shall send to the Administrative Agent or
the US Dual Currency RCF Agent, as applicable, and the Canadian Borrower shall
send to the Canadian Agent for the account of the relevant Arranger, Agent or
Lender, as the case may be, a certified copy of an original official receipt
received by that Borrower showing payment thereof. If either Borrower fails to
pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the relevant Facility Agent the required
receipts or other required documentary evidence, the Borrowers and Subsidiary
Guarantors jointly and severally agree to indemnify the Arrangers, the Agents
and the Lenders for any incremental taxes, interest or penalties that may
become payable by any Arranger, any Agent or any Lender as a result of any such
failure. The obligations of the Borrowers in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.


 


(d)           Each Lender that is a
Non-US Person shall deliver to the US Borrower, the Administrative Agent and,
if such Lender is an Alternate Currency Facilities Lender, the US Dual Currency
RCF Agent (or, in the case of a Participant, to such Lender from which the
related participation shall have been purchased) two copies of either US
Internal Revenue


 


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Service Form W-8BEN or Form W-8ECI, or, in
the case of a such Lender claiming exemption from US federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest” a statement substantially in the form of Exhibit I to the effect that
such Lender is eligible for a complete exemption from withholding of US taxes
under Section 871(h) or 881(c) of the Code and a Form W-8BEN, or any subsequent
versions thereof or successors thereto properly completed and duly executed by
such Lender claiming complete exemption from, or a reduced rate of, US federal
withholding tax on all payments of interest by US Borrower under this Agreement
and the other Loan Documents. Such forms shall be delivered by each Lender that
is a Non-US Person on or before the date it becomes a party to this Agreement
(and in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Lender that is a Non-US
Person shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Lender. Each Lender that is a Non-US
Person shall promptly notify the US Borrower at any time it determines that it
is no longer in a position to provide any previously delivered certificate to
the US Borrower (or any other form of certification adopted by the US taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Lender that is a Non-US Person shall not be required to deliver
any form pursuant to this paragraph that such Lender is not legally able to
deliver.


 


(e)           Each Alternate Currency
Facilities Lender (including, without limitation, any assignee or transferee of
all or any part of any of the Obligations owing by the Canadian Borrower) that
is not resident in Canada, or that is not deemed to be resident in Canada, for
purposes of Part XIII of the Income Tax Act (Canada) shall deliver to the
Canadian Borrower (with a copy to the Canadian Agent), if it is then permitted
to do so under law, two original copies (one for the Canadian Agent) of such
form or forms as may be required under a Canadian tax treaty or any provision
of Canadian federal or provincial law as a condition to or exemption from, or
reduction of, Canadian withholding tax. Such Alternate Currency Facilities
Lender agrees to promptly notify the Canadian Borrower and Canadian Agent of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction. Notwithstanding any other provision of this paragraph,
an Alternate Currency Facilities Lender shall not be required to deliver any
form pursuant to this paragraph that such Alternate Currency Facilities Lender
is not legally able to deliver.


 


2.21         Indemnity. (a)  The US Borrower agrees to indemnify each
Lender for, and to hold each Lender harmless from, any loss or expense that
such Lender may sustain or incur as a consequence of (i) default by the US Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the US Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (ii) default by the US
Borrower in making any prepayment after the US Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (iii) the making of a prepayment or conversion
of Eurodollar Loans on a day that is not the last day of an Interest Period
with respect thereto. Such indemnification may include an amount equal to the
excess, if any, of (x) the amount of
interest that would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the


 


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Applicable Margin included therein, if any) over
(y) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. A certificate as to any amounts
payable pursuant to this Section submitted to the US Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the US Borrower
Loans and all other amounts payable hereunder.


 


(b)           The Canadian Borrower
agrees to indemnify each Alternate Currency Facilities Lender for, and to hold
each Alternate Currency Facilities Lender harmless from, any loss or expense
that such Lender may sustain or incur as a consequence of (i) default by the Canadian Borrower in
making a borrowing of, conversion into or continuation of BA Loans or BA
Equivalent Loans after the Canadian Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (ii) default by the Canadian Borrower in making
any prepayment after the Canadian Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (iii) the making of a prepayment or conversion of BA Loans or BA
Equivalent Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the
excess, if any, of (x) the amount of
interest that would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over
(y) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Alternate Currency
Facilities Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to the
Canadian Borrower by any Alternate Currency Facilities Lender shall be conclusive
in the absence of manifest error. This covenant shall survive the termination
of this Agreement and the payment of the Canadian Borrower Loans and all other
amounts payable hereunder.


 


2.22         Illegality. Notwithstanding any other
provision herein, if the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans, BA Loans or BA Equivalent Loans as
contemplated by this Agreement, (a) the
commitment of such Lender hereunder (i) to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans or
(ii) to make BA Loans or BA Equivalent Loans, continue BA Loans or BA
Equivalent Loans as such and convert Canadian Prime Rate Loans to BA Loans or
BA Equivalent Loans shall forthwith be canceled and (b) such Lender’s Loans then outstanding as Eurodollar Loans, BA
Loans or BA Equivalent Loans, if any, shall be converted automatically to Base
Rate Loans or Canadian Prime Rate Loans, as applicable, on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Eurodollar
Loan, BA Loan or BA Equivalent Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the US Borrower or
the Canadian Borrower, as applicable, shall pay to such Lender such amounts, if
any, as may be required pursuant to Section 2.21.


 


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2.23         Change of Lending Office. Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.19, 2.20(a) or 2.22 with respect to such Lender, it will, if
requested by the US Borrower or the Canadian Borrower, as applicable, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that such Lender and its lending office(s) suffer
no economic, legal or regulatory disadvantage, and provided, further,
that nothing in this Section shall affect or postpone any of the obligations of
either Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a)
or 2.22.


 


2.24         Replacement of Lenders under Certain
Circumstances. The US Borrower shall be permitted to replace any Lender
that (a) requests reimbursement for
amounts owing pursuant to Section 2.19 or 2.20 or gives a notice of illegality
pursuant to Section 2.22, (b) defaults in
its obligation to make Loans hereunder or (c) has refused to consent to any
waiver or amendment with respect to any Loan Document that requires such Lender’s
consent and has been consented to by the Required Lenders, with a replacement
financial institution; provided that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall exist and be
continuing at the time of such replacement, (iii)
prior to any such replacement, such Lender shall have taken no action under
Section 2.23 so as to eliminate the continued need for payment of amounts owing
pursuant to Section 2.19 or 2.20 or to eliminate the illegality referred to in
such notice of illegality given pursuant to Section 2.22, (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v)
the US Borrower or the Canadian Borrower, as applicable, shall be liable to
such replaced Lender under Section 2.21 (as though Section 2.21 were
applicable) if any Eurodollar Loan BA Loan or BA Equivalent Loan owing to such
replaced Lender shall be purchased other than on the last day of the Interest
Period relating thereto, (vi) the
replacement financial institution, if not already a Lender, shall be reasonably
satisfactory to the Administrative Agent, each of the US Dual Currency RCF
Agent and the Canadian Agent (in the case of the replacement of a Dual Currency
RCF Lender), each US Dollar RCF Issuing Lender (in the case of the replacement
of a US Dollar RCF Lender) and each Dual Currency RCF Issuing Lender (in the
case of the replacement of a Dual Currency RCF Lender), (vii)  the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.6 (provided that the US Borrower or the
Canadian Borrower, as applicable, shall be obligated to pay the registration
and processing fee referred to therein), (viii)
the US Borrower or the Canadian Borrower, as applicable, shall pay all
additional amounts (if any) required pursuant to Section 2.19 or 2.20, as the
case may be, in respect of any period prior to the date on which such
replacement shall be consummated, (ix) if applicable, the replacement financial
institution shall consent to such amendment or waiver, and (x) any such replacement shall not be
deemed to be a waiver of any rights that the US Borrower, the Canadian
Borrower, any Facility Agent or any other Lender shall have against the
replaced Lender.


 


2.25         Incremental Credit
Extensions. (a)  The US Borrower may
at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy to each of the US Dollar-Denominated Facility Lenders), but without
requiring the consent of any of the Lenders or any Agent, request (i) one or
more additional tranches of term loans (the “Incremental US Term Loans”)
or (ii) one or more increases in the amount of the US Dollar RCF Commitments
(each such increase, a “US


 


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Dollar RCF Commitment Increase”);
provided that (x) both at the time of any such request and upon the effectiveness
of any Incremental Amendment referred to below, no Default or Event of Default
shall exist and at the time that any such Incremental US Term Loan is made or
any US Dollar RCF Commitment Increase become effective (and after giving effect
thereto) no Default or Event of Default shall exist and (y) no Lender shall be
obligated to make Incremental US Term Loans or provide a US Dollar RCF
Commitment Increase as a result of any such request. Each tranche of
Incremental US Term Loans and each US Dollar RCF Commitment Increase shall be
in an aggregate principal amount that is not less than $25,000,000 (provided
that such amount may be less than $25,000,000 if such amount represents all
remaining availability under the limit set forth in the next sentence). Notwithstanding
anything to the contrary herein, the aggregate amount of the Incremental US
Term Loans, when added to the aggregate amount of US Dollar RCF Commitment
Increases, shall not exceed $150,000,000. Each tranche of Incremental US Term
Loans (a) shall rank pari passu in right of payment and of security with the US
Dollar RCF Loans, the Initial US Term Loans and any other existing Incremental
US Term Loans, (b) shall not mature earlier than the final stated maturity date
with respect to the Initial US Term Loans, (c) except as set forth above, shall
be treated substantially the same as the Initial US Term Loans (in each case,
including with respect to mandatory and voluntary prepayments) and (d) shall
have a Weighted Average Life to Maturity of no less than the Weighted Average
Life to Maturity as then in effect for the Initial US Term Loans; provided
that (i) except as provided in preceding clauses (a), (b), (c) and (d), the
terms and conditions applicable to Incremental US Term Loans may be materially
different from those of the Initial US Term Loans to the extent such
differences are reasonably acceptable to the Administrative Agent and (ii) the
interest rates and (subject to clause (d) above) the amortization schedule
applicable to the Incremental US Term Loans shall be determined by the US
Borrower and the lenders thereof; provided that, notwithstanding the
foregoing, the interest rate applicable to the Incremental US Term Loans (after
giving effect to all upfront or similar fees or original issue discount payable
with respect to such Incremental US Term Loans) shall not be greater than the
highest interest rate that may, under any circumstances, be payable with
respect to Initial US Term Loans (or any other existing Incremental US Term
Loans) plus 0.25% per annum, unless the interest rate with respect to the
Initial US Term Loans (and any other existing Incremental US Term Loans) is
increased so as to equal the interest rate applicable to the Incremental US
Term Loans (after giving effect to all upfront or similar fees or original
issue discount payable with respect to such Incremental US Term Loans).


 


(b)           Each series of
Incremental US Term Loans borrowed pursuant to this Section shall be a separate
Incremental US Term Loan Facility unless all of the terms with respect thereto
are the same as the Initial US Term Loans (or another Incremental US Term Loan
Facility) and such Incremental US Term Loans have the same Interest Periods
with the Initial US Term Loans (or other Incremental US Term Loans). Each
notice from the US Borrower pursuant to this Section shall set forth the
requested amount and proposed terms of the relevant Incremental US Term Loans
or US Dollar RCF Commitment Increases. Incremental US Term Loans may be made,
and US Dollar RCF Commitment Increases may be provided, by any existing Lender
or by any other bank or other financial institution (any such other bank or
other financial institution being called an “Additional Lender”); provided
that if such Additional Lender is not already a Lender, such Additional Lender
shall be reasonably satisfactory to the Administrative Agent and each US Dollar
RCF Issuing Lender (in the case of a US Dollar RCF Commitment Increase). Commitments
in respect of Incremental US Term Loans and US Dollar


 


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RCF Commitment Increases shall become
Commitments (or, in the case of a US Dollar RCF Commitment Increase to be
provided by an existing US Dollar RCF Lender, an increase in such Lender’s
applicable US Dollar RCF Commitment) and each Additional Lender shall become a
Lender hereunder pursuant to an amendment (an “Incremental Amendment”)
to this Agreement and, as appropriate, the other Loan Documents, executed by
the US Borrower, each Lender agreeing to provide such Commitment, if any, each
Additional Lender, if any, and the Administrative Agent. The Incremental
Amendment may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent and the US
Borrower, to effect the provisions of this Section. In addition, the US
Borrower shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by the Administrative Agent in connection with
any such Incremental Amendment (including confirmation that the obligations of
the Loan Parties with respect to an
increase to the existing US Dollar RCF Commitments (and any Loans or
extensions of credit thereunder) or an Incremental US Term Loan, as applicable
are secured by the Collateral and the perfection and priority of the
Administrative Agent’s Lien in such Collateral has not been affected by a US
Dollar RCF Commitment Increase or Incremental US Term Loans, as applicable). The
effectiveness of any Incremental Amendment shall be subject to the satisfaction
on the date thereof (each, an “Incremental Facility Closing Date”) of
each of the conditions set forth in Section 5.2 (it being understood that all
references to “the date of such extension of credit” or similar language in
such Section 5.2 shall be deemed to refer to the effective date of such
Incremental Amendment) and such other conditions as the parties thereto shall
agree. No Lender shall be obligated to provide any Incremental US Term Loans or
US Dollar RCF Commitment Increases, unless it so agrees in its sole discretion.


 


(c)           Upon each increase in
the US Dollar RCF Commitments pursuant to this Section, (i) each US Dollar RCF
Lender immediately prior to such increase will automatically and without further
act be deemed to have assigned to each Lender providing a portion of the US
Dollar RCF Commitment Increase (each, a “US Dollar RCF Commitment Increase
Lender”) in respect of such increase, and each such US Dollar RCF
Commitment Increase Lender will automatically and without further act be deemed
to have assumed, a portion of such US Dollar RCF Lender’s participations
hereunder in outstanding US Dollar RCF Letters of Credit and Swing Line Loans
such that, after giving effect to each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding (x) participations
hereunder in US Dollar RCF Letters of Credit and (y) participations hereunder
in Swing Line Loans held by each US Dollar RCF Lender (including each such US
Dollar RCF Commitment Increase Lender) will equal the percentage of the
aggregate US Dollar RCF Commitments of all US Dollar RCF Lenders represented by
such US Dollar RCF Lender’s US Dollar RCF Commitment and (ii) if, on the date
of such increase, there are any US Dollar RCF Loans outstanding, such US Dollar
RCF Loans shall on or prior to the effectiveness of such US Dollar RCF
Commitment Increase be prepaid from the proceeds of additional US Dollar RCF
Loans made hereunder (reflecting such increase in US Dollar RCF Commitments),
which prepayment shall be accompanied by accrued interest on the US Dollar RCF
Loans being prepaid and any costs incurred by any Lender in accordance with
Section 2.21. The Administrative Agent and the Lenders hereby agree that the
minimum borrowing, pro rata borrowing and pro rata payment requirements
contained elsewhere in this Agreement shall not apply to the transactions
effected pursuant to the immediately preceding sentence.


 


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(d)           This Section 2.25 shall
supersede any provisions in Section 10.1 to the contrary.


 


2.26         Bankers’ Acceptances.


 


(a)           Discount Rate. On
each Borrowing Date on which Bankers’ Acceptances under a given Canadian
Borrower Facility are to be accepted, the Canadian Agent shall advise the
Canadian Borrower as to the Canadian Agent’s determination of the applicable
Discount Rate for the Bankers’ Acceptances which any of the Canadian Lenders
under a given Canadian Borrower Facility have agreed to purchase.


 


(b)           Purchase. Each
Canadian Lender under the applicable Canadian Borrower Facility shall purchase
a Bankers’ Acceptance accepted by it, and the Canadian Borrower shall sell such
Bankers’ Acceptance at the applicable Discount Rate. The relevant Canadian Lender
shall provide to the Canadian Agent on the Borrowing Date the Discount Proceeds
less the applicable Acceptance Fee payable by the Canadian Borrower with
respect to such Bankers’ Acceptance.


 


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


 


(d)           Power of Attorney
for the Execution of Bankers’ Acceptances. To facilitate the issuance of
Bankers’ Acceptances, the Canadian Borrower hereby appoints each Canadian
Lender as its attorney to sign and endorse on its behalf, in handwriting or by
facsimile or mechanical signature as and when deemed necessary by such Canadian
Lender, blank forms of Bankers’ Acceptances. In this respect, it is each
Canadian Lender’s responsibility to maintain an adequate supply of blank forms
of Bankers’ Acceptances for acceptance under this Agreement. The Canadian
Borrower recognizes and agrees that all Bankers’ Acceptances signed and/or
endorsed on its behalf by a Canadian Lender shall bind the Canadian Borrower as
fully and effectually as if signed in the handwriting of and duly issued by the
proper signing officers of the Canadian Borrower. Each Canadian Lender is
hereby authorized to issue such Bankers’ Acceptance endorsed in blank in such
face amounts as may be determined by such Canadian Lender; provided that
the aggregate amount thereof is equal to the aggregate amount of Bankers’
Acceptances required to be accepted and purchased by such Canadian Lender. 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 instrument except the gross
negligence or willful misconduct of the Canadian Lender or its officers,
employees, agents or representatives. Each Canadian Lender shall maintain a
record with respect to Bankers’ Acceptances held by it in blank hereunder,
voided by it for any reason, accepted and purchased by it hereunder, and
cancelled at their respective maturities. Each Canadian Lender agrees to provide
such records to the Canadian Borrower at the Canadian Borrower’s expense upon
request.


 


(e)           Execution. Drafts
drawn by the Canadian Borrower to be accepted as Bankers’ Acceptances shall be
signed by a duly authorized officer or officers of the Canadian Borrower or by
its attorneys, including attorneys appointed pursuant to this Section 2.26. Notwithstanding
that any Person whose signature appears on any Bankers’ Acceptance may no
longer be an authorized signatory for the Canadian Borrower at the time of
issuance of a


 


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Bankers’ Acceptance, that signature shall
nevertheless be valid and sufficient for all purposes as if the authority had
remained in force at the time of issuance and any Bankers’ Acceptance so signed
shall be binding on the Canadian Borrower.


 


(f)            Issuance. The
Canadian Agent, promptly following receipt of a Borrowing Notice for a BA Loan
or a BA Equivalent Loan under a given Canadian Borrower Facility, shall advise
the relevant Canadian Lenders of the notice and shall advise each such Canadian
Lender of the face amount of Bankers’ Acceptances to be accepted by it and the
applicable Interest Period (which shall be identical for all Canadian Lenders
in respect of such BA Loan or BA Equivalent Loan). The aggregate face amount of
Bankers’ Acceptances to be accepted by a Canadian Lender shall be determined by
the Canadian Agent by reference to that Canadian Lender’s Dual Currency RCF
Percentage or Canadian Term Loan Percentage, as the case may be, of such BA
Loan or BA Equivalent Loan, except that, if the face amount of a Bankers’
Acceptance in respect of a Canadian Borrower Dual Currency RCF Loan which would
otherwise be accepted by a Canadian Lender would not be CDN$100,000 or a whole
multiple thereof, the face amount shall be increased or reduced by the Canadian
Agent in its sole discretion to CDN$100,000, or the nearest whole multiple of
that amount, as appropriate; provided that after such issuance, the Dual
Currency RCF Extensions of Credit may not exceed the Total Dual Currency RCF
Commitments.


 


(g)           Waiver of
Presentment and Other Conditions. The Canadian Borrower waives presentment
for payment and any other defense to payment of any amounts due to a Canadian
Lender in respect of a Bankers’ Acceptance accepted and purchased by it
pursuant to this Agreement which might exist solely by reason of the Bankers’
Acceptance being held, at the maturity thereof, by the Canadian Lender in its
own right and the Canadian Borrower agrees not to claim any days of grace if
such Canadian Lender as holder sues the Canadian Borrower on the Bankers’
Acceptance for payment of the amount payable by the Canadian Borrower
thereunder.


 


(h)           BA Equivalent Loans
by Non-BA Lenders. Whenever the Canadian Borrower requests a Canadian
Borrower Loan under a given Canadian Borrower Facility by way of Bankers’
Acceptances, each applicable Non-BA Lender shall, in lieu of accepting a
Bankers’ Acceptance, make a BA Equivalent Loan under such Canadian Borrower
Facility in an amount equal to the Non-BA Lender’s Dual Currency RCF Percentage
or Canadian Term Loan Percentage, as the case may be, of such Canadian Borrower
Loan.


 


(i)            Terms Applicable to
Discount Notes. As set out in the definition of Bankers’ Acceptances, that
term includes Discount Notes and all terms of this Agreement applicable to all
BA Loans shall apply equally to Discount Notes evidencing BA Equivalent Loans
with such changes as may in the context be necessary. For greater certainty:


 


(i)            the term of a Discount Note shall be the
same as the Interest Period for Bankers’ Acceptances accepted and purchased on
the same Borrowing Date in respect of the same Canadian Borrower Loan of the
applicable Canadian Borrower Facility;


 


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


 


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(iii)          the Discount Rate applicable to a Discount
Note shall be the Discount Rate applicable to Bankers’ Acceptances accepted by
the Canadian Agent (as Lender) on the same Borrowing Date, as the case may be,
in respect of the same Canadian Borrower Loan of the applicable Canadian
Borrower Facility.


 


(j)            Depository Bills
and Notes Act. At the option of the Canadian Borrower and any Canadian
Lender, Bankers’ Acceptances under this Agreement to be accepted by that
Canadian Lender may be issued in the form of depository bills for deposit with
The Canadian Depository for Securities Limited pursuant to the Depository Bills
and Notes Act (Canada). All depository bills so issued shall be governed by the
provisions of this Section 2.26.


 


(k)           Mandatory Payments.
If at any time any Bankers’ Acceptances are required to be prepaid prior to
their maturity (i.e., that last day of the Interest Period applicable
thereto), the Canadian Borrower shall be required to deposit the amount of such
prepayment in a Cash Collateral Account with the Canadian Agent until the date
of maturity of those Bankers’ Acceptances. Except as contemplated by this
Section 2.26, neither the Canadian Borrower nor any Person claiming on behalf
of the Canadian Borrower shall have any right to any of the cash in the Cash
Collateral Account. The Canadian Agent shall apply the cash held in the Cash
Collateral Account to the face amount of those Bankers’ Acceptances at
maturity, whereupon any cash remaining in the Cash Collateral Account shall be
released by the Canadian Agent to the Canadian Borrower so long as no Default
or Event of Default then exists.


 


(l)            Market for Bankers’
Acceptances. If at any time or from time to time there no longer exists a
market for Bankers’ Acceptances, the relevant Canadian Lenders shall so advise
the Canadian Agent and the Administrative Agent and any such Canadian Lenders
shall not be obliged to accept drafts of the Canadian Borrower presented to
such Canadian Lenders pursuant to the provisions of this Agreement. In such
event, the Canadian Borrower’s option to request BA Loans or BA Equivalent
Loans shall thereupon be suspended upon notice by the Canadian Agent to the
Canadian Borrower, until such time as the Canadian Agent has determined that
the circumstances having given rise to such suspension no longer exist, in
respect of which determination the Canadian Agent shall advise the Canadian
Borrower as soon as reasonably practicable thereafter, and any Borrowing Notice
for a BA Loan or BA Equivalent Loan which is then outstanding shall be deemed
to be a Borrowing Notice for a Canadian Prime Rate Loan unless it has been
revoked by the Canadian Borrower before the specified Borrowing Date.


 


SECTION 3. US
DOLLAR RCF LETTERS OF CREDIT AND DUAL CURRENCY RCF LETTERS OF CREDIT


 


3.1     US Dollar RCF L/C
Commitments and Dual Currency RCF L/C Commitments. (a) Subject to the terms
and conditions hereof, each US Dollar RCF Issuing Lender, in reliance on the
agreements of the other US Dollar RCF Lenders set forth in Section 3.4(a),
agrees to issue letters of credit (the “US Dollar RCF Letters of Credit”)
for the account of the US Borrower on any Business Day during the US Dollar RCF
Commitment Period in such form as may be approved from time to time by such US
Dollar RCF Issuing Lender; provided, that no US Dollar RCF Issuing
Lender shall have any obligation to issue any US Dollar RCF Letter of Credit
if, after giving effect to such issuance, (i)
the US Dollar RCF L/C Obligations would exceed the US


 


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Dollar RCF L/C Commitment or (ii) the aggregate amount of the Available US
Dollar RCF Commitments would be less than zero. Each US Dollar RCF Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the US Dollar RCF Termination Date; provided
that any US Dollar RCF Letter of Credit with a one-year term may provide for
the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (y) above).


 


(b)           No US Dollar RCF
Issuing Lender shall at any time be obligated to issue any US Dollar RCF Letter
of Credit hereunder if such issuance would conflict with, or cause such US
Dollar RCF Issuing Lender or any US Dollar RCF L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.


 


(c)           Subject to the terms
and conditions hereof, each Dual Currency RCF Issuing Lender, in reliance on
the agreements of the other Dual Currency RCF Lenders set forth in Section
3.4(d), agrees to issue letters of credit (“Dual Currency RCF Letters of
Credit”) for the account of the Canadian Borrower on any Business Day
during the Dual Currency RCF Commitment Period in such form as may be approved
from time to time by such Dual Currency RCF Issuing Lender; provided,
that no Dual Currency RCF Issuing Lender shall have any obligation to issue any
Dual Currency RCF Letter of Credit if, after giving effect to such issuance, (i) the Dual Currency RCF L/C Obligations would
exceed the Dual Currency RCF L/C Commitment or (ii)
the aggregate amount of the Available Dual Currency RCF Commitments would be
less than zero. Each Dual Currency RCF Letter of Credit shall (i) be
denominated in Canadian Dollars and (ii) expire no later than the earlier of
(x) the first anniversary of its date of issuance and (y) the date which is
five Business Days prior to the Dual Currency RCF Termination Date; provided
that any Dual Currency RCF Letter of Credit with a one-year term may provide
for the renewal thereof for additional one-year periods (which shall in no
event extend beyond the date referred to in clause (y) above).


 


(d)           No Dual Currency RCF
Issuing Lender shall at any time be obligated to issue any Dual Currency RCF
Letter of Credit hereunder if such issuance would conflict with, or cause such
Dual Currency RCF Issuing Lender or any Dual Currency RCF L/C Participant to
exceed any limits imposed by, any applicable Requirement of Law.


 


3.2           Procedure for
Issuance of US Dollar RCF Letters of Credit and Dual Currency RCF Letters of
Credit. (a)  The US Borrower may from
time to time request that a US Dollar RCF Issuing Lender issue a US Dollar RCF
Letter of Credit by delivering to such US Dollar RCF Issuing Lender, with a
copy to the Administrative Agent, at their addresses for notices specified
herein an Application therefor, completed to the satisfaction of such US Dollar
RCF Issuing Lender, and such other certificates, documents and other papers and
information as such US Dollar RCF Issuing Lender may request. Upon receipt of
any Application, a US Dollar RCF Issuing Lender will process such Application
and the certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its customary procedures and
shall promptly issue the US Dollar RCF Letter of Credit requested thereby by
issuing the original of such US Dollar RCF Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such US Dollar RCF Issuing Lender
and the US Borrower (but in no event shall any US Dollar RCF Issuing Lender be
required to issue any US Dollar RCF Letter


 


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of Credit earlier than three Business Days
after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto). Promptly after
issuance by a US Dollar RCF Issuing Lender of a US Dollar RCF Letter of Credit,
such US Dollar RCF Issuing Lender shall furnish a copy of such US Dollar RCF
Letter of Credit to the US Borrower and the Administrative Agent. Each US
Dollar RCF Issuing Lender shall promptly give notice to the Administrative
Agent of the issuance of each US Dollar RCF Letter of Credit issued by such US
Dollar RCF Issuing Lender (including the amount thereof).


 


(b)           The Canadian Borrower
may from time to time request that a Dual Currency RCF Issuing Lender issue a
Dual Currency RCF Letter of Credit by delivering to such Dual Currency RCF
Issuing Lender, with a copy to the Canadian Agent, at their addresses for
notices specified herein an Application therefor, completed to the satisfaction
of such Dual Currency RCF Issuing Lender, and such other certificates,
documents and other papers and information as such Dual Currency RCF Issuing
Lender may request. Upon receipt of any Application, a Dual Currency RCF
Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Dual
Currency RCF Letter of Credit requested thereby by issuing the original of such
Dual Currency RCF Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by such Dual Currency RCF Issuing Lender and the Canadian Borrower
(but in no event shall any Dual Currency RCF Issuing Lender be required to
issue any Dual Currency RCF Letter of Credit earlier than three Business Days
after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto). Promptly after
issuance by a Dual Currency RCF Issuing Lender of a Dual Currency RCF Letter of
Credit, such Dual Currency RCF Issuing Lender shall furnish a copy of such Dual
Currency RCF Letter of Credit to the Canadian Borrower and the Canadian Agent. Each
Dual Currency RCF Issuing Lender shall promptly give notice to the Canadian
Agent of the issuance of each Dual Currency RCF Letter of Credit issued by such
Dual Currency RCF Issuing Lender (including the amount thereof).


 


3.3           Fees and Other
Charges. (a)  The US Borrower will
pay a fee on the aggregate drawable amount of all outstanding US Dollar RCF
Letters of Credit at a per annum rate equal to the Applicable Margin then in
effect with respect to Eurodollar Loans under the US Dollar Revolving Credit
Facility, shared ratably among the US Dollar RCF Lenders in accordance with
their respective US Dollar RCF Percentages and payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date of such US Dollar RCF Letter
of Credit. In addition, the US Borrower shall pay to the relevant US Dollar RCF
Issuing Lender for its own account a fronting fee on the aggregate drawable
amount of all outstanding US Dollar RCF Letters of Credit issued by it of 1/8
of 1% per annum, payable quarterly in arrears on each L/C Fee Payment Date
after the issuance date of such US Dollar RCF Letter of Credit.


 


(b)           The Canadian Borrower
will pay a fee on the aggregate drawable amount of all outstanding Dual
Currency RCF Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to BA Loans or BA Equivalent Loans under the
Dual Currency Revolving Credit Facility, shared ratably among the Dual Currency
RCF Lenders in accordance with their respective Dual Currency RCF Percentages
and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date of such Dual Currency RCF Letter of Credit. In addition, the
Canadian Borrower shall pay to the relevant Dual Currency RCF


 


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Issuing Lender for its own account a fronting
fee on the aggregate drawable amount of all outstanding Dual Currency RCF
Letters of Credit issued by it of 1/8 of 1% per annum, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date of such Dual
Currency RCF Letter of Credit.


 


(c)           In addition to the
foregoing fees, the US Borrower or the Canadian Borrower, as applicable, shall
pay or reimburse each US Dollar RCF Issuing Lender and each Dual Currency RCF
Issuing Lender, respectively, for such normal and customary costs and expenses
as are incurred or charged by such US Dollar RCF Issuing Lender or Dual
Currency RCF Issuing Lender in issuing, negotiating, effecting payment under,
amending or otherwise administering any US Dollar RCF Letter of Credit or Dual
Currency RCF Letter of Credit, respectively.


 


3.4           L/C Participations
and Canadian L/C Participations. (a) 
Each US Dollar RCF Issuing Lender irrevocably agrees to grant and hereby
grants to each US Dollar RCF L/C Participant, and, to induce each US Dollar RCF
Issuing Lender to issue US Dollar RCF Letters of Credit hereunder, each US
Dollar RCF L/C Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from each US Dollar RCF Issuing Lender, on the terms and
conditions hereinafter stated, for such US Dollar RCF L/C Participant’s own
account and risk, an undivided interest equal to such US Dollar RCF L/C
Participant’s US Dollar RCF Percentage in each US Dollar RCF Issuing Lender’s
obligations and rights under each US Dollar RCF Letter of Credit issued by such
US Dollar RCF Issuing Lender hereunder and the amount of each draft paid by
such US Dollar RCF Issuing Lender thereunder. Each US Dollar RCF L/C
Participant unconditionally and irrevocably agrees with each US Dollar RCF
Issuing Lender that, if a draft is paid under any US Dollar RCF Letter of
Credit issued by such US Dollar RCF Issuing Lender for which such US Dollar RCF
Issuing Lender is not reimbursed in full by the US Borrower in accordance with
the terms of this Agreement, such US Dollar RCF L/C Participant shall pay to
such US Dollar RCF Issuing Lender, regardless of the occurrence or continuance
of a Default or Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, upon demand at the Administrative Agent’s
address for notices specified herein (and thereafter, the Administrative Agent
shall promptly pay to the US Dollar RCF Issuing Lender) an amount equal to such
US Dollar RCF L/C Participant’s US Dollar RCF Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed.


 


(b)           If any amount required
to be paid by any US Dollar RCF L/C Participant to a US Dollar RCF Issuing
Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by such US Dollar RCF Issuing Lender under any US Dollar RCF
Letter of Credit is paid to such US Dollar RCF Issuing Lender within three
Business Days after the date such payment is due, the US Dollar RCF Issuing
Lender shall so notify the Administrative Agent, who shall promptly notify the
US Dollar RCF L/C Participants and each such US Dollar RCF L/C Participant shall
pay to the Administrative Agent, for the account of the US Dollar RCF Issuing
Lender on demand (and thereafter the Administrative Agent shall promptly pay to
the US Dollar RCF Issuing Lender) an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the
period from and including the date such payment is required to the date on
which such payment is immediately available to such US Dollar RCF Issuing
Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any


 


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such amount required to be paid by any US
Dollar RCF L/C Participant pursuant to Section 3.4(a) is not made available to
the Administrative Agent, for the account of such US Dollar RCF Issuing Lender
by such US Dollar RCF L/C Participant within three Business Days after the date
such payment is due, the Administrative Agent, on behalf of such US Dollar RCF
Issuing Lender shall be entitled to recover from such US Dollar RCF L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to Base Rate Loans under the US
Dollar Revolving Credit Facility. A certificate of the Administrative Agent on
behalf of such US Dollar RCF Issuing Lender submitted to any US Dollar RCF L/C
Participant with respect to any such amounts owing under this Section shall be
conclusive in the absence of manifest error.


 


(c)           Whenever, at any time
after a US Dollar RCF Issuing Lender has made payment under any US Dollar RCF
Letter of Credit and has received from the Administrative Agent any US Dollar
RCF L/C Participant’s pro  rata share of such payment in
accordance with Section 3.4(a), such US Dollar RCF Issuing Lender receives any
payment related to such US Dollar RCF Letter of Credit (whether directly from
the US Borrower or otherwise, including proceeds of collateral applied thereto
by such US Dollar RCF Issuing Lender), or any payment of interest on account
thereof, such US Dollar RCF Issuing Lender will distribute to the
Administrative Agent for the account of such US Dollar RCF L/C Participant (and
thereafter, the Administrative Agent will promptly distribute to such US Dollar
RCF L/C Participant) its pro  rata share thereof; provided,
however, that in the event that any such payment received by such US
Dollar RCF Issuing Lender shall be required to be returned by such US Dollar
RCF Issuing Lender, such US Dollar RCF L/C Participant shall return to the
Administrative Agent for the account of such US Dollar RCF Issuing Lender the
portion thereof previously distributed by such US Dollar RCF Issuing Lender to
it.


 


(d)           Each Dual Currency RCF
Issuing Lender irrevocably agrees to grant and hereby grants to each Dual
Currency RCF L/C Participant, and, to induce each Dual Currency RCF Issuing
Lender to issue Dual Currency RCF Letters of Credit hereunder, each Dual
Currency RCF L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from each Dual Currency RCF Issuing Lender, on the
terms and conditions hereinafter stated, for such Dual Currency RCF L/C
Participant’s own account and risk, an undivided interest equal to such Dual
Currency RCF L/C Participant’s Dual Currency RCF Percentage in each Dual
Currency RCF Issuing Lender’s obligations and rights under each Dual Currency
RCF Letter of Credit issued by such Dual Currency RCF Issuing Lender hereunder
and the amount of each draft paid by such Dual Currency RCF Issuing Lender
thereunder. Each Dual Currency RCF L/C Participant unconditionally and
irrevocably agrees with each Dual Currency RCF Issuing Lender that, if a draft
is paid under any Dual Currency RCF Letter of Credit issued by such Dual Currency
RCF Issuing Lender for which such Dual Currency RCF Issuing Lender is not
reimbursed in full by the Canadian Borrower in accordance with the terms of
this Agreement, such Dual Currency RCF L/C Participant shall pay to such Dual
Currency RCF Issuing Lender, regardless of the occurrence or continuance of a
Default or Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, upon demand at the Canadian Agent’s address
for notices specified herein (and thereafter, the Canadian Agent shall promptly
pay to the Dual Currency RCF Issuing Lender) an amount equal to such Dual
Currency RCF L/C Participant’s Dual Currency RCF Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed.


 


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(e)           If any amount required
to be paid by any Dual Currency RCF L/C Participant to a Dual Currency RCF
Issuing Lender pursuant to Section 3.4(d) in respect of any unreimbursed
portion of any payment made by such Dual Currency RCF Issuing Lender under any
Dual Currency RCF Letter of Credit is paid to such Dual Currency RCF Issuing
Lender within three Business Days after the date such payment is due, the Dual
Currency RCF Issuing Lender shall so notify the Canadian Agent, who shall
promptly notify the Dual Currency RCF L/C Participants and each such Dual
Currency RCF L/C Participant shall pay to the Canadian Agent, for the account
of the Dual Currency RCF Issuing Lender on demand (and thereafter the Canadian
Agent shall promptly pay to the Dual Currency RCF Issuing Lender) an amount
equal to the product of (i) such amount,
times (ii) the daily average CDOR Rate
during the period from and including the date such payment is required to the
date on which such payment is immediately available to such Dual Currency RCF
Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any
Dual Currency RCF L/C Participant pursuant to Section 3.4(d) is not made
available to the Canadian Agent, for the account of such Dual Currency RCF
Issuing Lender by such Dual Currency RCF L/C Participant within three Business
Days after the date such payment is due, the Canadian Agent, on behalf of such
Dual Currency RCF Issuing Lender shall be entitled to recover from such Dual
Currency RCF L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to Canadian
Prime Rate Loans under the Dual Currency Revolving Credit Facility. A
certificate of the Canadian Agent on behalf of such Dual Currency RCF Issuing
Lender submitted to any Dual Currency RCF L/C Participant with respect to any
such amounts owing under this Section shall be conclusive in the absence of
manifest error.


 


(f)            Whenever, at any time
after a Dual Currency RCF Issuing Lender has made payment under any Dual
Currency RCF Letter of Credit and has received from the Canadian Agent any Dual
Currency RCF L/C Participant’s pro  rata share of such payment in
accordance with Section 3.4(d), such Dual Currency RCF Issuing Lender receives
any payment related to such Dual Currency RCF Letter of Credit (whether
directly from the Canadian Borrower or otherwise, including proceeds of
collateral applied thereto by such Dual Currency RCF Issuing Lender), or any
payment of interest on account thereof, such Dual Currency RCF Issuing Lender
will distribute to the Canadian Agent for the account of such Dual Currency RCF
L/C Participant (and thereafter, the Canadian Agent will promptly distribute to
such Dual Currency RCF L/C Participant) its pro  rata share
thereof; provided, however, that in the event that any such
payment received by such Dual Currency RCF Issuing Lender shall be required to
be returned by such Dual Currency RCF Issuing Lender, such Dual Currency RCF
L/C Participant shall return to the Canadian Agent for the account of such Dual
Currency RCF Issuing Lender the portion thereof previously distributed by such
Dual Currency RCF Issuing Lender to it.


 


3.5           US Dollar RCF
Reimbursement Obligations and Dual Currency RCF Reimbursement Obligations. (a)  The US Borrower agrees to reimburse each US
Dollar RCF Issuing Lender, on each date on which such US Dollar RCF Issuing
Lender notifies the US Borrower of the date and amount of a draft presented
under any US Dollar RCF Letter of Credit and paid by such US Dollar RCF Issuing
Lender, for the amount of (x) such draft so paid and (y) any taxes, fees,
charges or other costs or expenses incurred by such US Dollar RCF Issuing
Lender in connection with such payment (the amounts described in the foregoing
clauses (x) and


 


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(y) in respect of any drawing, collectively,
the “US Dollar RCF Payment Amount”). Each such payment shall be made to
such US Dollar RCF Issuing Lender at its address for notices specified herein
in lawful money of the United States of America and in immediately available
funds. Interest shall be payable on each US Dollar RCF Payment Amount from the
date of the applicable drawing until payment in full at the rate set forth in (i) until the second Business Day following the
date of the applicable drawing, Section 2.15(b) and (ii) thereafter, Section 2.15(e). Each drawing under any US Dollar
RCF Letter of Credit shall (unless an event of the type described in clause (i)
or (ii) of Section 8(f) shall exist and be continuing with respect to either
Borrower, in which case the procedures specified in Section 3.4 for funding by
US Dollar RCF L/C Participants shall apply) constitute a request by the US
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5(a)
of Base Rate Loans (or, at the option of the Administrative Agent and the Swing
Line Lender in their sole discretion, a borrowing pursuant to Section 2.7 of
Swing Line Loans) in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of US
Dollar RCF Loans (or, if applicable, Swing Line Loans) could be made, pursuant
to Section 2.5(a) (or, if applicable, Section 2.7), if the Administrative Agent
had received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant US Dollar RCF Issuing Lender of such drawing
under such US Dollar RCF Letter of Credit.


 


(b)           The Canadian Borrower
agrees to reimburse each Dual Currency RCF Issuing Lender, on each date on
which such Dual Currency RCF Issuing Lender notifies the Canadian Borrower of
the date and amount of a draft presented under any Dual Currency RCF Letter of
Credit and paid by such Dual Currency RCF Issuing Lender, for the amount of (x)
such draft so paid and (y) any taxes, fees, charges or other costs or expenses
incurred by such Dual Currency RCF Issuing Lender in connection with such
payment (the amounts described in the foregoing clauses (x) and (y) in respect
of any drawing, collectively, the “Dual Currency RCF Payment Amount”). Each
such payment shall be made to such Dual Currency RCF Issuing Lender at its
address for notices specified herein in lawful money of Canada and in
immediately available funds. Interest shall be payable on each Dual Currency
RCF Payment Amount from the date of the applicable drawing until payment in
full at the rate set forth in (i) until
the second Business Day following the date of the applicable drawing, Section
2.15(c) and (ii) thereafter, Section
2.15(f). Each drawing under any Dual Currency RCF Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 8(f)
shall exist and be continuing with respect to either Borrower, in which case
the procedures specified in Section 3.4 for funding by Dual Currency RCF L/C
Participants shall apply) constitute a request by the Canadian Borrower to the
Canadian Agent for a borrowing pursuant to Section 2.5(b) of Canadian Prime
Rate Loans in the amount of such drawing. The Borrowing Date with respect to
such borrowing shall be the first date on which a borrowing of Dual Currency
RCF Loans could be made, pursuant to Section 2.5(b) (or, if applicable, Section
2.7), if the Canadian Agent had received a notice of such borrowing at the time
the Canadian Agent receives notice from the relevant Dual Currency RCF Issuing
Lender of such drawing under such Dual Currency RCF Letter of Credit.


 


3.6           Obligations Absolute.
(a)  The US Borrower’s obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment that the US Borrower may have or have had against any US Dollar RCF
Issuing Lender, any beneficiary of a US Dollar RCF Letter of Credit or any
other Person. The US Borrower also agrees with each US Dollar RCF Issuing
Lender that


 


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such US Dollar RCF Issuing Lender shall not
be responsible for, and the US Borrower’s US Dollar RCF Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the US Borrower and any beneficiary of any US
Dollar RCF Letter of Credit or any other party to which such US Dollar RCF
Letter of Credit may be transferred or any claims whatsoever of the US Borrower
against any beneficiary of such US Dollar RCF Letter of Credit or any such
transferee. No US Dollar RCF Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any US Dollar RCF
Letter of Credit, except for errors or omissions found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such US Dollar RCF Issuing
Lender. The US Borrower agrees that any action taken or omitted by a US Dollar
RCF Issuing Lender under or in connection with any US Dollar RCF Letter of
Credit issued by it or the related drafts or documents, if done in the absence
of gross negligence or willful misconduct and in accordance with the standards
of care specified in the UCC of the State of New York, shall be binding on the
US Borrower and shall not result in any liability of such US Dollar RCF Issuing
Lender to the US Borrower.


 


(b)           The Canadian Borrower’s
obligations under this Section 3 shall be absolute and unconditional under any
and all circumstances and irrespective of any setoff, counterclaim or defense
to payment that the Canadian Borrower may have or have had against any Dual
Currency RCF Issuing Lender, any beneficiary of a Dual Currency RCF Letter of
Credit or any other Person. The Canadian Borrower also agrees with each Dual
Currency RCF Issuing Lender that such Dual Currency RCF Issuing Lender shall
not be responsible for, and the Canadian Borrower’s Dual Currency RCF
Reimbursement Obligations under Section 3.5(b) shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Canadian Borrower and
any beneficiary of any Dual Currency RCF Letter of Credit or any other party to
which such Dual Currency RCF Letter of Credit may be transferred or any claims
whatsoever of the Canadian Borrower against any beneficiary of such Dual
Currency RCF Letter of Credit or any such transferee. No Dual Currency RCF Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Dual Currency RCF Letter of Credit, except
for errors or omissions found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Dual Currency RCF Issuing Lender. The Canadian Borrower
agrees that any action taken or omitted by a Dual Currency RCF Issuing Lender
under or in connection with any Dual Currency RCF Letter of Credit issued by it
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct, shall be binding on the Canadian Borrower and shall not
result in any liability of such Dual Currency RCF Issuing Lender to the
Canadian Borrower.


 


3.7           US Dollar RCF Letter
of Credit Payments and Dual Currency RCF Letter of Credit Payments. (a)  If any draft shall be presented for payment
under any US Dollar RCF Letter of Credit, the relevant US Dollar RCF Issuing
Lender shall promptly notify the Administrative Agent and the US Borrower of
the date and amount thereof. The responsibility


 


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of the relevant US Dollar RCF Issuing Lender
to the US Borrower in connection with any draft presented for payment under any
US Dollar RCF Letter of Credit, in addition to any payment obligation expressly
provided for in such US Dollar RCF Letter of Credit issued by such US Dollar
RCF Issuing Lender, shall be limited to determining that the documents
(including each draft) delivered under such US Dollar RCF Letter of Credit in
connection with such presentment appear on their face to be in conformity with
such US Dollar RCF Letter of Credit.


 


(b)           If any draft shall be
presented for payment under any Dual Currency RCF Letter of Credit, the
relevant Dual Currency RCF Issuing Lender shall promptly notify the Canadian
Agent and the Canadian Borrower of the date and amount thereof. The
responsibility of the relevant Dual Currency RCF Issuing Lender to the Canadian
Borrower in connection with any draft presented for payment under any Dual
Currency RCF Letter of Credit, in addition to any payment obligation expressly
provided for in such Dual Currency RCF Letter of Credit issued by such Dual
Currency RCF Issuing Lender, shall be limited to determining that the documents
(including each draft) delivered under such Dual Currency RCF Letter of Credit
in connection with such presentment appear on their face to be in conformity
with such Dual Currency RCF Letter of Credit.


 


3.8           Applications. To the extent that any
provision of any Application related to any US Dollar RCF Letter of Credit or
Dual Currency RCF Letter of Credit is inconsistent with the applicable
provisions of this Section 3, the provisions of this Section 3 shall apply.


 


3.9           Records. Each
Issuing Lender shall maintain records evidencing the undrawn and unexpired
amount of each Letter of Credit issued, extended or renewed by it outstanding
hereunder and each applicable Revolving Credit Lender’s share of such amount
and evidencing for each Letter of Credit issued or renewed hereunder:


 


(a)           the dates of issuance,
extension or renewal and expiration thereof;


 


(b)           the face amount thereof;
and


 


(c)           the date and amount of
all payments and drawings made thereunder.


 


Each Issuing
Lender shall make copies of such records available to the applicable Borrower,
each Facility Agent or any Revolving Credit Lender upon its reasonable request.


 


3.10         No Liability. Each
Borrower agrees that no Facility Agent or Lender, including each Issuing
Lender, or any of their Related Persons will assume liability for, or be
responsible for:


 


(a)           the use which may be
made of any Letter of Credit;


 


(b)           any acts or omissions
of the beneficiary of any Letter of Credit, including the application of any
payment made to such beneficiary;


 


(c)           other than as provided
in clause (d) below, the validity, correctness, genuineness or legal effect of
any document or instrument relating to any Letter of Credit, even


 


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if such document or instrument should in fact
prove to be in any respect invalid, insufficient, inaccurate, fraudulent or
forged;


 


(d)           payment by such Issuing
Lender of any draft which does not comply with the terms of any Letter of
Credit, unless such payment results from the gross negligence or willful
misconduct of such Issuing Lender;


 


(e)           the failure of any
document or instrument to bear any reference or adequate reference to any
Letter of Credit;


 


(f)            any failure to note
the amount of any draft on any Letter of Credit or on any related document or
instrument;


 


(g)           any failure of the
beneficiary of any Letter of Credit to meet the obligations of such beneficiary
to either Borrower or any other Person; or


 


(h)           any failure by an
Issuing Lender to make payment under any Letter of Credit as a result of any
Requirement of Law, control or restriction rightfully or wrongfully exercised
or imposed by any Governmental Authority.


 


SECTION 4.
REPRESENTATIONS AND WARRANTIES


 


To induce the Arrangers, the Agents and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, each Borrower hereby represents and
warrants to each Arranger, each Agent and each Lender that:


 


4.1           Financial Condition.
(a)  The unaudited pro  forma
consolidated balance sheet of the US Borrower and its consolidated Subsidiaries
as of June 30, 2007 (including the notes thereto) (the “Pro Forma Balance
Sheet”), copies of which have heretofore been furnished to each Lender, has
been prepared giving effect (as if such events had occurred on such date) to (i) the consummation of the Acquisition, (ii) the Loans to be made on the Closing Date
and the use of proceeds thereof, (iii) the Common Equity Financing and (iv) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the US Borrower as of the
date of delivery thereof, and presents fairly on a pro  forma
basis the estimated financial position of US Borrower and its consolidated
Subsidiaries as of June 30, 2007, assuming that the events specified in the
preceding sentence had actually occurred at such date.


 


(b)           The audited
consolidated balance sheets of the US Borrower as of December 31, 2004,
December 31, 2005 and December 31, 2006, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such
dates, reported on by and accompanied by an unqualified report from Deloitte
& Touche LLP, present fairly the consolidated financial condition of the US
Borrower as at such date, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the US Borrower as of June 30, 2007,
and the related unaudited consolidated statements of income and cash flows for
the six-month period ended on such date, present fairly the consolidated financial
condition of the US Borrower as at such date,


 


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and the consolidated results of its
operations and its consolidated cash flows for the six-month period then ended
(subject to normal year-end audit adjustments). All such financial statements,
including the related notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). As of the Closing
Date, the US Borrower and its Subsidiaries do not have any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph. During the
period from December 31, 2006 to and including the date hereof, there has been
no Disposition by the US Borrower or any of its Subsidiaries of any material
part of its business or Property.


 


(c)           The audited
consolidated balance sheets of the Target as at April 1, 2005, March 31, 2006
and March 30, 2007, and the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from Ernst & Young LLP, present fairly
the consolidated financial condition of the Target as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Target as at June 30, 2007, and the related unaudited consolidated
statements of income and cash flows for the three-month period ended on such
date, present fairly the consolidated financial condition of the Target as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). As of the Closing
Date, the Target and its Subsidiaries do not have any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph. During the
period from March 30, 2007 to and including the date hereof, there has been no
Disposition by the Target or any of its Subsidiaries of any material part of
its business or Property.


 


4.2           No Change. Since December 31, 2006
(after giving effect to the Transaction on the Closing Date), there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


 


4.3           Corporate Existence; Compliance with Law.
Each of the US Borrower and its Subsidiaries (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has
the corporate, company or partnership power and authority, and the legal right,
to own and operate its Property, to lease the Property it operates as lessee
and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation,
company or partnership and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification, except to the extent that the failure to
be so qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect and (d) is in


 


87

















 


compliance
with all Requirements of Law, except to the extent that the failure to comply
therewith could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


4.4           Corporate Power; Authorization;
Enforceable Obligations. Each Loan Party has the corporate, company or
partnership power and authority, and the legal right, to make, deliver and
perform the Transaction Documents to which it is a party and, in the case of
each Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate, company or partnership or other action to authorize the execution,
delivery and performance of the Transaction Documents to which it is a party
and, in the case of each Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Transaction, the borrowings
hereunder or the execution, delivery, performance, validity or enforceability
of this Agreement or any of the other Transaction Documents, except (i) such consents, authorizations, filings and
notices as shall have been obtained or made and are in full force and effect,
(ii) routine filings to be made after the date hereof in the ordinary course of
business (e.g., good standing filings) and (iii) the filings referred to in Section 4.19. Each Transaction
Document has been duly executed and delivered on behalf of each Loan Party that
is a party thereto. This Agreement constitutes, and each other Loan Document
upon execution will constitute, a legal, valid and binding obligation of each
Loan Party that is a party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).


 


4.5           No Legal Bar. The execution, delivery
and performance of this Agreement and the other Transaction Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the US Borrower or any of its Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security
Documents and the Canadian Intercompany Collateral Agreements). No Requirement
of Law or Contractual Obligation applicable to the US Borrower or any of its
Subsidiaries could reasonably be expected to have a Material Adverse Effect.


 


4.6           No Material Litigation. No
litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of either Borrower, threatened by or
against the US Borrower or any of its Subsidiaries or against any of their
respective properties or revenues (a)
with respect to any of the Transaction Documents or any of the transactions
contemplated hereby or thereby, or (b)
that could reasonably be expected to have a Material Adverse Effect.


 


4.7           No Default. Neither the US Borrower
nor any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.


 


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4.8           Ownership of Property; Liens. Except
as disclosed on Schedule 4.8, each of the US Borrower and its
Subsidiaries is the sole owner of, legally and beneficially, and has good
marketable and insurable title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all its other Property, and none of such Property is subject to any claims,
liabilities, obligations, charges or restrictions of any kind, nature or
description or to any Lien except for Permitted Liens. None of the Pledged
Stock is subject to any Lien except for Permitted Liens.


 


4.9           Intellectual Property. The US
Borrower and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted without conflict in any material respect with the rights of any other
Person. Except as set forth on Schedule 4.9, no material claim has been
asserted or is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does either Borrower know of any valid basis for any such claim. Except
as set forth on Schedule 4.9, the use of Intellectual Property by the US
Borrower and its Subsidiaries does not infringe on the rights of any Person in
any material respect.


 


4.10         Taxes. The US Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state, provincial and
other material tax returns that are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its Property and all other material taxes, fees or other charges
imposed on it or any of its Property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity
with GAAP have been provided on the books of the US Borrower or its
Subsidiaries, as the case may be); and no tax Lien has been filed, and, to the
knowledge of either Borrower, no claim for overdue amounts is being asserted,
with respect to any such tax, fee or other charge. No Loan Party and no
Subsidiary thereof (i) intends to treat the Loans, the Acquisition, or any
other transaction contemplated hereby as being a “reportable transaction”
(within the meaning of Treasury Regulation 1.6011-4) or (ii) is aware of any
facts or events that would result in such treatment.


 


4.11         Federal Regulations.
No part of the proceeds of any Loans or Letter of Credit (other than pursuant
to, or in connection with, the Acquisition) will be used for “purchasing” or “carrying”
any “margin stock” within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Administrative Agent, each Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1 referred to
in Regulation U. The value of the margin stock (within the meaning of
Regulation U) owned by the US Borrower and its Subsidiaries at any time the
extensions of credit hereunder constitute “purpose” credit (within the meaning
of Regulation U) does not exceed 25% of the value of the assets of the US
Borrower and its Subsidiaries taken as a whole.


 


4.12         Labor Matters. There (i) is no unfair
labor practice complaint pending against the US Borrower or any of its
Subsidiaries, or to the knowledge of the US Borrower or any of its
Subsidiaries, threatened against them before the National Labor Relations Board
or any


 


89

















 


labor relations
board or tribunal of any other jurisdiction, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the US Borrower or any of its Subsidiaries or, to the knowledge
of the US Borrower or any of its Subsidiaries, threatened against any of them;
(ii) are no union organizing activities, and no union representation question
exists or, to the knowledge of the US Borrower or any of its Subsidiaries, is
threatened with respect to the employees of the US Borrower or any of its
Subsidiaries; (iii) are no equal opportunity charges or other claims pending,
or to the knowledge of the US Borrower or any of its Subsidiaries, threatened
with respect to the employees of the US Borrower or any of its Subsidiaries;
and (iv) are no strikes, stoppages or slowdowns or other labor disputes against
the US Borrower or any of its Subsidiaries pending or, to the knowledge of
either Borrower, threatened that, in the case of clauses (i) through (iv),
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payment made to employees of the
US Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that (individually or in the aggregate) could reasonably be expected to
have a Material Adverse Effect. All payments due from the US Borrower or any of
its Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the US Borrower or the relevant Subsidiary.


 


4.13         ERISA. (a)  Except as set forth on Schedule 4.13, neither
a Reportable Event nor an “accumulated funding deficiency” (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied and has been
administered in compliance, in all material respects, with its terms and the
applicable provisions of ERISA and the Code. All contributions required to be
made with respect to each Plan have been timely made or have been reflected on
the most recent consolidated balance sheet filed prior to the date hereof or
accrued in the accounting records of the US Borrower and its Subsidiaries.
Except as set forth on Schedule 4.13, no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period. Except as set forth on Schedule 4.13, the present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. None of the US Borrower, any of its Subsidiaries or any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and none of the US Borrower, any of its
Subsidiaries or any Commonly Controlled Entity would become subject to any
material liability under ERISA if the US Borrower, any of its Subsidiaries or
any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in Reorganization or Insolvent. Except as set forth on Schedule 4.13, neither
the US Borrower nor its Subsidiaries maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan the obligations with respect to


 


90

















 


which could reasonably be expected to have a Material Adverse Effect on
the ability of the Borrowers to perform their obligations under this Agreement.


 


(b)           Except as set forth on
Schedule 4.13, each Non-US Plan has complied and has been administered in
compliance, in all material respects, with its terms and with the requirements
of any and all applicable laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a Non-US
Plan have been timely made. Neither the US Borrower nor any of its Subsidiaries
has incurred any obligation in connection with the termination of, or
withdrawal from, any Non-US Plan. The present value of the accrued benefit
liabilities (whether or not vested) under each Non-US Plan, determined as of
the end of the US Borrower’s most recently ended fiscal year on the basis of
actuarial assumptions, each of which is reasonable, did not exceed the current
value of the assets of such Non-US Plan allocable to such benefit liabilities.


 


4.14         Investment Company Act; Other Regulations.
No Loan Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.


 


4.15         Subsidiaries. (a)  The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the US Borrower as of the Closing Date. Schedule
4.15 sets forth as of the Closing Date and after giving effect to the
Acquisition, the exact legal name (as reflected on the certificate of
incorporation (or formation) and jurisdiction of incorporation (or formation)
of each Subsidiary of the US Borrower (and, in the case of each Canadian
Subsidiary, the address of its place of business, the address of its chief
executive office, if there is more than one place of business, and the address
where its books and records are located) and, as to each such Subsidiary, the
percentage and number of each class of Capital Stock owned by each Loan Party
and its Subsidiaries.


 


(b) 
There are no outstanding subscriptions, options, warrants, calls, rights
or other agreements or commitments (other than stock options granted to
employees or directors and directors’ qualifying shares) of any nature relating
to any Capital Stock of the US Borrower or any Subsidiary, except as disclosed
on Schedule 4.15.


 


4.16         Use of Proceeds. The proceeds of the
Term Loans shall be used to finance a portion of the Acquisition and to pay
related fees and expenses. The proceeds of the Revolving Credit Loans, the
Swing Line Loans and the Letters of Credit shall be used for general corporate
and working capital purposes (including to finance Permitted Acquisitions); provided
that no Revolving Credit Loans and/or Swing Line Loans may be used to finance
the Transaction.


 


4.17         Environmental Matters.
Other than exceptions to any of the following that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect:


 


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(a)           The US Borrower and its
Subsidiaries:  (i) are, and within the period of all applicable statutes of
limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all Environmental Permits (each of
which is in full force and effect) required for any of their current or
intended operations or for any property owned, leased, or otherwise operated by
any of them; (iii) are, and within the
period of all applicable statutes of limitation have been, in compliance with
all of their Environmental Permits; and (iv)
reasonably believe that:  each of their
Environmental Permits will be timely renewed and complied with, without
material expense; any additional Environmental Permits that may be required of
any of them will be timely obtained and complied with, without material
expense; and compliance with any Environmental Law that is or is expected to
become applicable to any of them will be timely attained and maintained,
without material expense.


 


(b)           Materials of Environmental
Concern are not present at, on, under, in, or about any real property now or
formerly owned, leased or operated by the US Borrower or any of its
Subsidiaries, or at any other location (including, without limitation, any
location to which Materials of Environmental Concern have been sent for re-use
or recycling or for treatment, storage, or disposal) which could reasonably be
expected to (i) give rise to liability of
the US Borrower or any of its Subsidiaries under any applicable Environmental
Law or otherwise result in costs to the US Borrower or any of its Subsidiaries,
or (ii) interfere with the US Borrower’s
or any of its Subsidiaries’ continued operations, or (iii) impair the fair saleable value of any real property owned or
leased by the US Borrower or any of its Subsidiaries.


 


(c)           There is no judicial,
administrative, or arbitral proceeding (including any notice of violation or
alleged violation) under or relating to any Environmental Law to which the US
Borrower or any of its Subsidiaries is, or to the knowledge of either Borrower
or any of their respective Subsidiaries will be, named as a party that is
pending or, to the knowledge of either Borrower or any of their respective
Subsidiaries, threatened.


 


(d)           Neither the US Borrower
nor any of its Subsidiaries has received any written request for information,
or been notified that it is a potentially responsible party under or relating
to the federal Comprehensive Environmental Response, Compensation, and
Liability Act or any similar Environmental Law, or with respect to any
Materials of Environmental Concern.


 


(e)           Neither the US Borrower
nor any of its Subsidiaries has entered into or agreed to any consent decree,
order, or settlement or other agreement, or is subject to any judgment, decree,
or order or other agreement, in any judicial, administrative, arbitral, or
other forum for dispute resolution, relating to compliance with or liability
under any Environmental Law.


 


(f)            Neither the US
Borrower nor any of its Subsidiaries has assumed or retained, by contract or
operation of law, any liabilities of any kind, fixed or contingent, known or
unknown, under any Environmental Law or with respect to any Material of
Environmental Concern.


 


4.18         Accuracy of Information, etc. No
statement or information contained in this Agreement, any other Loan Document,
the Confidential Information Memorandum or any other document, certificate or
statement furnished to the Administrative Agent, the Arrangers,


 


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the Agents or
the Lenders or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents (other than the projections and information described in the
immediately succeeding sentence), contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading under the circumstances in which made or furnished. The projections
and pro  forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed
by management of the US Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact
known to any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other
documents, certificates and statements furnished to the Arrangers, the Agents
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.


 


4.19         Security Documents.
(a)  The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a legal, valid, binding and enforceable
security interest in the Collateral described therein and proceeds and products
thereof. In the case of the Pledged Stock described in the Guarantee and
Collateral Agreement, when any stock certificates representing such Pledged
Stock are delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, when financing
statements in appropriate form are filed in the offices specified on
Schedule 4.19(a)-1 (which financing statements may be filed by the
Administrative Agent) at any time and such other filings or actions as are
specified on Schedule 3 to the Guarantee and Collateral Agreement have been
completed (all of which filings may be filed by the Administrative Agent) at
any time, the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties party thereto in such Collateral and the proceeds and products
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person (except Permitted Liens). Schedule 4.19(a)-2 lists each UCC or PPSA
Financing Statement that (i) names any Loan Party as debtor and (ii) will be
terminated or discharged on or prior to the Closing Date; and on or prior to
the Closing Date, the US Borrower will have delivered to the Administrative
Agent, or caused to be filed, duly completed UCC or PPSA termination or
discharge statements, signed by the relevant secured party, in respect of each
such UCC or PPSA Financing Statement.


 


(b)           Each of the Mortgages
is, after the execution and delivery thereof, effective to create in favor of
the Administrative Agent, for the benefit of the Secured Parties, a legal,
valid, binding and enforceable Lien on the Mortgaged Properties described
therein and proceeds and products thereof; and when the Mortgages are filed in
the offices specified on Schedule 4.19(b) (in the case of Mortgages to be
executed and delivered after the Closing Date pursuant to Section 6.15(a)) or
in the recording office designated by the US Borrower (in the case of any
Mortgage to be executed and delivered pursuant to Section 6.10(b)), each Mortgage


 


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shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the relevant Loan
Parties in the Mortgaged Properties described therein and the proceeds and
products thereof, as security for the Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person (other
than Persons holding Liens or other encumbrances or rights permitted by the
relevant Mortgage).


 


4.20                           Solvency. Each Loan
Party is, and after giving effect to the Acquisition and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and
therewith will be and will continue to be, Solvent.


 


4.21                           Regulation H. No
Mortgage encumbers improved real property which is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968 (except any
Mortgaged Properties as to which such flood insurance as required by Regulation
H has been obtained and is in full force and effect as required by this
Agreement).


 


4.22                           Insurance. Each of
the US Borrower and its Subsidiaries is insured, in accordance with Section 5.3
of the Guarantee and Collateral Agreement, by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged, including, without
limitation, the amount of product liability insurance set forth in Schedule
4.22; and neither the US Borrower nor any of its Subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that could not
reasonably be expected to have a Material Adverse Effect.


 


4.23                           Patriot Act, etc. To
the extent applicable, each Loan Party is in compliance, in all material
respects, with the (i) Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the Untied States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or executive order relating thereto, and (ii) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans will
be used, directly or indirectly, for any payments to any governmental official
or employee, political party, official of a political party, candidate for political
office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.


 


4.24                           Acquisition Documentation.
The Acquisition Documentation listed on Schedule 4.24 attached
hereto constitute all of the material agreements, instruments and undertakings
to which the US Borrower entered into in connection with the Acquisition. Except
as permitted by Section 5.1(b)(i), none of such material agreements,
instruments or undertakings have been amended, supplemented or otherwise
modified, and all such material agreements, instruments and undertakings are in
full force and effect. No party to any Acquisition


 


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Documentation
is currently in default thereunder and no party thereto, or any other Person,
has the right to terminate any Acquisition Documentation.


 


4.25                           Real Estate. As of
the Closing Date, Schedule 4.25 sets forth a true, complete and
correct list of all Real Estate (i) owned by any Loan Party or its Subsidiaries
in fee simple or (ii) leased by any Loan Party or its Subsidiaries and used as
a distribution or manufacturing facility.


 


SECTION 5.
CONDITIONS PRECEDENT


 


5.1                                 Conditions to
Initial Extension of Credit. The agreement of each Lender to make the
initial extension of credit requested to be made by it hereunder is subject to
the satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent:


 


(a)                                  Loan
Documents. The Administrative Agent shall have received:


 


(i)                                      this
Agreement, executed and delivered by a duly authorized officer of each
Borrower;


 


(ii)                                  the
Guarantee and Collateral Agreement, executed and delivered by a duly authorized
officer of each Borrower and each Subsidiary Guarantor; and


 


(iii)                               each
Canadian Intercompany Note and each Canadian Intercompany Collateral
Agreements, executed and delivered by a duly authorized officer of each of the
Canadian Holding Companies, LKQ Dominion Auto Recycling Inc. and LKQ Pintendre
Autos Inc.


 


(b)                                 Acquisition; etc.  The
following transactions shall have been consummated (or evidence that such
transactions will occur simultaneously shall have been provided):


 


(i)                                     Merger
Sub shall have been merged with and into Target pursuant to, and in accordance
with the terms of, the Acquisition Agreement, with the Target surviving such
Merger as a Wholly Owned Subsidiary of the US Borrower (the “Acquisition”),
and the Acquisition Agreement shall not have been altered, amended or otherwise
changed or supplemented or any condition therein waived, and neither the US
Borrower nor Merger Sub shall have consented to any action which requires the
consent of the US Borrower or Merger Sub under the Acquisition Agreement, if
such alteration, amendment, change, supplement, waiver or consent would be
adverse to the interests of the Lenders in any material respect, in any such
case without the prior written consent of the Agents (such consent not to be
unreasonably withheld); and


 


(ii)                                  the
US Borrower shall have issued shares of its common stock pursuant to an
underwritten public offering generating gross cash proceeds (calculated before
underwriting costs) of approximately $365,800,000, all as contemplated by the
Common Equity Financing Documents (the “Common Equity Financing”).


 


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(c)                                  Pro
Forma Balance Sheet; Financial Statements. The Lenders shall have received
(i) the Pro  Forma Balance
Sheet, (ii) audited consolidated
financial statements of the US Borrower and the Target described in Sections
4.1(b) and (c), and (iii) unaudited
interim consolidated financial statements of the US Borrower and the Target for
each fiscal month ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (ii) of this Section as to
which such financial statements are available.


 


(d)                                 Related
Agreements. The Administrative Agent shall have received true and correct
copies, certified as to authenticity by the US Borrower, of (i) the Acquisition Documentation and (ii) such other documents or instruments as may
be reasonably requested by the Administrative Agent, including, without
limitation, a copy of any debt instrument, security agreement or other material
contract to which the Loan Parties may be a party.


 


(e)                                  Termination
of Existing Credit Facilities. (i)               The
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that the Existing Credit Facilities and all letters of
credit thereunder shall be simultaneously terminated, all amounts thereunder
shall be simultaneously paid in full and arrangements satisfactory to the
Administrative Agent shall have been made for the termination of Liens and
security interests granted in connection therewith.


 


(ii)                                  On the Closing Date
and after giving effect to the consummation of the Transaction, the US Borrower
and its Subsidiaries shall have no outstanding Indebtedness, except for (i)
Indebtedness pursuant to or in respect of the Loan Documents and the Canadian
Intercompany Loan Documents and (ii) certain other indebtedness existing on the
Closing Date as listed on Schedule 7.2(d) (with the Indebtedness described in
this sub-clause (ii) being herein called the “Existing Indebtedness”).


 


(f)                                    Fees.
The Lenders, the Arrangers and the Agents shall have received all fees required
to be paid, and all expenses for which invoices have been presented (including
reasonable fees, disbursements and other charges of counsel to the Agents), on
or before the Closing Date. All such amounts will be paid with proceeds of
Loans made on the Closing Date and will be reflected in the funding
instructions given by the relevant Borrower to the Facility Agents, on or
before the Closing Date.


 


(g)                                 Projections.
The Lenders shall have received satisfactory financial projections for fiscal
years 2008-2013.


 


(h)                                 Solvency
Certificate. The Lenders shall have received a reasonably satisfactory
Solvency Certificate substantially in the form attached hereto as Exhibit L,
executed by the chief financial officer of the US Borrower.


 


(i)                                     Lien
Searches. The Administrative Agent shall have received the results of a
recent lien, tax lien, judgment, execution, Bank Act (Canada), bankruptcy and
litigation search in each of the jurisdictions or offices (including, without
limitation, in the United States Patent and Trademark Office and the United
States Copyright Office and in the Canadian Intellectual Property Office) in which
UCC or PPSA financing statements or other filings or recordations should be
made to evidence or perfect (with the priority required under the Loan


 


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Documents) security interests in all assets
of the Loan Parties (or would have been made at any time during the five years
immediately preceding the Closing Date to perfect Liens on any assets of the US
Borrower or its Subsidiaries), and such search shall reveal no Liens on any of
the assets of the Loan Party, except for Permitted Liens or Liens set forth on
Schedule 4.19(a)-2.


 


(j)                                     Closing
Certificate. The Administrative Agent shall have received a certificate of
each Loan Party (other than a Dormant Subsidiary), dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments (including, in the case of the certificate of the US Borrower,
certifications that (i) since March 31, 2007, there has been no Closing Date
Material Adverse Effect and (ii) all Target Closing Date Representations are
true and correct in all material respects).


 


(k)                                  Other
Certifications. The Administrative Agent shall have received the following:


 


(i)                                     a
copy of the charter of each Loan Party (other than a Dormant Subsidiary) and
each amendment thereto, certified (as of a date reasonably near the date of the
initial extension of credit) as being a true and correct copy thereof by the
Secretary of State or other applicable Governmental Authority of the
jurisdiction in which each such Loan Party is organized;


 


(ii)                                  a
copy of a certificate of the Secretary of State or other applicable
Governmental Authority of the jurisdiction in which each Loan Party (other than
a Dormant Subsidiary) is organized, dated reasonably near the date of the
initial extension of credit, listing the charter of such Loan Party and each
amendment thereto on file in such office and certifying that (A) such
amendments are the only amendments to such Loan Party’s charter on file in such
office, and (B) such Loan Party is duly organized and in good standing under
the laws of such jurisdiction;


 


(iii)                               an
electronic confirmation from the Secretary of State or other applicable
Governmental Authority of each jurisdiction in which each such Loan Party
(other than a Dormant Subsidiary) is organized certifying that such Loan Party
is duly organized and in good standing under the laws of such jurisdiction on
the date of the initial extension of credit, prepared by, or on behalf of, a
filing service acceptable to the Administrative Agent; and


 


(iv)                              in
the case of each Canadian Subsidiary, a certificate of compliance, certificate
of status or equivalent in each jurisdiction of organization of such Person and
in each jurisdiction where it is extra-provincially registered or conducts
business.


 


(l)                                     Legal
Opinions. The Administrative Agent shall have received the following
executed legal opinions:


 


(i)                                     the
legal opinion of Bell, Boyd & Lloyd LPP, counsel to the US Borrower and its
Subsidiaries, substantially in the form of Exhibit F-1;


 


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(ii)                                  the
legal opinion of Victor Casini, General Counsel to the US Borrower and its
Subsidiaries, substantially in the form of Exhibit F-2;


 


(iii)                               to
the extent consented to by the relevant counsel, each legal opinion, if any,
delivered in connection with the Acquisition Agreement, accompanied by a
reliance letter in favor of the Agents and the Lenders; and


 


(iv)                              reasonably
satisfactory legal opinions of local counsel in each of Delaware, New Jersey,
Ohio, Florida, Minnesota, Tennessee, California and Indiana, and of such other
special and local counsel as may be required by the Administrative Agent.


 


Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.


 


(m)                               Pledged
Stock; Stock Powers; etc.. The Administrative Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together
with an undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof, (ii)  an Acknowledgment and
Consent, substantially in the form of Annex II to the Guarantee and Collateral
Agreement, duly executed by any issuer of Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement that is not itself a party to the Guarantee
and Collateral Agreement and (iii) each
promissory note pledged pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed transfer
form in blank satisfactory to the Administrative Agent) by the pledgor thereof.


 


(n)                                 Filings;
Registrations; and Recordings. (i) Each document (including, without
limitation, any UCC or PPSA financing statement)  required by the Security
Documents or under law or reasonably requested by the Administrative Agent to
be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a perfected Lien
on the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Permitted Liens), shall have been filed,
registered or recorded or shall have been delivered to the Administrative Agent
be in proper form for filing, registration or recordation.


 


(ii)                                  Each document
(including, without limitation, any PPSA financing statement)  required by
the Canadian Intercompany Collateral Agreements or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the relevant Canadian Subsidiary of the US Borrower
a perfected Lien on the collateral described therein, prior and superior in
right to any other Person (other than with respect to Permitted Liens), shall
have been filed, registered or recorded or shall have been delivered to the
Administrative Agent in proper form for filing, registration or recordation.


 


(o)                                 Insurance.
The Administrative Agent shall have received insurance certificates satisfying
the requirements of Section 5.3 of the Guarantee and Collateral Agreement.


 


Each Lender, by delivering its signature page
to this Agreement and funding a Loan on the Closing Date, shall be deemed to
have acknowledged receipt of, and consented to


 


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and approved,
each Loan Document and each other document required to be approved by any
Facility Agent, the Required Lenders or Lenders, as applicable, on the Closing
Date.


 


5.2                                 Conditions to Each
Extension of Credit. The agreement of each Lender to make any extension of
credit requested to be made by it hereunder on any date (including, without
limitation, its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:


 


(a)                                  Representations
and Warranties. Each of the representations and warranties made by any Loan
Party in or pursuant to the Loan Documents (except, in the case of the initial
extensions of credit hereunder on the Closing Date, the Excluded Closing Date
Representations) shall be true and correct on and as of such date as if made on
and as of such date, except for representations and warranties expressly stated
to relate to a specific earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date.


 


(b)                                 No
Default. No Default or Event of Default shall exist and be continuing on
such date or after giving effect to the extensions of credit requested to be
made on such date.


 


Each borrowing
by and issuance of a Letter of Credit on behalf of a Borrower hereunder shall
constitute a representation and warranty by such Borrower that as of the date
of such extension of credit that the conditions contained in this Section 5.2
have been satisfied.


 


SECTION 6.
AFFIRMATIVE COVENANTS


 


Each Borrower hereby agrees that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender, any Agent or any Arranger
hereunder, such Borrower shall and shall cause each of its Subsidiaries to:


 


6.1                                 Financial
Statements. Furnish to each Agent and each Lender:


 


(a)                                  as
soon as available, but in any event within 90 days after the end of each
fiscal year of the US Borrower, a copy of the audited consolidated balance
sheet of the US Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of income and of cash
flows for such year, setting forth in each case in comparative form the figures
as of the end of and for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification arising out of
the scope of the audit, by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing; and


 


(b)                                 as
soon as available, but in any event not later than 45 days after the end of
each of the first three quarterly periods of each fiscal year of the US
Borrower, the unaudited consolidated balance sheet of the US Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year


 


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through the
end of such quarter, setting forth in each case in comparative form the figures
as of the end of and for the corresponding period in the previous year,
certified by a Responsible Officer as fairly presenting in all material
respects the financial condition of the US Borrower and its Subsidiaries during
such period (subject to normal year-end audit adjustments);


 


all such
financial statements to be complete and correct in all material respects and to
be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).


 


6.2                                 Certificates; Other
Information. Furnish to each Agent and each Lender, or, in the case of
clause (g), to the relevant Lender:


 


(a)                                  concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate (it being understood that such certificate shall
be limited to the items that independent certified public accountants are
permitted to cover in such certificates pursuant to their professional
standards and customs of the profession);


 


(b)                                 concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer’s knowledge, each Loan Party during such period has
observed or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) (x) a Compliance Certificate
setting forth (I) all information and calculations necessary for determining
compliance by the US Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the US Borrower, as the case may be, (II) the Consolidated
Leverage Ratio as of the last day of the fiscal quarter or fiscal year of the
US Borrower, as the case may be, and (III) in the case of a Compliance
Certificate delivered with the financial statements required by Section 6.1(a)
(commencing with the fiscal year of the US Borrower ended December 31, 2008),
setting forth the US Borrower’s calculation of Adjusted Excess Cash Flow and
Excess Cash Flow for the applicable Excess Cash Flow Period, (y) to the extent
not previously disclosed to the Administrative Agent, in writing, a listing of
any county, state, territory, province, region or any other jurisdiction, or
any political subdivision thereof within the United States, Canada or otherwise
where any Loan Party keeps inventory or equipment and of any Intellectual
Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list
so delivered, since the Closing Date) and (z) any UCC or PPSA financing
statements or other filings specified in such Compliance Certificate as being
required to be delivered therewith;


 


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(c)                                  as
soon as available, and in any event no later than 60 days after the end of each
fiscal year of the US Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the
US Borrower and its Subsidiaries as of the end of the following fiscal year, and
the related consolidated statements of projected cash flow, projected changes
in financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the “Projections”), which Projections
shall in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates, information
and assumptions and that such Responsible Officer has no reason to believe that
such Projections are incorrect or misleading in any material respect;


 


(d)                                 no
later than 10 Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or
other modification with respect to the Acquisition Agreement or the governing
documents of any Loan Party;


 


(e)                                  within
five days after the same are sent, copies of all financial statements and
reports that the US Borrower or any of its Subsidiaries sends to the holders of
any class of its debt securities or public equity securities and, within five
days after the same are filed, copies of all financial statements and reports
that the US Borrower or any of its Subsidiaries may make to, or file with, the
SEC;


 


(f)                                    as
soon as possible and in any event within 3 Business Days of obtaining knowledge
thereof:  (i)  notice of any
development, event, or condition that, individually or in the aggregate with
other developments, events or conditions that, individually or in the
aggregate, could reasonably be expected to result in the payment by the US
Borrower or any of its Subsidiaries, in the aggregate, of a Material
Environmental Amount; and (ii)  any notice that any Governmental Authority
may deny any application for an Environmental Permit sought by, or revoke or
refuse to renew any Environmental Permit or any other material Permit held by
the US Borrower or condition approval of any such material Permit on terms and
conditions that are materially burdensome to the US Borrower or any of its
Subsidiaries, or to the operation of any of its businesses (both before and
after giving effect to the Acquisition) or any property owned, leased or
otherwise operated by such Person; and


 


(g)                                 promptly,
such additional financial and other information as any Lender may from time to
time reasonably request.


 


Documents required to be delivered pursuant to Section 6.1(a) or
(b) or Section 6.2(e) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the US Borrower posts such documents, or provides a link thereto on the US
Borrower’s website on the Internet at the website address set forth in Section
10.2; or (ii) on which such documents are posted on the US Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each
Lender and each Facility Agent have access (whether a commercial, third-party
website or whether sponsored by any Facility Agent);


 


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provided that: 
(i) upon written request by any Facility Agent, the US Borrower shall
deliver paper copies of such documents to such Facility Agent for further
distribution to each Lender until a written request to cease delivering paper
copies is given by such Facility Agent and (ii) the US Borrower shall notify
(which may be by facsimile or electronic mail) each Facility Agent of the
posting of any such documents. Notwithstanding anything contained herein, in
every instance the US Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.2(b) to the Administrative
Agent. Each Lender shall be solely responsible for timely accessing posted
documents or requesting delivery of paper copies of such documents from any
Facility Agent and maintaining its copies of such documents.


 


6.3                                 Payment of
Obligations. Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its material obligations
of whatever nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of
the US Borrower or its Subsidiaries, as the case may be.


 


6.4                                 Conduct
of Business and Maintenance of Existence, etc. (a)(i) Preserve, renew and keep in full force and effect its corporate
or other existence and (ii) take all
reasonable action to maintain all rights, privileges, franchises, Permits and
licenses necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except, in the case of
clause (ii) above, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) to the extent not in
conflict with this Agreement or the other Loan Documents, comply with all
Contractual Obligations and Requirements of Law, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


6.5                           Maintenance
of Property; Insurance. (a)  Keep all
Property and systems useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted and (b) maintain with
financially sound and reputable insurance companies insurance on all its
Property meeting the requirements of Section 5.3 of the Guarantee and
Collateral Agreement and in at in at least such amounts and against at least
such risks (but including in any event public liability, product liability and
business interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business.


 


6.6                                 Inspection
of Property; Books and Records; Discussions. (a) Keep proper books of
records and account in which full, true and correct entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities and (b) upon reasonable notice and
during normal business hours permit representatives of the Administrative Agent
(and, if an Event of Default Exists, any Lender) to visit and inspect any of
its properties and examine and, at the US Borrower’s expense, make copies of
any of its books and records and to discuss the business, operations,
properties and financial and other condition of the US Borrower and its
Subsidiaries with officers and employees of the US Borrower and its
Subsidiaries and with their respective independent certified public
accountants; provided that, unless a Default or Event of Default exists,
no more than two such visits and inspections shall be requested by the
Administrative Agent in any fiscal year of the US Borrower.


 


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6.7                                 Notices. Promptly
give notice to the Administrative Agent and each Lender of:


 


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


 


(b)                                 any
(i) default or event of default (or
alleged default) under any Contractual Obligation of the US Borrower or any of
its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the US Borrower
or any of its Subsidiaries and any Governmental Authority, that in either case,
if not cured or if adversely determined, as the case may be, could reasonably
be expected to have a Material Adverse Effect;


 


(c)                                  any
litigation or proceeding affecting the US Borrower or any of its Subsidiaries
in which the amount involved is $10,000,000 or more;


 


(d)                                 other
than the events set forth on Schedule 4.13, the following events, as soon as
possible and in any event within 30 days after either Borrower knows or has
reason to know thereof:  (i) the occurrence of any Reportable Event or an
“accumulated funding deficiency” (within the meaning of Section 412 of the Code
or Section 302 of ERISA) with respect to any Plan, a failure to make any
required contribution to a Plan or a Non-US Plan, including but not limited to
any failure to pay an amount the nonpayment of which would give rise to a Lien
under ERISA, the Code, the PBA, or any other applicable employee benefit plan
law or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan, (ii) the
institution of proceedings or the taking of any other action by the PBGC, FSCO,
the US Borrower, any of its Subsidiaries, any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan or Non-US Plan, (iii) the present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Single Employer Plans) exceeds the value of the
assets of such Single Employer Plan allocable to such accrued benefits by a
material amount, (iv)  the taking of any
action with respect to Plan or Non-US Plan which could result in the
requirement that the US Borrower, any of its Subsidiaries or any Commonly
Controlled Entity furnish a bond or other security to the PBGC or FSCO, (v)
that the US Borrower or its Subsidiaries may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan in addition to the
liability that existed on the date hereof or (vi) the occurrence of any other
event with respect to a Plan or a Non-US Plan which could result in the incurrence
by the US Borrower, any of its Subsidiaries or any Commonly Controlled Entity
of any material liability, fine or penalty; and


 


(e)                                  any
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


 


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Each notice
pursuant to this Section shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating
what action the US Borrower or the relevant Subsidiary proposes to take with
respect thereto.


 


6.8                                 Environmental
Laws. (a)  Comply in all material
respects with, and ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws and Environmental
Permits, and obtain, maintain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain, maintain and
comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws.


 


(b)                                 Conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.


 


6.9                                 [Reserved].


 


6.10                           Additional
Collateral, etc. (a)  With respect to
any Property acquired after the Closing Date by any Loan Party (other than (x)
any Property described in paragraph (b) or paragraph (c) of this Section, and
(y) any Property subject to a Lien expressly permitted by Section 7.3(g)) as to
which the Administrative Agent, for the benefit of the Secured Parties, does
not have a perfected Lien, promptly (i)
execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a security
interest in such Property and (ii) take
all actions necessary or advisable to grant to the Administrative Agent, for
the benefit of the Secured Parties, a perfected first priority security
interest in such Property, including without limitation, the filing of UCC or
PPSA, as applicable, financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.


 


(b)                                 With
respect to any fee interest (or leasehold interest, to the extent such
leasehold is created under a triple net ground lease or similar transaction) in
any real property having a value (together with improvements thereof) of at
least $2,000,000 acquired after the Closing Date by any Loan Party (other than
any such real property subject to a Lien expressly permitted by Section
7.3(g)), promptly (i) execute and deliver
a first priority Mortgage in favor of the Administrative Agent, for the benefit
of the Secured Parties, covering such real property, (ii) if requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance, complying with the provisions
of Section 6.15(a), covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof complying with the provisions of Section 6.15(a), together with
a surveyor’s certificate and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory
to the Administrative Agent and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the


 


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matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.


 


(c)                                  With
respect to any new Domestic Subsidiary created or acquired after the Closing
Date by the US Borrower or any of its Subsidiaries that is a Wholly-Owned
Subsidiary, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary or advisable
to grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by the US Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated transfer
powers, in blank, executed and delivered by a duly authorized officer of the US
Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the
Guarantee and Collateral Agreement and (B) to take such actions necessary or
advisable to grant to the Administrative Agent for the benefit of the Secured
Parties a perfected first priority security interest in the Collateral
described in the Guarantee and Collateral Agreement with respect to such new
Subsidiary (including, without limitation, the recording of instruments in the
United States Patent and Trademark Office and the United States Copyright
Offices or the Canadian Intellectual Property Office), the execution and
delivery by all necessary persons of control agreements, and the filing of UCC
or PPSA, as applicable, financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent, and (iv) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.


 


(d)                                 With
respect to any new Foreign Subsidiary created or acquired after the Closing
Date by any Loan Party (other than any new Canadian Subsidiary owned, directly
or indirectly, by another Canadian Subsidiary of the US Borrower), promptly (i) execute and deliver to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable in order to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by any Loan Party (provided that, in the case
of any Capital Stock of any such new Foreign Subsidiary owned by either
Borrower or a Subsidiary Guarantor, no more than 65% of the total outstanding
voting Capital Stock of any such new Foreign Subsidiary which is a “controlled
foreign corporation” (within the meaning of Section 957 of the Code) shall be
required to be so pledged), (ii) deliver
to the Administrative Agent the certificates representing such Capital Stock,
together with undated transfer powers, in blank, executed and delivered by a
duly authorized officer of such Loan Party and take such other action as may be
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the Lien of the Administrative Agent thereon, and (iii) if reasonably requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.


 


(e)                                  Notwithstanding
anything to the contrary in this Section 6.10, paragraphs (b), (c) and (d) of
this Section 6.10 shall not apply to any Property, new Subsidiary or new
Foreign Subsidiary created or acquired after the Closing Date, as applicable,
as to which the


 


105

















 


Administrative Agent has determined in its
sole discretion that the collateral value thereof is insufficient to justify
the difficulty, time and/or expense of obtaining a perfected security interest
therein.


 


(f)                                    The
Borrowers shall cause each Canadian Subsidiary of the US Borrower party to any
Canadian Intercompany Collateral Agreement (in its capacity as a secured party
thereunder) to take such actions, or refrain from taking such actions, as the
Administrative Agent shall direct with respect to the “collateral” described in
such Canadian Intercompany Collateral Agreement (including the taking of any
enforcement action permitted to be taken by such Canadian Subsidiary
thereunder), in any such case upon the occurrence of any Event of Default or
any payment default under any Canadian Intercompany Loan Document.


 


6.11                           Use of Proceeds. Use
the proceeds of the Loans only for the purposes specified in Section 4.16.


 


6.12                           ERISA Documents. The
US Borrower will cause to be delivered to the Administrative Agent, promptly
upon the Administrative Agent’s request, any or all of the following:  (i) a copy of each Plan or Non-US Plan (or,
where any such Plan or Non-US Plan is not in writing, a complete description
thereof) and, if applicable, related trust agreements or other funding
instruments and all amendments thereto, and all written interpretations thereof
and written descriptions thereof that have been distributed to employees or
former employees of the US Borrower or any of its Subsidiaries; (ii) the most
recent determination letter issued by the Internal Revenue Service with respect
to each Plan; (iii) for the three most recent plan years preceding the
Administrative Agent’s request, Annual Reports on Form 5500 Series required to
be filed with any governmental agency for each Plan; (iv) a listing of all
Multiemployer Plans, with the aggregate amount of the most recent annual contributions
required to be made by the US Borrower, any Subsidiary or any Commonly
Controlled Entity to each such Plan and copies of the collective bargaining
agreements requiring such contributions; (v) any information that has been
provided to the US Borrower or any Commonly Controlled Entity regarding
withdrawal liability under any Multiemployer Plan; (vi) the aggregate amount of
payments made under any employee welfare benefit plan (as defined in Section
3(1) of ERISA) to any retired employees of the US Borrower or any of its
Subsidiaries (or any dependents thereof) during the most recently completed
fiscal year; and (vii) documents reflecting any agreements between the PBGC or
FSCO and the US Borrower, any of its Subsidiaries or any Commonly Controlled Entity
with respect to any Plan or non-US Plan, (viii) 
copies of any records, documents or other information that must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA; (ix) a copy of each funding waiver request filed with the Internal
Revenue Service or any other government agency with respect to any Plan and all
material communications received by the US Borrower, any of its Subsidiaries or
any ERISA Affiliate from the IRS, FSCO or any other government agency with
respect to each Plan and each Non-US Plan of the US Borrower, any of its
Subsidiaries or any Commonly Controlled Entity; and (x) a copy of the most
recently filed actuarial valuation performed for funding purposes for each
Non-US Plan.


 


6.13                           Further
Assurances. (a)  From time to time
execute and deliver, or cause to be executed and delivered, such additional
instruments, certificates or documents, and take all such actions, as the
Administrative Agent may reasonably request for the purposes of implementing or
effectuating the provisions of this Agreement and the other Loan Documents, or


 


106

















 


of more fully perfecting or renewing the
rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or
proceeds or products thereof or with respect to any other property or assets
hereafter acquired by the US Borrower or any Subsidiary which may be deemed to
be part of the Collateral) pursuant hereto or thereto. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority, the US Borrower will execute and deliver, or will cause the
execution and delivery of, all applications, certifications, instruments and
other documents and papers that the Administrative Agent or such Lender may be
required to obtain from the US Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.


 


(b)                                 Preserve
and protect the Lien status of each respective Mortgage and, if any Lien (other
than unrecorded Liens permitted under Section 7.3 that arise by operation of
law and other Liens permitted under Section 7.3(f)) is asserted against a
Mortgaged Property, promptly and at its expense, give the Administrative Agent
a detailed written notice of such Lien and pay the underlying claim in full or
take such other action so as to cause it to be released or bonded over in a
manner reasonably satisfactory to the Administrative Agent.


 


6.14                           Maintenance of Ratings.
At all times, use commercially reasonable efforts to maintain a corporate
family rating and a rating with respect to its senior secured debt issued by
Moody’s and a corporate rating and a rating with respect to its senior secured
debt issued by S&P.


 


6.15                           Post-Closing Requirements.
(a) Take all actions deemed necessary or advisable by the Administrative Agent
such that, within 60 days of the Closing Date (or such longer period as may be
agreed by the Administrative Agent in its sole discretion):


 


(i)                                     the
Administrative Agent shall have received, and the title insurance company
issuing the policy referred to in clause (iii) below (the “Title Insurance
Company”) shall have received, maps or plats of an as-built survey of the
sites of the Mortgaged Properties certified to the Administrative Agent and the
Title Insurance Company in a manner satisfactory to them, dated not more than
six months prior to the Closing Date unless the Title Insurance Company has
agreed to delete its survey disclosure exception and provide the affirmative
coverage and endorsements described in clause (ii) below on the basis of an
earlier survey, and such survey shall be prepared by an independent
professional licensed land surveyor satisfactory to the Administrative Agent
and the Title Insurance Company, which maps or plats and the surveys on which they
are based shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and
Mapping in on the date of the preparation of the survey and meeting the
accuracy requirements as defined therein;


 


(ii)                                  the
Administrative Agent shall have received in respect of each Mortgaged Property
a mortgagee’s title insurance policy (or policies) or marked up unconditional
binder for such insurance. Each such policy shall (A) be in an amount


 


107

















 


satisfactory
to the Administrative Agent; (B) insure that the Mortgage insured thereby
creates a valid first Lien on, and security interest in, such Mortgaged
Property free and clear of all defects and encumbrances, except for Permitted
Liens disclosed therein; (C) name the Administrative Agent for the benefit of
the Secured Parties as the insured thereunder; (D) be in the form of ALTA Loan Policy
2006; (E) contain such endorsements and affirmative coverage as the
Administrative Agent may reasonably request in form and substance acceptable to
the Administrative Agent, including, without limitation (to the extent
applicable with respect to such Mortgaged Property and available in the
jurisdiction in which such Mortgaged Property is located), the following:
future advance endorsement; variable rate endorsement; survey endorsement;
comprehensive endorsement; zoning (ALTA 3.1 with parking added) endorsement;
first loss, doing business and tie-in endorsement; access coverage; separate
tax parcel coverage; contiguity coverage; usury; subdivision; environmental
protection lien; and such other endorsements as the Administrative Agent shall
reasonably require in order to provide insurance against specific risks
identified by the Administrative Agent in connection with such Mortgaged
Property, (F) be issued by title companies satisfactory to the Administrative
Agent (including any such title companies acting as co-insurers or reinsurers,
at the option of the Administrative Agent), and (G) not include “standard”
title exceptions, a survey exception or an exception for mechanics liens. The
Administrative Agent shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage recording
tax, and all related expenses, if any, have been paid;


 


(iii)                               the
Administrative Agent shall have received a copy of all recorded documents
referred to, or listed as exceptions to title in, the title policy or policies
referred to in clause (ii) above and a copy of all other material documents
affecting the Mortgaged Properties; and


 


(iv)                              if
requested by the Administrative Agent, the Administrative Agent shall have
received (A) a policy of flood insurance that (1) covers any parcel of improved
real property that is encumbered by any Mortgage (2) is written in an amount
not less than the outstanding principal amount of the indebtedness secured by
such Mortgage that is reasonably allocable to such real property or the maximum
limit of coverage made available with respect to the particular type of
property under the National Flood Insurance Act of 1968, whichever is less, and
(3) has a term ending not later than the maturity of the indebtedness secured
by such Mortgage or that may be extended to such maturity date and (B)
confirmation that the Borrower has received the notice required pursuant to
Section 208(e)(3) of Regulation H of the Board.


 


Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, all representations,
warranties, covenants, events of default and other agreements herein and
therein shall be deemed modified to the extent necessary to permit the taking
of the actions described above in this Section 6.15(a) within the time periods
required above, rather than as otherwise provided herein or therein; provided,
however, that to the extent any representation and warranty would not be
true because actions described in this Section 6.15(a) above were not taken on
the Closing Date, the respective representation and warranty shall be


 


108

















 


required to be true and correct in all
material respects at the time the respective action is taken (or was required
to be taken) in accordance with Section 6.15(a).


 


(b) Within 15
Business Days (or, if otherwise agreed by the Facility Agents, within 30
Business Days) following the Closing Date, if so requested by the Syndication
Agent, (i) the Canadian Borrower shall incur replacement term loans denominated
in Dollars (the “Canadian Borrower Replacement Term Loans”) from one or
more Canadian Term Loan Lenders (or their affiliates) agreeing to provide the
same, in an aggregate principal amount equal to the aggregate Principal Amount
of the Canadian Term Loans then outstanding, which Canadian Borrower
Replacement Term Loans shall (x) refinance in full all outstanding Canadian
Term Loans and (y) have the same terms as the Canadian Term Loans, except for
the currency in which such loans are denominated (which shall be Dollars) and
the applicable pricing mechanic (which shall be the Base Rate or the Eurodollar
Rate plus the Applicable Margin), and (ii) the Borrowers shall enter
into an amendment to this Agreement to effect the amendments and modifications
required to permit the incurrence of the Canadian Borrower Replacement Term
Loans and effect the agreements described in preceding clause (i).


 


SECTION 7.
NEGATIVE COVENANTS


 


Each Borrower hereby agrees that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender, any Agent or any Arranger
hereunder, such Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:


 


7.1                                 Consolidated
Senior Secured Debt Ratio. Permit the Consolidated Senior Secured Debt
Ratio at the last day of any Test Period ending with the last day of any fiscal
quarter of the US Borrower set forth below to exceed the ratio set forth below
opposite such fiscal quarter below:


 


	
  Fiscal Quarter

  	
   

  	
  Consolidated

  Senior Secured Debt Ratio

  
	
  FQ1 2008

  	
   

  	
  4.00:1.00

  
	
  FQ2 2008

  	
   

  	
  4.00:1.00

  
	
  FQ3 2008

  	
   

  	
  4.00:1.00

  
	
  FQ4 2008

  	
   

  	
  4.00:1.00

  
	
  FQ1 2009

  	
   

  	
  3.75:1.00

  
	
  FQ2 2009

  	
   

  	
  3.50:1.00

  
	
  FQ3 2009

  	
   

  	
  3.25:1.00

  
	
  FQ4 2009

  	
   

  	
  3.25:1.00

  
	
  FQ1 2010

  	
   

  	
  2.75:1.00

  
	
  FQ2 2010 and each fiscal quarter thereafter

  	
   

  	
  2.50:1.00

  



 


7.2                                 Limitation on
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness,
except:


 


(a)                                  Indebtedness
of either Borrower or any Subsidiary Guarantor pursuant to any Loan Document;


 


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(b)                                 to
the extent permitted by Section 7.8(c), Indebtedness of the US Borrower to any
Subsidiary, and of any Subsidiary to the US Borrower or any other Subsidiary; provided
that (i) all such Indebtedness of either Borrower or any Subsidiary Guarantor
owed to a Person that is not a Borrower or a Subsidiary Guarantor shall be
subject to and evidenced by the Subordinated Intercompany Note and (ii) any
Indebtedness of (x) LKQ Dominion Auto, Inc. or LKQ Pintendre Auto, Inc. owing
to 1323342 Alberta ULC or (y) 1323342 Alberta ULC to LKQ Ontario LP shall be
evidenced by a Canadian Intercompany Note;


 


(c)                                  Indebtedness
(including, without limitation, Attributable Debt arising from Permitted
Sale-Leaseback Transactions and Capital Lease Obligations) secured by Liens
permitted by Sections 7.3(g) and (q)(i); provided, that the aggregate
amount of all such Indebtedness, together with the aggregate principal amount
of all Permitted Acquired Debt incurred pursuant to Section 7.2(h), shall not
exceed $30,000,000 at any one time outstanding;


 


(d)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and any
refinancings, refundings, renewals or extensions thereof (without any increase
in the principal amount thereof or any shortening of the Weighted Average Life
to Maturity thereof);


 


(e)                                  to
the extent permitted by Section 7.8(c), Guarantee Obligations made in the
ordinary course of business by the US Borrower or any of its Subsidiaries of
obligations of the US Borrower or any Subsidiary of the US Borrower;


 


(f)                                    unsecured
senior and/or senior subordinated Indebtedness of the US Borrower and the
unsecured senior and/or senior subordinated guarantee by any Subsidiary
Guarantor hereunder of the US Borrower’s obligations thereunder; provided
that (i) such Indebtedness shall have no scheduled amortization and no part of
the principal part of such Indebtedness shall have a maturity date earlier than
one year after the final stated maturity of any Term Loans hereunder, (ii)
after giving effect to the incurrence of any such Indebtedness, on a Pro
Forma Basis, as if such incurrence of Indebtedness, the application of
the proceeds thereof and the consummation of any other Specified Transaction
occurring since the first day of the Calculation Period then last ended had
occurred on the first day of the Calculation Period then last ended, (x) the US
Borrower and its Subsidiaries are in compliance with the financial covenant set
forth in Section 7.1 for the Calculation Period then last ended and (y) the
Consolidated Leverage Ratio as at the last day of the Calculation Period then
last ended is less than 4.50 to 1.00, and the US Borrower shall have delivered
to the Administrative Agent a certificate of a Responsible Officer of the US
Borrower to such effect setting forth in reasonable detail the computations
necessary to demonstrate compliance with the requirements contained in
preceding subclauses (x) and (y), (iv) at the time of the incurrence of such
Indebtedness and after giving effect thereto, no Default or Event of Default
shall exist and be continuing, (v) such Indebtedness contains covenants, events
of default, redemption provisions, remedies, subordination provisions (if
applicable) and other terms and conditions customary at the time for high yield
unsecured senior or senior subordinated securities issued in a public offering
or a private placement under Rule


 


110

















 


144A of the
Securities Act and otherwise reasonably acceptable to the Administrative Agent
(provided that, in any event, the documentation governing such
Indebtedness shall not include a financial maintenance covenant and shall
include a “cross acceleration” default to other indebtedness rather than a “cross
default”), (vi) the documentation governing such Indebtedness contains terms
that are no more restrictive than the terms applicable to the Indebtedness
hereunder, and (vii) unless (x) a Responsible Officer shall have delivered an
officer’s certificate to the Administrative Agent on the date of the incurrence
of such Indebtedness, certifying that the Net Cash Proceeds of such
Indebtedness are intended to be used to consummate a Permitted Acquisition
within 90 days following such date of incurrence and (y) the Net Cash Proceeds
of such Indebtedness are then applied to finance a Permitted Acquisition and/or
pay fees and expenses incurred in connection therewith within such 90-day
period, the Net Cash Proceeds of such Indebtedness are applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Section 2.12(a);


 


(g)                                 Indebtedness
of Foreign Subsidiaries of the US Borrower in an aggregate amount at any one
time outstanding not to exceed the sum of (i) $25,000,000 plus (ii) 5.0%
of the Total Foreign Subsidiary Assets; provided that, at the time of
any incurrence of Indebtedness pursuant to preceding clause (ii), the
Consolidated Leverage Ratio as at the last day of the Calculation Period then
last ended (calculated on a Pro  Forma Basis as if such
Indebtedness had been incurred (and any other Specified Transaction theretofore
consummated after the first day of such Calculation Period had been
consummated) on the first day of such Calculation Period) shall be 4.50 to 1.00
or less;


 


(h)                                 Indebtedness
of a Subsidiary of the US Borrower acquired pursuant to a Permitted Acquisition
(or Indebtedness assumed at the time of a Permitted Acquisition of an asset
securing such Indebtedness) (the “Permitted Acquired Debt”), provided
that (x) such Indebtedness was not incurred in connection with, or in
anticipation or contemplation of, such Permitted Acquisition, (y) such
Indebtedness does not constitute debt for borrowed money (it being understood
and agreed that Capital Lease Obligations and purchase money Indebtedness shall
not constitute debt for borrowed money for purposes of this clause (y)), and
(z) the aggregate principal amount of all Permitted Acquired Debt incurred
pursuant to this clause (h), together with the aggregate amount of Indebtedness
incurred pursuant to clause (c) of this Section 7.2, shall not exceed
$30,000,000 at any one time outstanding;


 


(i)                                     Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business, so long as such Indebtedness is extinguished within five
Business Days of its incurrence;


 


(j)                                     Indebtedness
of the US Borrower or any of its Subsidiaries which may be deemed to exist in
connection with agreements providing for indemnification, purchase price
adjustments and similar obligations in connection with the acquisition or
disposition of assets in accordance with the requirements of this Agreement, so
long as any such obligations are those of the Person making the respective
acquisition or sale, and are not guaranteed by any other Person except as
permitted by Section 7.2(e);


 


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(k)                                  Indebtedness
to insurance companies incurred in order to permit the US Borrower or one of
its Subsidiaries to repay obligations owing by such Person to former employees
of such Person under the US Borrower’s 401K Plus deferred compensation plan, so
long as such Indebtedness is not greater than the aggregate cash surrender
value of insurance policies owned by the US Borrower and covering the lives of
participants in the US Borrower’s 401K Plus deferred compensation plan; and


 


(l)                                     Attributable
Debt arising from the Nashville Headquarters Sale-Leaseback Transaction; and


 


(m)                               additional
Indebtedness of the US Borrower or any Subsidiary Guarantor in an aggregate
principal amount (for the US Borrower and all Subsidiary Guarantors) not to
exceed at any one time outstanding an amount equal to the remainder of (x) 10%
of Consolidated Net Worth at such time less (y) the sum of (I) the
aggregate amount of all Indebtedness incurred pursuant to Section 7.2(c) and
outstanding at such time plus (II) the aggregate principal amount of all
Permitted Acquired Debt incurred pursuant to Section 7.2(h) and outstanding at
such time.


 


7.3                                 Limitation on Liens.
Create, incur, assume or suffer to exist any Lien upon any of its Property,
whether now owned or hereafter acquired, except for:


 


(a)                                  Liens
for taxes not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the US Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;


 


(b)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or other
like Liens arising in the ordinary course of business which are not overdue for
a period of more than 45 days or that are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect
thereto are maintained in the books of the applicable Loan Party, in conformity
with GAAP;


 


(c)                                  Liens
(other than any Lien imposed by ERISA, the PBA or Canadian federal or
provincial statutes in relation to pension plans or any other applicable
employee benefit plan law) consisting of pledges or deposits in connection with
workers’ compensation, unemployment insurance and other social security
legislation in the ordinary course of business;


 


(d)                                 deposits
by or on behalf of the US Borrower or any of its Subsidiaries to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business; provided
that the aggregate amount of all deposits at any one time securing appeal
bonds, together with the aggregate amount of all judgment obligations and
awards subject to Liens permitted pursuant to Section 7.3(j), does not exceed
$25,000,000 at any time outstanding (for purposes of determining compliance
with this proviso, excluding any judgment obligations or awards and any
deposits securing appeal bonds, in any such case to the extent the judgment


 


112

















 


obligations,
awards or obligations subject to appeal are covered by insurance as to which
the respective insurer has been notified and not denied coverage);


 


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


 


(f)                                    Liens
in existence on the date hereof listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(d), provided that no such Lien is
spread to cover any additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;


 


(g)                                 Liens
securing Indebtedness of the US Borrower or any of its Subsidiaries incurred
pursuant to Section 7.2(c) to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall
be created substantially simultaneously with the acquisition of such fixed or
capital assets, (ii) such Liens do not at
any time encumber any Property other than the Property financed by such
Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the amount of
Indebtedness initially secured thereby is not more than 100% of the purchase
price of such fixed or capital asset ;


 


(h)                                 Liens
created pursuant to the Security Documents and the Canadian Intercompany Loan
Documents;


 


(i)                                     any
interest or title of a lessor under any lease entered into by the US Borrower
or any of its Subsidiaries in the ordinary course of its business and covering
only the assets so leased;


 


(j)                                     Liens
arising out of the existence of judgments or awards in respect of which the US
Borrower or any of its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review and in respect of which there shall have been
secured a subsisting stay of execution pending such appeal or proceedings; provided
that the aggregate amount of all judgment obligations and awards subject to
Liens pursuant to this clause (j), together with the aggregate amount of all
deposits at any one time securing appeal bonds pursuant to Section 7.3(d), does
not exceed $25,000,000 at any time (for purposes of determining compliance with
this proviso, excluding any judgment obligations or awards and any deposits
securing appeal bonds, in any such case to the extent the judgment obligations,
awards or obligations subject to appeal are covered by insurance as to which
the respective insurer has been notified and not denied coverage);


 


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


 


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promulgated by
the Federal Reserve Board, and (ii) such deposit account is not intended
by the US Borrower or any of its Subsidiaries to provide collateral to the
depository institution;


 


(l)                                     Liens
arising from precautionary UCC financing statement filings regarding operating
leases entered into in the ordinary course of business;


 


(m)                               Permitted
Encumbrances;


 


(n)                                 Liens
arising out of any conditional sale, title retention, consignment or other
similar arrangements for the sale of goods entered into by the US Borrower or
any of its Subsidiaries in the ordinary course of business to the extent such
Liens do not attach to any assets other than the goods subject to such
arrangements;


 


(o)                                 Liens
on property or assets acquired pursuant to a Permitted Acquisition, or on
property or assets of a Subsidiary of the US Borrower in existence at the time
such Subsidiary is acquired pursuant to a Permitted Acquisition, provided
that (x) the aggregate amount of all Indebtedness that is secured by such Liens
does not exceed $15,000,000 at any one time outstanding (and is otherwise
permitted to exist under Section 7.2(h)), and (y) such Liens are not incurred
in connection with, or in contemplation or anticipation of, such Permitted
Acquisition and do not attach to any other property or asset of the US Borrower
or any of its Subsidiaries;


 


(p)                                 Liens
securing Permitted Seller Debt incurred in connection with a Permitted
Acquisition, provided, that (i) any such Lien attaches only to the
Property acquired in connection with the underlying Permitted Acquisition,
(ii) such Lien attaches concurrently with the acquisition of such
Property, (iii) the principal amount of any Permitted Seller Debt secured
by any such Lien is not more than 100% of the Fair Market Value of the Property
subject to such Lien (determined at the time of the incurrence of such
Permitted Seller Debt), and (iv) the aggregate principal amount of all
Permitted Seller Debt secured by any such Lien is permitted to be incurred
pursuant to Section 7.2(m) and does not exceed at any one time outstanding (x)
at any time on or prior to the first anniversary of the Closing Date,
$7,000,000, (y) at any time after the first anniversary of the Closing Date and
on or prior to the second anniversary of the Closing Date, $14,000,000 and (z)
at any time after the second anniversary of the Closing Date, $20,000,000;


 


(q)                                 Liens
securing Attributable Debt in respect of (i) Permitted Sale-Leaseback
Transactions and (ii) the Nashville Headquarters Sale-Leaseback Transaction; provided
that (I) such Liens shall be created substantially simultaneously with the
consummation of the respective Sale-Leaseback Transaction and (II) such Liens
shall not at any time encumber any Property other than the Property sold
pursuant to such Sale-Leaseback Transaction; and


 


(r)                                    Liens
not otherwise permitted by this Section 7.3, so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate Fair Market Value (determined, in the case of each such
Lien, as of the date


 


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such Lien is
incurred) of the assets subject thereto exceeds (as to the US Borrower and all
Subsidiaries) $10,000,000 at any one time.


 


7.4                                 Limitation
on Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
Property or business, except that:


 


(a)                                  any
Subsidiary of the US Borrower may be merged, consolidated, amalgamated,
dissolved or liquidated with or into the US Borrower (provided that the
US Borrower shall be the continuing or surviving corporation) or with or into
any Subsidiary Guarantor (provided that such Subsidiary Guarantor shall
be the continuing or surviving corporation), so long as, in any such case, any
security interests granted to the Administrative Agent for the benefit of the
Secured Parties pursuant to the Security Documents shall remain in full force
and effect and perfected (to at least the same extent as in effect immediately
prior to such transfer) and all actions required to maintain said perfected
status have been taken;


 


(b)                                 any
Foreign Subsidiary of the US Borrower organized in a given jurisdiction (other
than a Canadian Holding Company) may be merged, consolidated, amalgamated,
dissolved or liquidated with or into any other Foreign Subsidiary that is a
Wholly Owned Subsidiary of the US Borrower organized in such jurisdiction
(other than a Canadian Holding Company);


 


(c)                                  (i)
any Subsidiary of the US Borrower may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the US Borrower or any Subsidiary
Guarantor, so long as any security interests granted to the Administrative
Agent for the benefit of the Secured Parties pursuant to the Security Documents
in the assets so Disposed shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such transfer)
and all actions required to maintain said perfected status have been taken and
(ii) if all of the assets of any Subsidiary (other than the Canadian Borrower)
are Disposed of in accordance with this Agreement or such Subsidiary is a
Dormant Subsidiary, such Subsidiary may be dissolved;


 


(d)                                 any
Canadian Subsidiary of the US Borrower (other than a Canadian Holding Company)
may Dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to any other Canadian Subsidiary that is a Wholly Owned Subsidiary
of the US Borrower (other than a Canadian Holding Company); and


 


(e)                                  (i)
the Acquisition and (ii) any merger, consolidation or amalgamation consummated
to effect a Permitted Acquisition shall be permitted.


 


7.5                                 Limitation
on Disposition of Property. Dispose of any of its Property (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, except:


 


(a)                                  the
Disposition of obsolete or worn out property in the ordinary course of
business;


 


115

















 


(b)                                 the
sale of inventory in the ordinary course of business;


 


(c)                                  Dispositions
permitted by Sections 7.4(c) and (d);


 


(d)                                 any
Recovery Event, provided, that the requirements of Section 2.12(b) are
complied with in connection therewith;


 


(e)                                  each
of the Borrower and its Subsidiaries may sell or discount, in each case without
recourse and in the ordinary course of business, accounts receivable arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof and not as part of any financing transaction;


 


(f)                                    the
Scheduled Dispositions, so long as (i) each such Disposition is in an arm’s-length
transaction and the US Borrower or the respective Subsidiary receives at least
Fair Market Value therefor, (ii) the consideration received by the US
Borrower or its relevant Subsidiary consists solely of cash and is paid at the
time of the closing of such sale, and (iii) the Net Cash Proceeds therefrom are
applied and/or reinvested as (and to the extent) required by Section 2.12(b);


 


(g)                                 Permitted
Sale-Leaseback Transactions permitted by Section 7.11;


 


(h)                                 the
consummation of the Nashville Headquarters Sale-Leaseback Transaction in
accordance with the requirements of Section 7.11;


 


(i)                                     the
Disposition of other assets (other than the Capital Stock of any Wholly-Owned
Subsidiary, unless all of the Capital Stock of such Wholly-Owned Subsidiary is
sold in accordance with this clause (i)) having a Fair Market Value not to
exceed $20,000,000 in the aggregate for any fiscal year of the US Borrower, so
long as (i) no Default or Event of Default then exists or would result
therefrom, (ii) each such Disposition is in an arm’s-length transaction
and the US Borrower or the respective Subsidiary receives at least Fair Market
Value, (iii) the consideration received by the US Borrower or such
Subsidiary consists solely of cash and is paid at the time of the closing of
such Disposition, and (iv) the Net Cash Proceeds therefrom are applied and/or
reinvested as (and to the extent) required by Section 2.12(b).


 


7.6                                 Limitation
on Restricted Payments. Declare or pay any dividend on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of the US Borrower or any of its Subsidiaries, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the US Borrower or any of its Subsidiaries, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a “Derivatives Counterparty”) obligating the US
Borrower or any Subsidiary to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
“Restricted Payments”), except that:


 


(a)                                  (i)
any Subsidiary may make Restricted Payments to the US Borrower or any
Subsidiary Guarantor, (ii) any Canadian Subsidiary may make Restricted Payments



 


116

















 


to the
Canadian Borrower or any Canadian Subsidiary that is a direct parent of such
Canadian Subsidiary and (iii) any Subsidiary that is not a Borrower or a
Subsidiary Guarantor may make Restricted Payments to any other Subsidiary that
is a direct parent of such Subsidiary; provided that in the case of any
Restricted Payment made by any Subsidiary that is not a Wholly Owned Subsidiary
of the US Borrower to the US Borrower or any of its Subsidiaries, the US
Borrower or its respective Subsidiary which owns Capital Stock in the
Subsidiary making such Restricted Payment shall receive at least its
proportionate share thereof (based on its relative holding of the Capital Stock
of the Subsidiary making such Restricted Payment);


 


(b)                                 the
US Borrower may make Restricted Payments in the form of common stock of the US
Borrower;


 


(c)                                  so
long as no Default or Event of Default shall exist and be continuing, the US
Borrower may purchase its common stock or common stock options from present or
former officers or employees of the US Borrower or any Subsidiary upon the
death, disability or termination of employment of such officer or employee, provided,
that the aggregate amount of payments pursuant to this Section 7.6(c) shall not
exceed $5,000,000 in any fiscal year of the US Borrower; and


 


(d)                                 the
US Borrower may declare and make Restricted Payments with respect to its
outstanding common stock, so long as (i) immediately before and after giving to
the declaration and making of each such Restricted Payment, no Default or Event
of Default shall exist and be continuing, and (ii) the aggregate amount of all
Restricted Payments made pursuant to this Section 7.6(d) shall not exceed
$20,000,000 in any fiscal year of the US Borrower.


 


7.7                                 Limitation
on Capital Expenditures. Make or commit to make any Capital Expenditure,
except (a) Capital Expenditures of the US Borrower and its Subsidiaries in the
ordinary course of business not exceeding (x) during the period from June 30,
2007 through and including December 31, 2007 (taken as a one accounting
period), $55,000,000 (including Capital Expenditures relating to the
acquisition of the Property subject to the Nashville Headquarters Sale-Leaseback
Transaction) and (y) for any fiscal year of the US Borrower set forth
below (taken as one accounting period), the sum of (I) the amount set forth
opposite such fiscal year below plus (II) for each Acquired Person or
Business acquired after the Closing Date and prior to the first day of the
respective fiscal year set forth below, an amount equal to 3.0% of the total
consolidated revenues of such Acquired Person or Business for the trailing
twelve months of such Acquired Person or Business immediately preceding its
acquisition for which financial statements have been made available to the US
Borrower and the Lenders plus (III) during the respective fiscal year of
any such acquisition of an Acquired Person or Business, an amount equal to the
amount for such Acquired Person or Business specified in preceding clause (II)
multiplied by a percentage, the numerator of which is the number of days in
such fiscal year after the date of the respective acquisition and the
denominator of which is 365 or 366, as the case may be: 


 


117

















 


	
  Fiscal Year Ending

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  85,000,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  95,000,000

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  105,000,000

  	
   

  



 


; provided,
that (i) any such amount referred to in clause (x) or (y) above, if not so
expended in the period for which it is permitted, may be carried over for
expenditure in the next succeeding fiscal year and (ii) Capital Expenditures
made pursuant to this clause (a) during any period shall be deemed made, first,
in respect of amounts permitted for such period as provided above (without
regard to this proviso) and second, in respect of amounts carried over
from the prior period pursuant to subclause (i) above, (b) additional Capital
Expenditures made with the proceeds of any Reinvestment Deferred Amount, (c)
additional Capital Expenditures constituting Permitted Acquisitions effected in
accordance with the requirements of this Agreement, (d) additional Capital
Expenditures made in connection with Permitted Sale-Leaseback Transactions
and/or the Nashville Headquarters Sale-Leaseback Transaction and (e) additional
Capital Expenditures in an aggregate amount equal to the Retained Excess Cash
Flow Amount then in effect.


 


7.8                                 Limitation
on Investments. Make any advance, loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting an ongoing business from, or make any other investment in, any
other Person (all of the foregoing, “Investments”), except:


 


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


 


(b)                                 investments
in Cash Equivalents;


 


(c)                                  Investments
arising in connection with the incurrence of Indebtedness permitted by Section
7.2(b) or (e); provided that the aggregate amount of such Investments by
either Borrower or a Subsidiary Guarantor in any Subsidiary that is not a
Borrower or a Subsidiary Guarantor (for avoidance of doubt, excluding
Investments made pursuant to Section 7.8(f)) shall not exceed the Non-Guarantor
Investment Basket Amount then in effect;


 


(d)                                 loans
and advances to employees of the US Borrower or any Subsidiaries of the US
Borrower in the ordinary course of business (including, without limitation, for
travel, entertainment and relocation expenses) in an aggregate amount for the
US Borrower and Subsidiaries of the US Borrower not to exceed $5,000,000 at any
one time outstanding;


 


(e)                                  the
Acquisition;


 


118

















 


(f)                                    the
Canadian Borrower may make additional Investments in Canadian Subsidiaries that
are Wholly-Owned Subsidiaries of the US Borrower with the proceeds of Canadian
Borrower Dual Currency RCF Loans, so long as the aggregate amount of all such
Investments (net of cash repayments of principal in the case of Investments in
the form of loans, sale proceeds in the case of Investments in the form of debt
instruments and cash equity returns (whether as a distribution, dividend,
redemption or sale) in the case of equity Investments) does not exceed the
Total Dual Currency RCF Commitments then in effect;


 


(g)                                 Investments
(other than those relating to the incurrence of Indebtedness permitted by
Section 7.8(c)) by (i) the US Borrower or any of its Subsidiaries in either
Borrower or any Person that, prior to such Investment, is a Subsidiary
Guarantor, (ii) either Borrower or any Subsidiary Guarantor in any Subsidiary
that is not a Subsidiary Guarantor not to exceed the Non-Guarantor Investment
Basket Amount then in effect, and (iii) any Foreign Subsidiary in any other
Foreign Subsidiary that is a Wholly-Owned Subsidiary of the US Borrower;


 


(h)                                 in
addition to Investments otherwise expressly permitted by this Section,
Investments by the US Borrower or any of its Subsidiaries in an aggregate
amount for all Investments made pursuant to this clause (h) (net of cash
repayments of principal in the case of Investments in the form of loans, sale
proceeds in the case of Investments in the form of debt instruments and cash
equity returns (whether as a distribution, dividend, redemption or sale) in the
case of equity Investments) not to exceed $25,000,000; and


 


(i)                                     the
purchase or other acquisition of Property and assets or businesses of any
Person or of assets constituting a business unit, a line of business or
division of such Person, or Capital Stock in a Person that, upon the
consummation thereof, will be, or will be part of, a Subsidiary of the US
Borrower (including as a result of a merger or consolidation); provided
that, with respect to each purchase or other acquisition made pursuant to this
Section 7.8(i) (each, a “Permitted Acquisition”):


 


(i)                                     except
as permitted by clause (viii) below, all Property, assets and businesses
acquired in such purchase or other acquisition shall constitute Collateral and
each applicable Loan Party and any such newly created or acquired Subsidiary
(and the Subsidiaries of such created or acquired Subsidiary) shall be a
Subsidiary Guarantor and shall have complied with the requirements of Section
6.10;


 


(ii)                                  the
Aggregate Consideration payable for the proposed Permitted Acquisition shall
not exceed the sum of (x) when added to the Aggregate Consideration paid or
payable for all other Permitted Acquisitions theretofore consummated during the
then fiscal year of the US Borrower, the Permitted Acquisition Basket Amount
for such fiscal year plus (y) the Retained Excess Cash Flow Amount then
in effect;


 


(iii)                               after
giving effect to such purchase or acquisition, the US Borrower and its
Subsidiaries shall be in compliance with Section 7.15;


 


119

















 


(iv)                              immediately
before and after giving pro forma effect to any such purchase or other
acquisition, no Default shall have occurred and be continuing;


 


(v)                                 calculations
are made by the US Borrower demonstrating compliance with the financial
covenant set forth in Section 7.1 for the Calculation Period then last ended
(calculated on a Pro  Forma Basis as if the respective Permitted
Acquisition (as well as all other Specified Transactions theretofore
consummated after the first day of such Calculation Period) had occurred on the
first day of such Calculation Period);


 


(vi)                              all
representations and warranties contained herein and in the other Loan Documents
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the date
of such Permitted Acquisition (both before and after giving effect thereto),
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date;


 


(vii)                           the
sum of the (x) aggregate unused portion of the Revolving Credit Commitments at
such time (after giving effect to the consummation of the respective Permitted
Acquisition and any financing thereof) and (y) the aggregate amount of cash and
Cash Equivalents (in each case, free and clear of all Liens, other than
nonconsensual Liens permitted by Section 7.3 and Liens in favor of the
Administrative Agent pursuant to the Security Documents) included in the
consolidated balance sheet of the US Borrower and its Subsidiaries as of such
date, shall equal or exceed $25,000,000;


 


(viii)                        the
sum of the Aggregate Consideration paid in respect of all acquisitions of
Persons that do not become Subsidiary Guarantors (and/or assets that do not
become direct Collateral of a Subsidiary Guarantor (i.e., Collateral
other than Capital Stock owned by a Subsidiary Guarantor)) shall not exceed the
sum of (I) the Non-Guarantor Investment Basket Amount then in effect plus
(II) the Retained Excess Cash Flow Amount then in effect; and


 


(ix)                                the
US Borrower shall have delivered to the Administrative Agent, on behalf of the
Lenders, a certificate of a Responsible Officer, certifying that all of the
requirements set forth in this Section 7.8(i) have been satisfied or will be satisfied
on or prior to the consummation of such purchase or other acquisition and, if
the Aggregate Consideration to be paid in respect of such purchase of
acquisition equals or exceeds $15,000,000, 
containing the calculations (in reasonable detail) required by preceding
clauses (ii), (v), (vii) and (viii).


 


The amount of any Investment for purposes of this Section 7.8 (and the
definition of Non-Guarantor Investment Basket Amount) shall be determined at
the time of the respective such Investment (in the case of an Investment made
with consideration other than in cash, taking the Fair Market Value of the
Property so invested) and shall not take account of any write-downs or
write-offs thereof.


 


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7.9                                 Limitation
on Optional Payments and Modifications of Debt Instruments Governing Documents.
(a)(i) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease,
any Subordinated Indebtedness or any Material Indebtedness or segregate funds
for any such payment, prepayment, repurchase, redemption or defeasance, provided
that the US Borrower may prepay, repurchase or redeem Material Indebtedness
(other than Subordinated Indebtedness), so long as (I) after giving effect
thereto and the consummation of any other Specified Transaction occurring since
the first day of the Calculation Period then last ended, the Consolidated
Senior Secured Debt Ratio, determined on a Pro Forma Basis, as at the
last day of the Calculation Period then last ended, is less than 2.50 to 1.00,
and the US Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the US Borrower to such effect setting
forth in reasonable detail the computations necessary to demonstrate such
compliance and (II) no Default or Event of Default shall exist and be
continuing, or (ii) enter into any derivative or other transaction with any
Derivatives Counterparty obligating the US Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of such Subordinated Indebtedness or such Material Indebtedness, or (iii)
amend, modify or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of any Subordinated Indebtedness or
any Material Indebtedness (other than any such amendment, modification, waiver
or other change which (x) would extend the maturity or reduce the amount of any
payment of principal thereof, reduce the rate or extend the date for payment of
interest thereon or relax any covenant or other restriction applicable to the
US Borrower or any of its Subsidiaries and (y) does not involve the payment of
a consent fee), (b) designate any Indebtedness (other than the Obligations) as “Designated
Senior Indebtedness” for the purpose of such Subordinated Indebtedness, or (c)
amend its certificate of incorporation, by-laws or other governing documents in
any manner determined by the Administrative Agent to be adverse to the Lenders.


 


7.10                           Limitation
on Transactions with Affiliates. Enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the US Borrower or any Subsidiary
Guarantor) unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of business of the US Borrower or such Subsidiary,
as the case may be, and (c) upon fair and reasonable terms no less
favorable to the US Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm’s length transaction with a Person that is not
an Affiliate.


 


7.11                           Limitation
on Sales and Leasebacks. Enter into any Sale-Leaseback Transaction; provided
that (a) the US Borrower or any of its Subsidiaries may effect Permitted
Sale-Leaseback Transactions in accordance with the definition thereof, so long
as (i) no Default or Event of Default then exists or would result therefrom,
(ii) the aggregate amount of all proceeds received by the US Borrower and its
Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and
after the Closing Date shall not exceed $15,000,000 (excluding, for avoidance
of doubt, the Nashville Headquarters Sale-Leaseback Transaction), (iii) the
Attributable Debt resulting from such Permitted Sale-Leaseback Transaction is
permitted by Section 7.2(c), (iv) the Lien on the Property securing such
Attributable Debt is permitted by Section 7.3(q) and (v) the Net Cash Proceeds
therefrom are applied and/or reinvested as (and to 


 


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the extent) required by Section 2.12(b), and
(b) the US Borrower may sell and leaseback its headquarters located in
Nashville, Tennessee within fifteen months following the Closing Date, so long
as (i) no Default or Event of Default then exists or would result therefrom,
(ii) such sale is made pursuant to an arm’s-length transaction,
(iii) the consideration received by the US Borrower consists solely of
cash and is paid at the time of the closing of such sale, (iv) the Net Cash
Proceeds therefrom equal at least 95% of the Fair Market Value of the Property
subject to such Sale-Leaseback Transaction, (v) the Lien on the Property
securing the Attributable Debt resulting therefrom is permitted by Section
7.3(q) and (vi) the Net Cash Proceeds therefrom are applied and/or reinvested
as (and to the extent) required by Section 2.12(b) (the “Nashville
Headquarters Sale-Leaseback Transaction”).


 


7.12                           Limitation
on Changes in Fiscal Periods. Permit the fiscal year of the US Borrower to
end on a day other than December 31 or change the US Borrower’s method of
determining fiscal quarters from that used on the Closing Date.


 


7.13                           Limitation
on Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the US Borrower
or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
to secure the Obligations or, in the case of any Subsidiary Guarantor, its
obligations under the Guarantee and Collateral Agreement, other than (a) this
Agreement and the other Loan Documents, (b) any agreement described in (and
permitted by) clauses (iii), (iv), (vi), (vii), (viii), (ix) and (xi) of
Section 7.14, and (c) agreements containing negative pledges and restrictions
on Liens in favor of any holder of Indebtedness permitted under Section 7.2(f)
but only if such negative pledge or restriction expressly permits Liens for the
benefit of the Administrative Agent and the Lenders with respect to the credit
facilities established hereunder and the Obligations under the Loan Documents
on a senior basis (in an aggregate principal amount equal to at least the
aggregate Principal Amount of all Term Loans and the sum of the Revolving
Credit Commitments on the date of the incurrence thereof) and without a
requirement that such holders of such Indebtedness be secured by such Liens
equally and ratably or on a junior basis.


 


7.14                           Limitation
on Restrictions on Subsidiary Distributions. Enter into or suffer to exist
or become effective any consensual encumbrance or restriction on the ability of
any Subsidiary to (a) make Restricted Payments in respect of any Capital Stock
of such Subsidiary held by, or pay or subordinate any Indebtedness owed to, the
US Borrower or any other Subsidiary, (b) make Investments in the US Borrower or
any other Subsidiary or (c) transfer any of its assets to the US Borrower or
any other Subsidiary, except for (i) any restrictions existing under the Loan
Documents, (ii) encumbrances or restrictions under or by reason of applicable
law, (iii) customary restrictions and conditions contained in agreements
relating to any sale of Property permitted by Section 7.4 or 7.5 pending such
sale (including agreements evidencing Indebtedness permitted by Section
7.2(j)), provided such restrictions and conditions apply only to the
Property that is to be sold, (iv) any agreement in effect, or entered into, on
the Closing Date and identified on Schedule 7.14, (v) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the US Borrower or a Subsidiary of the US Borrower entered into in
the ordinary course of business and consistent with past practices, (vi) any
encumbrance or restriction under any agreement or instrument governing
Permitted Acquired Debt or Permitted Seller Debt, which encumbrance or
restriction


 


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is not applicable to any Person or the
Properties of any Person, other than the Person or the Properties acquired
pursuant to the respective Permitted Acquisition and so long as, in the case of
Permitted Acquired Debt, the respective encumbrances or restrictions were not
created (or made more restrictive) in connection with or in anticipation of the
respective Permitted Acquisition, (vii) customary restrictions contained in any
documentation governing Attributable Debt arising in connection with a
Permitted Sale-Leaseback Transaction or the Nashville Headquarters
Sale-Leaseback Transaction, so long as any such restriction is applicable only
to the Property securing such Attributable Debt, (viii) restrictions and
conditions on any Foreign Subsidiary by the terms of any Indebtedness of such
Foreign Subsidiary permitted to be incurred hereunder, (ix) negative pledges
and restrictions on Liens in favor of any holder of secured Indebtedness
permitted by Section 7.2(c) or (m) but only to the extent any negative pledges
relate to the property financed by or the subject of such Indebtedness (and
excluding any Subordinated Indebtedness), (x) on and after the execution and
delivery thereof, encumbrances and restrictions contained in the documentation
governing any Indebtedness incurred pursuant to Section 7.2(f), and (xi)
negative pledges and restrictions on Liens in favor of any holder of
Indebtedness permitted under Section 7.2(m) but only if such negative pledge or
restriction expressly permits Liens for the benefit of the Administrative Agent
and the Lenders with respect to the credit facilities established hereunder and
the Obligations under the Loan Documents on a senior basis (in an aggregate
principal amount equal to at least the aggregate Principal Amount of all Term
Loans and the sum of the Revolving Credit Commitments on the date of the
incurrence thereof) and without a requirement that such holders of such
Indebtedness be secured by such Liens equally and ratably or on a junior basis.


 


7.15                           Limitation
on Lines of Business. Enter into any business, either directly or through
any Subsidiary, except for those businesses in which the US Borrower and its
Subsidiaries are engaged on the Closing Date (after giving effect to the
Acquisition) and reasonable extensions thereof.


 


7.16                           Limitation
on Amendments to Acquisition Documentation. Amend, supplement or otherwise
modify (whether pursuant to a waiver granted by or to such Person or otherwise)
or fail to enforce the terms and conditions of the Acquisition Documentation,
except to the extent that any such amendment, supplement or modification or
failure to enforce could not reasonably be expected to be adverse to the
interests of the Lenders in any material respect.


 


7.17                           Limitation
on Issuance of Capital Stock. (a) 
The US Borrower will not, and will not permit any of its Subsidiaries
to, issue (i) any Preferred Capital Stock or (ii) any redeemable common
Capital Stock other than redeemable common Capital Stock that is  redeemable at the sole option of the US
Borrower or such Subsidiary, as the case may be.


 


(b) 
The US Borrower will not permit any of its Subsidiaries to issue any
Capital Stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, Capital Stock, except (i)
for transfers and replacements of then outstanding shares of Capital Stock,
(ii) for stock splits, stock dividends and other issuances which do not
decrease the percentage ownership of the US Borrower or any of its Subsidiaries
in any class of the Capital Stock of such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the US Borrower, to qualify directors to the extent
required by applicable law and for other nominal share issuances to Persons
other than the US Borrower and its Subsidiaries to the extent required 


 


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under
applicable law, and (iv) for issuances by Subsidiaries of the US Borrower which
are newly created or acquired in accordance with the terms of this Agreement.


 


7.18                           Limitation
on Activities of Canadian Holding Companies and Dormant Subsidiaries. (a)
In the case of each Canadian Holding Company, notwithstanding anything to the
contrary in this Agreement or any other Loan Document, (a) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations other than those incidental to the ownership of the
Capital Stock owned by such Canadian Holding Company on the Closing Date, (b)
incur, create, assume or suffer to exist any Indebtedness or other liabilities
or financial obligations, except (i) nonconsensual obligations imposed by
operation of law, (ii) pursuant to the Loan Documents to which it is a party,
(iii) pursuant to the Canadian Intercompany Loan Documents to which it is a
party, and (iv) obligations with respect to its Capital Stock, or (c) own,
lease, manage or otherwise operate any properties or assets (including cash
(other than cash received in connection with dividends or intercompany loans
made to such Canadian Holding Company in accordance with Section 7.6 or 7.8, as
applicable, pending application in the manner contemplated thereby) and Cash
Equivalents) other than the ownership of shares of Capital Stock and promissory
notes constituting Canadian Intercompany Loan Documents owned by such Canadian
Holding Company on the Closing Date.


 


(b)                                 In the case of each
Dormant Subsidiary of the US Borrower, notwithstanding anything to the contrary
in this Agreement or any other Loan Document, unless otherwise agreed by the
Administrative Agent, (a) conduct, transact or otherwise engage in, or commit
to conduct, transact or otherwise engage in, any business or operations other
than those incidental to the ownership of the Capital Stock of other Dormant
Subsidiaries owned by such Dormant Subsidiary on the Closing Date, (b) incur,
create, assume or suffer to exist any Indebtedness or other liabilities or
financial obligations, except (i) nonconsensual obligations imposed by
operation of law, (ii) pursuant to the Loan Documents to which it is a party,
and (iii) obligations with respect to its Capital Stock, or (c) own, lease,
manage or otherwise operate any properties or assets other than the ownership
of shares of Capital Stock of other Dormant Subsidiaries owned by such Dormant
Subsidiary on the Closing Date.


 


7.19                           Limitation
on Hedge Agreements. Enter into any Hedge Agreement other than Hedge
Agreements entered into in the ordinary course of business, and not for
speculative purposes, to protect against changes in interest rates or foreign
exchange rates.


 


SECTION 8. EVENTS
OF DEFAULT


 


If any of the
following events shall occur and be continuing:


 


(a)                                  Either
Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or either Borrower
shall fail to pay any interest on any Loan or Reimbursement Obligation, or any
Loan Party shall fail to pay any other amount payable hereunder or under any
other Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof or thereof; or


 


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(b)                                 Any
representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed made or
furnished; or


 


(c)                                  (i)  Any Loan Party shall default in the
observance or performance of any agreement contained in clause (i) or (ii) of
Section 6.4(a) (with respect to the US Borrower or the Canadian Borrower only),
Section 6.7(a), 6.10, 6.15 or Section 7, or in Section 5 of the Guarantee and
Collateral Agreement, (ii) an “Event of Default” under and as defined in any
Mortgage shall exist and be continuing or (iii) any default in the performance
of the agreements set forth in Section 5.2(g) of the Guarantee and Collateral
Agreement; or


 


(d)                                 Any
Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as
provided in paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or


 


(e)                                  The
US Borrower or any of its Subsidiaries shall (i) default in making any payment
of any principal of any Indebtedness (including, without limitation, any
Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) on
the scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the period
of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such Indebtedness
to become due prior to its stated maturity or to become subject to a mandatory offer
to purchase by the obligor thereunder or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall exist and be continuing
with respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $15,000,000; or


 


(f)                                    (i)  The US Borrower or any of its Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition, compromise or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, receiver and
manager, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the US Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the US Borrower or any of its
Subsidiaries any case, proceeding or other 


 


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action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against the
US Borrower or any of its Subsidiaries any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the US Borrower or any of its Subsidiaries shall take any action
in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
US Borrower or any of its Subsidiaries shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they become
due; or


 


(g)                                 Any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated
funding deficiency” (within the meaning of Section 412 of the Code or Section
302 of ERISA), whether or not waived, shall exist with respect to any Plan, or
any Lien under ERISA, the Code or Canadian federal or provincial statutes in
relation to pension plans or any other applicable employee benefit plan law
shall arise on the assets of the US Borrower, any of its Subsidiaries or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
(iv) any Single Employer Plan or Non-US Plan shall be involuntarily terminated
by the PBGG pursuant to Section 4042 of ERISA or other applicable law, (v) the
US Borrower, any of its Subsidiaries or any Commonly Controlled Entity shall,
or in the reasonable opinion of the Required Lenders shall be likely to, incur
any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan, (vi) the US Borrower, any of its
Subsidiaries or any Commonly Controlled Entity shall be required to make during
any fiscal year of the US Borrower payments pursuant to any employee welfare
benefit plan (as defined in Section 3.1 of ERISA) that provides benefits to
retired employees (or their dependents) that, in the aggregate, exceed the
amount set forth on Schedule 8(g)(i) with respect to such fiscal year, (vii)
the US Borrower, any of its Subsidiaries or any Commonly Controlled Entity
shall be required to make during any fiscal year of the US Borrower
contributions to any defined Plan subject to Title IV of ERISA that, in the
aggregate, exceed the amount set forth on Schedule 8(g)(ii) with respect to
such fiscal year, (viii) the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity has not timely made a contribution required to be made with
respect to a Plan or a Non-US Plan, (ix) the US Borrower, any of its
Subsidiaries or any Commonly Controlled Entity incurs a liability, fine or
penalty with respect to a Plan or a Non-US Plan or (x)  any other similar event or condition shall
occur or exist with respect to a Plan or Non-US Plan; and in each case in
clauses (i) through (x) above, such event or condition, together with all other
such events or conditions, if any, could, in the sole judgment of the Required
Lenders, reasonably be expected to have a Material Adverse Effect; or


 


(h)                                 One
or more judgments or decrees shall be entered against the US Borrower or any of
its Subsidiaries involving for the US Borrower and its Subsidiaries taken as a
whole a liability (not paid or fully covered by insurance as to which the
relevant insurance company has been notified and not denied coverage) of
$15,000,000 or more, and all such


 


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judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 45 days from the
entry thereof; or


 


(i)                                     Any
of the Security Documents or Canadian Intercompany Collateral Agreements shall
cease, for any reason (other than by reason of the express release thereof
pursuant to Section 10.16), to be in full force and effect, or any Loan Party
or any Affiliate of any Loan Party shall so assert, or any Lien created by any
of the Security Documents or the Canadian Intercompany Collateral Agreements
shall cease to be enforceable and of the same effect and priority purported to
be created thereby; or


 


(j)                                     The
guarantee of any Loan Party contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 10.16), to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or


 


(k)                                  Any
Change of Control shall occur; or


 


(l)                                     Any
Subordinated Indebtedness or any guarantees thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the obligations of any
Loan Party under the Guarantee and Collateral Agreement, as the case may be, as
provided in the documentation governing such Subordinated Indebtedness, or any
Loan Party, any Affiliate of any Loan Party, any trustee or the holders of at
least 25% in aggregate principal amount of the such Subordinated Indebtedness
shall so assert;


 


then, and in
any such event, (A) if such event is an Event of Default specified in paragraph
(f) above with respect to either Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative
Agent shall, by notice to the US Borrower and the Canadian Borrower, declare
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to this paragraph, the US Borrower (in the case of US
Dollar RCF Letters of Credit) or the Canadian Borrower (in the case of Dual
Currency RCF Letters of Credit) shall at such time deposit in a Cash Collateral
Account opened by the Administrative Agent or the Canadian Agent, as
applicable, an amount in immediately available funds (in the relevant currency)
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit (and each of the US Borrower and the Canadian Borrower hereby grants to
the Administrative Agent and the Canadian Agent, as applicable, for the ratable
benefit of the Secured Parties, a continuing security interest in all amounts
at any time on deposit in such Cash Collateral Account to secure the undrawn
and unexpired amount of such Letters of Credit and all 


 


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other
Obligations). If at any time the Administrative Agent or the Canadian Agent
determines that any funds held in such Cash Collateral Account are subject to
any right or claim of any Person other than the Administrative Agent, the
Canadian Agent and the Secured Parties or that the total amount of such funds
is less than the aggregate undrawn and unexpired amount of outstanding US
Dollar RCF Letters of Credit or Dual Currency RCF Letters of Credit, as
applicable, the US Borrower or the Canadian Borrower, as applicable, shall,
forthwith upon demand by the Administrative Agent or the Canadian Agent, as
applicable, pay to the Administrative Agent or the Canadian Agent, as
applicable, as additional funds to be deposited and held in such Cash
Collateral Account, an amount equal to the excess of (a) such aggregate undrawn
and unexpired amount over (b) the total amount of funds, if any, then held in
such Cash Collateral Account that the Administrative Agent or the Canadian
Agent, as applicable, determines to be free and clear of any such right and
claim. Amounts held in such Cash Collateral Account shall be applied by the Administrative
Agent or the Canadian Agent, as applicable, to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the US Borrower or the Canadian Borrower
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations
shall have been satisfied and all other Obligations of the Borrowers hereunder
and under the other Loan Documents shall have been paid in full, the balance,
if any, in such Cash Collateral Account shall be returned to the relevant
Borrower (or such other Person as may be lawfully entitled thereto). In the
case of all BA Loans and BA Equivalent Loans with respect to which the expiry
of the respective Interest Periods shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Canadian Borrower shall at such
time deposit in a Cash Collateral Account opened by the Canadian Agent an
amount in immediately available funds (in Canadian Dollars) equal to the
aggregate face amount of such Bankers’ Acceptances (and the Canadian Borrower
hereby grants to the Canadian Agent for the ratable benefit of the Secured
Parties, a continuing security interest in all amounts at any time on deposit
in such Cash Collateral Account to secure the face amount of such Bankers’
Acceptances and all other Obligations). If at any time the Canadian Agent
determines that any funds held in such Cash Collateral Account are subject to
any right or claim of any Person other than the Canadian Agent and the Secured
Parties or that the total amount of such funds is less than the aggregate face
amount of outstanding Borrower’s Acceptances, as applicable, the Canadian
Borrower shall, forthwith upon demand by the Canadian Agent pay to the Canadian
Agent as additional funds to be deposited and held in such Cash Collateral
Account, an amount equal to the excess of (a) such aggregate face amount over
(b) the total amount of funds, if any, then held in such Cash Collateral
Account that the Canadian Agent determines to be free and clear of any such
right and claim. Amounts held in such Cash Collateral Account shall be applied
by the Canadian Agent to the payment of such Bankers’ Acceptances, and the
unused portion thereof after all such Bankers’ Acceptances shall have been
repaid, if any, shall be applied to repay other obligations of the Canadian
Borrower hereunder and under the other Loan Documents. After all such Bankers’
Acceptances shall have been repaid and all other Obligations of the Borrowers
hereunder and under the other Loan Documents shall have been paid in full, the
balance, if any, in such Cash Collateral Account shall be returned to the
Canadian Borrower (or such other Person as may be lawfully entitled thereto).


 


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SECTION 9. THE
AGENTS; THE ARRANGERS


 


9.1                                 Appointment.
Each Lender hereby irrevocably designates and appoints each Agent as the agent
of such Lender, in its stated capacity, under this Agreement and the other Loan
Documents, and each Lender irrevocably authorizes each Agent, in such capacity,
to take such action on its behalf under the provisions of this Agreement and
the other Loan Documents and to exercise such powers and perform such duties as
are expressly delegated to such Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.


 


9.2                                 Delegation of
Duties. Each Agent may execute any of its duties under this Agreement and
the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.


 


9.3                                 Exculpatory
Provisions. No Arranger or Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
solely and proximately from its or such Person’s own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Arrangers or the Agents under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan Party to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.


 


9.4                                 Reliance by Agents.
Each Agent shall be entitled to rely, and shall be fully protected in relying,
upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Loan Parties), independent accountants and other experts selected by such Agent.
The Facility Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with Section 10.6 and all actions required by such Section in
connection with such transfer shall have been taken. Each Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any



 


129

















 


other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement)
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action. Each Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders or any
other instructing group of Lenders specified by this Agreement), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.


 


9.5                                 Notice
of Default. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent shall
have received notice from a Lender or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”. In the event that the Administrative Agent shall receive such a
notice, the Administrative Agent, shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if so specified by this Agreement, all Lenders or any other instructing group
of Lenders specified by this Agreement); provided that unless and until
the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.


 


9.6                                 Non-Reliance
on the Arrangers, the Agents and Other Lenders. Each Lender expressly acknowledges
that no Agent or Arranger or any of its respective officers, directors,
employees, agents, attorneys and other advisors, partners, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Arranger or any Agent to any Lender. Each
Lender represents to the Agents and the Arrangers that it has, independently
and without reliance upon any Arranger, any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Loans (and in the case
of any Issuing Lender, to issue its Letters of Credit) hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Arranger, any Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and creditworthiness
of the Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Facility
Agents hereunder, no Arranger and no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the 


 


130

















 


possession of such Arranger or
Agent or any of its respective officers, directors, employees, agents,
attorneys and other advisors, partners, attorneys-in-fact or affiliates.


 


9.7                                 Indemnification.
The Lenders agree to indemnify each Arranger and each Agent in its capacity as
such (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their respective
Aggregate Exposure Percentages in effect on the date on which indemnification
is sought under this Section (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), for, and to save each Arranger and each Agent
harmless from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Arranger or such Agent in any way relating to or arising
out of, the Commitments, this Agreement, any of the other Loan Documents, the
Acquisition Documentation, or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Arranger or such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted solely and proximately from such Arranger’s or
such Agent’s gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder.


 


9.8                                 Arrangers
and Agents in their Individual Capacities. Each Arranger and each Agent and
its affiliates may make loans to, accept deposits from and generally engage in
any kind of business with any Loan Party as though such Arranger or such Agent
were not an Arranger or an Agent. With respect to its Loans made or renewed by
it and with respect to any Letter of Credit issued or participated in by it,
each Arranger and each Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Arranger or an Agent, and the terms “Lender” and “Lenders”
shall include each Arranger and each Agent in its individual capacity.


 


9.9                                 Successor
Administrative Agent. The Administrative Agent may resign as Administrative
Agent, the US Dual Currency RCF Agent may resign as US Dual Currency RCF Agent
and the Canadian Agent may resign as Canadian Agent, respectively, in each case
upon 10 days’ notice to the Lenders and the Borrowers; provided that
upon any such resignation hereunder by the US Dual Currency RCF Agent or the
Canadian Agent, such resigning Facility Agent shall also resign in its capacity
as the Canadian Agent or the US Dual Currency RCF Agent, as the case may be. Any
such resignation by a Facility Agent hereunder shall also constitute its
resignation as an Issuing Lender and (in the case of the Administrative Agent)
the Swing Line Lender, in which case the resigning Facility Agent (x) shall not
be required to issue any further Letters of Credit or (in the case of the
Administrative Agent) make any additional Swingline Loans hereunder and (y)
shall maintain all of its rights as Issuing Lender or Swing Line Lender, as
applicable, with respect to any Letters of Credit issued by it, or Swingline
Loans made by it, prior to the date of such resignation. If the Administrative
Agent shall resign as 


 


131

















 


Administrative Agent, or if the
US Dual Currency RCF Agent and the Canadian Agent shall resign as US Dual
Currency RCF Agent and Canadian Agent, respectively, under this Agreement and
the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8(a) or Section 8(f) with respect to
either Borrower shall exist and be continuing) be subject to approval by the
Borrowers (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of the respective Facility Agent, and the terms “Administrative Agent”, “US
Dual Currency RCF Agent” or “Canadian Agent”, as applicable, shall mean such
successor agent effective upon such appointment and approval, and the
respective former Facility Agent’s rights, powers and duties in its capacity as
a Facility Agent shall be terminated, without any other or further act or deed
on the part of such former Facility Agent or any of the parties to this
Agreement or any holders of the Loans or issuers of Letters of Credit. If no
successor agent has accepted appointment as Administrative Agent, US Dual
Currency RCF Agent or Canadian Agent, as the case may be, by the date that is
10 days following the respective retiring Facility Agent’s notice of
resignation, such retiring Facility Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the relevant Facility Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. The
Syndication Agent may, at any time, by notice to the Lenders and the
Administrative Agent, resign as Syndication Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of the Syndication Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Administrative Agent, without any further act by any Arranger, any Agent or any
Lender. After any retiring Agent’s resignation as Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement and the other Loan
Documents.


 


9.10                           Authorization to Release
Liens and Guarantees. The Administrative Agent is hereby irrevocably
authorized by each of the Lenders to effect any release (or subordination) of
Liens or guarantee obligations contemplated by Section 10.16.


 


9.11                           The
Arrangers and the Syndication Agent. Each Arranger and the Syndication
Agent, in their respective capacities as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.


 


9.12                           Withholding
Tax.


 


(a)                                  To
the extent required by any applicable law, the Administrative Agent, the US
Dual Currency RCF Agent or the Canadian Agent may withhold from any interest
payment to any Lender an amount equivalent to any applicable withholding tax.


 


(b)                                 If the Internal
Revenue Service or any authority of the United States or other jurisdiction
asserts a claim that any Facility Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because an appropriate form
was not delivered, was not properly executed, or because such Lender failed to
notify the relevant Facility Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason), such Lender shall indemnify such Facility Agent fully for all
amounts paid, directly or indirectly, by such Facility Agent as tax or 


 


132

















 


otherwise, including penalties and interest, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket
expenses.


 


(c)                                  If any Lender sells,
assigns, grants a participation in, or otherwise transfers its rights under
this Agreement, the purchaser, assignee, participant or transferee, as
applicable, shall comply and be bound by the terms of Sections 2.20(d) or (e)
and 9.12; provided that with respect to any Participant, as set forth in
Section 10.6(b), such Participant shall only be required to comply with the
requirements of Sections 2.20(d) or (e) and 9.12 if such Participant seeks to
obtain the benefits of Section 2.20.


 


SECTION 10.
MISCELLANEOUS


 


10.1                           Amendments
and Waivers. Neither this Agreement or any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section 10.1. The Required Lenders and
each Loan Party party to the relevant Loan Document may, or (with the written
consent of the Required Lenders) the Administrative Agent and each Loan Party
party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents (including amendments and restatements hereof or thereof) for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as may be
specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall:


 


(i)                                     forgive
the principal amount or extend the final scheduled date of maturity of any Loan
or Reimbursement Obligation, extend the scheduled date of any amortization
payment in respect of any Term Loan, reduce the stated rate of any interest or
fee payable hereunder (except in connection with the waiver of applicability of
any post-default increase in interest rates) or extend the scheduled date of
any payment thereof, or increase the amount or extend the expiration date of
any Commitment of any Lender, in each case without the consent of each Lender
directly affected thereby (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a
mandatory reduction in the Commitments shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase of the Commitment of
such Lender);


 


(ii)                                   amend,
modify or waive any provision of this Section (except for technical amendments
with respect to Additional Extensions of Credit) or reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or
transfer by either Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of the
Collateral or release all or substantially all of the Loan Parties from their
guarantee obligations under the Guarantee and Collateral Agreement, in each
case without the consent of all Lenders;


 


133
















 


(iii)                               amend,
modify or waive any condition precedent to any extension of credit under the US
Dollar Revolving Credit Facility or the Dual Currency Revolving Credit Facility
set forth in Section 5.2 (including, without limitation, the waiver of an
existing Default or Event of Default required to be waived in order for such
extension of credit to be made) without the consent of the Majority US Dollar
RCF Lenders or the Majority Dual Currency RCF Lenders, respectively;


 


(iv)                              reduce
the percentage specified in the definition of Majority Facility Lenders with
respect to any Facility without the written consent of all Lenders under such
Facility;


 


(v)                                 amend,
modify or waive any provision of Section 9 or any other provision affecting the
rights, duties and obligations of any Arranger or any Agent without the consent
of the Arranger or Agent directly affected thereby;


 


(vi)                              amend,
modify or waive any provision of Section 2.6 or 2.7 without the written consent
of the Swing Line Lender;


 


(vii)                           amend,
modify or waive the pro rata provisions of Section 2.18 without the consent of
each Lender directly affected thereby;


 


(viii)                        amend,
modify or waive any provision of Section 3 without the consent of each Issuing
Lender directly affected thereby;


 


(ix)                                impose
restrictions on assignments and participations that are more restrictive than,
or additional to, those set forth in Section 10.6; or


 


(x)                                   without
the consent of the Majority Facility Lenders of each Facility which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below, alter the required application of any prepayments
or repayments (or commitment reduction), as between the various Facilities,
pursuant to Sections 2.12(d) and 2.18 (it being understood, however, that the
Required Lenders may waive, in whole or in part, any such prepayment, repayment
or commitment reduction, so long as the application, as amongst the various
Facilities, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered).


 


Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Lenders and shall be binding upon the Loan Parties, the Lenders,
the Arrangers, the Agents and all future holders of the Loans. In the case of
any waiver, the Loan Parties, the Lenders, the Arrangers and the Agents shall
be restored to their former position and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. Any
such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section; provided, that delivery of an
executed signature page of any such instrument by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.


 


134

















 


Notwithstanding the foregoing, this Agreement
and any other Loan Document may be amended (or amended and restated) with the
written consent of the Required Lenders, each Facility Agent and each Loan
Party party to each relevant Loan Document (x) to add one or more additional
credit facilities to this Agreement and to permit the extensions of credit from
time to time outstanding thereunder and the accrued interest and fees in
respect thereof (collectively, the “Additional Extensions of Credit”) to
share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and Revolving Extensions of Credit and the accrued interest
and fees in respect thereof and (y) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders,
Majority Facility Lenders, Majority US Dollar RCF Lenders or Majority Dual
Currency RCF Lenders.


 


In addition, notwithstanding the foregoing, (i)
this Agreement may be amended with the written consent of the Administrative
Agent, the Borrowers and the Lenders providing the relevant Replacement Term
Loans (as defined below) to permit the refinancing of all outstanding Term
Loans under a given Term Loan Facility (“Refinanced Term Loans”) with a
replacement term loan tranche (“Replacement Term Loans”) hereunder, provided
that (a) the aggregate Principal Amount of such Replacement Term Loans shall
not exceed the aggregate Principal Amount of such Refinanced Term Loans, (b)
the Applicable Margin for such Replacement Term Loans shall not be higher than
the Applicable Margin for such Refinanced Term Loans, (c) the Weighted Average
Life to Maturity of such Replacement Term Loans shall not be shorter than the
Weighted Average Life to Maturity of such Refinanced Term Loans at the time of
such refinancing (except to the extent of nominal amortization for periods
where amortization has been eliminated as a result of prepayment of the
applicable Term Loans), (d) the borrower of such Replacement Term Loans is the
same as the borrower for such Refinanced Term Loans and (e) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing and (ii) this Agreement may be amended with the written consent of
only the US Dual Currency RCF Agent, the Canadian Agent and the Lenders
providing any Canadian Borrower Replacement Term Loans to permit the
refinancing of outstanding Canadian Term Loans and effect the other agreements
contemplated by Section 6.15(b).


 


10.2                           Notices.
All notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed (a) in the case of the Borrowers, the Arrangers
and the Agents, as follows and (b) in the
case of the Lenders, as set forth below or in an administrative questionnaire
delivered to the Administrative Agent, or, in the case of a Lender which
becomes a party to this Agreement pursuant to an Assignment and Acceptance, in
such Assignment and Acceptance or (c) in
the case of any party, to such other address as such party may hereafter notify
to the other parties hereto:


 


135

















 


	
  The
  Borrowers:

  	
   

  	
  LKQ Corporation

  
	
   

  	
   

  	
  120 N.
  LaSalle St. #3300

  
	
   

  	
   

  	
  Chicago, IL
  60602

  
	
   

  	
   

  	
  Attention:
  Mark T. Spears

  
	
   

  	
   

  	
  Telecopy:
  312-621-2709

  
	
   

  	
   

  	
  Telephone:
  312-621-1969

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LKQ Delaware
  LLP

  
	
   

  	
   

  	
  c/o LKQ
  Corporation

  
	
   

  	
   

  	
  120 N.
  LaSalle St. #3300

  
	
   

  	
   

  	
  Chicago, IL
  60602

  
	
   

  	
   

  	
  Attention:
  Mark T. Spears

  
	
   

  	
   

  	
  Telecopy:
  312-621-2709

  
	
   

  	
   

  	
  Telephone:
  312-621-1969

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy
  to

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Flynn
  Enterprises

  
	
   

  	
   

  	
  676 N.
  Michigan Avenue

  
	
   

  	
   

  	
  Suite 4000

  
	
   

  	
   

  	
  Chicago, IL
  60611

  
	
   

  	
   

  	
  Attention:
  Victor Casini

  
	
   

  	
   

  	
  Telecopy:
  312-280-3730

  
	
   

  	
   

  	
  Telephone:
  312-280-3708

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bell, Boyd
  & Lloyd LLP

  
	
   

  	
   

  	
  70 West
  Madison Street, Suite 3100

  
	
   

  	
   

  	
  Chicago, IL
  60602

  
	
   

  	
   

  	
  Attention:
  Kenneth A. Peterson, Jr.

  
	
   

  	
   

  	
  Telecopy:
  312-827-8147

  
	
   

  	
   

  	
  Telephone:
  312-807-4395

  
	
   

  	
   

  	
   

  
	
  The
  Administrative Agent:

  	
   

  	
  Lehman
  Commercial Paper Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  745 Seventh
  Avenue

  
	
   

  	
   

  	
  New York,
  New York 10019

  
	
   

  	
   

  	
  Attention:
  Yvonne Lin

  
	
   

  	
   

  	
  Telecopy:
  212-299-0202_

  
	
   

  	
   

  	
  Telephone: 212
  526 4257

  
	
   

  	
   

  	
   

  
	
  The US Dual
  Currency RCF

  	
   

  	
   

  
	
  Agent:

  	
   

  	
  Deutsche
  Bank AG New York Branch

  
	
   

  	
   

  	
  100
  Plaza One, 8th Floor

  
	
   

  	
   

  	
  New York, NY
  10005

  



 


136

















 


	
   

  	
   

  	
  Jersey
  City, NJ 07311

  
	
   

  	
   

  	
  Attention:
   Maxeen Jacques

  
	
   

  	
   

  	
  Telecopy:
    (201) 593-2307

  
	
   

  	
   

  	
  Telephone:
   (201) 593-2483

  
	
   

  	
   

  	
   

  
	
  The Canadian
  Agent:

  	
   

  	
  Deutsche
  Bank AG, Canada Branch

  
	
   

  	
   

  	
  199 Bay
  Street, Suite 4700

  
	
   

  	
   

  	
  Commerce
  Court West, Box 263

  
	
   

  	
   

  	
  Toronto, Ontario, Canada  M5L 1E9

  
	
   

  	
   

  	
  Attention:
  Marcellus Leung

  
	
   

  	
   

  	
  Telecopy :
  (416) 682-8484

  
	
   

  	
   

  	
  Telephone :
  (416) 682-8252

  
	
   

  	
   

  	
  email :
  marcellus.leung@db.com

  
	
   

  	
   

  	
   

  
	
  Any Issuing
  Lender:

  	
   

  	
  As notified
  by such Issuing Lender to each Facility Agent and each Borrower

  



 


provided
that any notice, request or demand to or upon any Arranger, any Agent, any
Issuing Lender or any Lender shall not be effective until received.


 


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


 


10.4                           Survival
of Representations and Warranties. All representations and warranties made
herein, in the other Loan Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.


 


10.5                           Payment
of Expenses. The Borrowers jointly and severally agree (a) to pay or reimburse the Arrangers and the
Agents for all their reasonable out-of-pocket costs and expenses incurred in
connection with the syndication of the Facilities (other than fees payable to
syndicate members) and the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and disbursements
and other charges of counsel to each Facility Agent and the charges of
Intralinks, (b) to pay or reimburse each
Lender, the Arrangers and the Agents for all their costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and disbursements and
other charges of in-house counsel) to each Lender and of counsel to the Agents,
(c) to pay, indemnify, or 


 


137

















 


reimburse each Lender, the
Arrangers and the Agents for, and hold each Lender, the Arrangers and the Agents
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify or reimburse each Lender,
each Arranger, each Agent, their respective affiliates, and their respective
officers, directors, trustees, employees, affiliates, shareholders, attorneys
and other advisors, agents and controlling persons (each, an “Indemnitee”)
for, and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of, the US Borrower,
any of its Subsidiaries or any of the Properties or the use by unauthorized
persons of information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons and the fees and disbursements and other charges of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against either Borrower hereunder (all the foregoing in this clause
(d), collectively, the “Indemnified Liabilities”), provided, that
the Borrowers shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities owing to such Indemnitee to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted solely and proximately from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by unauthorized persons of
Information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such persons or
for any special, indirect, consequential or punitive damages in connection with
the Facilities. Without limiting the foregoing, and to the extent permitted by
applicable law, each Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements
payable by the Borrowers pursuant to this Section shall be submitted to the
address of the Borrower set forth in Section 10.2, or to such other Person or
address as may be hereafter designated by the relevant Borrower in a notice to
the Administrative Agent. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.


 


10.6                           Successors
and Assigns; Participations and Assignments.


 


(a)                                  This
Agreement shall be binding upon and inure to the benefit of the US Borrower,
the Canadian Borrower, the Lenders, the Arrangers, the Agents, all future
holders of the Loans and their respective successors and assigns, except
neither Borrower may assign or 


 


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transfer any of its respective rights or
obligations under this Agreement without the prior written consent of each
Facility Agent and each Lender.


 


(b)                                 Any
Lender may, without the consent of the US Borrower, the Canadian Borrower or
any other Person, in accordance with applicable law, at any time sell to one or
more banks, financial institutions or other entities (each, a “Participant”)
participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender’s obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and the other
Loan Documents, and the relevant Borrower and the Agents shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would require the consent of all Lenders pursuant
to Section 10.1. Each Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest,
such Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 10.7(a) as fully as if such Participant
were a Lender hereunder. Each Borrower also agrees that each Participant shall
be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if such Participant were a Lender; provided that, in the case of Section
2.20, such Participant shall have complied with the requirements of said
Section and Section 9.12, and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any
such Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.


 


(c)                                  Any
Lender (an “Assignor”) may, in accordance with applicable law and upon
written notice to the Administrative Agent (and, in addition, (x) in the case
of an assignment with respect to a Canadian Borrower Facility, the Canadian
Agent and (y) in the case of an assignment with respect to the Dual Currency
Revolving Credit Facility, the US Dual Currency RCF Agent and the Canadian
Agent), at any time and from time to time assign to (i) any Lender or any
affiliate, Related Fund or Control Investment Affiliate thereof or (ii) with
the consent of the US Borrower, the Administrative Agent, the US Dual Currency
RCF Agent (in the case of an assignment with respect to the Dual Currency
Revolving Credit Facility), the Canadian Agent (in the case of an assignment
with respect to a Canadian Borrower Facility), each relevant Issuing Lender
under a Revolving Credit Facility (in the case of any assignment of Revolving
Credit Commitments under such Revolving Credit Facility) and the Swing Line
Lender (in the case of an assignment of US Dollar RCF Commitments), which, in
each case, 


 


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shall not be unreasonably withheld, delayed
or conditioned (provided no such consent of the US Borrower shall be
required prior to the Syndication Date or at any during the existence of an
Event of Default), to an additional bank, financial institution or other entity
(each such Person referred to in preceding clauses (i) and (ii), an “Assignee”)
all or any part of its rights and obligations under this Agreement pursuant to
an assignment and acceptance, substantially in the form of Exhibit E-1 (in the
case of an assignment with respect to a US Dollar-Denominated Facility) (a “General
Assignment and Acceptance”) or Exhibit E-2 (in the case of an assignment
with respect to an Alternate Currency Facility) (a “Alternate Currency
Facilities Assignment and Acceptance”), executed by such Assignee and such
Assignor (and, where the consent of either Borrower, any Agent, any Issuing
Lender or the Swing Line Lender, as applicable, is required pursuant to the
foregoing provisions, by the relevant Borrower and such other Persons) and
delivered to the relevant Facility Agent for its acceptance and recording in
the US Dollar-Denominated Facilities Register or the Alternate Currency
Facilities Register, as applicable; provided that no such assignment to
an Assignee (other than any Lender or any affiliate thereof) shall be in an
aggregate principal amount of less than $1,000,000 (other than, in each case,
in the case of an assignment of all of a Lender’s interests under this
Agreement), unless otherwise agreed by the relevant Borrower and each Facility Agent
with respect to such Facility; and provided  further that no
Assignee shall be entitled to receive any greater amount pursuant to Section
2.20 than the Assignor would have been entitled to receive in respect of the
rights and obligations assigned by the Assignor to the Assignee had no such
assignment occurred. Any such assignment need not be ratable as among the
Facilities. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
therein, have the rights and obligations of a Lender hereunder with Commitments
and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the
extent provided therein, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor’s
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto, except as to Section 2.19, 2.20, 2.21, 9.12 and 10.5 in respect
of the period prior to such effective date). Notwithstanding any provision of
this Section, no consent of either Borrower shall be required for any
assignment that occurs at any time when any Event of Default shall exist and be
continuing. For purposes of the minimum assignment amounts set forth in this
paragraph, multiple assignments by two or more Related Funds shall be
aggregated.


 


(d)                                 The
Administrative Agent shall, on behalf of the US Borrower, maintain at its
address referred to in Section 10.2 a copy of each General Assignment and
Acceptance delivered to it and a register (the “US Dollar-Denominated
Facilities Register”) for the recordation of the names and addresses of the
US Dollar-Denominated Facility Lenders and the Commitment of, and principal
amount of the Loans owing to, each US Dollar-Denominated Facility Lender from
time to time. Each of the US Dual Currency RCF Agent and the Canadian Agent
shall, on behalf of the US Borrower and the Canadian Borrower, maintain at its
address referred to in Section 10.2 a copy of each Alternate Currency
Facilities Assignment and Acceptance delivered to it and a register (the “Alternate
Currency Facilities Register”) for the recordation of the names and
addresses of the Alternate Currency Facilities Lenders and the Commitment of,
and principal amount of the Loans owing to, each Alternate Currency Facilities
Lender from time to time. The entries in the US Dollar-Denominated Facilities
Register and the Alternate Currency Facilities Register shall be conclusive, in
the absence of manifest error, and


 


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the Borrowers, each Agent and the Lenders
shall treat each Person whose name is recorded therein as the owner of the
Loans and any Notes evidencing such Loans recorded therein for all purposes of
this Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the US Dollar-Denominated Facilities Register or Alternate Currency
Facilities Register, as applicable (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the US Dollar-Denominated Facilities Register or the Alternate
Currency Facilities Register, as applicable, only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed General Assignment and Acceptance or Alternate
Currency Facilities Assignment and Acceptance, as the case may be; thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee, and the old Notes shall be returned by the
Administrative Agent (in the case of US Dollar-Denominated Facilities Loans),
the US Dual Currency RCF Agent (in the case of US Borrower Dual Currency RCF
Loans) or the Canadian Agent (in the case of Canadian Borrower Loans) to the
applicable Borrower marked “canceled”. The US Dollar-Denominated Facilities
Register and the Alternate Currency Facilities Register shall be available for
inspection by the Borrowers or any Lender (with respect to any entry relating
to such Lender’s Loans) at any reasonable time and from time to time upon
reasonable prior notice.


 


(e)                                  Upon
its receipt of a General Assignment and Acceptance or an Alternate Currency
Facilities Assignment and Acceptance, as applicable, executed by an Assignor
and an Assignee (and, in any case where the consent of any other Person is
required by Section 10.6(c), by each such other Person), together with payment
to the Administrative Agent (in the case of an assignment with respect to a US
Dollar-Denominated Facility), the US Dual Currency RCF Agent (in the case of an
assignment with respect to the Dual Currency Revolving Credit Facility) or the
Canadian Agent (in the case of an Assignment with respect to the Canadian Term
Loan Facility) of a registration and processing fee of $3,500 (treating
multiple, simultaneous assignments by or to two or more Related Funds as a
single assignment) (except that no such registration and processing fee shall
be payable in the case of an Assignee which (I) is already a US
Dollar-Denominated Facility Lender or is an affiliate or Related Fund of a US
Dollar-Denominated Facility Lender or a Person under common management with a
US Dollar-Denominated Facility Lender (in the case of assignments with respect
to a US Dollar-Denominated Facility), (II) is already an Alternate Currency
Facilities Lender or is an affiliate or Related Fund of an Alternate Currency
Facilities Lender or a Person under common management with an Alternate
Currency Facilities Lender (in the case of assignments with respect to an
Alternate Currency Facility), (III) is an affiliate or Related Fund of the
Administrative Agent or a Person under common management with the
Administrative Agent (in the case of assignments with respect to a US
Dollar-Denominated Facility) or (IV) is an affiliate or Related Fund of a
Facility Agent in respect of an Alternate Currency Facility or a Person under
common management with such Facility Agent (in the case of assignments with
respect to an Alternate Currency Facility)) shall (i) promptly accept such
General Assignment and Acceptance or Alternate Currency Facilities Assignment
and Acceptance, as the case may be, and (ii) on the effective date determined
pursuant thereto, record the information contained therein in the US
Dollar-Denominated Facilities Register or the Alternate Currency Facilities
Register, as applicable, and give notice of such acceptance and recordation to
the relevant Borrower. On or prior to such effective date, the relevant
Borrower, at its own expense, upon request, shall 


 


141

















 


execute and deliver to the relevant Facility
Agent (in exchange for the US Dollar RCF Note, US Borrower Dual Currency RCF
Note, Canadian Borrower Dual Currency RCF Note, Initial US Term Note, Canadian
Term Note or applicable Incremental US Term Note, as applicable, of the
assigning Lender) a new US Dollar RCF Note, US Borrower Dual Currency RCF Note,
Canadian Borrower Dual Currency RCF Note, Initial US Term Note, Canadian Term
Note or Incremental US Term Note, as applicable, to the order of such Assignee
in an amount equal to the US Dollar RCF Commitment, Dual Currency RCF
Commitment, Initial US Term Loans, Canadian Term Loans and/or Incremental US
Term Loans, as applicable, assumed or acquired by it pursuant to such
Assignment and Acceptance, and, if the Assignor has retained a US Dollar RCF
Commitment, Dual Currency RCF Commitment, Initial US Term Loans, Canadian Term
Loans and/or Incremental US Term Loans, as applicable, upon request, a new US
Dollar RCF Note, US Borrower Dual Currency RCF Note, Canadian Borrower Dual
Currency RCF Note, Initial US Term Note, Canadian Term Note and/or Incremental
US Term Note, as applicable, to the order of the Assignor in an amount equal to
the US Dollar RCF Commitment, Dual Currency RCF Commitment, Initial US Term
Loans, Canadian Term Loans and/or Incremental US Term Loans, as applicable,
retained by it hereunder. Such new Note or Notes shall be dated the Closing
Date and shall otherwise be in the form of the Note or Notes replaced thereby.


 


(f)                                    For
the avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section concerning assignments of Loans and Notes relate
only to absolute assignments and that such provisions do not prohibit
assignments creating security interests in Loans and Notes, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.


 


(g)                                 Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (an “SPC”), identified as
such in writing from time to time by the Granting Lender to the relevant
Facility Agent and the relevant Borrower, the option to provide to the relevant
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to such Borrower pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to make any
Loan and (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). 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 indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such
SPC 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 in this Section 10.6(g), any SPC may
(A) with notice to, but without the prior written consent of, the relevant
Borrower and of the relevant Facility Agent(s) and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender, or, with the prior written consent of the relevant
Borrower and of the relevant Facility Agent(s) (which consent shall in each
case not be unreasonably withheld) to any financial institutions providing
liquidity


 


142

















 


and/or credit support to or for the account
of such SPC to support the funding or maintenance of Loans, and (B) 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 SPC; provided that non-public
information with respect to the relevant Borrower may be disclosed only with
the relevant Borrower’s consent which will not be unreasonably withheld. This
paragraph (g) may not be amended without the written consent of any SPC with
Loans outstanding at the time of such proposed amendment.


 


10.7                           Adjustments;
Set-Off. Except to the extent that this Agreement provides for payments to
be allocated to a particular Lender or to the Lenders under a particular
Facility, if any Lender (a “Benefited Lender”) shall at any time receive
any payment of all or part of the Obligations owing to it, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral received
by any other Lender, if any, in respect of such other Lender’s Obligations,
such Benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender’s Obligations,
or shall provide such other Lenders with the benefits of any such collateral,
as shall be necessary to cause such Benefited Lender to share the excess
payment or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.


 


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


 


10.8                           Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. Delivery of
an executed signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Agreement signed by all the parties shall be lodged with each
Borrower and each Facility Agent.


 


10.9                           Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any 


 


143

















 


such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.10                     Integration.
This Agreement and the other Loan Documents represent the entire agreement of
each Borrower, the Agents, the Arrangers and the Lenders with respect to the
subject matter hereof and thereof, and, there are no promises, undertakings,
representations or warranties by any Arranger, any Agent or any Lender relative
to the subject matter hereof not expressly set forth or referred to herein or
in the other Loan Documents.


 


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


 


10.12                     Submission
To Jurisdiction; Waivers. Each party hereto hereby irrevocably and
unconditionally:


 


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


 


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


 


(c)                                  agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Borrower at its address set
forth in Section 10.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;


 


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


 


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


 


10.13                     Acknowledgments.
Each Borrower hereby acknowledges that:


 


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


 


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(b)                                 no
Arranger, Agent no Lender has any fiduciary relationship with or duty to such
Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Arrangers, the Agents
and the Lenders, on one hand, and such Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and


 


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


 


10.14                     Confidentiality.
Each of the Arrangers, the Agents and the Lenders agrees to keep confidential
all non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided
that nothing herein shall prevent any Arranger, any Agent or any Lender from
disclosing any such information (a) to
any Arranger, any Agent, any other Lender or any affiliate of any thereof, (b) to any Participant or Assignee (each, a “Transferee”)
or prospective Transferee that agrees to comply with the provisions of this
Section or substantially equivalent provisions, (c) to any of its employees, directors, agents, attorneys,
accountants and other professional advisors, (d)
to any financial institution that is a direct or indirect contractual
counterparty in swap agreements or such contractual counterparty’s professional
advisor (so long as such contractual counterparty or professional advisor to
such contractual counterparty agrees to be bound by the provisions of this
Section), (e) upon the request or demand
of any Governmental Authority having jurisdiction over it, (f) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) if requested or
required to do so in connection with any litigation or similar proceeding, (h) that has been publicly disclosed other than
in breach of this Section, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection
with the exercise of any remedy hereunder or under any other Loan Document.


 


10.15                     [Reserved].


 


10.16                     Release of
Collateral and Guarantee Obligations. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, upon request of the US
Borrower in connection with any Disposition of Property permitted by the Loan
Documents, the Administrative Agent shall (without notice to, or vote or
consent of, any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to release
(without recourse, representation or warranty) its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee
obligations under any Loan Document of any Person being Disposed of in such
Disposition, to the extent necessary to permit consummation of such Disposition
in accordance with the Loan Documents; provided that the US Borrower
shall have delivered to the Administrative Agent at least ten Business Days
prior to the date of the proposed release (or such shorter period agreed to by
the Administrative Agent), a written request for release identifying the
relevant Collateral being Disposed of in such Disposition and the terms of such
Disposition in reasonable detail, including the date thereof, the price thereof
and any expenses in connection therewith, together with a 


 


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certification by the US
Borrower stating that such transaction is in compliance with this Agreement and
the other Loan Documents and that the proceeds of such Disposition will be
applied in accordance with this Agreement and the other Loan Documents.


 


(b)                                 Notwithstanding
anything to the contrary contained herein or any other Loan Document, when all
Obligations (other than obligations in respect of any Specified Hedge
Agreement) have been paid in full, all Commitments have terminated or expired
and no Letter of Credit shall be outstanding, upon request of the Borrowers,
the Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified Hedge
Agreement) take such actions as shall be required to release (without recourse,
representation or warranty) its security interest in all Collateral, and to
release all guarantee obligations provided for in any Loan Document, whether or
not on the date of such release there may be outstanding Obligations in respect
of Specified Hedge Agreements. Any such release of guarantee obligations shall
be deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of  the Obligations guaranteed thereby shall be rescinded
or must otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Borrower or any Subsidiary
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, either Borrower or any
Subsidiary Guarantor or any substantial part of its property, or otherwise, all
as though such payment had not been made.


 


10.17                     Accounting
Changes. In the event that any “Accounting Change” (as defined below) shall
occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then each Borrower
and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting
Change with the desired result that the criteria for evaluating the any
Borrower’s financial condition shall be the same after such Accounting Change
as if such Accounting Change had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrowers, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. “Accounting Change”
refers to any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or,
if applicable, the SEC.


 


10.18                     [Reserved].


 


10.19                     WAIVERS OF
JURY TRIAL. EACH BORROWER, THE ARRANGERS, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


10.20                     Judgment
Currency. (a) If, for the purpose of obtaining or enforcing judgment
against a Loan Party in any court in any jurisdiction, it becomes necessary to
convert into any other currency (such other currency being hereinafter in this
Section 10.20 referred to as 


 


146

















 


the “Judgment Currency”)
an amount due under any Loan Document in any currency (the “Obligation
Currency”) other than the Judgment Currency, the conversion shall be made
at the rate of exchange prevailing on the date of actual payment of the amount
due, in the case of any proceeding in the courts of the State of New York or in
the courts of any other jurisdiction that will give effect to such conversion
being made on such date, or  the date on
which the judgment is given, in the case of any proceeding in the courts of any
other jurisdiction (the applicable date as of which such conversion is made
pursuant to this Section 10.20 being hereinafter in this Section 10.20 referred
to as the “Judgment Conversion Date”); and (b) if, in the case of any
proceeding in the court of any jurisdiction referred to in Section 10.20(a),
there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt of the amount due in immediately
available funds, the Loan Party shall pay such additional amount (if any, but
in any event not a lesser amount) as may be necessary to ensure that the amount
actually received in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of the
Judgment Currency stipulated in the judgment or judicial order at the rate of
exchange prevailing on the Judgment Conversion Date. Any amount due from a
Borrower under this Section 10.20 shall be due as a separate debt and shall not
be affected by judgment being obtained for any other amounts due under or in
respect of any of the Loan Documents. The term “rate of exchange” in this
Section 10.20 means the rate of exchange at which the Administrative Agent, on
the relevant date at or about 12:00 noon (New York time), would be prepared to
sell, in accordance with its normal course foreign currency exchange practices,
the Obligation Currency against the Judgment Currency.


 


147

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.


 


 


	
   

  	
  LKQ
  CORPORATION,

  
	
   

  	
  as US
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mark T. Spears

  
	
   

  	
   

  	
   Name: 
  Mark T. Spears

  
	
   

  	
   

  	
   Title: 
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  LKQ DELAWARE
  LLP,

  
	
   

  	
  as Canadian
  Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mark T. Spears

  
	
   

  	
   

  	
   Name: 
  Mark T. Spears

  
	
   

  	
   

  	
   Title: 
  Vice President

  



 

















 


	
   

  	
  LEHMAN
  BROTHERS INC.,

  
	
   

  	
  as Joint
  Lead Arranger and Joint 

  
	
   

  	
  Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Laurie Perper

  
	
   

  	
   

  	
   Name: 
  Laurie Perper

  
	
   

  	
   

  	
   Title: 
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  
	
   

  	
  as Lender
  and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Laurie Perper

  
	
   

  	
   

  	
   Name: 
  Laurie Perper

  
	
   

  	
   

  	
   Title: 
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS COMMERCIAL

  
	
   

  	
  BANK, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Brian McNany

  
	
   

  	
   

  	
   Name: 
  Brian McNany

  
	
   

  	
   

  	
   Title: 
  Authorized Signatory

  



 

















 


	
   

  	
  DEUTSCHE
  BANK SECURITIES INC.,

  
	
   

  	
  as Joint
  Lead Arranger and Joint

  
	
   

  	
  Bookrunner,  and as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ James Pouris

  
	
   

  	
   

  	
   Name: 
  James Pouris

  
	
   

  	
   

  	
   Title: 
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Liz Chang

  
	
   

  	
   

  	
   Name: 
  Liz Chang

  
	
   

  	
   

  	
   Title: 
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG NEW YORK

  
	
   

  	
  BRANCH, as
  Lender and as US Dual

  
	
   

  	
  Currency RCF
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Erin Morrisey

  
	
   

  	
   

  	
   Name: 
  Erin Morrisey

  
	
   

  	
   

  	
   Title: 
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Omayra Laucella

  
	
   

  	
   

  	
   Name: 
  Omayra Laucella

  
	
   

  	
   

  	
   Title: 
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG CANADA

  
	
   

  	
  BRANCH, as
  Lender and as Canadian 

  
	
   

  	
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert A. Johnston

  
	
   

  	
   

  	
   Name: 
  Robert A. Johnston

  
	
   

  	
   

  	
   Title: 
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Marcellus Leung

  
	
   

  	
   

  	
   Name: 
  Marcellus Leung

  
	
   

  	
   

  	
   Title: 
  Assistant Vice President