AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 25, 2006 (AS AMENDED,
SUPPLEMENTED, AMENDED AND RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME)
AMONG BORROWER, CANADIAN BORROWER, HOLDINGS, PARENT AND CERTAIN SUBSIDIARIES OF
BORROWER, AS GUARANTORS, EACH LENDER FROM TIME TO TIME PARTY THERETO, THE
ADMINISTRATIVE AGENT AND THE OTHER AGENTS AND THE ARRANGERS NAMED THEREIN, WHICH
AGREEMENT GENERALLY PROVIDES THAT "EBITDA" IS DEFINED AS NET INCOME PLUS
INTEREST, TAXES, DEPRECIATION AND AMORTIZATION AND "ADJUSTED EBITDA" IS DEFINED
AS "EBITDA" FURTHER ADJUSTED TO EXCLUDE UNUSUAL ITEMS AND OTHER ADJUSTMENTS
PERMITTED IN CALCULATING COVENANT COMPLIANCE UNDER THE AGREEMENT.
(E)
"FISCAL YEAR" SHALL MEAN EACH FISCAL YEAR OF THE COMPANY (WHICH,
FOR THE AVOIDANCE OF DOUBT, ENDS ON OR ABOUT NOVEMBER 30 OF ANY GIVEN CALENDAR
YEAR).
(F)
"FINANCIAL STATEMENT APPROVAL DATE" SHALL MEAN THE DATE ON WHICH
THE AUDITED FINANCIAL STATEMENTS OF THE COMPANY FOR ANY OF THE APPLICABLE FISCAL
YEARS HAVE BEEN FINALLY APPROVED BY THE AUDITING FIRM ENGAGED BY THE COMPANY TO
REVIEW SUCH STATEMENTS (WHICH APPROVAL SHALL IN NO EVENT OCCUR LATER THAN
FEBRUARY 28 OF THE CALENDAR YEAR IMMEDIATELY FOLLOWING THE APPLICABLE FISCAL
YEAR).
(G)
"PERMANENT DISABILITY" SHALL MEAN THE EMPLOYEE BECOMES PHYSICALLY
OR MENTALLY INCAPACITATED AND IS THEREFORE UNABLE FOR A PERIOD OF SIX
(6) CONSECUTIVE MONTHS TO PERFORM SUBSTANTIALLY ALL OF THE MATERIAL ELEMENTS OF
THE EMPLOYEE'S DUTIES WITH THE COMPANY OR ANY SUBSIDIARY OR AFFILIATE THEREOF.
ANY QUESTION AS TO THE EXISTENCE OF THE PERMANENT DISABILITY
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OF THE EMPLOYEE AS TO WHICH THE EMPLOYEE AND THE COMPANY CANNOT AGREE SHALL BE
DETERMINED IN WRITING BY A QUALIFIED INDEPENDENT PHYSICIAN MUTUALLY ACCEPTABLE
TO THE EMPLOYEE AND THE COMPANY.
IF THE EMPLOYEE AND THE COMPANY CANNOT AGREE
AS TO A QUALIFIED INDEPENDENT PHYSICIAN, EACH SHALL APPOINT SUCH A PHYSICIAN AND
THOSE TWO PHYSICIANS SHALL SELECT A THIRD WHO SHALL MAKE SUCH DETERMINATION IN
WRITING.
THE DETERMINATION OF PERMANENT DISABILITY MADE IN WRITING TO THE
COMPANY AND THE EMPLOYEE SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES OF THIS
AGREEMENT (SUCH INABILITY IS HEREINAFTER REFERRED TO AS "PERMANENT DISABILITY"
OR BEING "PERMANENTLY DISABLED").
(H)
"PERFORMANCE GOALS" SHALL MEAN THE FINANCIAL TARGETS FOR THE
COMPANY AS SET FORTH ON APPENDIX A TO THIS AGREEMENT.
(I)
"QUALIFIED RETIREMENT" SHALL MEAN A RETIREMENT FROM THE COMPANY
MEETING ALL OF THE FOLLOWING CRITERIA: (A) THE EMPLOYEE HAS BEEN CONTINUALLY
EMPLOYED BY THE COMPANY OR ANY SUBSIDIARY OR AFFILIATE THEREOF FROM THE DATE
HEREOF THROUGH THE END OF THE COMPANY'S FISCAL YEAR THAT THE GRANT DATE OCCURS,
(B) THE EMPLOYEE IS AT LEAST 58 YEARS OF AGE AND (C) THE EMPLOYEE HAS REACHED A
TOTAL COMBINED YEARS OF AGE AND SERVICE (SINCE SUCH EMPLOYEE'S MOST RECENT HIRE
DATE) WHICH TOTALS AT LEAST 73 (CALCULATED ON A MONTHLY BASIS).
18.
SIGNATURE IN COUNTERPARTS.
THIS AGREEMENT MAY BE SIGNED IN
COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL, WITH THE SAME EFFECT AS IF THE
SIGNATURES THERETO AND HERETO WERE UPON THE SAME INSTRUMENT.
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Appendix