Secured Notes) and located in the US or
Canada owned by any Loan Party; provided that, no Canadian Subsidiary will be
required to become a Loan Party hereunder if (x) such action could reasonably be
expected to cause the undistributed earnings of such Canadian Subsidiary as
determined for US federal income tax purposes to be treated as a deemed dividend
to such Canadian Subsidiary's US parent and (y) it is not required to become a
guarantor of the Senior Secured Notes pursuant to the terms of the Senior
Secured Notes Indenture.
(B)
THE BORROWERS AND EACH OF THEIR RESPECTIVE SUBSIDIARIES THAT IS A
LOAN PARTY WILL CAUSE (I) 100% OF THE ISSUED AND OUTSTANDING EQUITY INTERESTS OF
EACH OF ITS UNITED STATES SUBSIDIARIES AND CANADIAN SUBSIDIARIES WHICH ARE LOAN
PARTIES AND (II) 65% (OR SUCH GREATER PERCENTAGE THAT, DUE TO A CHANGE IN
APPLICABLE LAW AFTER THE DATE HEREOF, (1) COULD NOT REASONABLY BE EXPECTED TO
CAUSE THE UNDISTRIBUTED EARNINGS OF SUCH FOREIGN SUBSIDIARY AS DETERMINED FOR US
FEDERAL INCOME TAX PURPOSES TO BE TREATED AS A DEEMED DIVIDEND TO SUCH FOREIGN
SUBSIDIARY'S US PARENT AND (2) COULD NOT REASONABLY BE EXPECTED TO CAUSE ANY
MATERIAL ADVERSE TAX CONSEQUENCES, IN WHICH CASE SUCH FOREIGN SUBSIDIARY SHALL
ALSO BECOME A LOAN GUARANTOR PURSUANT TO CLAUSE (A) ABOVE) OF THE ISSUED AND
OUTSTANDING EQUITY INTERESTS IN EACH OTHER FOREIGN SUBSIDIARY (OTHER THAN THE
EQUITY INTERESTS OF ANY CANADIAN SUBSIDIARY PLEDGED PURSUANT TO CLAUSE
(I) ABOVE) DIRECTLY OWNED BY THE BORROWERS OR ANY OF THEIR DOMESTIC SUBSIDIARIES
TO BE SUBJECT AT ALL TIMES TO A FIRST PRIORITY OR SECOND PRIORITY
PERFECTED
LIEN IN FAVOR OF THE US ADMINISTRATIVE AGENT OR THE CANADIAN ADMINISTRATIVE
AGENT, AS APPLICABLE, PURSUANT TO THE TERMS AND CONDITIONS OF THE
77
INTERCREDITOR AGREEMENT, THE OTHER LOAN DOCUMENTS OR OTHER SECURITY DOCUMENTS AS
THE RELEVANT ADMINISTRATIVE AGENT SHALL REASONABLY REQUEST. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IN THE EVENT THAT ANY EQUITY INTERESTS OF ANY
SUBSIDIARY ARE PLEDGED TO SECURE THE SENIOR SECURED NOTES ON A FIRST PRIORITY
BASIS, SUCH EQUITY INTERESTS SHALL BE REQUIRED TO BE PLEDGED TO SECURE THE
SECURED OBLIGATIONS ON A SECOND PRIORITY BASIS.
(C)
WITHOUT LIMITING THE FOREGOING, EACH LOAN PARTY WILL, AND WILL
CAUSE EACH WHOLLY-OWNED SUBSIDIARY (OTHER THAN ANY INACTIVE SUBSIDIARY) TO,
EXECUTE AND DELIVER, OR CAUSE TO BE EXECUTED AND DELIVERED, TO THE RELEVANT
ADMINISTRATIVE AGENT SUCH DOCUMENTS, AGREEMENTS AND INSTRUMENTS, AND WILL TAKE
OR CAUSE TO BE TAKEN SUCH FURTHER ACTIONS (INCLUDING THE FILING AND RECORDING OF
FINANCING STATEMENTS, FIXTURE FILINGS, MORTGAGES, DEEDS OF TRUST AND OTHER
DOCUMENTS AND SUCH OTHER ACTIONS OR DELIVERIES OF THE TYPE REQUIRED BY
SECTION 4.01, AS APPLICABLE), WHICH MAY BE REQUIRED BY LAW OR WHICH SUCH
ADMINISTRATIVE AGENT MAY, FROM TIME TO TIME, REASONABLY REQUEST TO CARRY OUT THE
TERMS AND CONDITIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND TO
ENSURE PERFECTION AND PRIORITY OF THE LIENS CREATED OR INTENDED TO BE CREATED BY
THE COLLATERAL DOCUMENTS, ALL AT THE EXPENSE OF