EXHIBIT 10.1 EXECUTION COPY ================================================================================ CREDIT AGREEMENT Among CSA ACQUISITION CORP., COOPER-STANDARD AUTOMOTIVE INC., COOPER-STANDARD AUTOMOTIVE CANADA LIMITED, VARIOUS LENDING INSTITUTIONS, DEUTSCHE BANK TRUST COMPANY AMERICAS, aAsset Purchase Agreement |
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BANK OF NOVA SCOTIA | COOPER-STANDARD AUTOMOTIVE CANADA LIMITED | COOPER-STANDARD AUTOMOTIVE INC | CSA ACQUISITION CORP | DEUTSCHE BANK AG | DEUTSCHE BANK SECURITIES INC | DEUTSCHE BANK TRUST COMPANY | GOLDMAN SACHS CREDIT PARTNERS LP | LEHMAN BROTHERS INC | LEHMAN COMMERCIAL PAPER INC | UBS Loan Finance LLC | UBS SECURITIES LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10.1 EXECUTION COPY ================================================================================ CREDIT AGREEMENT Among CSA ACQUISITION CORP., COOPER-STANDARD AUTOMOTIVE INC., COOPER-STANDARD AUTOMOTIVE CANADA LIMITED, VARIOUS LENDING INSTITUTIONS, DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent, LEHMAN COMMERCIAL PAPER INC., as Syndication Agent, and GOLDMAN SACHS CREDIT PARTNERS L.P., UBS SECURITIES LLC, and THE BANK OF NOVA SCOTIA, as Co-Documentation Agents Dated as of December 23, 2004 ---------- DEUTSCHE BANK SECURITIES INC., and LEHMAN BROTHERS INC., as Joint Lead Arrangers and Book Runners ================================================================================ CREDIT AGREEMENT, dated as of December 23, 2004, among CSA ACQUISITION CORP., a Delaware corporation ("Holdings"), COOPER-STANDARD AUTOMOTIVE INC., an Ohio corporation (the "U.S. Borrower"), COOPER-STANDARD AUTOMOTIVE CANADA LIMITED, a corporation organized under the laws of Ontario (the "Canadian Borrower" and, together with the U.S. Borrower, the "Borrowers"), the Lenders from time to time party hereto, the Administrative Agent, LEHMAN COMMERCIAL PAPER INC., as Syndication Agent (in such capacity, the "Syndication Agent", GOLDMAN SACHS CREDIT PARTNERS, L.P., UBS SECURITIES LLC and THE BANK OF NOVA SCOTIA, as Co-Documentation Agents (in such capacity, each, a "Co-Documentation Agent" and, collectively, the "Co-Documentation Agents"), and DEUTSCHE BANK SECURITIES INC. and LEHMAN BROTHERS INC., as Joint Lead Arrangers and Book Runners (in such capacity, each a "Joint Lead Arranger" and, collectively, the "Joint Lead Arrangers"). Unless otherwise defined herein, all capitalized terms used herein and defined in Section 11 are used herein as so defined. WITNESSETH: WHEREAS, subject to and upon the terms and conditions herein set forth, the Lenders are willing to make available to the Borrowers on a several (but not joint) basis the credit facilities provided for herein; NOW, THEREFORE, IT IS AGREED: SECTION 1. Definitions. As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires. Defined terms in this Agreement shall include in the singular number the plural and in the plural the singular: "Account Party" shall mean (x) in the case of each Dollar Facility Letter of Credit, the U.S. Borrower and (y) in the case of each Multicurrency Facility Letter of Credit, the Canadian Borrower. "Acquisition" shall mean, collectively, the acquisition by Holdings from the Sellers of all Equity Interests in the U.S. Borrower, its Subsidiaries and certain of its Affiliates, all as contemplated by the Acquisition Agreement and the other Acquisition Documents. "Acquisition Agreement" shall mean the Stock Purchase Agreement, dated as of September 16, 2004, among Holdings and the Seller (including the schedules and exhibits thereto), as amended by the First Amendment, dated as of December 3, 2004, and as the same may be further amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Acquisition Documents" shall mean the Acquisition Agreement and all other material documents, instruments and agreements entered into in connection with the Acquisition and all schedules, exhibits and annexes to each of the foregoing, in each case as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Additional Collateral" shall mean all property (whether real or personal) in which security interests are granted (or have been purported to be granted) (and continue to be in effect at the time of determination) pursuant to Sections 9.12 and 9.13. "Additional Security Documents" shall have the meaning provided in Section 9.13. "Additional Senior Subordinated Notes" means any senior subordinated notes issued by the U.S. Borrower after the Initial Borrowing Date, and the Indebtedness represented thereby, provided that (a) such senior subordinated notes (i) shall not provide for guarantors, obligors or security in addition to those which apply to the Senior Subordinated Notes, (ii) shall not have a maturity date that is earlier than the date occurring 180 days after the Tranche C Term Loan Maturity Date, or provide for any amortization, sinking fund or other scheduled payments (other than regularly scheduled interest payments) prior to the date occurring 180 days after the Tranche C Term Loan Maturity Date, and (iii) shall be subordinated to the Obligations on terms not less favorable to the Lenders than the terms in respect of the Senior Subordinated Notes and (b) all other terms (excluding interest rates and redemption premiums) of such senior subordinated notes shall not be materially less favorable to the Lenders than those existing with respect to the Senior Subordinated Notes, in each case as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. As used herein, the term "Additional Senior Subordinated Notes" shall include any Exchange Additional Senior Subordinated Notes issued pursuant to the respective Additional Senior Subordinated Notes Indenture in exchange for theretofore outstanding Additional Senior Subordinated Notes as contemplated by the definition of Exchange Senior Notes. "Additional Senior Subordinated Notes Documents" shall mean the Additional Senior Subordinated Notes, each Additional Senior Subordinated Notes Indenture and the other documents and instruments entered into in connection with an issuance of Additional Senior Subordinated Notes, in each case as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Additional Senior Subordinated Notes Indenture" shall mean any indenture pursuant to which Additional Senior Subordinated Notes may be issued, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof and thereof. "Adjustable Applicable Margins" shall have the meaning provided in the definition of Applicable Margin. "Administrative Agent" shall mean Deutsche Bank Trust Company Americas and shall include any successor to the Administrative Agent appointed pursuant to Section 12.10; provided that as used herein and in the other Credit Documents, for purposes of actions to be taken hereunder, notices to be received or given and payments to be received or made in respect of Tranche A Term Loans, Canadian Dollar Denominated Incremental Term Loans and all borrowings under, and issuances of Letters of Credit pursuant to, the Multicurrency Facility Revolving Loan Commitment, the term "Administrative Agent" shall mean the Canadian Sub-Agent. "Affiliate" means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Neither any Agent nor any Lender shall be deemed to be an Affiliate of Holdings or any of its Subsidiaries solely by virtue of being a party to this Agreement. "Agent" shall mean the Administrative Agent, the Collateral Agent, the Syndication Agent and each Co-Documentation Agent and shall include any successor to any such Person appointed pursuant to Section 12.10. -2- "Aggregate Dollar Facility RL Exposure" shall mean, at any time, the sum of (i) the aggregate principal amount of all Dollar Facility Revolving Loans then outstanding, (ii) the aggregate amount of all Dollar Facility Letter of Credit Outstandings at such time and (iii) the aggregate principal amount of all Swingline Loans then outstanding. "Aggregate Multicurrency Facility RL Exposure" shall mean, at any time, the sum of (i) the aggregate principal amount, or Face Amount, as applicable, of all Multicurrency Facility Revolving Loans outstanding at such time (for this purpose, using the U.S. Dollar Equivalent of the principal amount or Face Amount, as the case may be, of any Canadian Dollar Denominated Revolving Loans), and (ii) the aggregate amount of all Multicurrency Facility Letter of Credit Outstandings (using the U.S. Dollar Equivalent of all amounts expressed in Canadian Dollars) at such time. "Agreement" shall mean this Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended, renewed, refinanced or replaced from time to time. "Applicable Currency" shall mean (i) with respect to any Loan, the Available Currency in which such Loan was incurred and (ii) with respect to any Letter of Credit, the Available Currency in which such Letter of Credit was denominated; provided that in the event Loans maintained in, or Unpaid Drawings owed in, Canadian Dollars are converted into Loans maintained, or Unpaid Drawings owing, as the case may be, in U.S. Dollars under the circumstances contemplated by Section 2.14, the Applicable Currency with respect to such Loans and Unpaid Drawings shall be U.S. Dollars. "Applicable Increased Term Loan Rate" shall mean, at any time, (A) with respect to any newly-created Tranche of Incremental Term Loans (other than Canadian Dollar Denominated Incremental Term Loans), the rate per annum (expressed as a percentage) determined by the Administrative Agent (and notified to the Lenders) as the rate per annum required to equalize the interest rates applicable to each then existing Tranche of Term Loans (other than Tranche A Term Loans and Canadian Dollar Denominated Incremental Term Loans) and such Tranche of Incremental Term Loans and (B) with respect to any newly-created Tranche of Canadian Dollar Denominated Incremental Term Loans, the rate per annum (expressed as a percentage) determined by the Administrative Agent (and notified to the Lenders) as the rate per annum required to equalize the interest rates applicable to the Tranche A Term Loans and each other then existing Tranche of Canadian Dollar Denominated Incremental Term Loans, on the one hand, and such Tranche of Canadian Dollar Denominated Incremental Term Loans, on the other hand. Each determination of the "Applicable Increased Term Loan Rate" shall be made by the Administrative Agent taking into account the relevant factors outlined in subclause (II) of the proviso to clause (viii) of Section 2.15(a) and shall be conclusive and binding on all Lenders absent manifest error. "Applicable Margin" shall mean initially a percentage per annum equal to (i) in the case of (x) Tranche A Term Loans maintained as (A) Canadian Prime Rate Loans, 1.50% and (B) Bankers' Acceptance Loans, 2.50% (or, on and after the date of the most recent incurrence of any Tranche of Canadian Dollar Denominated Incremental Term Loans bearing interest at the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of Canadian Dollar Denominated Incremental Term Loans) and (y) Tranche B Term Loans and Tranche C Term Loans maintained as (A) Base Rate Loans, 1.00% and (B) Eurodollar Loans, 2.00% (or, on and after the date of the most recent incurrence of any Tranche of Incremental Term Loans (other than -3- Canadian Dollar Denominated Incremental Term Loans) bearing interest at the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of Incremental Term Loans); (ii) in the case of Revolving Loans maintained as (A) Base Rate Loans or Canadian Prime Rate Loans, 1.50% and (B) Eurodollar Loans or Banker's Acceptance Loans, 2.50%; (iii) in the case of Swingline Loans, 1.50%; and (iv) in the case of any Type of Incremental Term Loan of a given Tranche, that percentage per annum set forth in, or calculated in accordance with, Section 2.15 and the relevant Incremental Term Loan Commitment Agreement (or (I) in the case of Canadian Dollar Denominated Incremental Term Loans of a given Tranche, on and after the date of the most recent incurrence of any Tranche of Canadian Dollar Denominated Incremental Term Loans bearing interest at the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of Canadian Dollar Denominated Incremental Term Loans and (II) in the case of Incremental Term Loans of a given Tranche (other than Canadian Dollar Denominated Incremental Term Loans), on and after the date of the most recent incurrence of any Tranche of Incremental Term Loans (other than Canadian Dollar Denominated Incremental Term Loans) bearing interest at the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of Incremental Term Loans). From and after each day of delivery on or after the Effective Date of any certificate delivered in accordance with the first sentence of the following paragraph indicating an entitlement to a different margin for a given eligible Tranche of Loans (other than Term Loans) from that described in the immediately preceding sentence (each, a "Start Date") to and including the applicable End Date described below, the Applicable Margins for such eligible Tranche of Loans (hereinafter, the "Adjustable Applicable Margins") shall be those set forth below opposite the Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence: Multicurrency Facility Multicurrency Facility Revolving Loan, Dollar Revolving Loan and Dollar Facility Revolving Loan Facility Revolving Loan and Swingline Loan Base Eurodollar Margin and Rate and Canadian Prime Leverage Ratio Drawing Fee Rate Margin -------------- ------------------------- ----------------------- Less than 3.50 to 1.00 but equal to or greater than 3.00 to 1.00 2.25% 1.25% Less than 3.00 to 1.00 2.00% 1.00% The Leverage Ratio used in a determination of the Adjustable Applicable Margins for a given eligible Tranche of Loans shall be determined based on the delivery of a certificate of the U.S. Borrower by an Authorized Officer to the Administrative Agent (with a copy to be sent by the Administrative Agent to each Lender), within 45 days of the last day of any Fiscal Quarter (each such certificate, a "Quarterly Pricing Certificate"), which certificate shall set forth the calculation of the Leverage Ratio as at the last day of the period of four consecutive Fiscal Quarters ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis solely to give effect to all Permitted Acquisitions, Asset Dispositions, Incremental Extensions of Credit and issuances of Additional Senior Subordinated Notes consummated on or prior to the date of delivery of such certificate and any Indebtedness incurred, assumed or permanently repaid in connection therewith) and the Adjustable Applicable Margins for such eligible Tranche of Loans which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following -4- sentences). The Adjustable Applicable Margins for each eligible Tranche of Loans as so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the earlier of (x) the date on which the next certificate is delivered to the Administrative Agent or (y) the date which is 45 days following the last day of the period of four consecutive Fiscal Quarters in which the previous Start Date occurred (such earlier date, the "End Date"), at which time, if no certificate has been delivered to the Administrative Agent indicating an entitlement to new Adjustable Applicable Margins for the respective eligible Tranche of Loans (and thus commencing a new Start Date), the Adjustable Applicable Margins for such Tranche of Loans shall be those set forth in the first sentence of this definition (such Adjustable Applicable Margins as so determined, the "Highest Adjustable Applicable Margins"). Notwithstanding anything to the contrary contained above in this definition, the Adjustable Applicable Margins shall be the Highest Adjustable Applicable Margins at all times (x) during which there shall exist any Event of Default under clauses (a), (b), (h), (i) or (j) of Section 11 and (y) prior to the date of delivery of the financial statements pursuant to Section 9.01(c) for the 2nd Fiscal Quarter of Fiscal Year 2005. "Applicable Prepayment Percentage" shall mean, at any time, 50%; provided that if at any time the Leverage Ratio is (i) less than 3.25:1.00 (as set forth in an officer's certificate delivered pursuant to Section 9.01(c) for the Fiscal Quarter or Fiscal Year then last ended), the Applicable Prepayment Percentage shall instead be 25% and (ii) less than 2.50:1.00 (as set forth in an officer's certificate delivered pursuant to Section 9.01(c) for the Fiscal Quarter or Fiscal Year then last ended), the Applicable Prepayment Percentage shall instead be 0%. "Asset Disposition" means any disposition of assets of the U.S. Borrower or any of its Subsidiaries outside the ordinary course of business that is permitted under Section 10.05. "Asset Sale" shall mean any sale, transfer or other disposition by Holdings or any of its Subsidiaries to any Person other than the U.S. Borrower or any Wholly-Owned Subsidiary of the U.S. Borrower of any asset or property (including, without limitation, any capital stock or other securities of, or other Equity Interests in, another Person) of Holdings or such Subsidiary other than the disposition described in clauses (a) through (g) and clauses (i) and (j) of Section 10.05. "Assignment and Assumption Agreement" shall mean the Assignment and Assumption Agreement substantially in the form of Exhibit K (appropriately completed). "Authorized Officer" shall mean, with respect to (i) delivering Notices of Borrowing, Notices of Conversion/Continuation, Letter of Credit Requests and similar notices, any person or persons that has or have been authorized by the board of directors of either Borrower to deliver such notices pursuant to this Agreement and that has or have appropriate signature cards on file with the Administrative Agent, the Swingline Lender and the respective Issuing Lender; (ii) delivering financial information and officer's certificates pursuant to this Agreement, the chief financial officer, principal accounting officer, any treasurer, any controller or (except in the case of financial matters) the general counsel of Holdings or the U.S. Borrower; and (iii) any other matter in connection with this Agreement or any other Credit Document, any officer (or a person or persons so designated by any two officers) of Holdings or the U.S. Borrower. "Available Currency" shall mean (i) with respect to Tranche A Term Loans, Canadian Dollars, (ii) with respect to Tranche B Term Loans, Tranche C Term Loans, U.S. Borrower Incremental Term Loans, Dollar Facility Revolving Loans and Swingline Loans and Dollar Facility -5- Letters of Credit, U.S. Dollars, and (iii) with respect to Multicurrency Facility Revolving Loans, Multicurrency Facility Letters of Credit and Canadian Borrower Incremental Term Loans, U.S. Dollars and Canadian Dollars. "B/A Discount Proceeds" shall mean, in respect of any Bankers' Acceptance or Draft to be purchased by a Canadian Lender on any date pursuant to Section 2.01(a), (d) or (e), as the case may be, and Schedule III hereto, the difference between (i) the result (rounded to the nearest whole Canadian cent, and with one-half of one Canadian cent being rounded up) calculated on such day by dividing the aggregate Face Amount of such Bankers' Acceptance or Draft by the sum of one plus the product of (x) the Reference Discount Rate (expressed as a decimal) applicable to such Bankers' Acceptance or Draft multiplied by (y) a fraction, the numerator of which is the number of days in the term of such Bankers' Acceptance or Draft and the denominator of which is 365; and (ii) the aggregate applicable Drawing Fee with such product being rounded up or down to the fifth decimal place and .000005 being rounded up. "B/A Equivalent Note" shall have the meaning provided in Schedule III hereto. "B/A Instruments" means, collectively, Bankers' Acceptances, Drafts and B/A Equivalent Notes, and, in the singular, any one of them. "B/A Lender" shall mean any Canadian Lender which is not a Non-B/A Lender. "Bankers' Acceptance" means a Draft drawn by the Canadian Borrower and accepted by a Canadian Lender pursuant to Section 2.01(a), (d) or (e), as the case may be, and Schedule III hereto. "Bankers' Acceptance Loans" shall mean (i) the creation of Bankers' Acceptances or (ii) the creation and purchase of completed Drafts and the exchange of such Drafts for B/A Equivalent Notes, in each case as contemplated in Sections 2.01(a), (d) and (e) and Schedule III hereto. "Bankruptcy Code" shall mean Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto. "Base Rate" at any time shall mean (x) in the case of Multicurrency Facility Revolving Loans (and related Obligations) and Tranche A Term Loans and Canadian Dollar Denominated Incremental Term Loans (and related Obligations) owing in U.S. Dollars after the occurrence of a Sharing Event, the higher of (i) the rate of interest in effect for such day as publicly announced from time to time by DBAG, as its "US base rate" for commercial loans made by it in Canada denominated in U.S. Dollars and (ii) the rate which is 1/2 of 1% in excess of the Federal Funds Rate at such time and (y) in all other cases, the higher of (i) the rate which is 1/2 of 1% in excess of the Federal Funds Rate at such time and (ii) the Prime Lending Rate at such time. "Base Rate Loan" shall mean (i) each Swingline Loan, (ii) each other Dollar Denominated Loan which is designated or deemed designated as a Base Rate Loan by the respective Borrower at the time of the incurrence thereof or conversion thereto, (iii) each outstanding Tranche A Term Loan, Multicurrency Facility Revolving Loan and Canadian Borrower Incremental Term Loan after the conversion thereof pursuant to Section 2.14. -6- "Borrowers" shall have the meaning provided in the first paragraph of this Agreement. "Borrowing" shall mean the borrowing of one Type of Loan pursuant to a single Tranche by the Canadian Borrower or the U.S. Borrower, as the case may be, from all the Lenders having Commitments with respect to such Tranche (or from the Swingline Lender, in the case of Swingline Loans) on a given date (or resulting from a conversion or conversions on such date), having (x) in the case of Eurodollar Loans the same Interest Period and (y) in the case of Bankers' Acceptance Loans, underlying Bankers' Acceptances Drafts or B/A Equivalent Notes with the same maturities; provided (x) that Base Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of Eurodollar Loans and (y) any Incremental Term Loans incurred pursuant to Section 2.01(d) shall be considered part of the related Borrowing of the then outstanding Tranche of Term Loans (if any) to which such Incremental Term Loans are added pursuant to, and in accordance with the requirements of, Section 2.15(c). "Business Day" shall mean (i) for all purposes other than as covered by clauses (ii) and (iii) below, any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (ii) 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 (i) above and which is also a day for trading by and between banks in the New York or London interbank Eurodollar market and (iii) with respect to all notices and determinations in connection with, and payments of principal (or, Face Amount, as applicable), Unpaid Drawings and interest on, Tranche A Term Loans, Canadian Dollar Denominated Incremental Term Loans, Multicurrency Facility Revolving Loans incurred by the Canadian Borrower or any Multicurrency Facility Letters of Credit, any day which is a Business Day described in clauses (i) and, if relevant, (ii) above and which is also a day which is not a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in Toronto, Ontario. "CAM Exchange Percentage" shall mean, as to each Lender, a fraction, expressed as a decimal, in each case determined on the date of occurrence of a Sharing Event (but before giving effect to any actions to occur on such date pursuant to Section 2.14) of which (a) the numerator shall be the sum of (i) the RL Percentage of such Lender of (x) the aggregate outstanding principal amount (or, Face Amount, as applicable) of all Revolving Loans and Swingline Loans (taking the U.S. Dollar Equivalents of any amounts expressed in Canadian Dollars on the date of the occurrence of the Sharing Event) and (y) the aggregate amount of Letter of Credit Outstandings and (ii) the aggregate principal amount (or, Face Amount, as applicable) of all outstanding Term Loans of such Lender (taking the U.S. Dollar Equivalents of any amounts expressed in Canadian Dollars on the date of the occurrence of the Sharing Event), and (b) the denominator of which shall be the sum of (i) the sum of (x) the aggregate outstanding principal (or, Face Amount, as applicable) of all Revolving Loans and Swingline Loans (taking the U.S. Dollar Equivalents of any amounts expressed in Canadian Dollars on the date of the occurrence of the Sharing Event) and (y) the aggregate amount of Letter of Credit Outstandings, and (ii) the aggregate principal amount (or, Face Amount, as applicable) of all outstanding Term Loans of all Lenders (taking the U.S. Dollar Equivalents of any amounts expressed in Canadian Dollars on the date of the occurrence of the Sharing Event). "Canadian Borrower" shall have the meaning provided in the first paragraph of this Agreement. -7- "Canadian Borrower Incremental Term Loans" shall mean Incremental Term Loan incurred by the Canadian Borrower. "Canadian Credit Party" shall mean the Canadian Borrower and each Canadian Subsidiary Guarantor. "Canadian Dollar Denominated Incremental Term Loans" shall mean Canadian Borrower Incremental Term Loans made in Canadian Dollars. "Canadian Dollar Denominated Letter of Credit" shall mean each Letter of Credit denominated in Canadian Dollars. "Canadian Dollar Denominated Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Canadian Dollar Denominated Letters of Credit at such time and (ii) the aggregate amount of all Unpaid Drawings with respect to Canadian Dollar Denominated Letters of Credit at such time. "Canadian Dollar Denominated Loan" shall mean all Loans denominated in Canadian Dollars, which shall include each Tranche A Term Loan, each Canadian Dollar Denominated Incremental Term Loan and each Multicurrency Facility Revolving Loan made in Canadian Dollars. "Canadian Dollar Denominated Revolving Loan" shall mean each Multicurrency Facility Revolving Loan denominated in Canadian Dollars at the time of the incurrence thereof. "Canadian Dollar Equivalent" shall mean, at any time for the determination thereof, the amount of Canadian Dollars which could be purchased with the amount of U.S. Dollars involved in such computation at the spot rate of exchange therefor as quoted by the Administrative Agent as of 11:00 A.M. (New York time) on the date two Business Days prior to the date of any determination thereof for purchase on such date (or, in the case of any determination pursuant to Section 2.14 or 13.22 or Section 21 of the U.S. Subsidiaries Guaranty (or any equivalent provision in any other Subsidiaries Guaranty), on the date of determination). "Canadian Dollar L/C Stated Amount" of each Canadian Dollar Denominated Letter of Credit shall, at any time, mean the maximum amount available to be drawn thereunder (expressed in Canadian Dollars) (in each case determined without regard to whether any conditions to drawing could then be met, but after giving effect to all previous drawings made thereunder). "Canadian Dollars" and "Cdn.$" shall mean freely transferable lawful money of Canada. "Canadian Lender" shall mean and include a Tranche A TL Lender, a Multicurrency Facility RL Lender or any Lender holding Canadian Dollar Denominated Incremental Term Loans (or related Incremental Term Loan Commitments). "Canadian Pension Plan" shall mean any "registered pension plan" that is subject to the funding requirements of the Pension Benefits Act (Ontario) or applicable pension benefits legislation in any other Canadian jurisdiction and is applicable to employees of any Subsidiary of Holdings resident in Canada or any province or territory thereof. "Canadian Pledge Agreement" shall have the meaning provided in Section 6.14(b). -8- "Canadian Prime Rate" means, for any day, the rate of interest per annum equal to the greater of (i) the per annum rate of interest quoted or established as the "prime rate" of DBAG which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (ii) the average rate for Canadian Dollar banker's acceptances having a term of 30 days that appears on Reuters Screen CDOR Page (or such other page as may be selected by the Canadian Sub-Agent as a replacement page for such Banker's Acceptances if such screen is not available) at approximately 10:00 a.m. (Toronto time) on such day plus 75 basis points per annum, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to either Borrower or any other Person. "Canadian Prime Rate Loans" shall mean any Canadian Dollar Denominated Loan designated or deemed designated as such by the Canadian Borrower at the time of the incurrence thereof or conversion thereto. "Canadian Reference Lenders" shall mean, collectively, DBAG and The Bank of Nova Scotia; and "Canadian Reference Lender" means any one of them, as the context requires. "Canadian Resident" shall mean, in respect of a Tranche A Term Loan, a Canadian Dollar Denominated Incremental Term Loan, a Multicurrency Facility Revolving Loan or Multicurrency Facility Letter of Credit, at any time, a Person who at that time is (a) not a non-resident of Canada for purposes of the Income Tax Act (Canada); (b) an authorized foreign bank deemed to be resident in Canada for purposes of Part XIII of the Income Tax Act (Canada) in respect of all amounts payable to such Person pursuant to such Loans or Letters of Credit, as the case may be; (c) a Canadian partnership, within the meaning of that term for the purposes of paragraph 212(13.1)(b) of the Income Tax Act (Canada); or (d) not liable for withholding tax pursuant to Part XIII of the Income Tax Act (Canada) in respect of all amounts payable to such Person pursuant to such Loans or Letters of Credit, as the case may be. "Canadian Security Agreement" shall have the meaning provided in Section 6.15(b). "Canadian Security Documents" shall mean and include the Canadian Security Agreement, the Canadian Pledge Agreement each Mortgage covering a Mortgaged Property located in Canada or any province thereof, and, on and after the execution and delivery thereof, each security or other pledge agreement entered into pursuant to the terms of this Agreement and governed by the laws of Ontario (or Quebec, in the case of any Canadian Credit Party organized under the laws of Quebec or with Collateral, its chief executive office or its principal place of business in Quebec). "Canadian Sub-Agent" shall mean DBAG, or any other affiliate of DBTCA or DBAG designated by DBTCA to act in such capacity. "Canadian Subsidiaries Guaranty" shall have the meaning provided in Section 6.13(b). "Canadian Subsidiary" shall mean (i) each Subsidiary of Holdings incorporated or organized in Canada or any province or territory thereof and (ii) U.S. Finco. "Canadian Subsidiary Guarantor" shall mean (i) each Wholly-Owned Subsidiary of Holdings that is a Canadian Subsidiary as of the Initial Borrowing Date (other than the Canadian -9- Borrower) and (ii) each other Wholly-Owned Subsidiary of Holdings that is a Canadian Subsidiary and is created, established or acquired after the Initial Borrowing Date which executes and delivers a Canadian Subsidiaries Guaranty, unless and until such time as the respective Canadian Subsidiary is released from all of its obligations under its Canadian Subsidiaries Guaranty in accordance with the terms and provisions thereof. "Canadian Welfare Plan" shall mean any medical, health, hospitalization, insurance or other employee benefit or welfare plan or arrangement (but excluding any Canadian Pension Plan) applicable to employees of a Subsidiary of the U.S. Borrower resident in Canada or any province or territory thereof. "Capital Expenditures" means, for any period, (a) the additions to property, plant and equipment and other capital expenditures of the U.S. Borrower and its Subsidiaries that are (or would be) set forth in a consolidated statement of cash flows of the U.S. Borrower for such period prepared in accordance with U.S. GAAP and (b) Capital Lease Obligations incurred by the U.S. Borrower and its Subsidiaries during such period, provided that Capital Expenditures shall not include (i) expenditures that constitute the consideration paid in respect of any Permitted Acquisition, (ii) expenditures to the extent they are made with the Net Proceeds from the issuance of Equity Interests of Holdings, (iii) expenditures to the extent they are made with the Net Proceeds of an Asset Sale or Recovery Event, so long as such Net Proceeds are reinvested in the business of the U.S. Borrower and its Subsidiaries pursuant to the requirements of the provisos contained in Sections 5.02(c) or 5.02(e), as the case may be, (iv) the purchase price of equipment to the extent the consideration therefor consists of any combination of (A) used or surplus equipment traded in at the time of such purchase and (B) the Net Proceeds of a substantially concurrent sale of used or surplus equipment, in each case in the ordinary course of business, (v) interest capitalized during such period, (vi) expenditures that are accounted for as capital expenditures of the U.S. Borrower and its Subsidiaries and that actually are paid for by a third party (excluding Holdings or any Subsidiary thereof) and for which neither Holdings nor any Subsidiary thereof has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period) and (vii) the book value of any asset owned by the U.S. Borrower or any of its Subsidiaries prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of the U.S. Borrower or such Subsidiary reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period, provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (B) such book value shall have been included in Capital Expenditures when such asset was originally acquired if such asset was originally acquired on or after January 1, 2004. "Capital Lease Obligations" of any Person means 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 U.S. GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with U.S. GAAP. "Change in Control" means (a) prior to a Qualified IPO, the failure by the Permitted Holders to own, directly or indirectly, beneficially and of record, Equity Interests in Holdings representing at least a majority of the aggregate ordinary voting power represented by the issued and -10- outstanding Equity Interests in Holdings, (b) after a Qualified IPO, (i) the failure by the Permitted Holders to own, directly or indirectly, beneficially and of record, Equity Interests in Holdings representing at least 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in Holdings or (ii) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act as in effect on the date hereof) other than the Permitted Holders of Equity Interests in Holdings representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in Holdings, provided that, in the case of this clause (ii), the Permitted Holders own directly or indirectly, beneficially or of record, a smaller percentage of such aggregate ordinary voting power or (c) occupation of a majority of the seats (other than vacant seats) on the board of directors of Holdings by Persons who were neither (i) nominated by the board of directors of Holdings, (ii) appointed by directors so nominated or (iii) nominated or appointed by the Permitted Holders. "Co-Documentation Agent" shall have the meaning provided in the first paragraph of this Agreement and shall include any successor to a Co-Documentation Agent appointed pursuant to Section 12.10. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code, as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor. "Collateral" shall mean all property (whether real or personal, movable or immovable) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document (including any Additional Security Document), including, without limitation, all Pledge Agreement Collateral, all Mortgaged Properties and all cash and Permitted Investments delivered as collateral pursuant to Sections 5.02 or 11 or any Credit Document and all Additional Collateral, if any. "Collateral Agent" shall mean DBTCA, acting as collateral agent for the Secured Creditors. "Collective Bargaining Agreements" shall have the meaning provided in Section 6.17. "Commitment" shall mean any of the commitments of any Lender, i.e., whether a Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, Tranche C Term Loan Commitment, Incremental Term Loan Commitment, Multicurrency Facility Revolving Loan Commitment or Dollar Facility Revolving Loan Commitment of such Lender. "Common Equity Financing" shall have the meaning provided in Section 6.09(a). "Common Equity Financing Documents" shall mean all of the agreements governing or relating to the Common Equity Financing, in each case as the same may be amended, modified and/or supplemented from time to time in accordance with the terms thereof. "Company" shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where appropriate). -11- "Consolidated Cash Interest Expense" means, for any period, the excess of (a) the sum of (i) the interest expense (including imputed interest expense in respect of Capital Lease Obligations) of the U.S. Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with U.S. GAAP, (ii) any interest accrued during such period in respect of Indebtedness of the U.S. Borrower or any of its Subsidiaries that is required to be capitalized rather than included in such consolidated interest expense for such period in accordance with U.S. GAAP, (iii) any cash payments made during such period in respect of obligations referred to in clause (b)(iii) below that were amortized or accrued in a previous period and (iv) to the extent not otherwise included in consolidated interest expense for such period, commissions, discounts, yield and other fees, charges and amounts incurred in connection with Permitted Securitizations during such period that are payable to any person other than a U.S. Credit Party and that are comparable to or in the nature of interest under any Permitted Securitization, including losses on the sale of assets relating to any receivables securitization transaction accounted for as a "true sale" (other than any one-time financing fees paid upon entering into any Permitted Securitization), minus (b) the sum of (i) interest income (to the extent paid or payable in cash) of the U.S. Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with U.S. GAAP, in an aggregate amount not to exceed U.S.$4,000,000 during any period of four consecutive Fiscal Quarters, (ii) to the extent included in such consolidated interest expense for such period, non-cash amounts attributable to amortization of financing costs paid in a previous period and (iii) to the extent included in such consolidated interest expense for such period, non-cash amounts attributable to amortization of debt discounts or accrued interest payable in kind for such period; provided that for purposes of calculating the Interest Expense Coverage Ratio for any period of four fiscal quarters ending prior to September 30, 2005, Consolidated Interest Expense for such period of four fiscal quarters shall be deemed to be (i) in the case of the period ended at the end of the fiscal quarter ended March 31, 2005, Consolidated Interest Expense for such fiscal quarter multiplied by 4, (ii) in the case of the period ended at the end of the fiscal quarter ended June 30, 2005, Consolidated Interest Expense for the period of two fiscal quarters ended at the end of such fiscal quarter multiplied by 2 and (iii) in the case of the period ended at the end of the fiscal quarter ended September 30, 2005, Consolidated Interest Expense for the period of three fiscal quarters ended at the end of such fiscal quarter multiplied by 4/3. "Consolidated EBITDA" means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income for such period, the sum of (i) consolidated interest expense of the U.S. Borrower and its Subsidiaries for such period (including, to the extent not otherwise included in consolidated interest expense for such period, commissions, discounts, yield and other fees and charges incurred during such period in connection with Permitted Securitizations that are payable to any person other than a U.S. Credit Party, and any other amounts for such period comparable to or in the nature of interest under any Permitted Securitization, including losses on the sale of assets relating to any receivables securitization transaction accounted for as a "true sale"), (ii) consolidated income tax expense of the U.S. Borrower and its Subsidiaries for such period (including any income tax expense of Holdings for such period to the extent the U.S. Borrower has made payment to or for the account of Holdings in respect thereof), (iii) all amounts attributable to depreciation and amortization expense of the U.S. Borrower and its Subsidiaries for such period, (iv) any non-cash charges, losses or expenses of the U.S. Borrower and its Subsidiaries for such period (but excluding any non-cash charge, loss or expense in respect of an item that was included in Consolidated Net Income in a prior period and any non-cash charge, loss or expense that relates to the write-down or write-off of inventory, other than any write-down or write-off of inventory as a result of purchase accounting adjustments in respect of the Acquisition or any Permitted Acquisition), (v) any non-recurring fees, cash charges and other -12- cash expenses (excluding any Restructuring Charges) made or incurred by the U.S. Borrower and its Subsidiaries in connection with the Transaction that are paid or otherwise accounted for within 90 days of the Effective Date in an aggregate amount not to exceed U.S.$55,000,000, (vi) any Non-Specified Restructuring Charges of the U.S. Borrower and its Subsidiaries for such period, provided that the aggregate amount of Non-Specified Restructuring Charges in any period, together with the aggregate amount of Non-Regulation S-X Adjustments attributable to such period, shall not exceed 7.5% of Consolidated EBITDA (for such purposes, as determined as provided in this definition without regard to this clause (vi)) for such period, (vii) any non-recurring fees, expenses or charges made or incurred by the U.S. Borrower and its Subsidiaries during such period in respect of professional or financial advisory, investment banking, financing, underwriting, placement agent or other similar services (including fees and expenses in respect of legal counsel, consultants and accountants) to the extent related to any equity offering, investment, acquisition, divestiture or recapitalization permitted hereunder or any issuance of Indebtedness permitted to be incurred hereunder (whether or not successful), (viii) any extraordinary charges or losses of the U.S. Borrower and its Subsidiaries for such period, (ix) any losses of the U.S. Borrower and its Subsidiaries for such period in respect of the sale of any discontinued operations during such period and (x) any losses of the U.S. Borrower and its Subsidiaries for such period in respect of business dispositions or asset dispositions outside the ordinary course of business (as determined in good faith by the U.S. Borrower) during such period, minus (b) without duplication and to the extent included in determining such Consolidated Net Income, (i) any cash payments made during such period in respect of non-cash charges described in clause (a)(i) taken in a prior period, (ii) any extraordinary gains and any non-cash items of income for such period, (iii) any gains for such period in respect of the sale of any discontinued operations during such period and (iv) any gains for such period in respect of business dispositions or asset dispositions outside the ordinary course of business (as determined in good faith by the U.S. Borrower) during such period, all determined on a consolidated basis in accordance with U.S. GAAP. Notwithstanding the foregoing, Consolidated EBITDA shall be deemed to be (i) in the case of the Fiscal Quarters ended March 31, 2004, June 30, 2004, and September 30, 2004, U.S.$69,400,000, U.S.$73,000,000 and U.S.$39,000,000, respectively, and (ii) in the case of the Fiscal Quarter ended December 31, 2004, the sum of actual Consolidated EBITDA for the period from and including the Initial Borrowing Date to and including the last day of such Fiscal Quarter plus an amount equal to U.S.$48,400,000 multiplied by a fraction (x) the numerator of which is the number of days from and including October 1, 2004 to but excluding the Initial Borrowing Date and (y) the denominator of which is the total number of days in such Fiscal Quarter. "Consolidated Net Income" shall mean, for any period, the net income or loss of the U.S. Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with U.S. GAAP (adjusted to reflect any charge, tax or expense incurred or accrued by Holdings during such period as though such charge, tax or expense had been incurred by the U.S. Borrower, to the extent that the U.S. Borrower has made or is permitted under the Credit Documents to make any payment to or for the account of Holdings in respect thereof), provided that (a) there shall be excluded from Consolidated Net Income (i) the income of any Subsidiary of the U.S. Borrower to the extent that the declaration or payment of dividends or other distributions by such Subsidiary of that income is not at the time permitted by a Requirement of Law or any agreement or instrument applicable to such Subsidiary, except to the extent of the amount of cash dividends or other cash distributions actually paid to the U.S. Borrower or any of its Subsidiaries during such period (unless the income of the Subsidiary receiving such dividend or distribution would be excluded from Consolidated Net Income pursuant to this proviso) and (ii) except for calculations required to be made on a Pro Forma Basis, the income or loss of any Person accrued prior to the date it becomes a Subsidiary of the U.S. Borrower or is merged into or consolidated with the U.S. Borrower or any of -13- its Subsidiaries or the date that such Person's assets are acquired by the U.S. Borrower or any of its Subsidiaries and (b) there shall be included in Consolidated Net Income the income of any Permitted Joint Venture to the extent of the amount of cash dividends or other cash distributions actually paid by such Permitted Joint Venture to the U.S. Borrower or any of its Subsidiaries during such period (unless the income of the Subsidiary receiving such dividend or distribution would be excluded from Consolidated Net Income pursuant to clause (a) above). "Control" means the possession, directly or indirectly, of the power to (i) direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise or (ii) vote 10% or more of the securities having ordinary voting power for the election of directors (or equivalent governing body) of a Person. "Controlling" and "Controlled" have meanings correlative thereto. "Credit Agreement Party" shall mean Holdings and each Borrower. "Credit Documents" shall mean this Agreement, the Notes, each Subsidiaries Guaranty, the Intercompany Subordination Agreement, each Security Document, each Incremental Term Loan Commitment Agreement and any other guarantees or security documents executed and delivered for the benefit of the Lenders in accordance with the requirements of this Agreement and any other guaranties, pledge agreements or security documents executed and delivered in accordance with the requirements of Sections 9.12 and 9.13. "Credit Event" shall mean the making of a Loan (other than a Dollar Facility Revolving Loan made pursuant to a Mandatory Dollar Facility RL Borrowing) or the issuance of a Letter of Credit. "Credit Party" shall mean each U.S. Credit Party and each Canadian Credit Party. "DBAG" shall mean Deutsche Bank AG, Canada Branch, in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "DBSI" shall mean Deutsche Bank Securities Inc., in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "DBTCA" shall mean Deutsche Bank Trust Company Americas, in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "Default" shall mean any event, act or condition, which with notice or lapse of time, or both, would constitute an Event of Default. "Defaulting Lender" shall mean any Lender with respect to which a Lender Default is in effect. "Discontinuation" shall mean any discontinuation of any of the operations of the U.S. Borrower or any of its Subsidiaries. "Documents" shall mean and include (i) the Credit Documents, (ii) the Acquisition Documents, (iii) the Common Equity Financing Documents, (iv) the Senior Notes Documents, (v) the Senior Subordinated Notes Documents, (vi) the Intercompany Distribution Transaction Documents, (vii) the Foreign Asset Transfer Documents and (viii) the Refinancing Documents. -14- "Dollar Denominated Letter of Credit" shall mean each Letter of Credit denominated in U.S. Dollars. "Dollar Denominated Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar Denominated Letters of Credit at such time and (ii) the aggregate amount of all Unpaid Drawings with respect to Dollar Denominated Letters of Credit at such time. "Dollar Denominated Loan" shall mean all Loans denominated in U.S. Dollars, which shall include each Tranche B Term Loan, each Tranche C Term Loan, each Incremental Term Loan made in U.S. Dollars, each Dollar Facility Revolving Loan, each Swingline Loan, and each Multicurrency Facility Revolving Loan made in U.S. Dollars, as well as each Tranche A Term Loan and each Multicurrency Facility Revolving Loan made in Canadian Dollars converted into U.S. Dollars in accordance with the provisions of Section 2.14. "Dollar Denominated Revolving Loan" shall mean all Revolving Loans incurred in U.S. Dollars, including all Multicurrency Facility Revolving Loans denominated in U.S. Dollars and all Dollar Facility Revolving Loans. "Dollar Facility Letter of Credit" shall mean each Letter of Credit (which must be denominated in U.S. Dollars) issued to the U.S. Borrower pursuant to Section 3.01 and designated as such by the U.S. Borrower in the respective Letter of Credit Request. "Dollar Facility Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all Dollar Facility Letters of Credit. "Dollar Facility Revolving Loan" shall have the meaning provided in Section 2.01(f). "Dollar Facility Revolving Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name on Schedule I hereto directly below the column entitled "Dollar Facility Revolving Loan Commitment", as same may be (x) reduced from time to time and/or terminated pursuant to Sections 4.02, 4.03 and/or 11 or (y) adjusted from time to time as a result of assignments to or from such Lender pursuant to Sections 2.13 or 13.04(b). "Dollar Facility Revolving Note" shall have the meaning provided in Section 2.05(a). "Dollar Facility RL Lender" shall mean any Lender with a Dollar Facility Revolving Loan Commitment (without giving effect to any termination of the Total Dollar Facility Revolving Loan Commitment if any Swingline Loans or Dollar Facility Letter of Credit Outstandings remain outstanding) or outstanding Dollar Facility Revolving Loans (or any participation in any Dollar Facility Letter of Credit Outstandings). "Dollar Facility RL Percentage" of any Dollar Facility RL Lender at any time shall mean that percentage which is equal to a fraction (expressed as a percentage) the numerator of which is the Dollar Facility Revolving Loan Commitment of such Dollar Facility RL Lender at such time and the denominator of which is the Total Dollar Facility Revolving Loan Commitment at such time, provided that if any such determination is to be made after the Total Dollar Facility Revolving Loan Commitment (and the related Dollar Facility Revolving Loan Commitments of the Lenders) has (or -15- have) terminated, the determination of such percentages shall be made immediately before giving effect to such termination. "Domestic Permitted Acquisition" shall mean any Permitted Acquisition pursuant to which (a) any acquired or newly formed Subsidiary of the U.S. Borrower is a Domestic Subsidiary of the U.S. Borrower or (b) the assets that are the subject of such Permitted Acquisition are acquired by a Domestic Subsidiary of the U.S. Borrower and are located in the United States or any State or territory thereof. "Domestic Subsidiary" shall mean, as to any Person, any Subsidiary of such Person incorporated or organized in the United States or any State or territory thereof or the District of Columbia (other than U.S. Finco). "Draft" shall mean at any time either a depository bill within the meaning of the Depository Bills and Notes Act (Canada), or a bill of exchange, within the meaning of the Bills of Exchange Act (Canada), drawn by the Canadian Borrower on a Canadian Lender and bearing such distinguishing letters and numbers as such Canadian Lender may determine, but which at such time has not been completed or accepted by such Canadian Lender. "Drawing" shall have the meaning provided in Section 3.04(a). "Drawing Date" shall mean any Business Day fixed pursuant to Schedule III for the creation of Bankers' Acceptances or the purchase of completed Drafts and the exchange thereof for B/A Equivalent Notes, in each case by a Canadian Lender pursuant to Schedule III. "Drawing Fee" shall mean, in respect of a Draft drawn by the Canadian Borrower hereunder and accepted by a B/A Lender or a Draft purchased by a Non-B/A Lender, a fee calculated on the Face Amount of such Draft at a rate per annum equal to the Applicable Margin that would be payable with respect to a Multicurrency Facility Revolving Loan maintained as a Eurodollar Loan drawn on the Drawing Date of such Draft. Drawing Fees shall be calculated on the basis of the term to maturity of the Draft and a year of 365 days. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time, and any successor statute. "Effective Date" shall have the meaning provided in Section 13.10. "Eligible Transferee" shall mean and include a commercial bank, a mutual fund, an insurance company, a financial institution, a "qualified institutional buyer" (as defined in Rule 144A of the Securities Act), any fund that regularly invests in bank loans or any other "accredited investor" (as defined in Regulation D), but in any event excluding any individual and Holdings and its Subsidiaries and Affiliates. "End Date" shall have the meaning provided in the definition of Applicable Margin. "Environmental Laws" shall mean all applicable federal, provincial, state, local and foreign laws (including common law), treaties, regulations, rules, directives, orders, injunctions, decrees, notices or legally binding agreements, in each case issued, promulgated or entered into by any Governmental Authority relating to protection of the environment, natural resources, human -16- health and safety (as relating to Hazardous Materials, the environment or occupational health and safety), or the presence of, Release of, or exposure to, Hazardous Materials. "Environmental Liability" shall mean liabilities, obligations, damages, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and medical monitoring, investigation or remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or noncompliance with any Environmental Law, (b) the presence, generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "Equity Interests" of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest. "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor. "ERISA Affiliate" shall mean any trade or business (whether or not incorporated) that, together with the U.S. Borrower or Subsidiaries of the U.S. Borrower, is treated as a single employer under Section 414(b) or (c) of the Code. "ERISA Event" shall mean (a) any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than reportable events with respect to which the 30-day notice period has been waived), (b) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by Holdings, the U.S. Borrower or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (e) the receipt by Holdings, the U.S. Borrower or any of their respective ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the incurrence by Holdings, the U.S. Borrower or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or (g) the receipt by Holdings, the U.S. Borrower or any of their respective ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from Holdings, the U.S. Borrower or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA. "Eurodollar Loans" shall mean each Dollar Denominated Loan (excluding Swingline Loans) designated as such by the respective Borrower or Borrowers at the time of the incurrence thereof or conversion thereto. -17- "Eurodollar Rate" shall mean, for any Interest Period, in the case of any U.S. Dollar Denominated Loan, (i) the rate (rounded upwards to the nearest 1/16 of 1%) appearing on the page identified as 'Reuters Libor 01' of the Reuters Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interests rates applicable to U.S. dollar deposits in the London interbank market) for U.S. Dollar deposits of amounts in immediately available funds comparable to the principal amount of the applicable Eurodollar Loan for which the Eurodollar Rate is being determined with maturities comparable to the Interest Period for which such Eurodollar Rate will apply, as of approximately 10:00 A.M. (New York time) on the Interest Determination Date divided by (ii) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D). The determination of the Eurodollar Rate by the Administrative Agent shall be conclusive and binding on the Borrowers absent manifest error. "Event of Default" shall have the meaning provided in Section 11. "Excess Cash Flow" shall mean, for any Excess Cash Flow Payment Period, the sum (without duplication) of: (a) Consolidated Net Income for such Excess Cash Flow Payment Period, adjusted to exclude any gains or losses attributable to any Asset Sale or Recovery Event; plus (b) depreciation, amortization and other non-cash charges or losses (including deferred income taxes) deducted in determining such Consolidated Net Income for such Excess Cash Flow Payment Period; plus (c) the sum of (i) the amount, if any, by which Net Working Capital decreased during such Excess Cash Flow Payment Period (except as a result of reclassification of items from short-term to long-term) plus (ii) the net amount, if any, by which the consolidated deferred revenues and other consolidated accrued long term liability accounts (excluding Long-Term Indebtedness) of the U.S. Borrower and its consolidated Subsidiaries increased during such Excess Cash Flow Payment Period plus (iii) the net amount, if any, by which the consolidated accrued long-term asset accounts of the U.S. Borrower and its consolidated Subsidiaries decreased during such Excess Cash Flow Payment Period; minus (d) the sum of (i) any non-cash gains included in determining Consolidated Net Income for such Excess Cash Flow Payment Period plus (ii) the amount, if any, by which Net Working Capital increased during such Excess Cash Flow Payment Period (except as a result of reclassification of items from long-term to short-term) plus (iii) the net amount, if any, by which the consolidated deferred revenues and other consolidated accrued long term liability accounts of the U.S. Borrower and its consolidated Subsidiaries decreased during such Excess Cash Flow Payment Period plus (iv) the net amount, if any, by which the consolidated accrued long term asset accounts of the U.S. Borrower and its consolidated Subsidiaries increased during such Excess Cash Flow Payment Period; minus -18- (e) the sum of (i) Capital Expenditures for such Excess Cash Flow Payment Period (except to the extent (A) attributable to the incurrence of Capital Lease Obligations or (B) otherwise financed by incurring Long-Term Indebtedness) plus (ii) cash consideration paid during such Excess Cash Flow Payment Period to make Permitted Acquisitions or other capital investments or investments or expenditures pursuant to Sections 10.04(p) or 10.04(q) (except to the extent financed (A) by incurring Long Term Indebtedness (excluding Indebtedness in respect of Revolving Loans and Swingline Loans), (B) with Equity Interests of Holdings or with the Net Proceeds of substantially concurrent equity contributions to, or sales or issuances of Equity Interests of, Holdings) or (C) with Retained Excess Cash Flow in respect of the immediately preceding Excess Cash Flow Payment Period); minus (f) the aggregate principal amount of Long Term Indebtedness repaid or prepaid by the U.S. Borrower and its consolidated Subsidiaries during such Excess Cash Flow Payment Period, excluding (i) Indebtedness in respect of Revolving Loans, Swingline Loans and Letters of Credit (unless there is a corresponding reduction in the aggregate Revolving Loan Commitments), (ii) Term Loans prepaid pursuant to Section 5.01 or Section 5.02(c), (d), (e) or (f) and (iii) repayments or prepayments of Long Term Indebtedness financed by incurring other Long-Term Indebtedness; minus (g) the aggregate amount of Restricted Payments made during such Excess Cash Flow Payment Period pursuant to clause (iii) of Section 10.08(a); minus (h) amounts paid in cash during such Excess Cash Flow Payment Period in respect of (x) items that were accounted for as non-cash reductions in determining Consolidated Net Income in a prior Excess Cash Flow Payment Period and (y) reserves or accruals established in purchase accounting; plus (i) amounts received in cash during such Excess Cash Flow Payment Period in respect of items that were accounted for as a non-cash increase in determining Consolidated Net Income in a prior Excess Cash Flow Payment Period. "Excess Cash Flow Payment Period" shall mean, with respect to any Excess Cash Payment Date, the immediately preceding Fiscal Year. "Excess Cash Payment Date" shall mean the date that is five (5) days after of the delivery (or required delivery) of the financial statements of the U.S. Borrower pursuant to Section 9.01(a) for the Fiscal Year then last ended (commencing with the Fiscal Year ended closest to December 31, 2005). "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder. "Exchange Senior Notes" shall mean senior notes issued in exchange for Senior Notes pursuant to the Senior Notes Indenture, which Exchange Senior Notes are substantially identical securities to the originally issued Senior Notes and shall be issued pursuant to a registered exchange offer or private exchange offer for the Senior Notes on market terms satisfactory to the Administrative Agent; provided that in no event will the issuance of any Exchange Senior Notes increase the aggregate principal amount of Senior Notes theretofore outstanding or otherwise result in an increase in the interest rate applicable to the Senior Notes theretofore outstanding. -19- "Exchange Senior Subordinated Notes" shall mean senior subordinated notes issued in exchange for Senior Subordinated Notes pursuant to the Senior Subordinated Notes Indenture, which Exchange Senior Subordinated Notes are substantially identical securities to the originally issued Senior Subordinated Notes and shall be issued pursuant to a registered exchange offer or private exchange offer for the Senior Subordinated Notes on market terms satisfactory to the Administrative Agent; provided that in no event will the issuance of any Exchange Senior Subordinated Notes increase the aggregate principal amount of Senior Subordinated Notes theretofore outstanding or otherwise result in an increase in the interest rate applicable to the Senior Subordinated Notes theretofore outstanding. "Existing Indebtedness Agreements" shall have the meaning provided in Section 6.17. "Existing Joint Ventures" means joint ventures in respect of which either Borrower or any of their respective Subsidiaries holds any Equity Interests on the Initial Borrowing Date, as set forth on Schedule VII. "Face Amount" shall mean, in respect of a Draft, Bankers' Acceptance or B/A Equivalent Note, as the case may be, the amount payable to the holder thereof on its maturity. The Face Amount of any Bankers' Acceptance Loan shall be equal to the aggregate Face Amounts of the underlying Bankers' Acceptances, B/A Equivalent Notes or Drafts, as the case may be. "Facing Fee" shall have the meaning provided in Section 4.01(c). "Federal Funds Rate" shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent. "Fees" shall mean all amounts payable pursuant to, or referred to in, Section 4.01. "Financial Ratio" shall mean the Interest Coverage Ratio, the Leverage Ratio or the Senior Secured Leverage Ratio. "Fiscal Quarter" shall mean, for any Fiscal Year, each of (i) the three month period commencing on January 1 of such Fiscal Year and ending on March 31 of such Fiscal Year, (ii) the three month period commencing on April 1 of such Fiscal Year and ending on June 30 of such Fiscal Year, (iii) the three month period commencing on July 1 of such Fiscal Year and ending on September 30 of such Fiscal Year and (iv) the three month period commencing on October 1 of such Fiscal Year and ending on December 31 of such Fiscal Year, as the case may be. For purposes of this Agreement, a reference to the 1st Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to in clause (i) above; a reference to the 2nd Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to in clause (ii) above; a reference to the 3rd Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to in clause (iii) above; and a reference to the -20- 4th Fiscal Quarter of any Fiscal Year shall be a reference to the period referred to in clause (iv) above. "Fiscal Year" shall mean the fiscal year of the U.S. Borrower and its Subsidiaries ending on December 31 of each calendar year. For purposes of this Agreement, any particular Fiscal Year shall be designated by reference to the calendar year in which the majority of such Fiscal Year falls. "Foreign Asset Transfer" shall have the meaning provided in Section 6.08(b). "Foreign Asset Transfer Documents" shall mean the various material documents and agreements entered into in connection with the Foreign Asset Transfer. "Foreign Pension Plan" shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by Holdings or any one or more of its Subsidiaries primarily for the benefit of employees of Holdings or any of its Subsidiaries residing outside the United States of America, 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 plan is not subject to ERISA or the Code, but excluding any Canadian Pension Plan. "Foreign Permitted Acquisition" shall mean any Permitted Acquisition that is not a Domestic Permitted Acquisition. "Foreign Pledge Agreements" shall mean and include the Canadian Pledge Agreement and the Local Law Pledge Agreements. "Foreign Security Document" shall mean each Security Document other than a U.S. Security Document. "Foreign Subsidiary" shall mean, as to any Person, any Subsidiary of such Person that is not a Domestic Subsidiary of such Person. "Funded Debt" shall mean, as of any date, the sum of (i) the aggregate principal amount (or, Face Amount, as applicable) of all Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and Incremental Term Loans outstanding on such date and (ii) the aggregate principal amount of the Senior Notes, the Senior Subordinated Notes and Additional Senior Subordinated Notes outstanding on such date. "Governmental Authority" shall mean the government of the United States of America, Canada, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "GSCP" shall mean Goldman Sachs Credit Partners, L.P., in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. -21- "Guarantee" of or by any Person (the "guarantor") shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof (including pursuant to any synthetic lease financing), (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party or applicant in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee 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 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 (without giving effect to any rights of indemnification, contribution or subrogation), 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 shall be such guaranteeing Person's maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. "Guaranteed Creditors" shall mean and include each of the Agents, the Collateral Agent, the Lenders, the Issuing Lenders and each Person (other than any Credit Party or any of its Subsidiaries) party to any Swap Agreement to the extent that such Person constitutes a Secured Creditor under any of the Security Documents. "Guarantors" shall mean and include Holdings, the U.S. Borrower and each Subsidiary Guarantor. "Guaranty" and "Guaranties" shall mean and include the Holdings Guaranty, the U.S. Borrower's Guaranty and each Subsidiaries Guaranty. "Hazardous Materials" shall mean (i) all petroleum products or byproducts and all other petroleum hydrocarbons, coal ash, radon gas, asbestos or asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (ii) all chemicals, materials, substances or wastes that are prohibited, limited or regulated by or pursuant to any Environmental Law. "Highest Adjustable Applicable Margins" shall have the meaning provided in the definition of Applicable Margin contained herein. "Holdings" shall have the meaning provided in the first paragraph of this Agreement. "Holdings Equity Contribution" shall have the meaning provided in Section 6.09(a). "Holdings Guaranteed Obligations" shall mean (i) the principal (or, Face Amount, as applicable) and interest on each Note issued to each Lender, and all Loans made, under this Agreement, all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit, -22- together with all the other obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, indemnities, fees and interest thereon) of the Borrowers (or either of them) to each Lender, each Agent, each Issuing Lender and the Collateral Agent now existing or hereafter incurred under, arising out of or in connection with this Agreement and each other Credit Document and the due performance and compliance by each Borrower with all the terms, conditions and agreements contained in this Agreement and each other Credit Document to which it is a party and (ii) all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities of the U.S. Borrower or any of its Subsidiaries owing under any Swap Agreement entered into by the U.S. Borrower or any of its Subsidiaries with any Guaranteed Creditor so long as such Guaranteed Creditor participates in such Swap Agreement, and their subsequent assigns, if any, whether now in existence or hereafter arising, and the due performance and compliance with all terms, conditions and agreements contained therein. "Holdings Guaranteed Party" shall mean each Borrower and each Subsidiary of Holdings party to any Swap Agreement with any Secured Creditor. "Holdings Guaranty" shall mean the guaranty of Holdings pursuant to Section 14. "Incremental Extensions of Credit" shall mean any extension of Incremental Term Loan Commitments or Incremental Term Loans pursuant thereto, as contemplated by Sections 2.01(d) and 2.15. "Incremental Term Loan" shall have the meaning provided in Section 2.01(d). "Incremental Term Loan Borrower" shall mean (x) the U.S. Borrower, with respect to U.S. Borrower Incremental Term Loans and (y) the Canadian Borrower, with respect to Canadian Borrower Incremental Term Loans. "Incremental Term Loan Borrowing Date" shall mean, with respect to each Tranche of Incremental Term Loans, each date on which Incremental Term Loans of such Tranche are incurred pursuant to Section 2.01(d), which date shall be the date of the effectiveness of the respective Incremental Term Loan Commitment Agreement pursuant to which such Incremental Term Loans are to be made. "Incremental Term Loan Commitment" shall mean, for each Lender, any commitment to make Incremental Term Loans provided by such Lender pursuant to Section 2.15 on a given Incremental Term Loan Borrowing Date, in such amount as agreed to by such Lender in the respective Incremental Term Loan Commitment Agreement delivered pursuant to Section 2.15, as the same may be terminated pursuant to Sections 4.03 and/or 11. "Incremental Term Loan Commitment Agreement" shall mean each Incremental Term Loan Commitment Agreement in the form of Exhibit O (appropriately completed) executed in accordance with Section 2.15. "Incremental Term Loan Commitment Requirements" shall mean, with respect to any provision of an Incremental Term Loan Commitment on a given Incremental Term Loan Borrowing Date, the satisfaction of each of the following conditions: (u) no Default or Event of Default then exists or would result therefrom; (v) calculations are made by the U.S. Borrower demonstrating -23- compliance on a Pro Forma Basis (determined as of the last day of the most recently ended Fiscal Quarter for which financial statements are available) with (i) the covenants contained in Sections 10.12 and 10.13, (ii) a Leverage Ratio of less than 4.50:1.00 and (iii) a Senior Secured Leverage Ratio of less than 2.50:1.00; (w) the delivery by the relevant Credit Parties of such technical amendments, modifications and/or supplements to the respective Security Documents as are reasonably requested by the Administrative Agent to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the relevant Security Documents; (x) the delivery by the U.S. Borrower to the Administrative Agent of an officer's certificate executed by an Authorized Officer of the U.S. Borrower certifying (i) as to compliance with preceding clauses (v) and (w) and containing the calculations required by clause (w) and (ii) which provisions of the Senior Notes Indenture and the Senior Subordinated Notes Indenture the respective incurrence of Incremental Term Loans will be justified under and demonstrating in reasonable detail that the full amount of such Incremental Term Loans may be incurred in accordance with, and will not violate the provisions of, the Senior Notes Indenture and the Senior Subordinated Notes Indenture; (y) the satisfaction of all other conditions precedent that may be set forth in the respective Incremental Term Loan Commitment Agreement and (z) the completion by the Credit Parties of such other actions as the Administrative Agent may reasonably request in connection with the provision of such Incremental Term Loan Commitment (including, without limitation, delivery of officers' certificates, resolutions, evidence of good standing and reasonably satisfactory opinions of counsel). "Incremental Term Loan Lender" shall have the meaning provided in Section 2.15(b). "Incremental Term Loan Maturity Date" shall mean, for any Tranche of Incremental Term Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the respective Incremental Term Loan Commitment Agreement relating thereto, provided that the final maturity date for all Incremental Term Loans of a given Tranche shall be the same date. "Incremental Term Loan Scheduled Repayment" shall have the meaning provided in Section 5.02(b). "Incremental Term Note" shall have the meaning provided in Section 2.05. "Indebtedness" of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business), (f) all obligations of others secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such Person of the obligations of others (to the extent such obligations would constitute "Indebtedness" pursuant to the other clauses of this definition), (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party or applicant in respect of letters of credit and letters of guaranty, (j) the amount of any Permitted Securitizations of such Person and (k) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances. The Indebtedness of any Person shall include the Indebtedness of -24- any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, in connection with any Permitted Acquisition, the term "Indebtedness" shall not include post-closing payment adjustments or earn-outs to which the seller in such Permitted Acquisition may become entitled. "Individual Dollar Facility RL Exposure" of any Dollar Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount of all Dollar Facility Revolving Loans made by such Dollar Facility RL Lender and then outstanding, (II) such Dollar Facility RL Lender's L/C Participation Percentage in each then outstanding Dollar Facility Letter of Credit multiplied by the sum of the Stated Amount of the respective Dollar Facility Letter of Credit and any Unpaid Drawings relating thereto and (III) such Dollar Facility RL Lender's Dollar Facility RL Percentage multiplied by the aggregate principal amount of all outstanding Swingline Loans. "Individual Multicurrency Facility RL Exposure" of any Multicurrency Facility RL Lender shall mean, at any time, the sum of (I) the aggregate principal amount (or Face Amount, as applicable) of all Multicurrency Facility Revolving Loans made by such Multicurrency Facility RL Lender and then outstanding (for this purpose, using the U.S. Dollar Equivalent of the principal amount or Face Amount, as the case may be, of Canadian Dollar Denominated Revolving Loans) and (II) such Multicurrency Facility RL Lender's L/C Participation Percentage in each then outstanding Multicurrency Facility Letter of Credit multiplied by the sum of the Stated Amount of the respective Multicurrency Facility Letter of Credit and any Unpaid Drawings relating thereto (for this purpose, using the U.S. Dollar Equivalent of any amounts expressed in Canadian Dollars). "Individual RL Facility Exposures" of any Lender shall mean, at any time, the sum of the Individual Multicurrency Facility RL Exposure and the Individual Dollar Facility RL Exposure of such Lender at such time. "Information Memorandum" shall mean the Confidential Information Memorandum, dated December 3, 2004, relating to Holdings, the Borrowers and the Transaction. "Initial Borrowing Date" shall mean the date (which shall occur on the Effective Date) upon which the initial Borrowing of Loans occurs. "Initial Equity Investors" shall mean Cypress Merchant Banking Partners II L.P., Cypress Merchant Banking II C.V., 55th Street Partners II L.P., Cypress Side-by-Side LLC, GS Capital Partners 2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co. KG, GS Capital Partners 2000 Employee Fund, L.P. and Goldman Sachs Direct Investment Fund 2000, L.P. "Initial Indebtedness to be Refinanced" shall mean and include (i) certain Indebtedness of Foreign Subsidiaries under existing lines of credit, (ii) reimbursement obligations with respect to certain existing letters of credit and bank guaranties and (iii) all other Indebtedness of Holdings and its Subsidiaries outstanding immediately before the consummation of the Acquisition which is to be repaid or refinanced on the Initial Borrowing Date, including any such Indebtedness which is not permitted to remain outstanding after the Initial Borrowing Date pursuant to Sections 6.10 or 10.01. Without limiting the foregoing, it understood and agreed that the aggregate amount of the "Initial Indebtedness to be Refinanced" shall not exceed U.S.$15,000,000. -25- "Intercompany Debt" shall mean any Indebtedness, payables or other obligations, whether now existing or hereafter incurred, owed by Holdings or any Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings. "Intercompany Distribution Transaction Documents" shall mean all of the material documents and instruments entered into in connection with the Intercompany Distribution Transactions, in each case as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. "Intercompany Distribution Transactions" shall have the meaning provided in Section 6.09(b). "Intercompany Note" shall mean a promissory note evidencing intercompany loans made pursuant to Section 10.04(e), in each case duly executed and delivered substantially in the form of Exhibit L, with blanks completed in conformity herewith (or such other form as may be approved by the Administrative Agent or the Required Lenders). "Intercompany Scheduled Existing Indebtedness" shall have the meaning provided in Section 8.18. "Intercompany Subordination Agreement" shall have the meaning provided in Section 6.13(c). "Interest Coverage Ratio" shall have the meaning provided in Section 10.12. "Interest Determination Date" shall mean, with respect to any Eurodollar Loan, the second Business Day prior to the commencement of any Interest Period relating to such Eurodollar Loan. "Interest Period" shall mean, with respect to any Eurodollar Loan, the interest period applicable thereto, as determined pursuant to Section 2.09. "Investment" shall have the meaning provided in the preamble to Section 10.04. "Issuing Lender" shall mean (i) for purposes of any Dollar Facility Letter of Credit, DBTCA, any affiliate of DBTCA and any Dollar Facility RL Lender (or affiliate of any Dollar Facility RL Lender) which at the request of the U.S. Borrower and with the consent of the Administrative Agent agrees, in such Dollar Facility RL Lender's (or Dollar Facility RL Lender affiliate's) sole discretion, to become an Issuing Lender for the purpose of issuing Dollar Facility Letters of Credit pursuant to Section 3, and (ii) for purposes of any Multicurrency Facility Letter of Credit, DBAG, any of its affiliates which is a Canadian Resident and any Multicurrency Facility RL Lender which is a Canadian Resident (or affiliate of any Multicurrency Facility RL Lender which is a Canadian Resident) which at the request of the Canadian Borrower and with the consent of the Administrative Agent agrees, in such Multicurrency Facility RL Lender's (or Multicurrency Facility RL Lender affiliate's) sole discretion, to become an Issuing Lender for the purpose of issuing Multicurrency Facility Letters of Credit pursuant to Section 3; provided that as of the Initial Borrowing Date and until such time as it agrees otherwise, DBAG shall not be an Issuing Lender with respect to any Trade Letter of Credit. -26- "Joint Lead Arrangers" shall mean DBSI and Lehman Brothers, each in their capacities as Joint Lead Arrangers and Book Runners. "Judgment Currency" shall have the meaning provided in Section 13.22(a). "Judgment Currency Conversion Date" shall have the meaning provided in Section 13.22(a). "L/C Participant" shall have the meaning provided in Section 3.04(a). "L/C Participation Percentages" shall have the meaning provided in Section 3.04(a). "L/C Supportable Indebtedness" shall mean (i) obligations of the U.S. Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of business and (ii) such other obligations of the U.S. Borrower or any of its Wholly-Owned Subsidiaries as are permitted to exist pursuant to the terms of this Agreement. "LCPI" shall mean Lehman Commercial Paper Inc., in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "Leasehold" of any Person shall mean all of the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures. "Lehman Brothers" shall mean Lehman Brothers Inc., in its individual capacity, and any successor corporation thereto by merger, consolidation or otherwise. "Lender" shall mean and include (i) each financial institution with a Commitment listed on Schedule I (as amended from time to time), as well as any Person that becomes a "Lender" hereunder pursuant to Sections 2.13, 2.15 and/or 13.04(b) and (ii) the Swingline Lender. Unless the context otherwise requires, each reference in this Agreement to a Lender includes each lending office (including any Affiliate of the respective Lender) of the respective Lender designated from time to time pursuant to Section 2.12. "Lender Default" shall mean (i) the wrongful refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing (including any Mandatory Dollar Facility RL Borrowing), to fund its portion of any unreimbursed payment under Section 3.04 or (ii) a Lender having notified the Administrative Agent and/or any Credit Agreement Party that it does not intend to comply with its obligations under Sections 2.01 or 3.04 in circumstances where such non-compliance would constitute a breach of such Lender's obligations under the respective Section. "Letter of Credit" shall have the meaning provided in Section 3.01(a). "Letter of Credit Fees" shall have the meaning provided in Section 4.01(b). "Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Letters of Credit which have not terminated at such time and (ii) the aggregate amount of all Unpaid Drawings (taking the U.S. Dollar Equivalent of any amounts owed in Canadian Dollars) in respect of all Letters of Credit at such time. "Letter of Credit Request" shall have the meaning provided in Section 3.03(a). -27- "Leverage Ratio" shall mean, on any date, the ratio of (a) Total Indebtedness on such date to (b) Consolidated EBITDA for the period of four consecutive Fiscal Quarters ended on such date (or, if such date is not the last day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most recently ended prior to such date), provided that, to the extent the U.S. Borrower or any Subsidiary of the U.S. Borrower makes any Permitted Acquisition, Asset Disposition or Discontinuation during the period of four Fiscal Quarters most recently ended, the Leverage Ratio for such period shall be calculated on a Pro Forma Basis. "Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or other), charge, preference, priority or other security agreement of any kind or nature whatsoever (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any similar recording or notice statute, and any lease having substantially the same economic effect as the foregoing). "Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan, each Tranche C Term Loan, each Incremental Term Loan, each Revolving Loan and each Swingline Loan. "Local Law Pledge Agreement" shall have the meaning provided in Section 6.14(c). "Long-Term Indebtedness" means any Indebtedness that, in accordance with U.S. GAAP, constitutes (or, when incurred, constituted) a long-term liability. "Majority Lenders" of any Tranche shall mean those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with respect thereto were terminated. "Management Agreements" shall have the meaning provided in Section 6.17. "Mandatory Dollar Facility RL Borrowing" shall have the meaning provided in Section 2.01(h). "Margin Regulations" shall mean, collectively, Regulation T, Regulation U and Regulation X. "Margin Stock" shall have the meaning provided in Regulation U. "Material Adverse Effect" shall mean (x) in the case of any condition or representation to be satisfied or made, as the case may be, on, or as of, the Initial Borrowing Date, any state of facts, change, occurrence or development that (i) directly or indirectly prevents or materially impairs or delays the ability of the Seller to perform its obligations under the Acquisition Documents or (ii) has a material adverse effect on the condition (financial or otherwise), results of operations, business, properties, assets or liabilities (whether accrued, absolute, contingent or otherwise, and whether or not due or to become due or asserted or unasserted) of Holdings, the U.S. Borrower and their respective Subsidiaries taken as a whole, but excluding any effect (a) resulting from general economic conditions (whether as a result of acts of terrorism, war (whether or not declared), armed conflicts or otherwise) and (b) impacting companies in the industry in which the business and operations of the U.S. Borrower and its Subsidiaries is conducted generally, in each -28- such case except to the extent such efforts, facts, change, occurrence or development has a disproportionately adverse impact on Holdings, the U.S. Borrower and the business and operations of the U.S. Borrower and its Subsidiaries and (y) for all other purposes herein or in any other Credit Document, any event, development or circumstance that has had, or could reasonably be expected to have, a material adverse effect on (i) the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings, the Borrowers and their respective Subsidiaries, taken as a whole, (ii) the ability of any Credit Party to perform any of its material obligations under any Credit Document or (iii) the validity or enforceability of any of the Credit Documents or the rights and remedies of the Agents and the Lenders hereunder or thereunder. "Material Indebtedness" shall mean Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements (if any), of any one or more of Holdings, the Borrowers and the Subsidiaries of the U.S. Borrower in an aggregate principal amount exceeding U.S.$17,500,000. For purposes of determining Material Indebtedness, the "principal amount" of the obligations of the U.S. Borrower or any Subsidiary of the U.S. Borrower in respect of any Swap Agreements (if any) at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the U.S. Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time. "Maturity Date" shall mean (i) with respect to Tranche A Term Loans, the Tranche A Term Loan Maturity Date, (ii) with respect to Tranche B Term Loans, the Tranche B Term Loan Maturity Date, (iii) with respect to Tranche C Term Loans, the Tranche C Term Loan Maturity Date, (iv) with respect to Incremental Term Loans of a given Tranche, the respective Incremental Term Loan Maturity Date therefor, (v) with respect to Revolving Loans, the Revolving Loan Maturity Date and (vi) with respect to Swingline Loans, the Swingline Expiry Date. "Maximum Swingline Amount" shall mean U.S.$20,000,000. "Minimum Applicable Facing Fee" shall mean (x) in the case of all Letters of Credit (other than Canadian Dollar Denominated Letters of Credit), U.S.$500 and (y) in the case of Canadian Dollar Denominated Letters of Credit, Cdn.$750. "Minimum Borrowing Amount" shall mean (i) in the case of Dollar Denominated Loans (excluding Swingline Loans and Dollar Denominated Revolving Loans maintained as Base Rate Loans), U.S.$5,000,000, (ii) in the case of Revolving Loans maintained from time to time as Base Rate Loans, U.S.$500,000, (iii) in the case of Canadian Dollar Denominated Loans (excluding Multicurrency Facility Revolving Loans maintained in Canadian Dollars as Canadian Prime Rate Loans), Cdn.$ 1,000,000, (iv) in the case of Multicurrency Facility Revolving Loans maintained in Canadian Dollars as Canadian Prime Rate Loans, Cdn.$500,000, and (v) in the case of Swingline Loans, U.S.$100,000. "Moody's" shall mean Moody's Investors Service, Inc. "Mortgage" shall mean each mortgage, debenture (together with a debenture delivery agreement), deed of trust or deed to secure debt required to be delivered with respect to any Real Property pursuant to the terms of this Agreement, together with any assignment of leases and rents to be executed in connection therewith (as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof). -29- "Mortgage Policy" shall mean each mortgage title insurance policy (and all endorsements thereto) for each Mortgaged Property required to be delivered pursuant to this Agreement. "Mortgaged Property" shall mean each Real Property owned by Holdings or any of its Subsidiaries and required to be mortgaged pursuant to this Agreement. "Multicurrency Facility Letter of Credit" shall mean each Letter of Credit (which may be denominated in U.S. Dollars or Canadian Dollars) issued to the Canadian Borrower pursuant to Section 3.01 and designated as such by the Canadian Borrower in the respective Letter of Credit Request. "Multicurrency Facility Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the aggregate Stated Amount of all outstanding Multicurrency Facility Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings (taking the U.S. Dollar Equivalent of all amounts payable in Canadian Dollars) in respect of all Multicurrency Facility Letters of Credit. "Multicurrency Facility Revolving Loan" shall have the meaning provided in Section 2.01(e). "Multicurrency Facility Revolving Loan Commitment" shall mean, for each Lender, the amount set forth opposite such Lender's name on Schedule I hereto directly below the column entitled "Multicurrency Facility Revolving Loan Commitment", as same may be (x) reduced from time to time and/or terminated pursuant to Sections 4.02, 4.03 and/or 11 or (y) adjusted from time to time as a result of assignments to or from such Lender pursuant to Sections 2.13 or 13.04(b). "Multicurrency Facility Revolving Note" shall have the meaning provided in Section 2.05(a). "Multicurrency Facility RL Lender" shall mean each Lender which has a Multicurrency Facility Revolving Loan Commitment (without giving effect to any termination of the Total Multicurrency Facility Revolving Loan Commitment if any Multicurrency Facility Letter of Credit Outstandings remain outstanding) or which has any outstanding Multicurrency Facility Revolving Loans (or an L/C Participation Percentage in any then outstanding Multicurrency Facility Letter of Credit Outstandings). "Multicurrency Facility RL Percentage" of any Multicurrency Facility RL Lender at any time shall mean that percentage which is equal to a fraction (expressed as a percentage) the numerator of which is the Multicurrency Facility Revolving Loan Commitment of such Multicurrency Facility RL Lender at such time and the denominator of which is the Total Multicurrency Facility Revolving Loan Commitment at such time, provided that if any such determination is to be made after the Total Multicurrency Facility Revolving Loan Commitment (and the related Multicurrency Facility Revolving Loan Commitments of the Lenders) has (or have) terminated, the determination of such percentages shall be made immediately before giving effect to such termination. "Multiemployer Plan" shall mean a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA that is established or maintained in the United States of America. -30- "Net Proceeds" shall mean, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case that are directly attributable to such event (as determined reasonably and in good faith by a Authorized Officer and, in the case of any such reserves, as set forth