exv10w2






Exhibit 10.2




Execution Version




 





CREDIT AGREEMENT




among




WASTE SERVICES, INC.,

as US Borrower,




WASTE SERVICES (CA) INC.,

as Canadian Borrower




The Several Lenders

from Time to Time Party Hereto,




BARCLAYS CAPITAL

and BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers and Joint Lead Bookrunners,




BANK OF AMERICA, N.A.,

as Syndication Agent,




BOSIC INC.,

SUNTRUST BANK

and THE BANK OF NOVA SCOTIA,

as Co-Documentation Agents,




THE BANK OF NOVA SCOTIA,

as Canadian Agent and Canadian Collateral Agent,




and




BARCLAYS BANK PLC,

as Administrative Agent




Dated as of October 8, 2008




 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	31	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	31	 
	 
	 	 	 	 
	2.1 Term Loan Commitments
	 	 	31	 
	2.2 Procedure for Borrowing of Term Loans
	 	 	31	 
	2.3 Repayment of Term Loans
	 	 	32	 
	2.4 Revolving Credit Commitments
	 	 	33	 
	2.5 Procedure for Revolving Credit Borrowing
	 	 	34	 
	2.6 Swing Line Commitments
	 	 	35	 
	2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans
	 	 	36	 
	2.8 Bankers’ Acceptances
	 	 	38	 
	2.9 Repayment of Loans; Evidence of Debt
	 	 	41	 
	2.10
Commitment Fees, etc.
	 	 	42	 
	2.11 Termination or Reduction of Revolving Credit Commitments
	 	 	42	 
	2.12 Optional Prepayments
	 	 	43	 
	2.13 Mandatory Prepayments and Commitment Reductions
	 	 	43	 
	2.14 Conversion and Continuation Options
	 	 	45	 
	2.15 Minimum Amounts and Maximum Number of Eurodollar Tranches; Bankers’
Acceptances
	 	 	46	 
	2.16 Interest Rates and Payment Dates
	 	 	46	 
	2.17 Computation of Interest and Fees
	 	 	48	 
	2.18 Inability to Determine Interest Rate
	 	 	48	 
	2.19 Pro Rata Treatment and Payments
	 	 	50	 
	2.20 Requirements of Law
	 	 	52	 
	2.21 Taxes
	 	 	53	 
	2.22 Indemnity
	 	 	56	 
	2.23 Illegality
	 	 	56	 
	2.24 Change of Lending Office
	 	 	57	 
	2.25 Replacement of Lenders under Certain Circumstances
	 	 	57	 
	2.26 Incremental Term Loan Facilities
	 	 	57	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	59	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	59	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	60	 
	3.3 Fees and Other Charges
	 	 	61	 
	3.4 L/C Participations
	 	 	61	 
	3.5 Reimbursement Obligation of the Borrowers
	 	 	63	 
	3.6 Obligations Absolute
	 	 	63	 






i









 






	 	 	 	 	 
	 	 	Page	 
	3.7 Letter of Credit Payments
	 	 	64	 
	3.8 Applications
	 	 	64	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	64	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	64	 
	4.2 No Change
	 	 	65	 
	4.3 Corporate Existence; Compliance with Law
	 	 	65	 
	4.4 Corporate Power; Authorization; Enforceable Obligations
	 	 	65	 
	4.5 No Legal Bar
	 	 	66	 
	4.6 No Material Litigation
	 	 	66	 
	4.7 No Default
	 	 	66	 
	4.8 Ownership of Property; Liens
	 	 	66	 
	4.9 Intellectual Property
	 	 	66	 
	4.10 Taxes
	 	 	67	 
	4.11 Federal Regulations
	 	 	67	 
	4.12 Labor Matters
	 	 	67	 
	4.13 Pensions and Benefit Plans
	 	 	67	 
	4.14 Investment Company Act; Other Regulations
	 	 	68	 
	4.15 Subsidiaries
	 	 	68	 
	4.16 Use of Proceeds
	 	 	69	 
	4.17 Environmental Matters
	 	 	69	 
	4.18
Accuracy of Information, etc.
	 	 	70	 
	4.19 Security Documents
	 	 	70	 
	4.20 Solvency
	 	 	71	 
	4.21 Senior Indebtedness
	 	 	71	 
	4.22 Regulation H
	 	 	71	 
	4.23 Insurance
	 	 	72	 
	4.24 Real Estate
	 	 	72	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	72	 
	 
	 	 	 	 
	5.1 Conditions to Initial Extension of Credit
	 	 	72	 
	5.2 Conditions to Each Extension of Credit
	 	 	78	 
	 
	 	 		 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	78	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	79	 
	6.2 Certificates; Other Information
	 	 	79	 
	6.3 Payment of Obligations
	 	 	81	 
	6.4 Conduct
of Business and Maintenance of Existence, etc.
	 	 	81	 
	6.5 Maintenance of Property; Insurance
	 	 	82	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	82	 
	6.7 Notices
	 	 	82	 
	6.8 Environmental Laws
	 	 	83	 
	6.9 Interest Rate Protection
	 	 	83	 
	6.10
Additional Collateral, etc.
	 	 	83	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	6.11 Use of Proceeds
	 	 	86	 
	6.12 Pension and Benefits Plans
	 	 	86	 
	6.13 Further Assurances
	 	 	88	 
	6.14 Maintenance of Ratings
	 	 	88	 
	6.15 Quebec Subsidiary
	 	 	88	 
	6.16 Post Closing Obligations
	 	 	88	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	89	 
	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	89	 
	7.2 Limitation on Indebtedness
	 	 	90	 
	7.3 Limitation on Liens
	 	 	92	 
	7.4 Limitation on Fundamental Changes
	 	 	93	 
	7.5 Limitation on Disposition of Property
	 	 	94	 
	7.6 Limitation on Restricted Payments
	 	 	94	 
	7.7 Limitation on Capital Expenditures
	 	 	95	 
	7.8 Limitation on Investments
	 	 	95	 
	7.9 Limitation on Optional Payments and Modifications of Debt Instruments
and Other Agreements
	 	 	97	 
	7.10 Limitation on Transactions with Affiliates
	 	 	98	 
	7.11 Limitation on Sales and Leasebacks
	 	 	98	 
	7.12 Limitation on Changes in Fiscal Periods
	 	 	98	 
	7.13 Limitation on Negative Pledge Clauses
	 	 	98	 
	7.14 Limitation on Restrictions on Subsidiary Distributions
	 	 	98	 
	7.15 Limitation on Lines of Business
	 	 	99	 
	7.16 Limitation on Hedge Agreements
	 	 	99	 
	7.17 Limitation on Performance Bonds
	 	 	99	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	99	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS; THE ARRANGERS
	 	 	103	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	103	 
	9.2 Delegation of Duties
	 	 	104	 
	9.3 Exculpatory Provisions
	 	 	104	 
	9.4 Reliance by Agents
	 	 	104	 
	9.5 Notice of Default
	 	 	105	 
	9.6 Non-Reliance on the Arrangers, the Agents and Other Lenders
	 	 	105	 
	9.7 Indemnification
	 	 	106	 
	9.8 Arrangers and Agents in their Individual Capacities
	 	 	106	 
	9.9 Successor Agents
	 	 	106	 
	9.10 Authorization to Release Liens and Guarantees
	 	 	107	 
	9.11 The Arrangers; the Syndication Agent; the Co-Documentation Agents
	 	 	107	 
	9.12 Withholding Tax
	 	 	107	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 10. MISCELLANEOUS
	 	 	108	 
	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	108	 
	10.2 Notices
	 	 	111	 
	10.3 No Waiver; Cumulative Remedies
	 	 	112	 
	10.4 Survival of Representations and Warranties
	 	 	112	 
	10.5 Payment of Expenses
	 	 	112	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	113	 
	10.7 Adjustments; Set-off
	 	 	117	 
	10.8 Counterparts
	 	 	118	 
	10.9 Severability
	 	 	118	 
	10.10 Integration
	 	 	118	 
	10.11 GOVERNING LAW
	 	 	118	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	118	 
	10.13 Acknowledgments
	 	 	119	 
	10.14 Confidentiality
	 	 	119	 
	10.15 Release of Collateral and Guarantee Obligations
	 	 	120	 
	10.16 Accounting Changes
	 	 	121	 
	10.17 Delivery of Lender Addenda
	 	 	121	 
	10.18 WAIVERS OF JURY TRIAL
	 	 	121	 
	10.19 Subordination of Intercompany Indebtedness
	 	 	121	 
	10.20 Judgment Currency
	 	 	122	 







iv











 








	 	 	 
	ANNEX:
	 	 
	 
	 	 
	A

	 	Pricing Grid
	B

	 	Existing Letters of Credit
	 
	 	 
	SCHEDULES:
	 	 
	 
	 	 
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.6

	 	Material Litigation
	4.10

	 	Taxes
	4.15(a)

	 	Subsidiaries
	4.15(b)

	 	Agreements Related to Capital Stock
	4.17

	 	Environmental Matters
	4.19(a)

	 	Filing Jurisdictions under Personal Property Security Legislation
	4.19(b)

	 	UCC Financing Statements to be Terminated
	4.24

	 	Owned and Leased Property; Mortgaged Properties
	5.1(h)

	 	Environmental Assessments
	6.15

	 	Post Closing Obligations
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens
	7.5(e)

	 	Certain Dispositions
	7.10

	 	Transactions with Affiliates
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	A-1

	 	Guarantee and US Collateral Agreement
	A-2

	 	Canadian Collateral Agreement
	B

	 	Form of Compliance Certificate
	C

	 	Form of Closing Date Certificate
	D-1

	 	Form of US Mortgage
	D-2

	 	Form of Canadian Mortgage
	E

	 	Form of Assignment and Assumption
	F-1

	 	Form of Legal Opinion of Akin Gump Strauss Hauer & Feld LLP
	F-2

	 	Form of Legal Opinion of Blakes, Cassels & Graydon LLP
	F-3

	 	Form of Legal Opinion of Stewart McKelvey
	G-1

	 	Form of Term Note
	G-2

	 	Form of Revolving Credit Note
	G-3

	 	Form of Swing Line Note
	G-4

	 	Form of Discount Note
	H

	 	Form of Exemption Certificate
	I

	 	Form of Lender Addendum
	J

	 	Form of Borrowing Notice
	K

	 	Form of Solvency Certificate






 









 





          CREDIT AGREEMENT, dated as of October 8, 2008, among WASTE SERVICES (CA) INC., an Ontario
corporation (the “Canadian Borrower”), WASTE SERVICES, INC., a Delaware corporation (the
“US Borrower”, and together with the Canadian Borrower, the “Borrowers”), the
several banks and other financial institutions or entities from time to time party to this
Agreement (the “Lenders”), BARCLAYS CAPITAL, the investment banking division of BARCLAYS
BANK PLC, and BANC OF AMERICA SECURITIES LLC, as joint lead arrangers and joint lead bookrunners,
(collectively, in such capacities, the “Arrangers”), BANK OF AMERICA, N.A., as syndication
agent (in such capacity, the “Syndication Agent”), BOSIC INC., SUNTRUST BANK and THE BANK
OF NOVA SCOTIA, as co-documentation agents (collectively, in such capacities, the
“Co-Documentation Agents”), BARCLAYS BANK PLC, as administrative agent (in such capacity,
together with its permitted successors and assigns in such capacity, the “Administrative
Agent”), and THE BANK OF NOVA SCOTIA, as Canadian agent (n such capacity, together with its
permitted successors and assigns in such capacity, the “Canadian Agent”) and Canadian
collateral agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Canadian Collateral Agent”).




W I T N E S S E T H:




          WHEREAS, the Borrowers have requested that the Lenders make credit facilities available to the
Borrowers in order to consummate the Refinancing (as defined below) and for the other purposes set
forth herein;




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




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




SECTION 1. DEFINITIONS




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




          “Acceptance Fee”: a fee payable by the Canadian Borrower with respect to the
acceptance of a Bankers’ Acceptance by a Lender under this Agreement, as set forth in
Section 2.16(d).




          “Acquisition Agreements”: any and all asset purchase or stock purchase agreements
entered into by any Group Member in connection with any Permitted Acquisition, as the same may be
amended, supplemented, replaced or otherwise modified from time to time in accordance with this
Agreement.




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




 









 








          “Additional Lender”: as defined in Section 2.26(b).




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




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




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




          “Agents”: the collective reference to the Syndication Agent, the Co-Documentation
Agents, the Canadian Agent, the Canadian Collateral Agent and the Administrative Agent.




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




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




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




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




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Canadian Prime	 	Base Rate	 	Acceptance	 	Eurodollar
	 	 	Rate Loans	 	Loans	 	Fee	 	Loans
	Revolving
Credit Facilities (including
Swing Line Loans) 
	 	 	2.50	%	 	 	2.50	%	 	 	3.50	%	 	 	3.50	%
	US Term Loan Facility
	 	 	N.A.	 	 	 	2.50	%	 	 	N.A.	 	 	 	3.50	%
	Canadian Term Loan Facility
	 	 	2.50	%	 	 	N.A.	 	 	 	3.50	%	 	 	N.A.	 





provided, that on and after the first Adjustment Date occurring after the completion of two
full fiscal quarters of the US Borrower after the Closing Date, the Applicable Margin with respect
to Revolving Credit Loans, Swing Line Loans and Term Loans will be determined pursuant to the
Pricing Grid.




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




2









 








          “Arrangers”: as defined in the preamble hereto.




          “Asset Sale”: any Disposition of Property or series of related Dispositions of
Property (excluding any such Disposition permitted by clause (a), (b), (c) or (f) of Section 7.5)
which yields gross proceeds to any Group Member (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and valued at fair
market value in the case of other non-cash proceeds) in excess of $1,000,000.




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




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




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




          “Auto-Reinstatement Letter of Credit”: as defined in Section 3.1(b).




          “Available Revolving Credit Commitment”: with respect to any Revolving Credit Lender
at any time, an amount in Dollars equal to the excess, if any, of (a) such Lender’s Revolving
Credit Commitments then in effect over (b) the Dollar Equivalent of such Lender’s Revolving
Extensions of Credit then outstanding; provided, that in calculating any Lender’s Revolving
Extensions of Credit for the purpose of determining such Lender’s (other than the Swing Line
Lender’s) Available Revolving Credit Commitment for purposes of Section 2.10(a), the aggregate
principal amount of Swing Line Loans then outstanding shall be deemed to be zero. The Available
Revolving Credit Commitment with respect to the US Borrower shall be calculated by using only the
Revolving Credit US/CA Commitments then in effect and the Revolving US/CA Extensions of Credit.




          “BA Equivalent Loan”: a Canadian Term Loan or a Revolving Credit Loan denominated in
Canadian Dollars made by a Non BA Lender evidenced by a Discount Note.




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




          “Base Rate”: for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “Prime
Rate” shall mean the prime lending rate as set forth on the British Banking Association
Telerate Page 5 (or such other comparable page as may, in the opinion of the Administrative Agent,
replace such page for the purpose of displaying such rate), as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually
available. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective day of such change
in the Prime Rate, or the Federal Funds Effective Rate, respectively.




          “Base Rate Loans”: Loans for which the applicable rate of interest is based upon the
Base Rate or, with respect to Canadian Loans denominated in Dollars, the US Base Rate in Canada.




3









 








          “Benefited Lender”: as defined in Section 10.7.




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




          “Borrowers”: as defined in the preamble hereto.




          “Borrowing Date”: any Business Day specified by the applicable Borrower, as a date on
which such Borrower requests the relevant Lenders to make Loans hereunder.




          “Borrowing Notice”: with respect to any request for borrowing of Loans hereunder, a
notice from the applicable Borrower substantially in the form of, and containing the information
prescribed by, Exhibit J, delivered to the Administrative Agent or the Canadian Agent, as
applicable.




          “Business Day”: (a) for all purposes other than as covered by clause (b) below, a day
other than a Saturday, Sunday or other day on which commercial banks in New York City or (solely
with respect to all notices and determinations in connection with, and payments of principal and
interest on, Canadian Loans) Toronto, Ontario, are authorized or required by law to close and
(b) with respect to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day which is a Business Day described in clause (a) and
which is also a day for trading by and between banks in Dollar deposits in the interbank Eurodollar
market.




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




          “Canadian Benefit Plans”: all material employee benefit plans maintained or
contributed to by any Group Member that are not Canadian Pension Plans including, without
limitation, all profit sharing, savings, supplemental retirement, retiring allowance, severance,
pension, deferred compensation, welfare, bonus, incentive compensation, phantom stock,
supplementary unemployment benefit plans or arrangements and all material life, health, dental and
disability plans and arrangements in which the employees or former employees of any Group Member
employed in Canada participate or are eligible to participate, but excluding all stock option or
stock purchase plans.




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




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




          “Canadian Collateral Agreement”: the Canadian Collateral Agreement to be executed and
delivered by the Canadian Borrower and each Canadian Subsidiary Guarantor, substantially in the
form of Exhibit A-2, as the same may be amended, restated, supplemented, replaced or otherwise
modified from time to time.




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




4









 








          “Canadian Funding Office”: the office specified from time to time by the Canadian
Agent as its funding office by notice to the Canadian Borrower, the Administrative Agent and the
applicable Lenders.




          “Canadian Loans”: (a) the Canadian Term Loans and (b) any Revolving Credit Loans made
to the Canadian Borrower.




          “Canadian Payment Office”: the office specified from time to time by the Canadian
Agent as its payment office by notice to the Canadian Borrower.




          “Canadian Pension Plans”: any plan which is considered to be a pension plan for the
purposes of any applicable pension benefits standards statute and/or regulation in Canada
established, maintained or contributed to by any Group Member, their respective employees or former
employees.




          “Canadian Prime Rate”: on any day, the greater of: (a) the annual rate of interest
announced from time to time by the Canadian Agent as being its reference rate then in effect for
determining interest rates on Canadian Dollar denominated commercial loans made by it in Canada,
and (b) the CDOR Rate in effect from time to time plus 75 basis points per annum. Any change in
the Canadian Prime Rate shall be effective as of the opening of business on the date the change
becomes effective generally.




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




          “Canadian Subsidiaries”: Ram-Pak Compaction Systems Ltd, a corporation organized
under the laws of Canada, and each other Subsidiary of the US Borrower, to the extent such
Subsidiary is organized under the laws of Canada or any province thereof.




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




          “Canadian Term Loan Commitment”: as to any Lender, the obligation of such Lender, if
any, to make a Canadian Term Loan to the Canadian Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading “Canadian Term Loan Commitment” opposite such
Lender’s name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the
case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The original aggregate
amount of the Canadian Term Loan Commitments is Cdn. $132,192,200.




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




          “Canadian Term Loan Lenders”: each Lender that has a Canadian Term Loan Commitment or
is the holder of a Canadian Term Loan.




          “Canadian Term Loan Percentages”: as to any Canadian Term Loan Lender at any time,
the percentage which such Lender’s Canadian Term Loan Commitment then constitutes of the aggregate
Canadian Term Loan Commitments (or, at any time after the funding



5









 




of the Canadian Term Loans, the percentage which the aggregate principal amount of such
Lender’s Canadian Term Loans then outstanding constitutes of the aggregate principal amount of the
Canadian Term Loans then outstanding).




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




          “Capital Holdings Company”: Capital Environmental Holdings Company, a Nova Scotia
unlimited liability company.




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




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




          “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States of America or Canada or issued by any agency thereof and backed by
the full faith and credit of the United States of America or Canada or any agency, state, province
or territory thereof, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof or is a bank listed
in Schedule I of the Bank Act (Canada) and having combined capital and surplus of not less than
$500,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s or R-1
by Dominion Bond Rating Service Limited (“DBRS”) or carrying an equivalent rating by a
nationally recognized rating agency, if all of the three named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30 days with respect
to securities issued or fully guaranteed or insured by the United States of America or the
Government of Canada; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, province, commonwealth or territory of the
United States of America or Canada, by any political subdivision or taxing authority of any such
state, province, commonwealth or territory or by any foreign government, the securities of which
state, province, commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P, A by Moody’s, or A by DBRS;
(f) securities with maturities of six months or less from the




6









 




date of acquisition backed by standby letters of credit issued by any Lender or any commercial
bank satisfying the requirements of clause (b) of this definition; and (g) shares of money market
mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.




          “CDOR Rate”: on any day, the annual rate of interest which is the arithmetic average
of the “BA 1 month” rates applicable to Canadian Dollar Bankers’ Acceptances issued by Schedule I
Lenders identified as such on the Reuters Screen CDOR Page at approximately 10:00 A.M. (Toronto
time) on such day (as adjusted by the Canadian Agent after 10:00 A.M. to reflect any error in any
posted rate or in the posted average annual rate). If the rate does not appear on the Reuters
Screen CDOR Page as contemplated above, then the CDOR Rate on any day shall be calculated as the
arithmetic average of the discount rates applicable to one month Canadian Dollar Bankers’
Acceptances of, and as quoted by, any two of the Schedule I Lenders, chosen by the Canadian Agent
in its discretion, as of 10:00 A.M. on the day, or if the day is not a Business Day, then on the
immediately preceding Business Day. If less than two Lenders quote the aforementioned rate, the
CDOR Rate shall be the rate quoted by the Canadian Agent.




          “Change of Control”: the occurrence of any of the following events: (a) any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)), excluding the Existing Investors, shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than
30% of the outstanding common stock of the US Borrower; (b) during any period of 12 consecutive
months the board of directors of the US Borrower shall cease to consist of a majority of Continuing
Directors; (c) the US Borrower shall cease to beneficially own and control 100% on a fully diluted
basis of the economic and voting interest in the common stock of the Canadian Borrower; or (d) any
Specified Change of Control.




          “Closing Date”: the date on which the conditions precedent set forth in Section 5.1
have been satisfied or waived, which date shall be deemed to be October 8, 2008.




          “Co-Documentation Agents”: as defined in the preamble hereto.




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




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




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




          “Commitment Fee Rate”: 1/2 of 1% per annum.




          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the US Borrower within the meaning of Section 4001(b)(1) of ERISA or is part of
a group that includes the US Borrower and that is treated as a single employer under
Section 414(b) or 414(c) of the Code or, solely for purposes of Section 412 of the Code to the
extent required by such section, Section 414(m) or 414(o) of the Code.





7











 





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




          “Confidential Information Memorandum”: the Confidential Information Memorandum dated
July 2008 and furnished to the initial Lenders in connection with the syndication of the
Facilities.




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




          “Consolidated Current Liabilities”: of any Person at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or
any like caption) on a consolidated balance sheet of such Person and its Subsidiaries at such date,
but excluding, with respect to the US Borrower, (a) the current portion of any Funded Debt of the
Group Members and (b), without duplication, all Indebtedness consisting of Revolving Credit Loans,
Letters of Credit or Swing Line Loans, to the extent otherwise included therein.




          “Consolidated EBITDA”: of any Person for any period, Consolidated Net Income of such
Person and its Subsidiaries for such period plus, without duplication and to the extent reflected
as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) total cash interest expense of such Person and its Subsidiaries, amortization or
write-off of debt discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness, (c) depreciation and amortization expense, (d) amortization
of intangibles (including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income for such period,
losses on sales of assets outside of the ordinary course of business), (f) any other non-cash
charges and expenses (including any losses attributable to fluctuations in foreign currency
exchange rates), (g) one-time severance charges and restructuring charges not to exceed $5,000,000
over the term of this Agreement, (h) costs incurred in connection with Permitted Acquisitions and
other acquisitions permitted hereunder, whether or not consummated, in each case to the extent
expensed and not capitalized and (i) to the extent not constituting cash interest expense, all
expenses attributable to dividends and accruals in respect of preferred stock, and minus, to the
extent included in the statement of such Consolidated Net Income for such period, the sum of
(a) interest income (except to the extent deducted in determining total cash interest expense),
(b) any extraordinary, unusual or non-recurring income or gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business) and (c) any other
non-cash income (including any gains attributable to fluctuations in foreign currency exchange
rates), all as determined on a consolidated basis; provided that, for purposes of
calculating Consolidated EBITDA of the Group Members for any period for any reason other than the
calculation of the Consolidated Interest Coverage Ratio, (i) the Consolidated EBITDA of any
business unit acquired by the Group Members during such period shall be included on a pro forma
basis (but without giving effect to any projected synergies or cost savings resulting from such
acquisition except those adjustments in accordance with Regulation S-X of the



8









 






Securities Act of 1933 or otherwise agreed to by the Administrative Agent) for such period
(assuming for purposes of the calculation of Consolidated EBITDA the consummation of such
acquisition occurred on the first day of such period but without duplication of the Consolidated
EBITDA of such business unit after the date of acquisition thereof) if the consolidated balance
sheet of such acquired business unit as at the end of the period preceding the acquisition of such
business unit and the related consolidated statements of income and stockholders’ equity and of
cash flows (or, if no such balance sheet or statements of income and stockholder’s equity and of
cash flows is available, such other financial information reasonably satisfactory to the
Administrative Agent) for the period in respect of which Consolidated EBITDA is to be calculated
(x) have been previously provided to the Administrative Agent and (y) either (1) have been reported
on without a qualification arising out of the scope of the audit by independent certified public
accountants of nationally recognized standing or (2) have been found acceptable by the
Administrative Agent and (ii) the Consolidated EBITDA of any business unit Disposed of by the Group
Members during such period shall be excluded for such period (assuming for purposes of the
calculation of Consolidated EBITDA the consummation of such Disposition occurred on the first day
of such period).




          “Consolidated Interest Coverage Ratio”: for any period, the ratio of (a) Consolidated
EBITDA of the Group Members for such period to (b) Consolidated Interest Expense of the Group
Members for such period.




          “Consolidated Interest Expense”: of any Person for any period, total cash interest
expense (including that attributable to Capital Lease Obligations) of such Person and its
Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its
Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges
owed by such Person with respect to letters of credit and bankers’ acceptance financing and net
cash costs of such Person under Hedge Agreements in respect of interest rates to the extent such
net cash costs are allocable to such period in accordance with GAAP).




          “Consolidated Leverage Ratio”: as at the last day of any period of the US Borrower,
the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA of the Group
Members for such period.




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




9









 








          “Consolidated Senior Debt”: all Consolidated Total Debt other than Subordinated Debt.




          “Consolidated Senior Secured Debt”: at any date, without duplication, the sum of
(i) the aggregate principal amount of all Term Loans then outstanding, (ii) the aggregate principal
amount of Revolving Credit Loans then outstanding, (iii) the aggregate principal amount of Swing
Line Loans then outstanding and (iv) the aggregate principal amount of any other secured
Consolidated Senior Debt then outstanding.




          “Consolidated Senior Secured Leverage Ratio”: as of the last day of any period of the
US Borrower, the ratio of (a) Consolidated Senior Secured Debt on such day to (b) Consolidated
EBITDA of the Group Members for such period.




          “Consolidated Total Debt”: at any date, without duplication, the aggregate principal
amount of all Indebtedness of the Group Members at such date that would be classified as a
liability on the consolidated balance sheet of the Group Members, determined on a consolidated
basis in accordance with GAAP; provided that earnouts and other similar contingent purchase
price obligations incurred in connection with any Permitted Acquisition shall be excluded from the
determination of Consolidated Total Debt.




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




          “Continuing Directors”: the directors of the US Borrower on the Closing Date and each
other director of the US Borrower, if, in each case, such other director’s nomination for election
to the board of directors of the US Borrower is recommended by at least a majority of the then
Continuing Directors, or such other director receives the vote of the Existing Investors in his or
her election by the shareholders of the US Borrower.




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




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




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




          “Derivatives Counterparty”: as defined in Section 7.6.




10









 








          “Discount Note”: a non-interest bearing promissory note denominated in Canadian
Dollars, substantially in the form of Exhibit G-4, issued to a Non BA Lender to evidence a BA
Equivalent Loan.




          “Discount Proceeds”: for any Bankers’ Acceptance issued hereunder, an amount
calculated on the applicable Borrowing Date by multiplying (a) the face amount of the Bankers’
Acceptance by (b) the quotient obtained by dividing (i) one by (ii) the sum of one plus the product
of (A) the Discount Rate applicable to the Bankers’ Acceptance and (B) a fraction, the numerator of
which is the applicable Interest Period and the denominator of which is 365




with the quotient being rounded up or down to the fifth decimal place and 0.00005 being rounded up.




          “Discount Rate”: (a) in respect of any Bankers’ Acceptance accepted by a Lender that
is a Schedule I Lender, the CDOR Rate for the applicable period; and (b) in respect of any Bankers’
Acceptance accepted by a Lender that is a Schedule II Lender, the CDOR Rate for the applicable
period plus 0.10%.




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




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




          “Dollar Equivalent”: (i) as to any amount denominated in Canadian Dollars at any
time, the equivalent amount in Dollars as determined on the basis of the Exchange Rate for the
purchase of Dollars with Canadian Dollars as of the date of the calculation and (ii) as to any
amount denominated in Dollars at any time, such amount.




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




          “Environmental Laws”: any and all laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, or other legally enforceable requirements (including, without
limitation, common law) of any international authority, foreign government, the United States of
America, Canada or any state, provincial, territorial, local, municipal or other Governmental
Authority, regulating, relating to or imposing liability or standards of conduct concerning
pollution, the protection of the environment or of human health, or employee health and safety, or
the use, manufacture, generation, storage, treatment, disposal, handling or transportation of, or
exposure to, hazardous substances and wastes, as has been, is now, or hereafter becomes, in effect.




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




11









 








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




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




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




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




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




Eurodollar Base Rate




1.00 – Eurocurrency Reserve Requirements





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




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




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




12









 







(ii) the aggregate amount actually paid by the Group Members in cash during such fiscal year
on account of Capital Expenditures (excluding (x) the amount of any Capital Expenditure to the
extent financed by Funded Debt (other than Indebtedness under revolving credit arrangements)
incurred and used to finance such expenditures and (y) the amount of any such Capital Expenditures
financed with the proceeds of any Reinvestment Deferred Amount in such fiscal year), (iii) to the
extent added in calculating Consolidated Net Income the aggregate amount of Reinvestment Deferred
Amounts on the last day of such fiscal year, (iv) the aggregate amount of all optional prepayments
of Revolving Credit Loans and Swing Line Loans during such fiscal year to the extent accompanying
permanent optional reductions of the Revolving Credit Commitments and all optional prepayments of
the Term Loans during such fiscal year, (v) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including, without limitation, the Term Loans) of the Group
Members made during such fiscal year (other than in respect of any revolving credit facility to the
extent there is not an equivalent permanent reduction in commitments thereunder), (vi) the amount
of the increase, if any, in Consolidated Working Capital for such fiscal year, (vii) the aggregate
net amount of non cash gain on the Disposition of Property by the Group Members during such fiscal
year (other than sales of inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income, (viii) the net decrease during such fiscal year (if any)
in deferred tax accounts of the Group Members, (ix) the amount of any Restricted Payments permitted
under Sections 7.6(b) and (f) made in such fiscal year and (x) the aggregate amount of cash from
operations used to consummate any acquisition permitted under Section 7.8 in such fiscal year.




          “Excess Cash Flow Application Date”: as defined in Section 2.13(c).




          “Exchange Rate”: on any day, (i) with respect to Canadian Dollars, the spot rate at
which Dollars are offered on such day by the Canadian Agent in Toronto, Canada (or such other
location selected by the Canadian Agent) for Canadian Dollars, and (ii) with respect to Dollars,
the spot rate at which Canadian Dollars are offered on such day by the Canadian Agent in Toronto,
Canada (or such other location selected by the Canadian Agent) for Dollars.




          “Exchangeable Shares”: equity securities issued by the Canadian Borrower to certain
of its security holders in connection with the Migration that are exchangeable into common stock of
the US Borrower.




          “Excluded Foreign Subsidiaries”: any Foreign Subsidiary in respect of which either
(a) the pledge of all of the Capital Stock or any of the assets of such Subsidiary as Collateral
for the Obligations or (b) the guaranteeing by such Subsidiary of the Obligations, would, in the
good faith judgment of the US Borrower, result in adverse tax consequences to the US Borrower.




          “Excluded Proceeds”: Net Cash Proceeds received by the US Borrower from the issuance
of its Capital Stock (including preferred stock) to the extent such proceeds are used to make
Investments permitted by Sections 7.8(g) and (i) or Restricted Payments permitted by
Section 7.6(c).




          “Excluded Taxes”: as defined in Section 2.21(a).




13









 








          “Existing Credit Agreement”: the Second Amended and Restated Credit Agreement, dated
as of December 28, 2006 (as amended, restated, supplemented or otherwise modified prior to the
Closing Date), among the Borrowers, the lenders party thereto, Lehman Brothers Inc., as exclusive
advisor, sole lead arranger and sole bookrunner, CIBC World Markets Corp., as syndication agent,
Bank of America, N.A., as documentation agent, Lehman Commercial Paper Inc., as administrative
agent, and Canadian Imperial Bank of Commerce, as Canadian agent.




          “Existing Investors”: the collective reference to Michael DeGroote and each manager,
officer and director of the US Borrower who owned Capital Stock of the US Borrower on the Closing
Date and their Control Investment Affiliates.




          “Existing Issuing Lender”: Bank of America, N.A., as issuer of the Existing Letters
of Credit.




          “Existing Letters of Credit”: the letters of credit described in Annex B.




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




          “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.




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




          “FQ1”, “FQ2 ”, “FQ3”, and “FQ4”: when used with a numerical
year designation, means the first, second, third or fourth fiscal quarters, respectively, of such
fiscal year of the US Borrower (e.g., FQ1 2009 means the first fiscal quarter of the US Borrower’s
2009 fiscal year, which ends March 31, 2009).




          “Funded Debt”: means Indebtedness that matures more than one year from the date of
its creation or matures within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend credit during a period
of more than one year from such date.




          “Funding Office”: the office specified from time to time by the Administrative Agent
as its funding office by notice to the US Borrower and the Lenders.




14









 








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




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




          “Group Member”: the US Borrower and each of its Subsidiaries (including the Canadian
Borrower).




          “Guarantee and US Collateral Agreement”: the Guarantee and US Collateral Agreement to
be executed and delivered by the Borrowers and each Subsidiary Guarantor, substantially in the form
of Exhibit A-1, as the same may be amended, restated, supplemented, replaced or otherwise modified
from time to time.




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




          “Guarantors”: the collective reference to the Subsidiary Guarantors.




          “Hedge Agreements”: all interest rate or currency swaps, caps or collar agreements,
foreign exchange agreements, commodity contracts or similar arrangements entered into by any Group
Member providing for protection against fluctuations in interest rates,



15









 






currency exchange rates, commodity prices or the exchange of nominal interest obligations,
either generally or under specific contingencies.




          “Incremental Amendment”: as defined in Section 2.26(b).




          “Incremental Canadian Term Loans”: as defined in Section 2.26(a).




          “Incremental Canadian Term Loan Facility”: a term loan facility established pursuant
to Section 2.26(a).




          “Incremental Term Loan Facility”: each of the Incremental Canadian Term Loan Facility
and the Incremental US Term Loan Facility.




          “Incremental Term Loans”: as defined in Section 2.26(a).




          “Incremental US Term Loans”: as defined in Section 2.26(a).




          “Incremental US Term Loan Facility”: a term loan facility established pursuant to
Section 2.26(a).




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of Property or services (other than trade payables incurred in the ordinary course of such
Person’s business), (c) all obligations of such Person evidenced by notes, debentures or other
similar instruments, (d) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to Property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such Property), (e) all Capital Lease Obligations or Synthetic Lease
Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under acceptance, letter of credit, surety bonds (except unmatured
reimbursement obligations in respect of surety bonds obtained in the ordinary course of business to
secure the performance of obligations that are not Indebtedness pursuant to another clause of this
definition) or similar facilities, (g) the liquidation value of all redeemable preferred Capital
Stock of such Person, to the extent mandatorily redeemable (upon the occurrence of a contingency or
otherwise) in cash on or prior to the date which is one year after the final maturity date of the
Loans (other than in connection with change of control events and asset sales to the extent that
the terms of such Capital Stock provide that such Person may not repurchase or redeem any such
Capital Stock in connection with such change of control or asset sale unless such repurchase or
redemption complies with the provisions of this Agreement, (h) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital
Stock of such Person in cash on or prior to the date which is one year after the final maturity
date of the Loans (other than in connection with change of control events and asset sales to the
extent that the terms of such Capital Stock provide that such Person may not repurchase or redeem
any such Capital Stock in connection with such change of control or asset sale unless such
repurchase or redemption complies with the provisions of this Agreement), (i) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through
(h) above, (j) all obligations of the kind referred to in clauses (a) through (i) above secured by
(or for which the holder of such obligation



16









 






has an existing right, contingent or otherwise, to be secured by) any Lien on Property
(including, without limitation, accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation and (k) for the
purposes of Section 8(e) only, all obligations of such Person in respect of Hedge Agreements.




          “Indemnified Liabilities”: as defined in Section 10.5.




          “Indemnitee”: as defined in Section 10.5.




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




          “Insolvent”: pertaining to a condition of Insolvency.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States of America,
Canada, state, provincial, territorial, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, service-marks, technology, know-how and processes, recipes, formulas, trade secrets, and
all rights to sue at law or in equity for any infringement or other impairment thereof, including
the right to receive all proceeds and damages therefrom.




          “Interest Payment Date”: (a) as to any Base Rate Loan (other than any Loan bearing
interest at the US Base Rate in Canada) the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any
Canadian Prime Rate Loan and any Loan bearing interest at the US Base Rate in Canada, the first day
of the month following the month in which such interest was accrued, (c) as to any Eurodollar Loan
having an Interest Period of three months or shorter, the last day of such Interest Period, (d) as
to any Eurodollar Loan having an Interest Period longer than three months, each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period and (e) as to any Loan (other than any Revolving Credit Loan that is a Base
Rate Loan or a Canadian Prime Rate Loan and any Swing Line Loan), the date of any repayment or
prepayment made in respect thereof.




          “Interest Period”: as to any Eurodollar Loan or Bankers’ Acceptance, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be, with respect to such
Eurodollar Loan or Bankers’ Acceptance and ending one, two, three or six months thereafter, as
selected by the applicable Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan or Bankers’ Acceptance and
ending one, two, three or six months thereafter, as selected by the applicable Borrower by
irrevocable notice to the Administrative Agent or the Canadian Agent (in respect of a Bankers’
Acceptance) not less than three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:





          (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day



17









 







unless the result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately preceding
Business Day;




          (ii) any Interest Period in respect of any Eurodollar Loan that would otherwise extend
beyond the Revolving Credit Termination Date (in the case of a Eurodollar Loan which is a
Revolving Loan) or beyond the date final payment is due on the Term Loan (in the case of a
Eurodollar Loan which is a Term Loan), shall end on the Revolving Credit Termination Date or
such due date, as applicable;




          (iii) no Interest Period in respect of a Bankers’ Acceptance may extend beyond the
Revolving Credit Termination Date; and




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



          “Investments”: as defined in Section 7.8.




          “IRB Transaction”: means the issuance of industrial revenue bonds by Governmental
Authorities in connection with the purchase, construction, development or improvement of real
property by any Group Member to be used in its business or any buildings and equipment related
thereto which are guaranteed by or backed by the credit of any Group Member.




          “Issuing Lender”: Bank of America, N.A., The Bank of Nova Scotia and any other
Revolving Credit Lender from time to time designated by any Borrower as an Issuing Lender with the
consent of such Revolving Credit Lender and the Administrative Agent or the Canadian Agent, as
applicable.




          “Judgment Currency”: as defined in Section 10.20.




          “L/C Commitment”: $124,833,333.33.




          “L/C Fee Payment Date”: (a) as to any Letters of Credit denominated in Dollars, the
last day of each March, June, September and December and the last day of the Revolving Credit
Commitment Period and (b) as to any Letters of Credit denominated in Canadian Dollars, the first
day of each April, July, October and January and the last day of the Revolving Credit Commitment
Period.




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




          “L/C Participants”: with respect to any Letter of Credit, the collective reference to
the Revolving Credit Lenders other than the Issuing Lender that issued such Letter of Credit.




18









 








          “Lender Addendum”: with respect to any applicable Lender, a Lender Addendum,
substantially in the form of Exhibit I or such other form substantially similar to Exhibit I and
reasonably acceptable to the Borrowers and the Administrative Agent.




          “Lenders”: as defined in the preamble hereto.




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




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




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




          “Loan Documents”: this Agreement (including any amendments, consents or waivers with
respect thereto), the Security Documents, the Applications and the Notes.




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




          “Majority Revolving Credit Facility Lenders”: the holders of more than 50% of the
Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been
terminated, the Revolving Extensions of Credit then outstanding.




          “Material Adverse Effect”: a material adverse effect on (a) the business, assets,
financial condition, or results of operation of the Group Members taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan Documents or the rights or
remedies of the Agents or the Lenders hereunder or thereunder.




          “Material Environmental Amount”: an amount or amounts payable by the Group Members,
in the aggregate in excess of $2,000,000 for: unbudgeted costs to comply with any Environmental
Law; costs of any investigation, and any remediation, of any Material of Environmental Concern; and
compensatory damages (including, without limitation damages to natural resources), punitive
damages, fines, and penalties pursuant to any Environmental Law.




          “Materials of Environmental Concern”: any gasoline, petroleum (including crude oil or
any fraction thereof), petroleum products or by-products, polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos, radioactive substances, and any other substances,
pollutants, contaminants or forces of any kind that are defined, listed, regulated or otherwise
characterized as hazardous, dangerous or toxic (or words of similar intent or meaning) under any
Environmental Law or could give rise to liability under any Environmental Law.




          “Migration”: the reorganization in which the Canadian Borrower and its Canadian
Subsidiaries became indirect Subsidiaries of the US Borrower by way of a plan of arrangement under
the Business Corporations Act (Ontario) approved by the Ontario Superior Court of Justice and
certain security holders of the Canadian Borrower.




19









 








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




          “Mortgaged Properties”: the owned real properties listed on Schedule 4.24, as
to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien
pursuant to the Mortgages.




          “Mortgages”: each of the mortgages and deeds of trust made by any Loan Party in favor
of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of Exhibit D-1 with respect to property in the United States of America,
and Exhibit D-2 with respect to property in Canada (with such changes thereto as shall be advisable
under the law of the jurisdiction in which such mortgage or deed of trust is to be recorded), as
the same may be amended, supplemented, replaced or otherwise modified from time to time.




          “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the US Borrower or a Commonly Controlled Entity is making or
accruing an obligation to make contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.




          “Net Cash Proceeds”: (a)  in connection with any Asset Sale or any Recovery Event,
the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received
by way of deferred payment of principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of reasonable and customary attorneys’ fees, accountants’ fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document), and other reasonable and customary
fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and, solely in connection with any such Asset Sale,
any reserves in accordance with GAAP with respect to any adjustments to the sales prices of such
assets or established with respect to any liabilities (including indemnities) potentially arising
in connection with such sale; provided, that any such reserved amount shall be Net Cash
Proceeds to the extent and at the time not required to be so reserved, (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the incurrence of loans,
the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment
banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees
and expenses actually incurred in connection therewith and (c) in connection with any Purchase
Price Refund, the cash amount thereof, net of any reasonable and customary expenses incurred in the
collection thereof and net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax sharing
arrangement).




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




          “Non-Excluded Taxes”: as defined in Section 2.21(a).




20









 








          “Non-Reinstatement Deadline”: as defined in Section 3.1(b).




          “Non-U.S. Lender”: as defined in Section 2.21(f).




          “Note”: any promissory note evidencing any Loan.




          “Obligation Currency”: as defined in Section 10.20.




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




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




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




          “PATRIOT Act”: as defined in Section 4.25.




          “Payment Office”: the office specified from time to time by the Administrative Agent
as its payment office by notice to the US Borrower.




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




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




          “Permitted Acquisition”: as defined in Section 7.8(g).




21









 








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




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




          “Personal Property Security Legislation”: all applicable personal property security
legislation as all such legislation now exists or may from time to time hereafter be amended,
modified, recodified, supplemented or replaced, together with all rules and regulations thereunder
or related thereto, including without limitation, the UCC and the Personal Property Security Act
(Ontario).




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




          “Pledged Stock”: as defined in the Guarantee and US Collateral Agreement or the
Canadian Collateral Agreement, as applicable.




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




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




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




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




          “Purchase Price Refund”: any amount received by any Group Member as a result of a
purchase price adjustment or similar event in connection with any acquisition of Property by any
Group Member.




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




          “Quebec Subsidiary”: 9180-1720 Quebec Inc., a Quebec corporation




          “Real Estate”: all Real Property held or used by the Group Members, which the
relevant Group Member owns in fee or in which it holds a leasehold interest as a tenant.




22









 








          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member.




          “Refinancing”: the repayment in full in cash of all Indebtedness and other
obligations (other than indemnities and other similar obligations not yet due and payable and
letters of credit which are either assumed hereunder or backed with a Letter of Credit) outstanding
under the Existing Credit Agreement and the other “Loan Documents” as defined in the Existing
Credit Agreement, and the termination of all commitments provided thereunder and the discharge
and/or release of all guarantees and collateral provided in connection therewith.




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




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




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




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




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




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




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Term Loans or reduce the Revolving Credit Commitments pursuant to Section 2.13(b) as a
result of the delivery of a Reinvestment Notice.




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




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




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




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring one year after such Reinvestment Event and (b) the date on which the US
Borrower shall have determined not to, or shall have otherwise ceased to, acquire



23









 






assets useful in the US Borrower’s business with all or any portion of the relevant
Reinvestment Deferred Amount.




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




          “Release”: means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Material into or through the environment.




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




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




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




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




          “Responsible Officer”: as to any Person, the chief executive officer, president or
chief financial officer of such Person, but in any event, with respect to financial matters, the
chief financial officer of such Person, and for purposes of (i) Section 6.7, the chief legal
officer of such Person and (ii) Section 5.1(a), any Vice President or other duly authorized officer
of such Person. Unless otherwise qualified, all references to a “Responsible Officer” shall refer
to a Responsible Officer of the US Borrower.




          “Restricted Debt Repayment”: as defined in Section 7.9(b).




          “Restricted Payments”: as defined in Section 7.6.




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




          “Revolving CA Extensions of Credit”: as to any Revolving Credit CA Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit CA
Loans made by such Lender then outstanding, (b) such Lender’s Revolving Credit CA



24









 






Percentage of the L/C Obligations then outstanding and (c) such Lender’s Revolving Credit CA
Percentage of the aggregate principal amount of Swing Line Loans then outstanding.




          “Revolving Credit CA Commitment”: as to any Lender, the obligation of such Lender, if
any, to make Revolving Credit CA Loans and participate in Swing Line Loans to the Canadian Borrower
and Letters of Credit of the Canadian Borrower , in an aggregate principal and/or face amount not
to exceed the amount set forth under the heading “Revolving Credit CA Commitment” opposite such
Lender’s name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the
case may be, in the Assignment and Assumption pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The original aggregate
amount of the aggregate Revolving Credit CA Commitments is Cdn. $16,333,333.33.




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




          “Revolving Credit CA Facility Percentage”: the percentage which the aggregate amount
of the Commitments with respect to the Revolving Credit CA Facility then constitutes of the
aggregate amount of the Commitments with respect to the Revolving Credit Facilities.




          “Revolving Credit CA Lender”: each Lender that has a Revolving Credit CA Commitment
or that is the holder of Revolving Credit CA Loans.




          “Revolving Credit CA Loans”: as defined in Section 2.4.




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




          “Revolving Credit Commitment”: as to any Lender, its Revolving Credit CA Commitment
and its Revolving Credit US/CA Commitment.




          “Revolving Credit Commitment Period”: the period from and including the Closing Date
to the Revolving Credit Termination Date.




          “Revolving Credit Facilities”: the Revolving Credit CA Facility and the Revolving
Credit US/CA Facility.




          “Revolving Credit Lender”: each Revolving Credit CA Lender and each Revolving Credit
US/CA Lender.




          “Revolving Credit Loans”: as defined in Section 2.4.




          “Revolving Credit Note”: as defined in Section 2.9(e).




25









 








          “Revolving Credit Percentage”: as to any Revolving Credit Lender at any time, with
respect to Loans to the Canadian Borrower, the percentage which such Lender’s Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage which the aggregate
amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the amount
of the aggregate Revolving Extensions of Credit then outstanding) and with respect to Loans to the
US Borrower, such Revolving Credit Lender’s Revolving Credit US/CA Percentage.




          “Revolving Credit Termination Date”: October 8, 2013.




          “Revolving Credit US/CA Commitment”: as to any Lender, the obligation of such Lender,
if any, to make Revolving Credit US/CA Loans and participate in Swing Line Loans and Letters of
Credit, in an aggregate principal and/or face amount not to exceed the amount set forth under the
heading “Revolving Credit US/CA Commitment” opposite such Lender’s name on Schedule 1 to
the Lender Addendum delivered by such Lender, or, as the case may be, in the Assignment and
Assumption pursuant to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of the aggregate
Revolving Credit US/CA Commitments is $124,833,333.33.




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




          “Revolving Credit US/CA Facility Percentage”: the percentage which the aggregate
amount of the Commitments with respect to the Revolving Credit US/CA Facility then constitutes of
the aggregate amount of the Commitments with respect to the Revolving Credit Facilities.




          “Revolving Credit US/CA Lender”: each Lender that has a Revolving Credit US/CA
Commitment or that is the holder of Revolving Credit Loans.




          “Revolving Credit US/CA Loans”: as defined in Section 2.4.




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




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




26









 








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




          “S&P”: Standard & Poor’s Ratings Services.




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




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




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




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




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




          “Senior Subordinated Note Indenture”: the Indenture entered into by the US Borrower
and certain of its Subsidiaries in connection with the issuance of the Senior Subordinated Notes,
together with all instruments and other agreements entered into by the US Borrower or such
Subsidiaries in connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time after the Closing Date in accordance with Section 7.9.




          “Senior Subordinated Notes”: the subordinated notes of the US Borrower issued from
time to time pursuant to the Senior Subordinated Note Indenture and any indenture governing any
refinancing thereof permitted by Section 7.2(h).




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




          “Solvent”: with respect to any Person, as of any date of determination, (a) the
amount of the “present fair saleable value” of the assets of such Person will, as of such date,
exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as
such quoted terms are determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and matured, (c) such Person



27









 






will not have, as of such date, an unreasonably small amount of capital with which to conduct
its business, (d) such Person will be able to pay its debts as they mature and (e) such Person is
not insolvent within the meaning of any applicable Requirements of Law relating to bankruptcy,
insolvency or creditor’s rights. For purposes of this definition, (i) “debt” shall mean liability
on a “claim”, and (ii) “claim” shall mean any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach
of performance if such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.




          “Specified Change of Control”: a “change of control” or similar event (howsoever
defined) as defined in the Senior Subordinated Note Indenture.




          “Specified Hedge Agreement”: any Hedge Agreement entered into by either Borrower or
any Guarantor and any Qualified Counterparty.




          “Subordinated Debt”: the Senior Subordinated Notes and any other Indebtedness of any
Group Member which by its terms is expressly subordinated to the Obligations.




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




          “Subsidiary Guarantor”: each Subsidiary of either Borrower other than (a) any
Excluded Foreign Subsidiary and (b) the Quebec Subsidiary.




          “Swing Line Commitment”: an aggregate principal amount at any one time outstanding
not to exceed $8,000,000.




          “Swing Line Lender”: Barclays Bank PLC and, with respect to Swing Line Loans to the
Canadian Borrower, The Bank of Nova Scotia, and any successor or assignee of any of the foregoing
consented to by the Borrowers and who has agreed to act as Swing Line Lender hereunder.




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




          “Swing Line Note”: as defined in Section 2.9(e).




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




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




28









 








          “Synthetic Lease Obligations”: all monetary obligations of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations which do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment); it being understood that
obligations in respect of operating leases entered into by any Group Member in the ordinary course
of business which would not, upon the insolvency of a Group Member be characterized as indebtedness
of a Group Member, shall not constitute “Synthetic Lease Obligations”.




          “Term Loan Maturity Date”: October 8, 2013.




          “Term Loan Commitment”: as to any Canadian Term Loan Lender, its Canadian Term Loan
Commitment, and as to any US Term Loan Lender, its US Term Loan Commitment.




          “Term Loan Facilities”: collectively, the Canadian Term Loan Facility and the US Term
Loan Facility.




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




          “Term Loans”: collectively, the Canadian Term Loans, the US Term Loans and any
Incremental Term Loans.




          “Term Note”: as defined in Section 2.9(e).




          “Title Insurance Company”: as defined in Section 5.1(m).




          “Total Revolving Credit CA Commitments”: at any time, the aggregate amount of the
Revolving Credit CA Commitments then in effect.




          “Total Revolving Credit Commitments”: at any time, the aggregate amount of the
Revolving Credit Commitments then in effect.




          “Total Revolving Credit US/CA Commitments”: at any time, the aggregate amount of the
Revolving Credit US/CA Commitments then in effect.




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




          “Transferee”: as defined in Section 10.14.




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




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




29









 








          “US Base Rate in Canada”: at any time, the greater of (i) the rate of interest per
annum equal to the rate at which the principal office of the Canadian Agent in Toronto, Ontario,
announces from time to time as the reference rate of interest for loans in Dollars to its Canadian
borrowers, adjusted automatically with each change in such rate without the necessity of any notice
to the Borrowers or any other Person, and (ii) the Federal Funds Effective Rate (converted to a
rate based on based on a 365 or 366 day period, as the case may be), in effect from time to time,
plus .50% per annum. Any change in the US Base Rate in Canada shall be effective as of the opening
of business on the day the change becomes effective generally.




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




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




          “US Term Loan Commitment”: as to any Lender, the obligation of such Lender, if any,
to make a US Term Loan to the US Borrower hereunder in a principal amount not to exceed the amount
set forth under the heading “US Term Loan Commitment” opposite such Lender’s name on Schedule
1 to the Lender Addendum delivered by such Lender, or, as the case may be, in the Assignment
and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of the US Term Loan
Commitments is $39,891,423.74.




          “US Term Loan Facility”: as defined in the definition of Facility in this document.




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




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




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




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




          “Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of either Borrower.





30









 








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




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




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




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




          (e) All calculations of financial ratios set forth in Section 7.1 and the calculation of the
Consolidated Leverage Ratio for purposes of determining the Applicable Margin shall be calculated
to the same number of decimal places as the relevant ratios are expressed in and shall be rounded
upward if the number in the decimal place immediately following the last calculated decimal place
is five or greater. For example, if the relevant ratio is to be calculated to the hundredth
decimal place and the calculation of the ratio is 5.126, the ratio will be rounded up to 5.13.




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




SECTION 2. AMOUNT AND TERMS OF COMMITMENTS




          2.1 Term Loan Commitments. (a) Subject to the terms and conditions hereof, (a) the US
Term Loan Lenders severally agree to make term loans (each, a “US Term Loan”) to the US
Borrower on the Closing Date in an aggregate principal amount for each US Term Loan Lender not to
exceed the amount of the US Term Loan Commitment of such Lender, and (b) the Canadian Term Loan
Lenders severally agree to make term loans (each, a “Canadian Term Loan”) to the Canadian
Borrower on the Closing Date in an aggregate principal amount for each Canadian Term Loan Lender
not to exceed the amount of the Canadian Term Loan Commitment of such Lender.




          (b)  The Term Loans may from time to time be, in the case of US Term Loans, Eurodollar Loans
or Base Rate Loans and, in the case of Canadian Term Loans, Bankers’
Acceptances or Canadian Prime Rate Loans, as determined in accordance with Sections 2.2 or
2.13 hereof.




          2.2 Procedure for Borrowing of Term Loans. (a) The Borrowers shall deliver to the
Administrative Agent or, in the case of Canadian Term Loans, the Canadian Agent, a Borrowing Notice
(which Borrowing Notice must be received by the Administrative Agent or




31









 







the Canadian Agent, as
applicable) prior to 11:00 A.M., New York City time, (a) three Business Days prior to the Closing
Date, in the case of Eurodollar Loans, (b) two Business Days prior to the Closing Date, in the case
of Bankers’ Acceptances, or (c) one Business Day prior to the Closing Date, in the case of Base
Rate Loans and Canadian Prime Rate Loans) requesting that the Term Loan Lenders make the Term Loans
on the Closing Date and specifying the amount to be borrowed. Upon receipt of such Borrowing
Notice, the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each
applicable Term Loan Lender thereof. Not later than 11:00 A.M., New York City time, on the Closing
Date, each Term Loan Lender shall make available to the Administrative Agent or the Canadian Agent,
as applicable, at the Funding Office or the Canadian Funding Office, as applicable, an amount in
immediately available funds equal to the Term Loans to be made by such Lender on the Closing Date.
The Administrative Agent or the Canadian Agent, as applicable, shall make available to the
applicable Borrower the aggregate of the amounts made available to the Administrative Agent or the
Canadian Agent, as applicable, by the applicable Term Loan Lenders, in like funds as received by
the Administrative Agent or the Canadian Agent, as applicable.




          2.3 Repayment of Term Loans. (a) The US Term Loan of each US Term Loan Lender shall
mature in 20 consecutive quarterly installments commencing on December 31, 2008, each of which
shall be in an amount equal to such Lender’s US Term Loan Percentage multiplied by the percentage
of the original principal amount of the US Term Loan outstanding as of the Closing Date, as set
forth below opposite such installment.




	 	 	 	 	 
	 	 	Percentage of
	 	 	Original Principal
	Installment	 	Amount
	December 31, 2008
	 	 	1.25	%
	March 31, 2009
	 	 	1.25	%
	June 30, 2009
	 	 	1.25	%
	September 30, 2009
	 	 	1.25	%
	December 31, 2009
	 	 	2.50	%
	March 31, 2010
	 	 	2.50	%
	June 30, 2010
	 	 	2.50	%
	September 30, 2010
	 	 	2.50	%
	December 31, 2010
	 	 	3.75	%
	March 31, 2011
	 	 	3.75	%
	June 30, 2011
	 	 	3.75	%
	September 30, 2011
	 	 	3.75	%
	December 31, 2011
	 	 	5.00	%
	March 31, 2012
	 	 	5.00	%
	June 30, 2012
	 	 	5.00	%
	September 30, 2012
	 	 	5.00	%
	December 31, 2012
	 	 	12.50	%
	March 31, 2013
	 	 	12.50	%
	June 30, 2013
	 	 	12.50	%
	Term Loan Maturity Date
	 	 	12.50	%







32












 





          (b) The Canadian Term Loan of each Canadian Term Loan Lender shall mature in 20 consecutive
quarterly installments commencing on December 31, 2008, each of which shall be in an amount equal
to such Lender’s Canadian Term Loan Percentage multiplied by the percentage of the original
aggregate amount of the Canadian Term Loan outstanding as of the Closing Date, as set forth below
opposite such installment.




	 	 	 	 	 
	 	 	Percentage of
	 	 	Original Principal
	Installment	 	Amount
	December 31, 2008
	 	 	1.25	%
	March 31, 2009
	 	 	1.25	%
	June 30, 2009
	 	 	1.25	%
	September 30, 2009
	 	 	1.25	%
	December 31, 2009
	 	 	2.50	%
	March 31, 2010
	 	 	2.50	%
	June 30, 2010
	 	 	2.50	%
	September 30, 2010
	 	 	2.50	%
	December 31, 2010
	 	 	3.75	%
	March 31, 2011
	 	 	3.75	%
	June 30, 2011
	 	 	3.75	%
	September 30, 2011
	 	 	3.75	%
	December 31, 2011
	 	 	5.00	%
	March 31, 2012
	 	 	5.00	%
	June 30, 2012
	 	 	5.00	%
	September 30, 2012
	 	 	5.00	%
	December 31, 2012
	 	 	12.50	%
	March 31, 2013
	 	 	12.50	%
	June 30, 2013
	 	 	12.50	%
	Term Loan Maturity Date
	 	 	12.50	%






          2.4 Revolving Credit Commitments. (a) Subject to the terms and conditions
hereof, the Revolving Credit CA Lenders severally agree to make revolving credit loans denominated
in Canadian Dollars or Dollars (“Revolving Credit CA Loans”) to the Canadian Borrower from
time to time during the Revolving Credit Commitment Period in the Dollar Equivalent of an aggregate
principal amount at any one time outstanding for each Revolving Credit CA Lender which, when added
to such Lender’s Revolving Credit CA Percentage of the sum of the Revolving Credit CA Facility
Percentage of (i) the L/C Obligations of the Canadian Borrower then outstanding and (ii) the Dollar
Equivalent of the aggregate principal amount of the Swing Line Loans of the Canadian Borrower then
outstanding, does not exceed the amount of such Lender’s Revolving Credit CA Commitment. Subject
to the terms and conditions hereof, the Revolving Credit US/CA Lenders severally agree to make
revolving credit loans denominated in Dollars or Canadian Dollars (with respect to the Canadian
Borrower) or Dollars (with respect to the US Borrower) (“Revolving Credit US/CA Loans” and
together with Revolving Credit CA Loans, “Revolving Credit Loans”) to the Borrowers from
time to time during the Revolving Credit Commitment Period in the Dollar Equivalent of an aggregate
principal amount at any one time outstanding for each Revolving Credit US/CA Lender which,




33









 







when added to such Lender’s Revolving Credit US/CA Percentage of the sum of (i) the L/C US/CA
Obligations of the US Borrower then outstanding, (ii) the Dollar Equivalent of the aggregate
principal amount of the Swing Line Loans of the US Borrower then outstanding, (iii) the Revolving
Credit US/CA Facility Percentage of the L/C Obligations of the Canadian Borrower and (iv) the
Dollar Equivalent of the Revolving Credit US/CA Facility Percentage of the aggregate principal
amount of the Swing Line Loans of the Canadian Borrower then outstanding, does not exceed the
amount of such Lender’s Revolving Credit US/CA Commitment. During the Revolving Credit Commitment
Period, the Borrowers may use the Revolving Credit Commitments by borrowing, prepaying (in whole or
in part), and reborrowing, the Revolving Credit Loans, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans, Base Rate
Loans, Bankers’ Acceptances or Canadian Prime Rate Loans, as applicable, as determined by the
applicable Borrower and notified to the Administrative Agent or the Canadian Agent, as applicable,
in accordance with Sections 2.5 and 2.14, provided that no Revolving Credit Loan shall be
made as a Eurodollar Loan or a Bankers’ Acceptance after the day that is one month prior to the
Revolving Credit Termination Date.




          (b) The Borrowers shall repay all outstanding Revolving Credit Loans on the Revolving Credit
Termination Date.




          2.5 Procedure for Revolving Credit Borrowing. (a)  The Borrowers may borrow under
the Revolving Credit Commitments on any Business Day during the Revolving Credit Commitment Period,
provided that the applicable Borrower shall deliver to the Administrative Agent and, with
respect to any Canadian Loans, the Canadian Agent, as applicable, a Borrowing Notice (which
Borrowing Notice must be received by the Administrative Agent and, if applicable, the Canadian
Agent, prior to 11:00 A.M., New York City time, (a) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans, (b) two Business Days prior to the Closing Date,
in the case of Bankers’ Acceptances or (c) one Business Day prior to the requested Borrowing Date,
in the case of Base Rate Loans and Canadian Prime Rate Loans). Every borrowing by the Canadian
Borrower must be made pro rata between the Revolving Credit CA Commitments and the Revolving Credit
US/CA Commitments, based upon the Revolving Credit CA Facility Percentage and the Revolving Credit
US/CA Facility Percentage, as applicable. Any borrowing by the Borrowers of Revolving Credit Loans
made on the Closing Date shall initially be Base Rate Loans or Canadian Prime Rate Loans, as
applicable. Each borrowing by the Borrowers of Revolving Credit Loans under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans and Canadian Prime
Rate Loans, $1,000,000 (or Cdn. $1,000,000, as applicable) or a whole multiple thereof (or, if the
then aggregate Available Revolving Credit Commitments are less than $1,000,000 (or Cdn.
$1,000,000), such lesser amount), and (y) in the case of Eurodollar Loans and Bankers’ Acceptances,
$5,000,000 (or Cdn. $5,000,000, as applicable) or a whole multiple of $1,000,000 (or Cdn.
$1,000,000), in excess thereof; provided, that a Swing Line Lender may request, on behalf
of the applicable Borrower, borrowings of Base Rate Loans and Canadian Prime Rate Loans under the
Revolving Credit Commitments in other amounts pursuant to Section 2.7. Upon receipt of any such
Borrowing Notice from the Canadian Borrower, the Canadian Agent shall promptly notify each
Revolving Credit CA Lender thereof. Upon receipt of any such Borrowing Notice from the US
Borrower, the Administrative Agent shall promptly notify each Revolving Credit US/CA Lender
thereof. Each Revolving Credit CA



34









 






Lender will make its Revolving Credit CA Percentage of the amount of each borrowing of
Revolving Credit CA Loans available to the Canadian Agent for the account of the Canadian Borrower
at the Canadian Funding Office prior to 11:00 A.M., New York City time, on the Borrowing Date
requested by the Canadian Borrower in funds immediately available to the Canadian Agent. Each
Revolving Credit US/CA Lender will make its Revolving Credit US/CA Percentage of the amount of each
borrowing of Revolving Credit CA/US Loans available to the Administrative Agent or the Canadian
Agent, as applicable, for the account of the applicable Borrower at the Funding Office or the
Canadian Funding Office, as applicable, prior to 11:00 A.M., New York City time, on the Borrowing
Date requested by such Borrower in funds immediately available to the Administrative Agent or the
Canadian Agent, as applicable. Such borrowings will then be made available to such Borrower by the
Administrative Agent or the Canadian Agent, as applicable, in like funds as received by the
Administrative Agent or the Canadian Agent, as applicable.




          (b) The Canadian Borrower hereby designates the US Borrower as its representative and agent on
its behalf for the purposes of issuing Borrowing Notices and notices of conversion or continuation,
giving instructions with respect to the disbursement of the proceeds of the Loans, selecting
interest rate options, giving and receiving all other notices and consents hereunder or under any
of the other Loan Documents and taking all other actions (including in respect of compliance with
covenants) on behalf of the Canadian Borrower under the Loan Documents. The Administrative Agent,
the Canadian Agent and each Lender may regard any notice or other communication pursuant to any
Loan Document from the US Borrower as a notice or communication from the Canadian Borrower and the
US Borrower. Each warranty, covenant, agreement and undertaking made on its behalf by the US
Borrower shall be deemed for all purposes to have been made by the Canadian Borrower and shall be
binding upon and enforceable against the Canadian Borrower to the same extent as it if the same had
been made directly by the Canadian Borrower.




          (c) It is agreed and understood that each Borrower shall be a Guarantor of the other
Borrower’s Obligations pursuant to the Guarantee and Collateral Agreement, but not co-Borrowers in
respect of any Loans or other obligations under this Agreement.




          2.6 Swing Line Commitments. (a)  Subject to the terms and conditions hereof, each Swing
Line Lender agrees that, during the Revolving Credit Commitment Period, it will make available to
the Borrowers in the form of swing line loans denominated in Dollars or Canadian Dollars (with
respect to the Canadian Borrower) or Dollars (with respect to the US Borrower) (“Swing Line
Loans”) a portion of the credit otherwise available to the Borrowers under the Revolving Credit
Commitments; provided, that (i) the Dollar Equivalent of the aggregate principal amount of
Swing Line Loans outstanding at any time shall not exceed the Swing Line Commitment then in effect
(notwithstanding that the Swing Line Loans outstanding at any time, when aggregated with the Swing
Line Lenders’ other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect or such Swing Line Lender’s Revolving Credit Commitment then in effect)
and (ii) the Borrowers shall not request, and no Swing Line Lender shall make, any Swing Line Loan
if, after giving effect to the making of such Swing Line Loan, the aggregate amount of the
Available Revolving Credit Commitments with respect to the Borrower requesting such Swing Line Loan
would be less than zero. During the Revolving Credit Commitment Period, the Borrowers may use the
Swing Line Commitment



35









 






by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.
Swing Line Loans denominated in Dollars shall be Base Rate Loans only, and Swing Line Loans
denominated in Canadian Dollars shall be Canadian Prime Rate Loans only. Notwithstanding the
foregoing, if a Swing Line Lender has not consented to a Revolving Credit Lender becoming a party
hereto by Lender Addendum on the Closing Date, such Swing Line Lender shall not be required to
make a Swing Line Loan hereunder unless such Swing Line Lender has entered into arrangements
satisfactory to it and the applicable Borrower with respect to such Revolving Credit Lender’s
participation in such Swing Line Loan, including by cash collateralizing an amount equal to such
Revolving Credit Lender’s share of the Swing Line Loans outstanding.




          (b) The Borrowers shall repay all outstanding Swing Line Loans on the Revolving Credit
Termination Date.




          2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.




          (a) The Borrowers may borrow under the Swing Line Commitment on any Business Day during the
Revolving Credit Commitment Period, provided, the applicable Borrower shall give the
relevant Swing Line Lender and the Administrative Agent irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by such Swing Line Lender and the
Administrative Agent not later than 11:00 A.M., New York City time, on the proposed Borrowing
Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date. Each
borrowing under the Swing Line Commitment shall be in an amount equal to (A) in the case of Swing
Line Loans denominated in Dollars, $500,000 or a whole multiple of $100,000 in excess thereof, and
(B) in the case of Swing Line Loans denominated in Canadian Dollars, Cdn. $500,000 or a whole
multiple of Cdn. $100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
Borrowing Date specified in the borrowing notice in respect of any Swing Line Loan, the relevant
Swing Line Lender shall make available to the Administrative Agent or the Canadian Agent, as
applicable, at the Funding Office or the Canadian Funding Office, as applicable, an amount in
immediately available funds equal to the amount of such Swing Line Loan. The Administrative Agent
or the Canadian Agent, as applicable, shall make the proceeds of such Swing Line Loan available to
the applicable Borrower on such Borrowing Date in like funds as received by the Administrative
Agent or the Canadian Agent, as applicable.




          (b) Each Swing Line Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the applicable Borrower (which hereby irrevocably directs such Swing
Line Lender to act on its behalf), on one Business Day’s notice given by such Swing Line Lender to
the Administrative Agent and, if applicable, the Canadian Agent, no later than 11:00 A.M., New York
City time), request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby
agrees to make, a Revolving Credit Loan (which shall initially be a Base Rate Loan or a Canadian
Prime Rate Loan, as applicable), in an amount equal to such Revolving Credit Lender’s Revolving
Credit CA Percentage or Revolving Credit US/CA Percentage, as applicable, of the aggregate amount
of the Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date of such
notice, to repay such Swing Line Lender and any such request with respect to Swing Line Loans owing
by the Canadian Borrower shall be made pro rata between the Revolving Credit CA Commitments and the
Revolving Credit US/CA Commitments based upon the Revolving Credit Facility Percentages and no
Revolving Credit



36









 






CA Lender shall be required to make a Revolving Credit Loan to the US Borrower. Each
Revolving Credit CA Lender shall make the amount of such Revolving Credit CA Loan available to the
Canadian Agent at the Canadian Funding Office, in immediately available funds, not later than
11:00 A.M., New York City time, one Business Day after the date of such notice. Each Revolving
Credit US/CA Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent or the Canadian Agent, as applicable, at the Funding Office or the Canadian
Funding Office, as applicable, in immediately available funds, not later than 11:00 A.M., New York
City time, one Business Day after the date of such notice. The proceeds of such Revolving Credit
Loans shall be made immediately available by the Administrative Agent or the Canadian Agent, as
applicable, to the relevant Swing Line Lender for application by such Swing Line Lender to the
repayment of the Refunded Swing Line Loans. Each Borrower irrevocably authorizes such Swing Line
Lender to charge such Borrower’s accounts with the Administrative Agent or the Canadian Agent, as
applicable, (up to the amount available in each such account) in order to immediately pay the
amount of such Refunded Swing Line Loans to the extent amounts received from the Revolving Credit
Lenders are not sufficient to repay in full such Refunded Swing Line Loans.




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




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




          (e) Each Revolving Credit Lender’s obligation to make the Loans referred to in
Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including, without limitation,




37









 







(i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or any Borrower may have against any Swing Line Lender, the other Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of any Borrower; (iv) any breach of this
Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Revolving
Credit Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.




          2.8 Bankers’ Acceptances.




          (a) Discount Rate. On each Borrowing Date on which Bankers’ Acceptances are to be
accepted, the Administrative Agent or the Canadian Agent, as applicable, shall advise the
applicable Borrower as to the Administrative Agent’s or the Canadian Agent’s, as applicable,
determination of the applicable Discount Rate for the Bankers’ Acceptances which any of the
Canadian Term Loan Lenders or any of the Revolving Credit Lenders making Revolving Credit Loans
denominated in Canadian Dollars have agreed to purchase.




          (b) Purchase. Each Canadian Term Loan Lender and each Revolving Credit Lender making
Loans denominated in Canadian Dollars shall purchase a Bankers’ Acceptance accepted by it, and the
applicable Borrower shall sell such Bankers’ Acceptance at the applicable Discount Rate. Such
Canadian Term Loan Lender or Revolving Credit Lender making Revolving Credit Loans denominated in
Canadian Dollars shall provide to the Administrative Agent or the Canadian Agent, as applicable, on
the Borrowing Date the Discount Proceeds less the Acceptance Fee payable by the applicable Borrower
with respect to the Bankers’ Acceptance.




          (c) Sale. Each Canadian Term Loan Lender and each Revolving Credit Lender making
Revolving Credit Loans denominated in Canadian Dollars may from time to time hold, sell, rediscount
or otherwise dispose of any or all Bankers’ Acceptances accepted and purchased by it.




          (d) Power of Attorney for the Execution of Bankers’ Acceptances. To facilitate the
issuance of Bankers’ Acceptances, the Canadian Borrower hereby appoints each Canadian Term Loan
Lender and each Revolving Credit Lender making Revolving Credit Loans denominated in Canadian
Dollars as its attorney to sign and endorse on its behalf, in handwriting or by facsimile or
mechanical signature as and when deemed necessary by such Canadian Term Loan Lender or Revolving
Credit Lender making Revolving Credit Loans denominated in Canadian Dollars, blank forms of
Bankers’ Acceptances. In this respect, it is the responsibility of each Canadian Term Loan Lender
and each Revolving Credit Lender making Revolving Credit Loans denominated in Canadian Dollars to
maintain an adequate supply of blank forms of Bankers’ Acceptances for acceptance under this
Agreement. The applicable Borrower recognizes and agrees that all Bankers’ Acceptances signed
and/or endorsed on its behalf by a Canadian Term Loan Lender or a Revolving Credit Lender making
Revolving Credit Loans denominated in Canadian Dollars shall bind such Borrower as fully and
effectually as if signed in the handwriting of and duly issued by the proper signing officers of
such Borrower. Each Canadian Term Loan Lender and each Revolving Credit Lender making Revolving
Credit Loans denominated in Canadian Dollars is hereby authorized to issue such Bankers’ Acceptance



38









 






endorsed in blank in such face amounts as may be determined by such Canadian Term Loan Lender
or Revolving Credit Lender making Revolving Credit Loans denominated in Canadian Dollars;
provided that the aggregate amount thereof is equal to the aggregate amount of Bankers’
Acceptances required to be accepted and purchased by such Canadian Term Loan Lender or Revolving
Credit Lender making Revolving Credit Loans denominated in Canadian Dollars. No Canadian Term Loan
Lender and no Revolving Credit Lender making Revolving Credit Loans denominated in Canadian Dollars
shall be liable for any damage, loss or other claim arising by reason of any loss or improper use
of any such instrument except the gross negligence or willful misconduct of such Canadian Term Loan
Lender or such Revolving Credit Lender or its respective officers, employees, agents or
representatives. Each Canadian Term Loan Lender and each Revolving Credit Lender making Revolving
Credit Loans denominated in Canadian Dollars shall maintain a record with respect to Bankers’
Acceptances held by it in blank hereunder, voided by it for any reason, accepted and purchased by
it hereunder, and cancelled at their respective maturities. Each Canadian Term Loan Lender and
each Revolving Credit Lender making Revolving Credit Loans denominated in Canadian Dollars agrees
to provide such records to the applicable Borrower at such Borrower’s expense upon request.




          (e) Execution. Drafts drawn by any Borrower to be accepted as Bankers’ Acceptances
shall be signed by a duly authorized officer or officers of such Borrower or by its attorneys
including attorneys appointed pursuant to this Section 2.8. Notwithstanding that any Person whose
signature appears on any Bankers’ Acceptance may no longer be an authorized signatory for any
Borrower at the time of issuance of a Bankers’ Acceptance, that signature shall nevertheless be
valid and sufficient for all purposes as if the authority had remained in force at the time of
issuance and any Bankers’ Acceptance so signed shall be binding on such Borrower.




          (f) Issuance. The Administrative Agent or the Canadian Agent, as applicable, promptly
following receipt of a Borrowing Notice for Bankers’ Acceptances, shall advise the Canadian Term
Loan Lenders and the Revolving Credit Lenders making Revolving Credit Loans denominated in Canadian
Dollars of the notice and shall advise each such Canadian Term Loan Lender and each such Revolving
Credit Lender of the face amount of Bankers’ Acceptances to be accepted by it and the applicable
Interest Period (which shall be identical for all Canadian Term Loan Lenders and Revolving Credit
Lenders making Revolving Credit Loans denominated in Canadian Dollars). The aggregate face amount
of Bankers’ Acceptances to be accepted by a Canadian Term Loan Lender or a Revolving Credit Lender
making Revolving Credit Loans denominated in Canadian Dollars shall be determined by the Canadian
Agent by reference to such Canadian Term Loan Lender’s Canadian Term Loan Percentage or such
Revolving Credit Lender’s Revolving Credit Percentage of the issue of Bankers’ Acceptances, except
that, if the face amount of a Bankers’ Acceptance which would otherwise be accepted by a Canadian
Term Loan Lender or a Revolving Credit Lender making Revolving Credit Loans denominated in Canadian
Dollars would not be Cdn. $1,000,000 or a whole multiple thereof, the face amount shall be
increased or reduced by the Administrative Agent or the Canadian Agent, as applicable, in its sole
discretion to Cdn. $1,000,000, or the nearest whole multiple of that amount, as appropriate;
provided that after such issuance, no Canadian Term Loan Lender shall have aggregate
outstanding Canadian Term Loans in excess of its Canadian Term Loan Commitment and no Revolving
Credit Lender making Revolving Credit Loans denominated in Canadian Dollars shall have aggregate
outstanding Revolving Credit Loans in excess of its Revolving Credit Commitment.




39









 








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




          (h) BA Equivalent Loans by Non BA Lenders. Whenever either Borrower requests a
Canadian Term Loan or a Revolving Credit Loan denominated in Canadian Dollars under this Agreement
by way of Bankers’ Acceptances, each Non BA Lender shall, in lieu of accepting a Bankers’
Acceptance, make a BA Equivalent Loan in an amount equal to the Non BA Lender’s ratable portion of
the Canadian Term Loan or the Revolving Credit Loan denominated in Canadian Dollars.




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





          (i) the term of a Discount Note shall be the same as the Interest Period for Bankers’
Acceptances accepted and purchased on the same Borrowing Date in respect of the same
Canadian Term Loan or Revolving Credit Loan denominated in Canadian Dollars;




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




          (iii) the Discount Rate applicable to a Discount Note shall be the Discount Rate
applicable to Bankers’ Acceptances accepted by the Canadian Agent (as Lender) on the same
Borrowing Date, as the case may be, in respect of the same Canadian Term Loan or Revolving
Credit Loan denominated in Canadian Dollars; and




          (iv) a Non BA Lender may elect to not have its Discount Notes evidenced by a physical
promissory note, in which case, the Canadian Agent’s loan accounts and Register shall
evidence the issuance thereof.



          (j) Depository Bills and Notes Act. At the option of either Borrower and any Lender,
Bankers’ Acceptances under this Agreement to be accepted by that Lender may be issued in the form
of depository bills for deposit with The Canadian Depository for Securities Limited pursuant to the
Depository Bills and Notes Act (Canada). All depository bills so issued shall be governed by the
provisions of this Section 2.8.




          (k) Prepayments and Mandatory Payments. If at any time any Bankers’ Acceptances are
to be paid prior to their maturity, the Canadian Borrower shall be required to deposit the amount
of such prepayment in a cash collateral account with the Canadian Agent



40









 






until the date of maturity of those Bankers’ Acceptances. The cash collateral account shall
be under the sole control of the Canadian Agent. Except as contemplated by this Section 2.8,
neither any Borrower nor any Person claiming on behalf of such Borrower shall have any right to any
of the cash in the cash collateral account. The Canadian Agent shall apply the cash held in the
cash collateral account to the face amount of those Bankers’ Acceptances at maturity whereupon any
cash remaining in the cash collateral account shall be released by the Canadian Agent to the
applicable Borrower.




          2.9 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay to the Administrative Agent or the Canadian Agent, as applicable,
for the account of the appropriate Revolving Credit Lender, (i) the then unpaid principal amount of
each Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit Termination Date
(or on such earlier date on which the Loans become due and payable pursuant to Section 8) and
(ii) the then unpaid principal amount of each Swing Line Loan of such Swing Line Lender on the
Revolving Credit Termination Date (or on such earlier date on which the Loans become due and
payable pursuant to Section 8). The US Borrower hereby unconditionally promises to pay to the
Administrative Agent, for the account of the appropriate US Term Loan Lender, (i) the principal
amount of each US Term Loan of such US Term Loan Lender in installments according to the
amortization schedule set forth in Section 2.3(a) (or on such earlier date on which the Loans
become due and payable pursuant to Section 8) and (ii) with respect to any Incremental US Term Loan
under an Incremental US Term Loan Facility, the principal amount of each Incremental US Term Loan
of the relevant series of Incremental US Term Loans according to the relevant repayment schedule
agreed to by the Lenders of such Incremental US Term Loan pursuant to Section 2.26 (or such earlier
date on which the Loans become due and payable pursuant to Section 8). The Canadian Borrower
hereby unconditionally promises to pay to the Canadian Agent, for the account of the appropriate
Canadian Term Loan Lender, (i) the principal amount of each Canadian Term Loan of such Canadian
Term Loan Lender in installments according to the amortization schedule set forth in Section 2.3(b)
(or on such earlier date on which the Loans become due and payable pursuant to Section 8) and (ii)
with respect to any Incremental Canadian Term Loan under an Incremental Canadian Term Loan
Facility, the principal amount of each Incremental Canadian Term Loan of the relevant series of
Incremental Canadian Term Loans according to the relevant repayment schedule agreed to by the
Lenders of such Incremental Canadian Term Loan pursuant to Section 2.26 (or such earlier date on
which the Loans become due and payable pursuant to Section 8). Each Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Loans borrowed by such Borrower from time to
time outstanding from the Closing Date until payment in full thereof at the rate per annum and on
the dates, set forth in Section 2.16.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the applicable Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.




          (c) The Administrative Agent, on behalf of the US Borrower, and the Canadian Agent, on behalf
of the Canadian Borrower, shall maintain the Register pursuant to Section 10.6(d), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and
any Note evidencing such Loan, the Type of such



41









 






Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the applicable Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent hereunder from the US
Borrower, or by the Canadian Agent from the Canadian Borrower, and each Lender’s share thereof.




          (d) The entries made in the Register and the accounts of each Lender maintained pursuant to
Section 2.9(b) shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender, the Administrative Agent or the
Canadian Agent to maintain the Register or any such account, or any error therein, shall not in any
manner affect the obligation of either Borrower to repay (with applicable interest) the Loans made
to such Borrower by such Lender in accordance with the terms of this Agreement.




          (e) Each Borrower agrees that, upon the request to the Administrative Agent or the Canadian
Agent by any Lender, such Borrower will promptly execute and deliver to such Lender a promissory
note of the applicable Borrower evidencing any US Term Loans, Canadian Term Loans, Revolving Credit
Loans or Swing Line Loans as the case may be, of such Lender, substantially in the forms of Exhibit
G-1, G-2, G-3, respectively (a “Term Note”, “Revolving Credit Note” or “Swing
Line Note”, respectively), with appropriate insertions as to date and principal amount;
provided, that delivery of Notes shall not be a condition precedent to the occurrence of
the Closing Date or the making of the Loans on the Closing Date, and the obligations of the
Borrowers in respect of each Loan shall be enforceable in accordance with the Loan Documents
whether or not evidenced by any Note.




          2.10 Commitment Fees, etc. (a) Each Borrower, jointly and severally with the
other Borrower, agrees to pay to the Administrative Agent or the Canadian Agent, as applicable, for
the account of each Revolving Credit Lender, a commitment fee for the period from and including the
Closing Date to the last day of the Revolving Credit Commitment Period computed at the Commitment
Fee Rate on the average daily amount of the Available Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Credit Termination Date, commencing on the
first of such dates to occur after the Closing Date.




          (b) The Borrowers, jointly and severally, agree to pay (i) to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by the Borrowers and
the Administrative Agent and (ii) to the Canadian Agent the fees in the amounts and on the dates
from time to time agreed to in writing by the Borrowers and the Canadian Agent.




          2.11 Termination or Reduction of Revolving Credit Commitments. Each Borrower shall
have the right, upon not less than three Business Days notice to the Administrative Agent and, if
applicable, the Canadian Agent, to terminate the Revolving Credit Commitments, or, from time to
time, to reduce the aggregate amount of the Revolving Credit Commitments; provided, that no
such termination or reduction of the Revolving Credit CA Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Credit Loans and Swing Line Loans
made on the effective date thereof, the Dollar



42









 






Equivalent of the aggregate amount of Revolving CA Extensions of Credit would exceed the
aggregate amount of Revolving Credit CA Commitments and no such termination or reduction of the
Revolving Credit US/CA Commitments shall be permitted if, after giving effect thereto and to any
prepayments of Revolving Credit Loans and Swing Line Loans made on the effective date thereof, the
Dollar Equivalent of the aggregate amount of Revolving US/CA Extensions of Credit would exceed the
aggregate amount of the Revolving Credit US/CA Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof, and shall reduce permanently the applicable
Revolving Credit Commitments then in effect.




          2.12 Optional Prepayments. Each Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty (except as otherwise provided
herein), upon irrevocable notice delivered to the Administrative Agent (and, with respect to
Canadian Loans, the Canadian Agent), at least three Business Days prior thereto in the case of
Eurodollar Loans or Bankers’ Acceptances and at least one Business Day prior thereto in the case of
Base Rate Loans or Canadian Prime Rate Loans, which notice shall specify the date and amount of
such prepayment, and whether such prepayment is of US Term Loans, Canadian Term Loans or Revolving
Credit Loans, and whether such prepayment is of Eurodollar Loans, Bankers’ Acceptances, Base Rate
Loans or Canadian Prime Rate Loans; provided, that (i) if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the applicable Borrower
shall also pay any amounts owing pursuant to Section 2.22, (ii) prepayments of Bankers’ Acceptances
shall be made in accordance with Section 2.8(k), and (iii) no prior notice is required for the
prepayment of Swing Line Loans. Upon receipt of any such notice, the Administrative Agent (or the
Canadian Agent, if applicable) shall promptly notify each relevant Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of (1) Revolving Credit Loans that are Base Rate Loans,
(2) Canadian Prime Rate Loans and (3) Swing Line Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of Term Loans and Revolving Credit Loans shall be in an aggregate
principal amount of $1,000,000 or Cdn. $1,000,000, as applicable, or a whole multiple thereof.
Partial prepayments of Swing Line Loans shall be in an aggregate principal amount of $100,000 or
Cdn. $100,000, as applicable, or a whole multiple thereof. Amounts applied in connection with the
prepayments made pursuant to this Section 2.12 shall be applied to the relevant Loans as provided
in Section 2.19.




          2.13 Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock
shall be issued by the US Borrower (other than as set forth below with respect to Excluded
Proceeds) or (ii) if any Indebtedness shall be incurred by any Group Member, excluding any
Indebtedness incurred in accordance with Section 7.2 as in effect on the Closing Date (except
Indebtedness incurred pursuant to Section 7.2(g)(i)(x)), then on the date of such issuance or
incurrence, the Term Loans shall be prepaid, and/or the Revolving Credit Loans shall be repaid, by
an amount equal to, in the case of an issuance of Capital Stock, 50% of the Net Cash Proceeds
thereof, or in the case of Indebtedness, 100% of the Net Cash Proceeds, other than any Excluded
Proceeds, of such issuance or incurrence, as set forth in Section 2.13(d). The provisions of this
Section do not constitute a consent to the issuance of any equity securities by any entity whose
equity securities are pledged pursuant to the Guarantee and US Collateral Agreement or the Canadian
Collateral Agreement, or a consent to the incurrence of any Indebtedness by any Group Member.




43









 








          (b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale,
Purchase Price Refund or Recovery Event then, except as provided in the following sentence, unless
a Reinvestment Notice shall be delivered in respect thereof, on the date of receipt by such Group
Member of such Net Cash Proceeds, the Term Loans shall be prepaid, and/or the Revolving Credit
Loans shall be repaid, by an amount equal to the amount of such Net Cash Proceeds, as set forth in
Section 2.13(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash
Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement
pursuant to one or more Reinvestment Notices and pending reinvestment at any given time shall not
exceed $40,000,000 and (ii) on each Reinvestment Prepayment Date the Term Loans shall be prepaid,
and/or the Revolving Credit Loans shall be repaid, by an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.13(d).
Notwithstanding the foregoing, Net Cash Proceeds received from dispositions permitted by Section
7.5(e) shall be applied on the date of receipt to repay outstanding Revolving Loans. The
provisions of this Section do not constitute a consent to the consummation of any Disposition not
permitted by Section 7.5.




          (c) If for any fiscal year of the US Borrower commencing with the fiscal year ending December
31, 2009 there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date,
the Term Loans shall be prepaid and/or the Revolving Credit Loans shall be repaid, by an amount
equal to 50% of such Excess Cash Flow, as set forth in Section 2.13(d). Each such prepayment shall
be made on a date (an “Excess Cash Flow Application Date”) no later than five days after
the earlier of (i) the date on which the financial statements of the US Borrower referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to
be delivered to the Lenders and (ii) the date such financial statements are actually delivered.




          (d) Except as otherwise provided in clause (b) above with respect to Net Cash Proceeds
received from dispositions permitted by Section 7.5(e), amounts to be applied in connection with
prepayments and Commitment reductions made pursuant to this Section 2.13 shall be applied,
first, to the prepayment of the Term Loans and, second, to the repayment of the
Revolving Credit Loans, as provided in Section 2.19. Any repayment of Revolving Credit Loans
pursuant to this Section 2.13 shall not result in a reduction of the Revolving Credit Commitments.




          (e) If at any time the Dollar Equivalent of the total aggregate amount of the Revolving US/CA
Extensions of Credit exceeds the Total Revolving Credit US/CA Commitments, the Borrowers shall
repay Revolving Credit US/CA Loans and/or Swing Line Loans to such extent; provided that if
the aggregate principal amount of Revolving Credit US/CA Loans and Swing Line Loans is less than
such excess (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the
extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an
amount in a cash collateral account established with the Administrative Agent for the benefit of
the Secured Parties on terms and conditions satisfactory to the Administrative Agent. If at any
time the total aggregate amount of the Revolving CA Extensions of Credit exceeds the Total
Revolving Credit CA Commitments, the Canadian Borrower shall repay Revolving Credit CA Loans and/or
Swing Line Loans to such extent; provided that if the aggregate principal amount of
Revolving Credit CA Loans and Swing Line Loans to the Canadian Borrower is less than such excess
(because L/C Obligations of the



44









 






Canadian Borrower constitute a portion thereof), the Canadian Borrower shall, to the extent of
the balance of such excess, replace its outstanding Letters or Credit and/or deposit an amount in a
cash collateral account established with the Canadian Agent for the benefit of the Secured Parties
on terms and conditions satisfactory to the Canadian Agent.




          (f) If at any time the Dollar Equivalent of the aggregate amount of the Total Extensions of
Credit exceeds the Total Revolving Credit Commitment, the Borrowers shall repay Revolving Credit
Loans and/or Swing Line Loans to such extent; provided that if the aggregate principal
amount of Revolving Credit Loans and Swing Line Loans is less than such excess (because L/C
Obligations constitute a portion thereof), the Borrowers shall to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in a cash collateral account
established with the Administrative Agent for the benefit of the Secured Parties on terms and
conditions satisfactory to the Administrative Agent.




          2.14 Conversion and Continuation Options. (a)  Each Borrower may elect from time
to time to convert Eurodollar Loans to Base Rate Loans, and each Borrower may elect to convert
Bankers’ Acceptances upon their maturity to Canadian Prime Rate Loans by giving the Administrative
Agent (and, with respect to Canadian Loans, the Canadian Agent) at least one Business Day’s prior
irrevocable notice of such election, provided, that, any such conversion of Eurodollar
Loans may be made only on the last day of an Interest Period with respect thereto. Each Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans, and each Borrower may
elect to convert Canadian Prime Rate Loans to Bankers’ Acceptances, by giving the Administrative
Agent (and, with respect to Canadian Loans, the Canadian Agent) at least three Business Days prior
irrevocable notice of such election (which notice shall specify the length of the initial Interest
Period therefor), provided, that no Base Rate Loan under a particular Facility may be
converted into a Eurodollar Loan and no Canadian Prime Rate Loan may be converted to Bankers’
Acceptances (i) when any Event of Default has occurred and is continuing and the Administrative
Agent has (or, with respect to any Canadian Loans, the Canadian Agent has), or the holders of more
than 50% of the Loans in respect of such Facility (or, in the case of the Revolving Credit CA
Facility or the Revolving Credit US/CA Facility, the holders of more than 50% of the applicable
Revolving Credit Commitments, or, if such Revolving Credit Commitments have been terminated, 50% of
the applicable Revolving Extensions of Credit then outstanding) have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is one month prior to
the final scheduled termination or maturity date of the applicable Facility. Upon receipt of any
such notice, the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify
each relevant Lender thereof.




          (b) each Borrower may elect to continue any Eurodollar Loan as such, and each Borrower may
elect to continue Bankers’ Acceptances as such upon the expiration of the then current Interest
Period with respect thereto by giving at least two Business Days’ prior irrevocable notice to the
Administrative Agent (and, with respect to Canadian Loans, the Canadian Agent), in accordance with
the applicable provisions of the term “Interest Period” set forth in Section 1.1 in respect of
Eurodollar Loans, of the length of the next Interest Period to be applicable to such Loans,
provided, that no Eurodollar Loan or Bankers’ Acceptance under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has (or with respect to the Canadian Term Loan Facility, the Canadian Agent
has), or the holders of more than 50% of the Loans in respect of



45









 






such Facility (or, in the case of the Revolving Credit CA Facility or the Revolving Credit
US/CA Facility, the holders of more than 50% of the applicable Revolving Credit Commitments, or, if
such Revolving Credit Commitments have been terminated, 50% of the applicable Revolving Extensions
of Credit then outstanding) have, determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final scheduled termination or
maturity date of such Facility, and provided, further, that if the applicable
Borrower shall fail to give any required notice as described above in this paragraph (i) such
Eurodollar Loans shall be continued for the same Interest Period as the then expiring Interest
Period as of the last day of such then expiring Interest Period, except that if such continuation
is not permitted pursuant to the first proviso in this Section 2.14(b), such Loans shall be repaid
or converted automatically to Base Rate Loans, and (ii) the face amount of such Bankers’ Acceptance
shall be repaid or automatically converted to Canadian Prime Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any such notice, the Administrative Agent or the
Canadian Agent, as applicable, shall promptly notify each relevant Lender thereof.




          2.15 Minimum Amounts and Maximum Number of Eurodollar Tranches; Bankers’ Acceptances.
(a) Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that, (i) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each Eurodollar Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (ii) no more
than 10 Eurodollar Tranches shall be outstanding at any one time.




          (b)  Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Bankers’ Acceptances and all selections of Interest
Periods shall be in such amounts and be made pursuant to such elections so that after giving effect
thereto, the aggregate principal amount of any Bankers’ Acceptances shall be equal to Cdn. $500,000
or a whole multiple of Cdn. $100,000 in excess thereof.




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




          (b) Each Base Rate Loan (other than a Revolving Credit Loan made to the Canadian Borrower
denominated in Dollars) shall bear interest for each day on which it is outstanding at a rate per
annum equal to the Base Rate in effect for such day plus the Applicable Margin in effect for such
day and each Base Rate Loan which is a Revolving Credit Loan made to the Canadian Borrower
denominated in Dollars shall bear interest for each day on which it is outstanding at a rate per
annum equal to the US Base Rate in Canada in effect for such day plus the Applicable Margin in
effect for such day.




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




46









 








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




          (e) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) (to the extent legally
permitted) shall bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section plus 2.00%, and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum equal to the rate then applicable to (x) Base Rate Loans under
the relevant Facility plus 2.00% for interest due in Dollars and (y) the Canadian Prime Rate plus
2.00% for interest due in Canadian Dollars (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate then applicable to (x) Base Rate Loans under the
Revolving Credit Facilities plus 2.00% for amounts due in Dollars and (y) the Canadian Prime Rate
plus 2.00% for amounts due in Canadian Dollars), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in full (after as well as
before judgment).




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




          (g) If any provision of this Agreement or any of the other Loan Documents would obligate the
Canadian Borrower to make any payment of interest with respect to the Obligations or other amount
payable to the Canadian Agent or any Lender in an amount or calculated at a rate which would be
prohibited by law or would result in a receipt by the Canadian Agent or such Lender of interest
with respect to the Obligations at a criminal rate (as such terms are construed under the Criminal
Code (Canada)) then, notwithstanding such provision, such amount or rates shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law or so result in a receipt by the Canadian Agent or such
Lender of interest with respect to the Obligations at a criminal rate, such adjustment to be
effected, to the extent necessary, as follows: (1) first, by reducing the amount or rates of
interest required to be paid to the Canadian Agent or the affected Lender under this
Section 2.16(g); and (2) thereafter, by reducing any fees, commissions, premiums and other amounts
required to be paid to the Canadian Agent or the affected Lender which would constitute interest
with respect to the Obligations for purposes of Section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if
the Canadian Agent or any Lender shall have received an amount in excess of the maximum permitted
by that section of the Criminal Code (Canada), then the Canadian Borrower shall be entitled, by
notice in writing to the Canadian Agent or the affected Lender, to obtain reimbursement from the
Canadian Agent or such Lender in an amount equal to such excess, and pending such reimbursement,
such amount shall be deemed to be an amount



47









 






payable by the Canadian Agent or such Lender to the Canadian Borrower. Any amount or rate of
interest under the Obligations referred to in this Section 2.16(g) shall be determined in
accordance with generally accepted actuarial practices and principles as an effective annual rate
of interest over the term that any Canadian Loans remain outstanding on the assumption that any
charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal
Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of
time and otherwise be pro-rated over the period from the Closing Date to the Revolving Credit
Termination Date or the Term Loan Maturity Date, as applicable, and, in the event of a dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Canadian Agent
shall be conclusive for the purposes of such determination.




          (h) For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of
interest or fees to which the rates of interest or fees provided in this Agreement and the other
Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of a 360
day year or any other period of time less than a calendar year) are equivalent to the rates so
determined multiplied by the actual number of days in the applicable calendar year and divided by
360 or such other period of time, respectively.




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




          (b) Each determination of an interest rate by the Administrative Agent (or, with respect to
Canadian Loans, the Canadian Agent) pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrowers and the Lenders in the absence of manifest error. The Administrative
Agent or the Canadian Agent, as applicable, shall, at the request of any Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent or the Canadian Agent,
as applicable, in determining any interest rate or Acceptance Fee pursuant to Section 2.16.




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




          (a) (i) the Administrative Agent (or, with respect to Canadian Loans, the Canadian Agent)
shall have determined (which determination shall be conclusive and binding upon the



48









 






Borrowers) that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or




          (ii)  the Administrative Agent (and, with respect to Canadian Loans, the Canadian Agent) shall
have received notice from the holders of more than 50% of the Loans in respect of the relevant
Facility (or, in the case of the Revolving Credit CA Facility or the Revolving Credit US/CA
Facility, the holders of more than 50% of the applicable Revolving Credit Commitments, or, if such
Revolving Credit Commitments have been terminated, 50% of the applicable Revolving Extensions of
Credit then outstanding) that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified
by such Lenders) of making or maintaining their affected Loans during such Interest Period,



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




          (b)  any Lender making Loans denominated in Canadian Dollars determines in good faith, which
determination shall be final, conclusive and binding upon the applicable Borrower, and notifies
such Borrower that, by reason of circumstances affecting the money market there is no market for
Bankers’ Acceptances or the demand for Bankers’ Acceptances is insufficient to allow the sale or
trading of the Bankers’ Acceptances created hereunder, then:





          (i)  the right of the applicable Borrower to request a Loan denominated in Canadian
Dollars by means of Bankers’ Acceptances shall be suspended until such Lender determines
that the circumstances causing such suspension no longer exist and such Lender so notifies
the applicable Borrower; and




          (ii) any notice for the issuance of a Bankers’ Acceptance which is outstanding shall be
cancelled and the request for such issuance shall be deemed to be a request for a Canadian
Prime Rate Loan in the face amount of the requested Bankers’ Acceptance;


such Lender shall promptly notify the applicable Borrower of the suspension of such Borrower’s
right to request a Loan denominated in Canadian Dollars by way of a Bankers’ Acceptance and of the
termination of any such suspension.




49









 








          2.19 Pro Rata Treatment and Payments. (a) Each borrowing by any Borrower from
the Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of
Credit fee, and any reduction of the Commitments of the Lenders, shall be made (i) with respect to
obligations of the Canadian Borrower under the Revolving Credit Facilities, allocated among the
Revolving Credit Facilities pro rata based on the Revolving Credit CA Facility Percentage and the
Revolving Credit US/CA Facility Percentage, as applicable, and (ii) otherwise, pro
rata according to the respective US Term Loan Percentages, Canadian Term Loan Percentages
or Revolving Credit US/CA Percentage, as the case may be, of the relevant Lenders. Each payment
(other than prepayments) in respect of principal in respect of the Term Loans or interest in
respect of the Loans and each payment in respect of fees or expenses payable hereunder shall be
applied to the amounts of such obligations owing to the Lenders pro rata according
to the respective amounts then due and owing to the Lenders (and with respect to amounts owed by
the Canadian Borrower under the Revolving Credit Facilities, allocated among the Revolving Credit
Facilities pro rata based on the applicable Revolving Credit Facility Percentage).




          (b) Each optional and mandatory payment (including prepayments) required by Section 2.13 to be
applied to the Term Loans shall be allocated among the Term Loan Facilities pro
rata according to the respective outstanding principal amounts of Term Loans under such
Facilities. Each payment (including each prepayment) of the Term Loans outstanding under any Term
Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans pro
rata based on the principal amount of such Term Loans held by such Term Loan Lenders, and
shall be applied to the remaining installments of such Term Loans ratably in accordance with the
then outstanding amounts thereof. Amounts prepaid on account of the Term Loans may not be
reborrowed.




          (c) Each payment (including each prepayment) of the Revolving Credit Loans of the Canadian
Borrower outstanding under the Revolving Credit Facilities shall be allocated among the Revolving
Credit Facilities, pro rata, based on the Revolving Credit CA Facility Percentage and the Revolving
Credit US/CA Facility Percentage, as applicable, and then to the Revolving Credit Lenders with
respect to such Revolving Credit Facility, pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans of the Canadian Borrower then held by
such Revolving Credit Lenders. Each payment (including each prepayment) of the Revolving Credit
Loans of the US Borrower shall be allocated among the Revolving Credit Lenders holding such
Revolving Credit Loans, pro rata, according to the respective outstanding principal amounts of the
Revolving Credit Loans of the US Borrower then held by such Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the
Issuing Lender that issued such Letters of Credit.




          (d) The application of any payment of Loans under any Facility (including optional and
mandatory prepayments) shall be made, first, to Base Rate Loans (or Canadian Prime Rate
Loans, if applicable), under such Facility and, second, to Eurodollar Loans (or Bankers’
Acceptances, if applicable), under such Facility. Each payment of the Loans (except in the case of
Swing Line Loans and Revolving Credit Loans that are Base Rate Loans or Canadian Prime Rate Loans)
shall be accompanied by accrued interest to the date of such payment on the amount paid.




50









 








          (e) All payments (including prepayments) to be made by any Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim.
All payments (including prepayments) to be made by the US Borrower hereunder, whether on account of
principal, interest, fees or otherwise shall be made prior to 11:00 A.M., New York City time, on
the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the
Payment Office, in Dollars (or Canadian Dollars, as applicable) and in immediately available funds.
Any such payment made by the US Borrower after 11:00 A.M., New York City time, on any Business Day
shall be deemed to have been made on the next following Business Day. The Administrative Agent
shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as
received. All payments (including prepayments) to be made by the Canadian Borrower hereunder,
whether on account of principal, interest, fees or otherwise, shall be made prior to 11:00 A.M.,
Toronto time, on the due date thereof to the Canadian Agent, for the account of the relevant
Lenders, at the Canadian Payment Office, in Canadian Dollars (or Dollars, as applicable) and in
immediately available funds. Any payment made by the Canadian Borrower after 11:00 A.M., Toronto
time, on any Business Day shall be deemed to have been made on the next following Business Day. The
Canadian Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the Eurodollar Loans and
Bankers’ Acceptances) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan or
Bankers’ Acceptance becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.




          (f) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the applicable Agent, such Agent may
assume that such Lender is making such amount available to such Agent, and such Agent may, in
reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent or the Canadian Agent, as applicable,
by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative
Agent or the Canadian Agent, as applicable, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate plus 0.50% for amounts in Dollars and the
interbank offered rate quoted by the Canadian Agent plus 0.50% for amounts in Canadian Dollars for
the period until such Lender makes such amount immediately available to such Agent. A certificate
of the applicable Agent submitted to any Lender with respect to any amounts owing under this
paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such
borrowing is not made available to the applicable Agent by such Lender within three Business Days
after such Borrowing Date, the applicable Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility,
on demand, from the applicable Borrower (and such amounts shall be applied solely to the amounts
owed to the Administrative Agent, notwithstanding the other provisions of this Section 2.19). If
the Administrative Agent shall have been notified in writing by any Lender prior to the Closing
Date



51









 






that such Lender will not make the amount that would constitute its share of the borrowings on
the Closing Date available to the Administrative Agent, the Administrative Agent may, in its sole
discretion, and in reliance upon this Section 2.19(f), make available to the relevant Borrowers a
corresponding amount. If at the request of any Lender, the Administrative Agent so agrees to make
such amount available to the relevant Borrowers, such Lender hereby agrees that such amount shall
be made available to the Administrative Agent no later than the required time on the Second
Business Day after the original Borrowing Date therefor and such Lender shall pay to the
Administrative Agent such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate plus 0.50% for amounts in Dollars and the interbank offered rate quoted by the
Canadian Agent plus 0.50% for amounts in Canadian Dollars for the period until such Lender makes
such amount immediately available to the Administrative Agent. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made
available to the Administrative Agent by such Lender within two Business Days after such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon
at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from
the applicable Borrower (and such amounts shall be applied solely to the amounts owed to the
Administrative Agent, notwithstanding the other provisions of this Section 2.19).




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




          2.20 Requirements of Law. (a)  If the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the Closing Date (other than with respect to taxes, which shall be
governed exclusively by Section 2.21):





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




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



52









 




and the result of any of the foregoing is to increase the cost to such Lender, by an amount which
such Lender deems to be material, of making, converting into, continuing or maintaining Loans or
issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the relevant Borrower shall promptly pay such Lender, upon
its demand, any additional amounts necessary to compensate such Lender for such increased cost or
reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant
to this Section, it shall promptly notify the relevant Borrower (with a copy to the Administrative
Agent and, if applicable, the Canadian Agent) of the event by reason of which it has become so
entitled.




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




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




          2.21 Taxes. (a) All payments made by any Borrower under this Agreement or any
other Loan Documents shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, which for purposes of this Section 2.21 shall include
interest or penalties thereon, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding (i) net income taxes, and gross income taxes, gross receipts
taxes, capital taxes and franchise taxes (in each case, imposed in lieu of net income taxes)
imposed on any Arranger, any Agent or any Lender as a result of a present or former connection
between such Arranger, such Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Arranger’s, such Agent’s or such Lender’s having
executed, delivered or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document in such jurisdiction) and (ii) any branch profit taxes imposed
by the United States of America (or any similar tax imposed by any other jurisdiction described in
clause (i) above) (collectively, “Excluded Taxes”). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or



53









 






withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld
from any amounts payable to any Arranger, any Agent or any Lender hereunder, the amounts so payable
to such Arranger, such Agent or such Lender shall be increased to the extent necessary to yield to
such Arranger, such Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement; provided, however, that no Borrower nor any Guarantor shall be
required to increase any such amounts payable to any Arranger, any Agent or any Lender with respect
to (x) any Excluded Taxes or (y) any Non-Excluded Taxes (i) that are attributable to such
Arranger’s, such Agent’s or such Lender’s failure to comply with the requirements of paragraph
(e) of this Section, or (ii) in the case of any Non-U.S. Lender, that are United States of America
withholding taxes imposed on amounts payable to such Arranger, such Agent or such Lender at the
time such Arranger, such Agent or such Lender becomes a party to this Agreement, except to the
extent that such Arranger’s, such Agent’s or such Lender’s assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from either Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph (a). The applicable Borrower or the applicable
Guarantor shall make any required withholding and pay the full amount withheld to the relevant tax
authority or other Governmental Authority in accordance with applicable Requirements of Law.




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




          (c) The Borrowers shall indemnify each Arranger, Agent and Lender, within ten (10) days after
written demand therefor, for the full amount of any Non-Excluded Taxes and Other Taxes paid or
incurred by such Arranger, such Agent or such Lender relating to, arising out of, or in connection
with this Agreement or any other Loan Documents or any payment or transaction contemplated hereby
or thereby, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority and all reasonable costs and expenses incurred
in enforcing the provisions of this Section 2.21; provided, however, that the Borrowers shall not
be required to indemnify any Arranger, Agent or Lender for (i) any taxes that would be excluded
from a gross-up under Section 2.21(a), (ii) in duplication of taxes paid under Sections 2.21(a) or
(b). In each case such indemnification shall be made on an after-tax basis, such that after all
required deductions and payments of all taxes, the relevant Arranger, Agent or Lender receives and
retains an amount equal to the sum it would have received and retained had it not paid or incurred
or been subject to such taxes or expenses and costs. A certificate from the relevant Arranger,
Agent or Lender setting forth in reasonable detail the basis and calculation of such taxes shall be
conclusive, absent manifest error.




          (d) Whenever any Non-Excluded Taxes or Other Taxes are payable by a Borrower, as promptly as
possible thereafter it shall send to the Administrative Agent or the Canadian Agent, as applicable,
for the account of the relevant Arranger, Agent or Lender, as the case may be, a certified copy of
an original official receipt received by such Borrower showing payment thereof or other written
proof of payment thereof that is reasonably satisfactory to the applicable Agent. If a Borrower
fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or
fails to remit to the applicable Agent the required receipts or other required documentary
evidence, such Borrower shall indemnify the Arrangers, the



54









 






Agents and the Lenders for any incremental taxes, interest or penalties that may become
payable by any Arranger, any Agent or any Lender as a result of any such failure.




          (e) The agreements in this Section 2.21 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.




          (f) Any Lender that is entitled to an exemption from or reduction of withholding tax with
respect to payments under this Agreement shall deliver to the relevant Borrower and the
Administrative Agent or the Canadian Agent, as applicable, at the time or times reasonably
requested in writing by such Borrower such properly completed and executed documentation prescribed
by Requirements of Law or as may be required by the applicable Agent as will permit such payments
to be made without withholding or at a reduced rate.




          In addition, and without limiting the generality of the foregoing, each Lender (or
Transferee), other than a Lender holding solely Canadian Term Loans, that is not a citizen or
resident of the United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America (or any jurisdiction thereof), or
any estate or trust that is subject to federal income taxation regardless of the source of its
income (a “Non-U.S. Lender”) shall deliver to the US Borrower and the Administrative Agent
two copies of any of U.S. Internal Revenue Service Form W-8BEN, Form W-8ECI, Form W-8EXP or Form
W-8IMY (together with any required attachments), or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of “portfolio interest” a statement substantially in the form of Exhibit H to the
effect that such Lender is eligible for a complete exemption from withholding of U.S. taxes under
Section 871(h) or 881(c) of the Code and a Form W-8BEN, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the US
Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement. In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the US
Borrower at any time it determines that it is no longer in a position to provide any previously
delivered certificate to the US Borrower (or any other form of certification adopted by the U.S.
taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a
Non-U.S. Lender shall not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.




          (g) If a Lender receives a refund in respect of any Non-Excluded Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with respect to which a Borrower has paid additional
amounts pursuant to this Section 2.21, it shall within 120 days from the date of such receipt pay
over the amount of such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section 2.21 with respect to the Non-Excluded Taxes or
Other Taxes giving rise to such refund) to such Borrower, net of all reasonable out-of-pocket
expenses of such Lender (including any taxes imposed with respect to such refund) as determined by
such Lender in good faith and in its sole discretion, and without interest (other than interest
paid by the relevant taxation authority with respect to such refund);




55









 







provided, however, that such Borrower upon the request of such Lender, agrees
to repay as soon as reasonably practicable the amount paid over to such Borrower (plus applicable
interest imposed by the relevant Governmental Authority) to such Lender in the event such Lender is
required to repay such refund to such Governmental Authority.




          (h) Each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of
the Code shall deliver to the US Borrower and the Administrative Agent, on or before the date such
Lender becomes a party to this Agreement, two copies of Internal Revenue Service Form W-9 or any
successor or other form prescribed by the Internal Revenue Service. If any such Lender fails to
deliver Internal Revenue Service Form W-9 (or any subsequent versions thereof or successors
thereto) as required herein, then the US Borrower may withhold from any payment to such Lender the
applicable backup withholding tax imposed by the Code and remit such amount to the relevant tax
authority or other Governmental Authority in accordance with the applicable Requirements of Law,
without reduction, and such Lender shall not be entitled to any additional amounts under this
Section 2.21 with respect to Non-Excluded Taxes imposed by the United States by reason of such
failure.




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




          2.23 Illegality. Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert Base Rate Loans (or, with respect to Loans denominated in Canadian Dollars,
Canadian Prime Rate Loans) to Eurodollar Loans shall forthwith be canceled and (b) such Lender’s
Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate
Loans on the respective last days of the then current Interest Periods



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with respect to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the relevant Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to Section 2.22.




          2.24 Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.20 or 2.21 with respect to such Lender, it will, if
requested by the relevant Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section shall affect or postpone any of the obligations of
any Borrower or the rights of any Lender pursuant to Section 2.20 or 2.21.




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




          2.26 Incremental Term Loan Facilities. (a) The US Borrower may at any time or from
time to time after the Closing Date, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more
additional tranches of term loans (the “Incremental US Term Loans”) and (b) the Canadian
Borrower may at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of
the Lenders), request one or more additional tranches of term loans (the “Incremental Canadian
Term Loans”, and, together with the Incremental US Term Loans, the “Incremental 




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Term Loans”); provided that (x) at the time of any such request, upon the
effectiveness of any Incremental Amendment referred to below and pro forma for the incurrence
thereof on the date such Incremental Term Loan is extended, no Default or Event of Default shall
have occurred and be continuing, (y) the US Borrower’s Consolidated Senior Secured Leverage Ratio
shall be less than 2.50 to 1.00 determined on a pro forma basis as of the date such Incremental
Term Loan is extended and as of the last day of the most recent fiscal quarter for which financial
statements are available, as if such Incremental Term Loans had been outstanding on the last day of
such fiscal quarter, and (z) such Incremental Term Loans shall not be used to repay or refinance
the Senior Subordinated Notes or any refinancing thereof pursuant to Section 7.2(h). Each tranche
of Incremental Term Loans shall be in an aggregate principal amount that is not less than
$10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all
remaining availability under the limit set forth in the next sentence. Notwithstanding anything
to the contrary herein, the aggregate amount of the Incremental Term Loans, shall not exceed the
Dollar Equivalent of $50,000,000. Each tranche of Incremental Term Loans (a) shall rank pari passu
in right of payment and of security with any existing Term Loans, (b) shall not mature earlier than
the final maturity date of any existing Term Loans, (c) except as set forth above, shall be treated
substantially the same as the existing Term Loans (in each case, including with respect to
mandatory and voluntary prepayments) and (d) shall have a Weighted Average Life to Maturity of no
less than, with respect to Incremental US Term Loans, the Weighted Average Life to Maturity as then
in effect for the existing US Term Loans, and with respect to the Incremental Canadian Term Loans,
the Weighted Average Life to Maturity of the existing Canadian Term Loans; provided,
further, that (i) except as provided in preceding clauses (a), (b), (c) and (d), the terms
and conditions applicable to Incremental Term Loans may be materially different from those of the
Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and
(ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be
determined by the applicable Borrower and the lenders thereof; provided that,
notwithstanding the foregoing, the yield applicable to the Incremental Canadian Term Loans or the
Incremental US Term Loans (after giving effect to all upfront or similar fees or original issue
discount payable with respect to the Incremental Canadian Term Loans or Incremental US Term Loans,
as applicable) shall not be greater than the interest rate payable with respect to the Canadian
Term Loans or US Term Loans, as applicable, plus 0.25% per annum, unless the interest rate with
respect to the existing Canadian Term Loans or existing US Term Loans, as applicable, is increased
so as to equal the yield applicable to the Incremental Canadian Term Loans or Incremental US Term
Loans (after giving effect to all upfront or similar fees or original issue discount payable with
respect to the Incremental Canadian Term Loans or Incremental US Term Loans, as applicable ).




          (b) Each series of Incremental Term Loans borrowed pursuant to this Section shall be a
separate Incremental Term Loan Facility. Each notice from a Borrower pursuant to this Section
shall set forth the requested amount and the proposed terms of the relevant Incremental Term Loans,
including whether such Incremental Term Loan is a US Term Loan or a Canadian Term Loan.
Incremental Term Loans may be made by any existing Lender or by any other bank or other financial
institution (any such other bank or other financial institution being called an “Additional
Lender”). Incremental Term Loans shall be effected and each Additional Lender shall become a
Lender hereunder pursuant to an amendment or other document, including, without limitation, a
joinder agreement (an “Incremental Amendment”) to this Agreement and, as appropriate, the
other Loan Documents, executed by the relevant Borrower,



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




          (c) This Section 2.26 shall supersede any provisions in Section 10.1 to the contrary.




SECTION 3. LETTERS OF CREDIT




          3.1 L/C Commitment. (a)  Prior to the Closing Date, the Existing Issuing Lender
has issued the Existing Letters of Credit which, from and after the Closing Date, shall constitute
Letter of Credit hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Revolving Credit Lenders set forth in Section 3.4(a),
agrees to issue letters of credit denominated in Dollars or Canadian Dollars (with respect to the
Canadian Borrower) or Dollars (with respect to the US Borrower) (the letters of credit issued on
and after the Closing Date pursuant to this Section 3, together with the Existing Letters of
Credit, collectively, the “Letters of Credit”) for the account of the applicable Borrower
or any other Group Member on any Business Day during the Revolving Credit Commitment Period in such
form as may be approved from time to time by such Issuing Lender; provided, that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of
the Available Revolving Credit Commitments with respect to the applicable Borrower would be less
than zero. Each Letter of Credit shall expire no later than the earlier of (i) the first
anniversary of its date of issuance and (ii) the date which is five Business Days prior to the
Revolving Credit Termination Date; provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (ii) above). In addition, each Issuing Lender agrees to
issue Letters of Credit with an expiration date later than the date specified in the two
immediately preceding sentences (but no later than one year from the date of issuance thereof) in
reliance upon the Borrowers’ agreement to cash collateralize such Letters of Credit by the date
which is 30 days prior to the Revolving Credit Termination Date in the amount that would be
required by such Issuing Lender pursuant to Section 10.15(c) to deem such Letter of Credit not
outstanding, and the Borrowers so agree to cash collateralize such Letters of Credit by such date,
it being understood that until the Loans, the Reimbursement Obligations and the other



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Obligations under the Loan Documents are paid in full, the Commitments have been terminated
and no other Letters of Credit shall be outstanding, such cash collateral shall be subject to the
rights of each other Lender under Section 10.7. Notwithstanding the foregoing, if an Issuing
Lender has not consented to a Revolving Credit Lender becoming a party hereto by Lender Addendum on
the Closing Date, such Issuing Lender shall not be required to issue any Letter of Credit hereunder
unless such Issuing Lender has entered into arrangements satisfactory to it and the applicable
Borrower with respect to such Revolving Credit Lender’s participation in such Letter of Credit,
including by cash collateralizing an amount equal to such Revolving Credit Lender’s share (as an
L/C Participant) of the L/C Obligations outstanding.




          (b) If any Borrower so requests in any Application, the relevant Issuing Lender may, in its
sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic
reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each,
an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the relevant
Issuing Lender, the relevant Borrower shall not be required to make a specific request to the
relevant Issuing Lender to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit
has been issued, except as provided in the following sentence, the Revolving Credit Lenders shall
be deemed to have authorized (but may not require) the relevant Issuing Lender to reinstate all or
a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the relevant
Issuing Lender to decline to reinstate all or any portion of the stated amount thereof after a
drawing thereunder by giving notice of such non-reinstatement within a specified number of days
after such drawing (the “Non-Reinstatement Deadline”), such Issuing Lender shall not permit
such reinstatement if it has received a notice (which may be by telephone or in writing) on or
before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Majority Revolving Credit Facility Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any Lender or any Borrower that one or
more of the applicable conditions specified in Section 5.2 is not then satisfied (treating such
reinstatement as an extension of credit under this Agreement for purposes of this clause) and, in
each case, directing the relevant Issuing Lender not to permit such reinstatement.




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




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



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




          3.3 Fees and Other Charges. (a)  The Borrowers will pay a fee on the aggregate
drawable amount of all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving Credit Facilities shared
ratably among the Revolving Credit Lenders in accordance with their respective applicable Revolving
Credit Percentages and each such fee is payable quarterly in arrears on each L/C Fee Payment Date
after the issuance date of such Letter of Credit. Such fees shall be payable in the same currency
as the Letter of Credit to which such fees relate. In addition, the Borrowers shall pay to the
relevant Issuing Lender for its own account a fronting fee on the aggregate drawable amount of all
outstanding Letters of Credit issued by it of 1/4 of 1% per annum, payable quarterly in arrears on
each L/C Fee Payment Date after the issuance of date of such Letter of Credit.




          (b) In addition to the foregoing fees, the Borrowers shall pay or reimburse each Issuing
Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.




          3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce each Issuing Lender to issue Letters of
Credit hereunder to the Canadian Borrower, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from each Issuing Lender, on the terms and conditions
hereinafter stated, for such L/C Participant’s own account and risk, an undivided interest equal to
(i) with respect to Revolving Credit US/CA Lenders, such L/C Participant’s Revolving Credit US/CA
Percentage of the Revolving Credit US/CA Facility Percentage of each Issuing Lender’s obligations
and rights under each Letter of Credit issued by such Issuing Lender hereunder for the Canadian
Borrower and the amount of each draft paid by such Issuing Lender thereunder and (ii) with respect
to Revolving Credit CA Lenders, such L/C Participant’s Revolving Credit CA Percentage of the
Revolving Credit CA Facility Percentage of each Issuing Lender’s obligations and rights under each
letter of Credit issued by such Issuing Lender hereunder for the Canadian Borrower and the amount
of each draft paid by such Issuing Lender hereunder. Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant that is a Revolving Credit US/CA Lender, and, to
induce each Issuing Lender to issue Letters of Credit to the US Borrower hereunder, each L/C
Participant that is a Revolving Credit US/CA Lender irrevocably agrees to accept and purchase and
hereby accepts and purchases from each Issuing Lender, on the terms and conditions hereinafter
stated, for such L/C Participant’s own account and risk, an undivided interest equal to such L/C
Participant’s Revolving Credit US/CA Percentage of each Issuing Lender’s obligations and rights
under each Letter of Credit issued by such Issuing Lender hereunder for the US Borrower and the
amount of each draft paid by such Issuing Lender thereunder. Each L/C Participant that is a
Revolving Credit US/CA



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Lender unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is
paid under any Letter of Credit issued by such Issuing Lender with respect to the US Borrower and
for which such Issuing Lender is not reimbursed in full by the US Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender, regardless of the
occurrence or continuance of a Default or Event of Default or the failure to satisfy any of the
other conditions specified in Section 5, upon demand at the Administrative Agent’s address for
notices specified herein (and thereafter, the Administrative Agent shall promptly pay to the
Issuing Lender) an amount in Dollars or Canadian Dollars, as applicable, equal to such L/C
Participant’s Revolving Credit US/CA Percentage of the amount of such draft, or any part thereof,
that is not so reimbursed. Each L/C Participant unconditionally and irrevocably agrees with each
Issuing Lender that, if a draft is paid under any Letter of Credit issued by such Issuing Lender
with respect to the Canadian Borrower and for which such Issuing Lender is not reimbursed in full
by the Canadian Borrower in accordance with the terms of this Agreement, such L/C Participant shall
pay to such Issuing Lender, regardless of the occurrence or continuance of a Default or Event of
Default or the failure to satisfy any of the other conditions specified in Section 5, upon demand
at the Canadian Agent’s address for notices specified herein (and thereafter, the Canadian Agent
shall promptly pay to the Issuing Lender) an amount in Dollars or Canadian Dollars, as applicable,
equal to (i) with respect to any such L/C Participant which is a Revolving Credit US/CA Lender,
such L/C Participant’s Revolving Credit US/CA Percentage of the Revolving Credit US/CA Facility
Percentage of the amount of such draft, or any part thereof, that is not so reimbursed and (ii)
with respect to any such L/C Participant which is a Revolving Credit CA Lender, such L/C
Participant’s Revolving Credit CA Percentage of the Revolving Credit CA Facility Percentage of the
amount of such draft, or any part thereof, that is not so reimbursed.




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





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




          3.5 Reimbursement Obligation of the Borrowers. Each Borrower agrees to reimburse
each Issuing Lender, on each date on which such Issuing Lender notifies the applicable Borrower of
the date and amount of a draft presented under any Letter of Credit and paid by such Issuing
Lender, for the amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by such Issuing Lender in connection with such payment (the amounts described in
the foregoing clauses (a) and (b) in respect of any drawing, collectively, the “Payment
Amount”). Each such payment shall be made to such Issuing Lender at its address for notices
specified herein in lawful money of the United States of America or Canada, as applicable, and in
immediately available funds. Interest shall be payable on the Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.16(b) and (ii) thereafter, Section 2.16(e).
Each drawing under any Letter of Credit shall (unless an event of the type described in clause
(i) or (ii) of Section 8(f) shall have occurred and be continuing with respect to any Borrower, in
which case the procedures specified in Section 3.4 for funding by L/C Participants shall apply)
constitute a request by the applicable Borrower to the Administrative Agent or the Canadian Agent,
as applicable, for a borrowing pursuant to Section 2.5(a) of Base Rate Loans or Canadian Prime Rate
Loans, as applicable (or, at the option of the Administrative Agent or the Canadian Agent, as
applicable, and the relevant Swing Line Lender in their sole discretion, a borrowing pursuant to
Section 2.7(a) of Swing Line Loans) in the amount of such drawing. The Borrowing Date with respect
to such borrowing shall be the first date on which a borrowing of Revolving Credit Loans (or, if
applicable, Swing Line Loans) could be made, pursuant to Section 2.5(a) (or, if applicable,
Section 2.7(a)), if the Administrative Agent and, if applicable, the Canadian Agent, had received a
notice of such borrowing at the time the Administrative Agent and, if applicable, the Canadian
Agent, receive notice from the relevant Issuing Lender of such drawing under such Letter of Credit.
All payments due from the Borrowers hereunder in respect of Letters of Credit (and Reimbursement
Obligations in connection therewith) shall be made in Dollars or Canadian Dollars, as applicable.




          3.6 Obligations Absolute. Each Borrower’s obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that such Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. Each Borrower also agrees with
each Issuing Lender that such Issuing Lender shall not be responsible for, and such



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




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




          3.8 Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Arrangers, the Agents and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit and the Borrowers hereby jointly and
severally represent and warrant to each Arranger, each Agent and each Lender that:




          4.1 Financial Condition.




          (a) The unaudited pro forma consolidated balance sheet of the US Borrower and
its consolidated Subsidiaries as at June 30, 2008 (including the notes thereto) (the “Pro Forma
Balance Sheet”), copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on such date) to (i) the making of the Loans
to be made on the Closing Date and the use of proceeds thereof and (ii) the payment of fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has been



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prepared based on the best information available to the US Borrower as of the date of delivery
thereof, and presents fairly on a pro forma basis the estimated financial position
of the US Borrower and its consolidated Subsidiaries as at June 30, 2008, assuming that the events
specified in the preceding sentence had actually occurred at such date.




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




          4.2 No Change. Since December 31, 2007, there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.




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




          4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the
corporate or other power and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrowers, to borrow hereunder. Each Loan
Party has taken all necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in the case of the
Borrowers, to authorize the borrowings on the terms and conditions of this Agreement. No consent
or authorization of, filing with, notice to or other act by or in respect of, any Governmental
Authority or material consent or authorization of, filing with, notice to or other act by or in
respect of any other Person is required in connection with the borrowings hereunder or the
execution, delivery, performance, validity or enforceability of this Agreement



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or any of the other Loan Documents except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and notices have been
obtained or made (in each case, to the extent the related assets have been acquired by a Group
Member) and are in full force and effect and (ii) the filings referred to in Section 4.19. Each
Loan Document has been duly executed and delivered on behalf of each Loan Party that is a party
thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute,
a legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable
against each such Loan Party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).




          4.5 No Legal Bar. (a) The execution, delivery and performance of this Agreement and
the other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of
any Group Member.




          (b)  The execution, delivery and performance of this Agreement, the other Loan Documentation,
the issuance of the Letters of Credit, the borrowings hereunder and the use of proceeds thereof
will not result in, or require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or Contractual Obligation
applicable to any Group Member could reasonably be expected to have a Material Adverse Effect.




          4.6 No Material Litigation. No litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the knowledge of either Borrower,
threatened by or against any Group Member or against any of their properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or
(b) except as set forth on Schedule 4.6, that could reasonably be expected to have a
Material Adverse Effect.




          4.7 No Default. No Group Member is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.




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




          4.9 Intellectual Property. Except as could not reasonably be expected to have a
Material Adverse Effect (a) each Group Member owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted, (b) no claim has been
asserted and is pending by any Person challenging or questioning the use of any Intellectual



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Property or the validity or effectiveness of any Intellectual Property, nor does either
Borrower know of any valid basis for any such claim and (c) the use of Intellectual Property by the
Group Members does not infringe on the rights of any Person in any material respect.




          4.10 Taxes. Except as set forth on Schedule 4.10, each Group Member has filed
or caused to be filed all Federal, material state and provincial and other material tax returns
that are required to be filed and has paid all material taxes or on any material assessments made
against it or any of its Property and all other material taxes, fees or other charges imposed on it
or any of its Property by any Governmental Authority (other than the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of such Group Member) and no tax
Lien has been filed (other than a Permitted Lien), and, to the knowledge of either Borrower, no
material claim is being asserted, with respect to any such tax, fee or other charge.




          4.11 Federal Regulations. No part of the proceeds of any Loans will be used for
“purchasing” or “carrying” any “margin stock” within the respective meanings of each of the quoted
terms under Regulation U as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the relevant Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR
Form U-1 referred to in Regulation U.




          4.12 Labor Matters. There are no strikes, stoppages or slowdowns or other labor
disputes against any Group Member pending or, to the knowledge of either Borrower, threatened that
(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect.
Hours worked by and payment made to employees of any Group Member have not been in violation of the
Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters that
(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect.
All payments due from any Group Member on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect
if not paid have been paid or accrued as a liability on the books of the relevant Group Member.




          4.13
Pensions and Benefit Plans. (a) ERISA. Except as could not
reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor
an “accumulated funding deficiency” (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on which this representation
is made or deemed made with respect to any Single Employer Plan, (ii) each Plan (other than a
Multiemployer Plan) has complied in all material respects with the applicable provisions of ERISA
and the Code, (iii) no termination of a Single Employer Plan has occurred, (iv) no Lien in favor of
a Single Employer Plan or in favor of the PBGC with respect to a Single Employer Plan has arisen
during the five-year period prior to the date on which this representation is made or deemed made,
(v) the present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
plan allocable to such accrued benefits by a material



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amount, (vi) neither the US Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and (vii) no Multiemployer Plan is in
Reorganization or Insolvent.




          (b) Canadian Pension Plans and Canadian Benefit Plans. Each Borrower will cause to
be delivered to the Administrative Agent, promptly upon the Administrative Agent’s request, a copy
of each Canadian Benefit Plan and Canadian Pension Plan (or, where any such Canadian Benefit Plan
or Canadian Pension Plan is not in writing, a complete description of all material terms thereof)
and, if applicable, related trust agreements or other funding instruments and all amendments
thereto, and all written interpretations thereof and written descriptions thereof that have been
distributed to employees or former employees of the Group Members. The Canadian Pension Plans are
duly registered under the Income Tax Act (Canada) and any other Requirement of Law which to the
knowledge of either Borrower require registration and no event has occurred which is reasonably
likely to cause the loss of such registered status. As of the Closing Date, all material, if any,
obligations of each Group Member (including fiduciary, funding, investment and administration
obligations) required to be performed pursuant to a Requirement of Law in connection with the
Canadian Pension Plans and the funding agreements therefor have been performed in a timely fashion.
There have been no improper withdrawals or applications of the assets of the Canadian Pension
Plans or the Canadian Benefit Plans. Except as could not reasonably be expected to result in a
Material Adverse Effect, (i) there are no outstanding disputes concerning the assets held under the
funding agreements for the Canadian Pension Plans or the Canadian Benefit Plans and (ii) each
Canadian Pension Plan is fully funded both on an ongoing basis and on a solvency basis (using
actuarial methods and assumptions which are consistent with the valuations last filed with the
applicable Governmental Authorities and which are consistent with generally accepted actuarial
principles). No promises of benefit improvements under the Canadian Pension Plans or the Canadian
Benefit Plans have been made except where such improvement could not have a Material Adverse
Effect. All contributions or premiums required to be made or paid by each Group Member, if any, to
the Canadian Pension Plans or the Canadian Benefit Plans have been made or paid in a timely fashion
in accordance with the terms of such plans and all Requirements of Law. All employee contributions
to the Canadian Pension Plans or the Canadian Benefit Plans by way of authorized payroll deduction
or otherwise have been properly withheld or collected and fully paid into such plans in a timely
manner. All material reports and disclosures relating to the Canadian Pension Plans required by
such plans and any Requirement of Law to be filed or distributed have been filed or distributed in
a timely manner. Each Group Member has withheld all employee withholdings and has made all employer
contributions to be withheld and made by it pursuant to applicable law on account of Canadian
Pension Plans employment insurance and employee income taxes.




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




          4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule
4.15(a) constitute all the Subsidiaries of the US Borrower as of the Closing Date.
Schedule 4.15(a) sets forth as of the Closing Date the exact legal name as reflected on the
certificate of incorporation (or



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formation) and jurisdiction of incorporation (or formation) of each Subsidiary of the US
Borrower and, as to each such Subsidiary, the percentage and number of each class of Capital Stock
owned by each Group Member.




          (b)  As of the Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to employees or
directors and directors’ qualifying shares) of any nature relating to any Capital Stock of the US
Borrower or any Group Member, except as set forth on Schedule 4.15(b).




          4.16 Use of Proceeds. The proceeds of the Term Loans and the proceeds of the
Revolving Credit Loans funded on the Closing Date shall be used to consummate the Refinancing and
to pay related fees, costs and expenses. The proceeds of the Revolving Credit Loans, Swing Line
Loans and the Letters of Credit shall be used after the Closing Date to finance the working capital
needs and for general corporate purposes of the Borrowers and its Subsidiaries in the ordinary
course of business including Permitted Acquisitions, and to pay related fees, costs and expenses.




          4.17 Environmental Matters. Except as disclosed on Schedule 4.17, and other
than exceptions to any of the following that could not, individually or in the aggregate,
reasonably be expected to result in the Group Members incurring any liability or expense in excess
of a Material Environmental Amount:




          (a) The Group Members: (i) are, and since September 10, 2001, have been, in compliance with
all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full
force and effect) required for any of their operations or for any property owned, leased, or
otherwise operated by any of them; (iii) are, and since September 10, 2001, have been, in
compliance with all of their Environmental Permits; and (iv) have no knowledge that any of their
Environmental Permits will not be timely renewed and complied with; any additional Environmental
Permits that may be required of any of them will not be timely obtained and complied with; and
compliance with any Environmental Law that is applicable to any of them will not be maintained.




          (b) Materials of Environmental Concern (i) have not been Released, and are not otherwise
present, at, on, under, in, or about any real property now owned, leased or operated by any Group
Member in any quantity or manner that requires investigation or remediation under any applicable
Environmental Law, (ii) were, to the best knowledge of any Group Member, not Released at any
property formerly owned, leased or operated by any Group Member during the period of such Group
Member’s ownership, lease or operation thereof, in any quantity or manner that requires
investigation or remediation under any applicable Environmental Law, (iii) to the best knowledge of
any Group Member, have not been sent for re-use or recycling or for treatment, storage, or disposal
at any other location which could reasonably be expected to give rise to liability of any Group
Member under any applicable Environmental Law (iv) are not present at, on, under, in, or about any
real property now owned, leased or operated by any Group Member such that the Group Member is
precluded from the normal conduct of its business at any such property, or (v) are not stored,
handled or otherwise present at, on, under, in or about any real property now owned, leased or
operated by any Group Member except in quantities



69









 






reasonably required for the conduct of the business or operations of the Group Member and in
compliance with Environmental Laws.




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




          (d) No Group Member has received any written request for information, or been notified in
writing that it is a potentially responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any analogous Environmental Law with
respect to any Materials of Environmental Concern that require, or allegedly require, investigation
or remediation under applicable Environmental Law.




          (e) No Group Member has entered into or agreed to any consent decree, order, or settlement or
other agreement, or is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative or arbitral forum for dispute resolution, relating to compliance with or
liability under any Environmental Law.




          (f) No Group Member has received written notice or otherwise has knowledge that it is
responsible for liability arising under any Environmental Law or with respect to any Material of
Environmental Concern that it has assumed under any contract to which it is a party or by operation
of law.




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




          4.19 Security Documents. The Guarantee and US Collateral Agreement is effective
to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a



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legal, valid, binding and enforceable security interest in the Collateral described therein
and proceeds and products thereof to secure the Obligations. The Canadian Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid, binding and enforceable security interest in the Collateral described therein and
proceeds and products thereof to secure the Obligations. In the case of the Pledged Stock
described in the Guarantee and US Collateral Agreement, and the Canadian Collateral Agreement, when
any stock certificates representing such Pledged Stock are delivered to the Administrative Agent,
and in the case of the other Collateral described in the Guarantee and US Collateral Agreement
(except Vehicles and Deposit Accounts, each as defined therein) and other Collateral described in
the Canadian Collateral Agreement (except insurance and patents), when financing statements in
appropriate form are filed in the offices specified on Schedule 4.19 (which financing
statements may be filed by the Administrative Agent) at any time and such other filings as are
specified on Schedule 3 to the Guarantee and US Collateral Agreement and Schedule 3
to the Canadian Collateral Agreement have been completed (all of which filings may be filed by the
Administrative Agent at any time), (x) the Guarantee and US Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Collateral and the proceeds and products thereof, as security for the Obligations
(as defined in the Guarantee and US Collateral Agreement), and (y) the Canadian Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties party thereto in such Collateral and the proceeds and products
thereof, as security for the Secured Obligations (as defined in the Canadian Collateral Agreement)
in each case prior and superior in right to any other Person (except Permitted Liens).
Schedule 7.3(f) lists each financing statement under all applicable Personal Property
Security Legislation that (i) names any Loan Party as debtor and (ii) will remain on file after the
Closing Date. On or prior to the Closing Date, the relevant Borrower will have delivered to the
Administrative Agent, or caused to be filed, duly completed UCC or other applicable termination
statements under Personal Property Security Legislation, signed by the relevant secured party, in
respect of each financing statement filed in respect of Liens other than Permitted Liens or
otherwise made arrangements satisfactory to the Administrative Agent with respect thereto.




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




          4.21 Senior Indebtedness. The Obligations constitute “Senior Indebtedness” of the
Borrowers under and as defined in the Senior Subordinated Note Indenture. The obligations of each
Subsidiary Guarantor under the Guarantee and US Collateral Agreement constitute “Guarantor Senior
Indebtedness” of such Subsidiary Guarantor under and as defined in the Senior Subordinated Note
Indenture.




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




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          4.23 Insurance. Each Group Member is insured, in accordance with Section 5.3 of the
Guarantee and US Collateral Agreement and with respect to each Canadian Subsidiary, Section 5.3 of
the Canadian Collateral Agreement, by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which it is
engaged, and no Group Member (i) has received notice from any insurer or agent of such insurer that
substantial capital improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers at a cost that could not reasonably be expected to have a Material Adverse Effect.




          4.24 Real Estate. As of the Closing Date, Schedule 4.24 sets forth a true,
complete and correct list of all real property owned or leased by any Group Member and indicates
which such properties are Mortgaged Properties.




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




SECTION 5. CONDITIONS PRECEDENT




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




          (a) Loan Documents. The Administrative Agent shall have received (i) this Agreement,
executed and delivered by a duly authorized officer of each Borrower, (ii) the Guarantee and US
Collateral Agreement, executed and delivered by a duly authorized officer of each Borrower and
each Subsidiary Guarantor, (iii) the Canadian Collateral Agreement, executed and delivered by a
duly authorized officer of the Canadian Borrower and each Canadian Subsidiary which is a Guarantor,
(iv) to the extent required by the Administrative Agent, a Mortgage covering each of the Mortgaged
Properties, executed and delivered by a duly authorized officer of each party thereto, except as
set forth in Schedule 6.15, and (v) a Lender Addendum, executed and delivered by each Lender and
accepted by the Borrowers.




          (b) Pro Forma Balance Sheet; Financial Statements. The Lenders shall have received
the Pro Forma Balance Sheet, (ii) audited consolidated financial statements of the US Borrower and
its Subsidiaries for the 2005, 2006 and 2007 fiscal years and (iii) unaudited interim



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consolidated financial statements of the US Borrower and its Subsidiaries for each fiscal
month and quarterly period ended subsequent to the date of the latest applicable financial
statements delivered pursuant to clause (ii) of this paragraph as to which such financial
statements are available; and such financial statements shall not, in the reasonable judgment of
the Lenders, reflect any material adverse change in the consolidated financial condition of the US
Borrower and its Subsidiaries, as reflected in the financial statements or projections contained in
the Confidential Information Memorandum.




          (c) Senior Subordinated Notes. The Administrative Agent shall have received (in a
form reasonably satisfactory to the Administrative Agent), true and correct copies, certified as to
authenticity by the Borrowers, of the consent of the existing holders of the Senior Subordinated
Notes in connection with the transactions contemplated by this Agreement, and such consent shall
have become effective.




          (d) Refinancing. The Administrative Agent shall have received satisfactory evidence
that the Existing Credit Agreement shall be simultaneously terminated, all amounts thereunder shall
be simultaneously paid in full, all Existing Letters of Credit shall be simultaneously replaced as
assumed hereunder or backed with Letters of Credit, and satisfactory arrangements shall have been
made for the termination of Liens and security interests granted in connection therewith.




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




          (f) Projections. The Lenders shall have received satisfactory projections for the US
Borrower and its Subsidiaries for fiscal years 2008 through 2013.




          (g) Lien Searches. The Administrative Agent shall have received the results of a
recent lien, tax lien, bankruptcy, judgment and (other than in Canada) litigation search in each of
the jurisdictions (including the United States of America and Canada) or offices (including,
without limitation, in the United States Patent and Trademark Office, the United States Copyright
Office and the Canadian Intellectual Property Office) in which financing statements under the UCC
or other Personal Property Security Legislation or other filings or recordations should be made to
evidence or perfect (with the priority required under the Loan Documents) security interests in all
assets of the Loan Parties (or would have been made at any time during the five years immediately
preceding the Closing Date to perfect Liens on any assets of the Borrowers or their Subsidiaries),
and such search shall reveal no Liens on any of the assets of the Loan Parties, except for
Permitted Liens or Liens which will be terminated on or prior to the Closing Date or subject to
other arrangements agreed to by the Administrative Agent.




          (h) Environmental Matters. The Administrative Agent shall have received all existing
written environmental assessments regarding the Borrowers and their respective Subsidiaries, which
environmental assessments are listed on Schedule 5.1(h).




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          (i) Closing Certificate. The Administrative Agent shall have received a certificate
of each Loan Party, dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.




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





          (i) a copy of the charter of each Loan Party and each amendment thereto, certified (as
of a date reasonably near the date of the initial extension of credit to the extent such
certification is obtainable in the relevant jurisdiction) as being a true and correct copy
thereof by the Secretary of State or other applicable Governmental Authority (or, in the
case of any Loan Party organized under the laws of Canada or any province thereof, the
corporate secretary of such Loan Party) of the jurisdiction in which each such Loan Party is
organized;




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




          (iii) to the extent obtainable, an electronic or facsimile confirmation from the
Secretary of State or other applicable Governmental Authority of each jurisdiction in which
each Loan Party is organized certifying that such Loan Party is duly organized and in good
standing under the laws of such jurisdiction on the date of the initial extension of credit;
together with a written confirmatory report in respect thereof prepared by, or on behalf of,
a filing service acceptable to the Administrative Agent; and




          (iv) to the extent obtainable, a copy of a certificate of the Secretary of State or
other applicable Governmental Authority of each state or province where any Loan Party is
required to be qualified as a foreign corporation or entity, other than any state or
province where the failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect, dated reasonably near the date of the initial extension of credit,
stating that such Loan Party is duly qualified and in good standing as a foreign corporation
or entity in each such jurisdiction and has filed all annual reports required to be filed to
the date of such certificate; and an electronic confirmation, prepared by or on behalf of, a
filing service acceptable to the Administrative Agent, stating that the Secretary of State
or other applicable Governmental Authority of each such jurisdiction on the date of the
initial extension of credit has confirmed the due qualification and continued good standing
of each such Person as a foreign corporation or entity in each such jurisdiction on or about
such date.



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




          (l) Filings, Registrations and Recordings. Except as otherwise agreed by the
Administrative Agent, each document (including, without limitation, any financing statement filed
pursuant to the UCC or other applicable Personal Property Security Legislation) required by the
Security Documents or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent, for the benefit of
the Secured Parties, a perfected Lien on the Collateral except Vehicles located in the United
States of America and Canada and insurance and patents located in Canada described therein, prior
and superior in right to any other Person (other than with respect to Permitted Liens), shall have
been filed, registered or recorded or shall have been delivered to the Administrative Agent in
proper form for filing, registration or recordation.




          (m) Surveys. The Administrative Agent shall have received, and the title insurance
company issuing the policies referred to in Section 5.1(n) below (the “Title Insurance
Company”) shall have received, maps or plats of an as-built survey of the sites of the
Mortgaged Properties located in the United States of America, except as set forth in Schedule 6.15,
certified to the Administrative Agent and the Title Insurance Company in a manner satisfactory to
them, dated not more than 30 days prior to the Closing Date unless the Title Insurance Company has
agreed to delete its survey disclosure exception on the basis of an earlier survey and such survey
is, in any event, dated not more than 2 years prior to the Closing Date by an independent
professional licensed land surveyor satisfactory to the Administrative Agent and the Title
Insurance Company, which maps or plats and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American Congress on Surveying and
Mapping in 1997 or 1999 (or 2005 in the case of new surveys) and meeting the accuracy requirements
as defined therein, and, without limiting the generality of the foregoing, there shall be surveyed
and shown on such maps, plats or surveys the following: each survey shall (a) be a current
“as-built” survey showing the location of any adjoining streets (including their widths and any
pavement or other improvements), easements (including the recorded information with respect to all
recorded instruments), the mean high water base line or other legal boundary lines of any adjoining
bodies of water, fences, zoning or restriction setback lines, rights-of-way, utility lines to the
points of connection and any encroachments; (b) locate all means of ingress and egress, certifying
the amount of acreage and square footage, indicate the address of the property, contain the legal
description of the property, and also contain a location



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sketch of the property; (c) show the location of all improvements as constructed on the
property, all of which shall be within the boundary lines of the property and conform to all
applicable zoning ordinances, set-back lines and restrictions and the surveyor shall certify
compliance with the foregoing; (d) indicate the location of any improvements on the property with
the dimensions in relations to the lot and building lines; (e) show measured distances from the
improvements to be set back and specified distances from street or property lines in the event that
deed restrictions, recorded plats or zoning ordinances require same; (f) designate all courses and
distances referred to in the legal description, and indicate the names of all adjoining owners on
all sides of the property, to the extent available; and (g) indicate the flood zone designation, if
any, in which the property is located. The legal description of the applicable property shall be
shown on the face of each survey, and the same shall conform to the legal description contained in
the title policy described below.




          (n) Title Insurance.





          (i) The Administrative Agent shall have received, in respect of each Mortgaged Property
located in the United States of America, except as set forth in Schedule 6.15, a mortgagee’s
title insurance policy (or policies) or marked up unconditional binder for such insurance.
Each such policy shall (A) be in an amount reasonably satisfactory to the Administrative
Agent; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates
a valid first Lien on, and security interest in, such Mortgaged Property free and clear of
all defects and encumbrances, except for Permitted Liens disclosed therein; (D) name the
Administrative Agent for the benefit of the Secured Parties as the insured thereunder;
(E) be in the form of ALTA Loan Policy – 1970 form B (Amended 10/17/70 and 10/17/84) or 2006
ALTA Loan Policy to the extent available in the particular jurisdiction of each Mortgaged
Property (or equivalent policies); (F) contain such endorsements and affirmative coverage as
the Administrative Agent may reasonably request in form and substance acceptable to the
Administrative Agent, including, without limitation (to the extent applicable with respect
to such Mortgaged Property and available in the jurisdiction in which such Mortgaged
Property is located), the following: variable rate endorsement; survey endorsement;
comprehensive endorsement; zoning (ALTA 3.1 with parking added) endorsement; first loss,
last dollar (if not a 2006 ALTA Loan Policy) and tie-in endorsement; access coverage;
separate tax parcel coverage; contiguity coverage; usury; doing business; subdivision;
environmental protection lien; CLTA 119.2 and CLTA 119.3 (for leased Real Estate, only);
deletion of arbitration; revolving credit/future advances; mortgage recording tax; deletion
of creditors’ rights (if not a 1970 ALTA Loan Policy); and such other endorsements as the
Administrative Agent shall reasonably require in order to provide insurance against specific
risks identified by the Administrative Agent in connection with such Mortgaged Property, and
(G) be issued by title companies satisfactory to the Administrative Agent (including any
such title companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent). The Administrative Agent shall have received evidence satisfactory
to it that all premiums in respect of each such policy, all charges for mortgage recording
tax, and all related expenses, if any, have been paid.



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



          (o) Flood Insurance. If requested by the Administrative Agent, the Administrative
Agent shall have received, except as set forth in Schedule 6.15 (A) a policy of flood insurance for
Mortgaged Properties located in a flood hazard zone as designated by the Federal Emergency
Management Agency that (1) covers any parcel of improved material real property located in the
United States of America that is encumbered by any Mortgage (2) is written in an amount not less
than the outstanding principal amount of the indebtedness secured by such Mortgage that is
reasonably allocable to such real property or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not later than the maturity of the indebtedness
secured by such Mortgage or that may be extended to such maturity date and (B) confirmation that
the US Borrower has received the notice required pursuant to Section 208(e)(3) of Regulation H of
the Board.




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




          (q) PATRIOT Act. The Administrative Agent shall have received all documentation and
other information required by bank regulatory authorities under applicable “know your customer” and
Anti-Money Laundering rules and regulations, including, without limitation, the PATRIOT Act as it
shall have reasonably requested.




          (r) Approvals. All material governmental and third party approvals and consents
necessary in connection with the continuing operations of the Group Members and the transactions
contemplated hereby shall have been obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions on the financing
contemplated hereby.




          (s) Solvency Certificate. On the Closing Date, the Lenders shall have received a
Solvency Certificate substantially in the form attached hereto as Exhibit K, executed by the chief
financial officer of each Borrower.




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





          (i) the legal opinion of Akin Gump Strauss Hauer & Feld LLP, counsel of the Group
Members, substantially in the form of Exhibit F-1;




          (ii) the legal opinion of Blakes, Cassels & Graydon LLP, Canadian counsel of the Group
Members, substantially in the form of Exhibit F-2;



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          (iii) the legal opinion of Stewart McKelvey, Nova Scotia counsel of the Group Members,
substantially in the form of Exhibit F-3; and




          (iv) the legal opinion of local counsel in Florida and of such other special and local
counsel as may be reasonably required by the Administrative Agent.



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




          (u) Miscellaneous. The Administrative Agent shall have received such other documents,
agreements, certificates and information as it shall reasonably request.




          Each Lender, by delivering its signature page to this Agreement or a Lender Addendum and
funding a Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented
to and approved, each Loan Document and each other document required to be approved by the
Administrative Agent, Required Lenders or Lenders, as applicable on the Closing Date.




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




          (a) Representations and Warranties. Each of the representations and warranties made
by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material
respects (without duplication of any materiality qualifier contained therein) on and as of such
date as if made on and as of such date, except for representations and warranties expressly stated
to relate to a specific earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date.




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




          (c) Senior Debt. A Responsible Officer of each Borrower shall certify in writing to
the Administrative Agent that the incurrence of Indebtedness represented by the requested extension
of credit is permitted under the Senior Subordinated Notes Indenture.




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




SECTION 6. AFFIRMATIVE COVENANTS




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




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




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




          (b) as soon as available, but in any event not later than 45 days after the end of each of the
first three quarterly periods of each fiscal year of the US Borrower, the unaudited consolidated
balance sheet of the US Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash flows for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures as of the end of and for the corresponding period in the previous
year, certified by a Responsible Officer as being fairly stated in all material respects (subject
to normal year-end audit adjustments);




          (c) as soon as available, but in any event not later than 45 days after the end of each month
occurring during each fiscal year of the US Borrower (other than the third, sixth, ninth and
twelfth such month), the unaudited consolidated balance sheets of the US Borrower and its
consolidated Subsidiaries as at the end of such month and the related unaudited consolidated
statements of income and of cash flows for such month and the portion of the fiscal year through
the end of such month, setting forth in each case in comparative form the figures as of the end of
and for the corresponding period in the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit adjustments); and




all such financial statements to be complete and correct in all material respects and to be
prepared in reasonable detail and, except with respect to the statement of cash flows delivered
pursuant to Section 6.1(c), in accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein); it being understood that at the Administrative Agent’s
reasonable request, such statements of cash flow will also be prepared in accordance with GAAP.




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




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



79









 






accountants are permitted to cover in such certificates pursuant to their professional
standards and customs of the profession);




          (b) concurrently with the delivery of any financial statements pursuant to Sections 6.1(b) and
(c), (i) a certificate of a Responsible Officer stating that, to the best of such Responsible
Officer’s knowledge, each Loan Party during such period has observed or performed all of its
covenants and other agreements contained in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it on or before such date, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual financial statements,
(x) a Compliance Certificate stating that to the best of such Responsible Officer’s knowledge, each
Loan Party during such period has observed or performed all of its covenants and other agreements
contained in this Agreement and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it on or before such date, and containing all information and
calculations necessary for determining compliance by the Group Members with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or fiscal year of the US
Borrower, as the case may be, (y) to the extent not previously disclosed to the Administrative
Agent, in writing, a listing of any county, state, territory, province, region or any other
jurisdiction, or any political subdivision thereof within the United States of America, Canada or
otherwise where any Loan Party keeps material inventory or equipment and of any registered
Intellectual Property acquired by any Loan Party since the date of the most recent list delivered
pursuant to this clause (y) (or, in the case of the first such list so delivered, since the Closing
Date) and (z) any financing statements under the UCC or applicable Personal Property Security
Legislation or other filings specified in such Compliance Certificate as being required to be
delivered therewith;




          (c) as soon as available, and in any event no later than 45 days after the end of each fiscal
year of the US Borrower, a detailed consolidated budget for the current fiscal year (including a
projected consolidated balance sheet of the US Borrower and its Subsidiaries as of the end of the
current fiscal year, and the related consolidated statements of projected cash flow and projected
income), and, as soon as available, significant revisions, if any, of such budget and projections
with respect to such fiscal year (collectively, the “Projections”), which Projections shall
in each case be accompanied by a certificate of a Responsible Officer stating that such Projections
are based on reasonable estimates, information and assumptions and that such Responsible Officer
has no reason to believe that such Projections are incorrect or misleading in any material respect;




          (d) within 45 days after the end of each fiscal quarter of the US Borrower, a narrative
discussion and analysis of the financial condition and results of operations of the US Borrower and
its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, as compared to the portion of the Projections
covering such periods and to the comparable periods of the previous year;




          (e) no later than 5 Business Days, or such shorter period as the Administrative Agent shall
reasonably agree to, prior to the effectiveness thereof, copies of substantially final drafts of
any proposed amendment, supplement, waiver or other modification with respect to the



80









 






Senior Subordinated Notes or any proposed material amendment, supplement or other modification
of the governing documents of either Borrower;




          (f) within five days after the same are sent, copies of all financial statements and reports
that any Group Member sends to the holders of any class of its debt securities or public equity
securities and, within 5 days after the same are filed, copies of all financial statements and
reports that any Group Member may make to, or file with, the SEC;




          (g) as soon as reasonably possible and in any event within 5 Business Days of obtaining
knowledge thereof: (i)  notice of any development, event, or condition that, individually or in
the aggregate with other developments, events or conditions that, individually or in the aggregate,
could reasonably be expected to result in the payment by any Group Member, in the aggregate, of a
Material Environmental Amount; and (ii)  any notice that any Governmental Authority will deny any
application for an Environmental Permit sought by, or revoke or refuse to renew any Environmental
Permit or any other material Permit held by a Borrower or condition approval of any such material
Permit on terms and conditions that are materially more burdensome than the current terms and
conditions of such material Permits to the operation of any of the Group Members’ businesses or any
property owned, leased or operated by such Person, where such denial, revocation, refusal or
condition would preclude the normal conduct of the Group Members’ business in respect of the
operation to which such Environmental Permit or material Permit applies;




          (h) to the extent not included in clauses (a) through (g) above, no later than the date the
same are required to be delivered thereunder, copies of all agreements, documents or other
instruments (including, without limitation, (i) audited and unaudited, pro forma and other
financial statements, reports, forecasts, and projections, together with any required
certifications thereon by independent public auditors or officers of any Group Member or otherwise,
(ii) press releases and (iii) statements or reports furnished to any other holder of the securities
of any Group Member);




          (i) concurrently with the delivery of the financial statements referred to in Section 6.1(a),
a report of a reputable insurance broker with respect to the insurance required by Section 6.5,
and, from time to time, such supplemental reports thereto as the Administrative Agent may
reasonably request; and




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




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




          6.4 Conduct of Business and Maintenance of Existence, etc. (a)  (i) Preserve, renew
and keep in full force and effect its corporate or other existence and (ii) take all reasonable
action to maintain all rights, privileges, franchises, Permits and licenses necessary or desirable
in



81









 






the normal conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of clause (ii) above, to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (b) to the extent not in conflict
with this Agreement or the other Loan Documents, comply with all Contractual Obligations and
Requirements of Law, except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.




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




          6.6 Inspection of Property; Books and Records; Discussions. (a)  Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender to visit and inspect any of its properties
and examine and, at the Borrowers’ expense, make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the business, operations,
properties and financial and other condition of the Group Members with officers and employees of
the Group Members and with their respective independent certified public accountants.




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




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




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




          (c) any litigation or proceeding affecting any Group Member in which the amount involved is
$5,000,000 or more and not covered by insurance or in which injunctive or similar relief is sought;




          (d) the following events if, individually or in the aggregate, they could reasonably be
expected to result in a Material Adverse Effect, as soon as possible and in any event within 30
days after either Borrower knows or has reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Single Employer Plan, a failure to make any required
contribution to a Single Employer Plan, the creation of any Lien in favor of a Single Employer Plan
or in favor of the PBGC with respect to a Single Employer Plan or any withdrawal from, or



82









 






the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or either Borrower or any
Commonly Controlled Entity with respect to the withdrawal from, or the termination of, any Single
Employer Plan; and




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




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




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




          (b) Comply in all material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, including, without limitation, such orders and directives
to conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws.




          (c) Conduct and complete, or cause to be conducted and completed, any investigation and
undertake any corrective, cleanup, removal, response, remedial or other action necessary to
identify, report, remove and remediate all Materials of Environmental Concern Released at, on, in,
under or from any real property owned, leased or operated by any Group Member to the extent
required by and in accordance with Environmental Laws.




          6.9 Interest Rate Protection. Within 90 days after the Closing Date, enter into Hedge
Agreements to the extent necessary to provide that at least 35% of the aggregate principal amount
of the Senior Subordinated Notes and the Term Loans is subject to either a fixed interest rate or
interest rate protection for a period of not less than three years, which Hedge Agreements shall
have terms and conditions reasonably satisfactory to the Administrative Agent.




          6.10 Additional Collateral, etc. (a) With respect to any Property acquired after
the Closing Date by any Group Member (other than (w) any Property acquired by any Canadian
Subsidiary (including the Canadian Borrower) (x) any Property described in paragraph (c), paragraph
(d) or paragraph (e) of this Section, (y) any Property subject to a Lien expressly permitted by
Section 7.3(g) and (z) any Property acquired by an Excluded Foreign Subsidiary) as to which the
Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien,
promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and
US Collateral Agreement, the Canadian Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Secured Parties, a security interest in such Property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the



83









 






benefit of the Secured Parties, a perfected first priority security interest in such Property
(other than Vehicles located in the United States and insurance located in Canada), including
without limitation, the filing of financing statements under the UCC and other applicable Personal
Property Security Legislation in such jurisdictions as may be required by the Guarantee and US
Collateral Agreement, the Canadian Collateral Agreement or by law or as may be requested by the
Administrative Agent.




          (b) With respect to any Property acquired by any Canadian Subsidiary (including the Canadian
Borrower) (other than (x) any Property described in paragraph (c), paragraph (d) or paragraph
(e) of this Section and (y) any Property subject to a Lien expressly permitted by Section 7.3(g))
as to which the Administrative Agent for the benefit of the Canadian Secured Parties does not have
a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to
the Canadian Collateral Agreement or such other documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent for the benefit of the Secured Parties,
a security interest in such Property and (ii) take all actions necessary or advisable to grant to
the Administrative Agent or the Secured Parties, as applicable, a perfected first priority security
interest in such Property (other than insurance located in Canada), including without limitation,
the filing of financing statements applicable Personal Property Security Legislation in such
jurisdictions as may be required by the Canadian Collateral Agreement or by law or as may be
requested by the Administrative Agent.




          (c) With respect to any fee interest (or leasehold interest, to the extent such leasehold is
created under a triple net ground lease or similar transaction) in any real property having a value
(together with improvements thereof) of at least $250,000 acquired after the Closing Date by any
Group Member (other than any such real property owned by an Excluded Foreign Subsidiary or a
Canadian Subsidiary or subject to a Lien expressly permitted by Section 7.3(g)), at least five
Business Days prior to acquisition, deliver to the Administrative Agent a Phase I Environmental
Site Assessment, in form and substance reasonably satisfactory to the Administrative Agent, and
such other documentation relating to the environmental condition of the Property as reasonably
requested by the Administrative Agent, and, upon acquisition, promptly (i) execute and deliver a
first priority Mortgage (except for Permitted Liens and Liens otherwise allowed under the
Mortgages) in favor of the Administrative Agent, for the benefit of the Secured Parties, covering
such real property, (ii) if requested by the Administrative Agent, provide the Lenders with
(x) title and extended coverage insurance, complying with the provisions of Section 5.1(n),
covering such real property in an amount at least equal to the purchase price of such real property
(or such other amount as shall be reasonably specified by the Administrative Agent) as well as a
current ALTA survey thereof complying with the provisions of Section 5.1(m), together with a
surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable
by the Administrative Agent in connection with such Mortgage to the extent that such consents or
estoppels may be obtained using reasonable efforts without payment of money and without obligation
to commence litigation, each of the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above, which opinions shall
be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.




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          (d) With respect to any fee interest (or leasehold interest, to the extent such leasehold is
created under a triple net ground lease or similar transaction) in any real property having a value
(together with improvements thereof) of at least $250,000 acquired by any Canadian Subsidiary
(including the Canadian Borrower) (other than any such real property subject to a Lien expressly
permitted by Section 7.3(g)), at least five Business Days prior to acquisition, deliver to the
Administrative Agent a Phase I Environmental Site Assessment, in form and substance reasonably
satisfactory to the Administrative Agent, and such other documentation relating to the
environmental condition of the Property as reasonably requested by the Administrative Agent, and,
upon acquisition, promptly (i) execute and deliver a first priority Mortgage (except for Permitted
Liens and Liens otherwise allowed under the Mortgages) in favor of the Administrative Agent or the
Canadian Collateral Agent, as applicable,, for the benefit of the Secured Parties, covering such
real property, (ii) if requested by the Administrative Agent, provide the Secured Parties with a
satisfactory title opinion covering such real property and any consents or estoppels reasonably
deemed necessary or advisable by the Administrative Agent in connection with such Mortgage to the
extent that such consents or estoppels may be obtained using reasonable efforts without payment of
money and without obligation to commence litigation, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.




          (e) With respect to any new Subsidiary of the US Borrower (other than an Excluded Foreign
Subsidiary) created or acquired after the Closing Date (which, for the purposes of this paragraph,
shall include any existing Subsidiary of the US Borrower that ceases to be an Excluded Foreign
Subsidiary), by any Group Member, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Security Documents as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is owned by any Group
Member, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly authorized officer
of the applicable Group Member, (iii) cause such new Subsidiary (A) to become a party to the
applicable Security Documents and (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Secured Parties a perfected first priority security
interest in the Collateral described in the Security Documents with respect to such new Subsidiary,
including, without limitation, the recording of instruments in the United States Patent and
Trademark Office, the United States Copyright Offices and the Canadian Intellectual Property
Office, the execution and delivery by all necessary persons of control agreements, and the filing
of financing statements under applicable Personal Property Security Legislation in such
jurisdictions as may be required by the Security Documents or by law or as may be requested by the
Administrative Agent, (iv) if requested by the Administrative Agent, a report in scope and
substance comparable to a Phase I Environmental Site Assessment on the environmental condition of
the Property owned, leased or operated by such new Subsidiary and (v) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.




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          (f) With respect to any Excluded Foreign Subsidiary created or acquired after the Closing Date
by the US Borrower or any of its Subsidiaries (other than by any Excluded Foreign Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to the Security
Documents or such other documents as the Administrative Agent deems necessary or advisable in order
to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in all of the Capital Stock of such new Subsidiary that is owned by any
Loan Party, (provided that in no event shall more than 65% of the total voting outstanding
Capital Stock of any such Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver
to the Administrative Agent the certificates representing such Capital Stock, together with
irrevocable proxies, undated stock powers, in blank, executed and delivered by a duly authorized
officer of the applicable Group Member, and take such other action as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent
thereon, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative Agent.




          (g) Notwithstanding anything to the contrary in this Section 6.10, with respect to any
leasehold interest required to be encumbered with a first priority Mortgage pursuant to paragraphs
(c) or (d) of this Section 6.10, (i) the Borrowers shall use commercially reasonable efforts
(excluding commencing litigation) to obtain (y) (1) a memorandum or notice of lease in recordable
(or registrable) form with respect to such leasehold interest, executed and acknowledged by the
lessor of such leasehold interest, or (2) evidence that the applicable lease with respect to such
leasehold interest or a memorandum or notice thereof has been recorded (or registered) in all
places necessary, in the Administrative Agent’s reasonable judgment, to give constructive notice to
third-party purchasers of such leasehold interest, and (z) any lessor consent or approval of such
Mortgage as may be required pursuant to the terms of the applicable lease with respect to such
leasehold interest, and (ii) if the Borrowers shall fail to obtain the documents referred to in
clauses (y) or (z) above with respect to any such leasehold interest, after using commercially
reasonable efforts to do so, the Borrowers shall have no further obligation to comply with
paragraphs (c) or (d) of this Section 6.10 with respect to the applicable leasehold interest. The
Borrowers shall promptly, upon request, provide the Administrative Agent with a report in
reasonable detail summarizing the commercially reasonable efforts undertaken to obtain the items
referenced in this Section 6.10(g).




          (h) Notwithstanding anything to the contrary in this Section 6.10, paragraphs (a), (b), (c),
(d), (e) and (f) of this Section 6.10 shall not apply to any Property, new Subsidiary of the US
Borrower or new Excluded Foreign Subsidiary created or acquired after the Closing Date, as
applicable, as to which the Administrative Agent has determined in its sole discretion that the
collateral value thereof is insufficient to justify the difficulty, time and/or expense of
obtaining a perfected security interest therein.




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




          6.12 Pension and Benefits Plans.




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          (a) ERISA Documents. The US Borrower will cause to be delivered to the
Administrative Agent, promptly upon the Administrative Agent’s request, any or all of the
following: (i) a copy of each Single Employer Plan; (ii) the most recent determination letter
issued by the Internal Revenue Service with respect to each Plan (other than any Plan of a Commonly
Controlled Entity); (iii) for the most recent plan year preceding the Administrative Agent’s
request, Annual Reports on Form 5500 Series required to be filed with any governmental agency for
each Single Employer Plan; (iv) a listing of all Multiemployer Plans, with the aggregate amount of
the most recent annual contributions required to be made by the US Borrower or any Commonly
Controlled Entity to each such Plan and copies of the collective bargaining agreements requiring
such contributions; (v) any information that has been provided to the US Borrower or any Commonly
Controlled Entity regarding withdrawal liability under any Multiemployer Plan; (vi) the aggregate
amount of payments made under any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) to any retired employees of the US Borrower or any of its Subsidiaries (or any dependents
thereof) during the most recently completed fiscal year; and (vii) documents reflecting any
agreements between the PBGC and the US Borrower or any Commonly Controlled Entity with respect to
any Plan.




          (b) Canadian Pension Plans and Canadian Benefit Plans.





          (i) Each Group Member shall use its commercially reasonable efforts to obtain and to
provide the Administrative Agent with written confirmation from the applicable Governmental
Authorities that each Canadian Pension Plan adopted by any Group Member which is required to
be registered under the Income Tax Act (Canada) or any other Requirement of Law has been
registered. From and after the adoption and registration of any Canadian Pension Plan and
subject to any power or right to terminate a Canadian Pension Plan in whole or in part, each
Group Member shall use commercially reasonable efforts to ensure that the plan retains its
registered status under and is administered in all material respects in accordance with the
applicable pension plan text, funding agreement, the Income Tax Act (Canada) and all other
Requirements of Law.




          (ii) Each Group Member shall cause all reports and disclosures relating to any Canadian
Pension Plan that are required by the plan or any Requirement of Law to be filed or
distributed in a timely manner.




          (iii) Each Group Member shall perform in all material respects all obligations
(including (if applicable), funding, investment and administration obligations) required to
be performed by it in connection with each Canadian Pension Plan and Canadian Benefit Plan
and the funding media therefor; make all contributions and pay all premiums required to be
made or paid by it in accordance with the terms of the plan and all Requirements of Law and
withhold by way of authorized payroll deductions or otherwise collect and pay into the plan
all employee contributions required to be withheld or collected by it in accordance with the
terms of the plan and all Requirements of Law; and ensure that, except as could not
reasonably be expected to result in a Material Adverse Effect, to the extent that the Group
Member has a Canadian Pension Plan which is a defined benefit pension plan, that such plan
is fully funded, both on an ongoing basis and on a solvency basis (using actuarial methods
and assumptions which are consistent




87











 






with the valuations last filed with the applicable Governmental Authorities and which
are consistent with generally accepted actuarial principles).




          (iv) The Canadian Borrower shall deliver to the Administrative Agent, (A) promptly on
request, copies of each annual and other return, report or valuation with respect to each
Canadian Pension Plan filed by any Group Member with any applicable Governmental Authority;
(B) promptly on request, a copy of any material direction, order or notice that any Group
Member may receive from any applicable Governmental Authority with respect to any Canadian
Pension Plan; and (C) notification within 30 days of any material increases in the benefits
of any existing Canadian Pension Plan or Canadian Benefit Plan, or the establishment of any
new Canadian Pension Plan or Canadian Benefit Plan, or the commencement of contributions to
any Canadian Pension Plan or Canadian Benefit Plan to which it was not previously
contributing.



          6.13 Further Assurances. (a) From time to time execute and deliver, or cause to
be executed and delivered, such additional instruments, certificates or documents, and take all
such actions, as the Administrative Agent may reasonably request for the purposes of implementing
or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds or products
thereof or with respect to any other property or assets hereafter acquired by any Group Member
which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by
the Administrative Agent or any Lender of any power, right, privilege or remedy pursuant to this
Agreement or the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the US Borrower will execute and
deliver, or will cause the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender may be required to
obtain from the US Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.




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




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




          6.15 Quebec Subsidiary. At all times, cause the Quebec Subsidiary to (a) be
maintained as an inactive Subsidiary, (b) have no material assets and (c) generate no material
portion of Consolidated EBITDA, in each case, until the dissolution of the Quebec Subsidiary.




          6.16 Post Closing Obligations.




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          (a) Within 30 days from the acquisition of any ongoing business permitted by Section 7.8
(g) or (i), or such later date as may reasonably be agreed to by the Administrative Agent, file all
notices required in connection with the transfer of Permits related to such acquisition with the
applicable Governmental Authority and send the Administrative Agent copies thereof.




          (b) Within 30 days of the Closing Date, or such later date as may reasonably be agreed to by
the Administrative Agent, the Borrowers agree to provide all such documents referenced in Schedule
6.15.




SECTION 7. NEGATIVE COVENANTS




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




          7.1 Financial Condition Covenants.




          (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of the US Borrower ending with the last
day of any fiscal quarter set forth below to exceed the ratio set forth below opposite such fiscal
quarter.




	 	 	 	 	 
	Fiscal Quarter	 	Consolidated Leverage Ratio
	FQ3 2008
	 	 	4.50 : 1.00	 
	FQ4 2008
	 	 	4.50 : 1.00	 
	FQ1 2009
	 	 	4.50 : 1.00	 
	FQ2 2009
	 	 	4.50 : 1.00	 
	FQ3 2009
	 	 	4.25 : 1.00	 
	FQ4 2009
	 	 	4.25 : 1.00	 
	FQ1 2010
	 	 	4.25 : 1.00	 
	FQ2 2010
	 	 	4.25 : 1.00	 
	FQ3 2010
	 	 	4.00 : 1.00	 
	FQ4 2010
	 	 	4.00 : 1.00	 
	FQ1 2011
	 	 	4.00 : 1.00	 
	FQ2 2011
	 	 	4.00 : 1.00	 
	FQ3 2011 and thereafter
	 	 	3.75 : 1.00	 






          (b) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior
Secured Leverage Ratio as at the last day of any period of four consecutive fiscal quarters of the
US Borrower ending with the last day of any fiscal quarter to exceed 2.75: 1.00; provided
that, if at any time the Senior Subordinated Notes are refinanced with senior Indebtedness, the
maximum Consolidated Senior Secured Leverage Ratio with respect to each fiscal quarter for which
compliance with this Section 7.1(a) is tested after the date of such refinancing shall be 2.50 :
1.00.




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          (c) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the US Borrower ending with the last
day of any fiscal quarter set forth below to be less than (i) 2.50 : 1.00 as at the last day of
each fiscal quarter ending prior to FQ3 2009 and (ii) 2.75 : 1.00 as at the last day of FQ3 2009
and each fiscal quarter thereafter.




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




          (a) Indebtedness of any Loan Party pursuant to any Loan Document;




          (b) Indebtedness of (i) any Borrower or any Subsidiary Guarantor to any Group Member, (ii) to
the extent constituting an Investment permitted under Section 7.8, any Subsidiary that is not a
Subsidiary Guarantor to any Borrower or any Subsidiary Guarantor, provided that all such
Indebtedness shall be subject to Section 10.19, and (iii) any Subsidiary that is not a Subsidiary
Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;




          (c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens
permitted by Section 7.3(g) in an aggregate principal amount not to exceed $25,000,000 at any one
time outstanding;




          (d) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(d) and any
refinancings, refundings, renewals or extensions thereof (without any increase in the principal
amount thereof or any shortening of the maturity of any principal amount thereof (other than by
fees and expenses incurred in connection with such refinancing and interest with respect thereto
being capitalized));




          (e) Guarantee Obligations made in the ordinary course of business by any Group Member of
Indebtedness of any Loan Party;




          (f) Indebtedness of any Group Member acquired pursuant to, or assumed in connection with, any
Permitted Acquisition under Section 7.8(g); provided that such Indebtedness was not
incurred (x) to provide all or a portion of the funds utilized to consummate the transaction or
series of related transactions constituting such Permitted Acquisition or (y) otherwise in
connection with, or in contemplation of, such Permitted Acquisition; and provided,
further, that after giving effect to the incurrence of any such Indebtedness (and any
substantially concurrent repayment of Obligations or consummation of a Permitted Acquisition) on a
pro forma basis, as if such Indebtedness (and any substantially concurrent repayment of Obligations
or consummation of a Permitted Acquisition) had been incurred on the first day of the twelve-month
period ending on the last day of the US Borrower’s then most recently completed fiscal quarter for
which financial statements are available, the US Borrower and its Subsidiaries would have been in
compliance with all the financial covenants set forth in Section 7.1 and the US Borrower shall have
delivered to the Administrative Agent a certificate of a Responsible Officer of the US Borrower to
such effect setting forth in reasonable detail the computations necessary to determine such
compliance, and (ii) any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or shortening of the maturity of any principal amount
thereof (other than by fees and expenses




90









 







incurred and interest to be capitalized in connection with such refinancing) and on other
material terms no less favorable to the applicable Group Member);




          (g) (i)  unsecured subordinated Indebtedness of either Borrower, the proceeds of which are
used either (x) to repay the Obligations hereunder or (y) to consummate Permitted Acquisitions and
(ii) unsecured subordinated Indebtedness of either Borrower in an aggregate principal amount not to
exceed $5,000,000, the proceeds of which may be used for general corporate purposes,
provided that such amount may be increased to $100,000,000 if (x) prior to and after giving
effect to the incurrence of such Indebtedness the Consolidated Leverage Ratio is less than 4.25 to
1.00 or, if less, the then applicable maximum Consolidated Leverage Ratio under Section 7.1(a) and
(y) the proceeds thereof are used to consummate Permitted Acquisitions or for Capital Expenditures
in respect of new landfills; provided, further, that, in the case of clauses (i)
and (ii), (x) such Indebtedness is issued on customary market terms and conditions (including
subordination terms) reasonably satisfactory to the Administrative Agent, (y) no Default or Event
of Default exists and is continuing at the time of issuance thereof and (z) no part of the
principal part of such Indebtedness shall have a maturity date earlier than the 91st day
after the final maturity of the Term Loans hereunder;




          (h) (i) Indebtedness of the US Borrower in respect of the Senior Subordinated Notes in an
aggregate principal amount not to exceed $160,000,000 and any subordinated Indebtedness of the US
Borrower that refinances the Senior Subordinated Notes (including pursuant to a defeasance,
discharge or redemption mechanism); provided that (w) such Indebtedness does not increase
the principal amount thereof (other than by the amount of call premiums or accrued and unpaid
interest payable on the Senior Subordinated Notes in connection with such refinancing and fees in
connection therewith), (x) such Indebtedness is issued on customary market terms and conditions
(including subordination terms) reasonably satisfactory to the Administrative Agent, (y) no Default
or Event of Default exists and is continuing at the time of issuance thereof and (z) no part of the
principal part of such Indebtedness shall have a maturity date earlier than the 91st day
after the final maturity of the Term Loans hereunder; and (ii) Guarantee Obligations of any
Subsidiary Guarantor in respect of such Indebtedness, provided that such Guarantee
Obligations are subordinated to the obligations of such Subsidiary Guarantor under the Guarantee
and US Collateral Agreement to the same extent as the obligations of the US Borrower in respect of
the Senior Subordinated Notes are subordinated to the Obligations;




          (i) Indebtedness of any Group Member consisting of unsecured guarantees or other unsecured
credit support obligations on customary market terms, including terms reasonably acceptable to the
Administrative Agent, in respect of IRB Transactions in an aggregate amount not to exceed
$20,000,000 at any one time outstanding;




          (j) Indebtedness of any Group Member consisting of guarantees or other credit support
obligations on customary market terms in respect of IRB Transactions; provided that such
guarantees or other credit obligations are supported by one or more Letters of Credit;




          (k) Indebtedness issued to insurance companies to finance insurance premiums payable to such
insurance companies in connection with insurance policies purchased by a Loan




91









 







Party in the ordinary course of business in an aggregate amount not to exceed $15,000,000 at
any time outstanding; and




          (l) additional Indebtedness of any Group Member in an aggregate principal amount not to exceed
$7,500,000 at any one time outstanding.




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




          (a) Liens for taxes, assessments and governmental charges not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the applicable Group Member in conformity with GAAP;




          (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or that are being contested in good faith by appropriate proceedings; provided that
adequate reserves with respect thereto are maintained in the books of the applicable Group Member,
in conformity with GAAP;




          (c) pledges or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;




          (d) deposits by or on behalf of any Group Member and subordinated security interests on assets
related to a particular performance bond granted to the surety providing such performance bond, in
each case, to secure the performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business, so long as the aggregate amount of
deposits at any one time outstanding securing appeal bonds does not exceed $5,000,000;




          (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and any Liens permitted or excepted in the Mortgages that, in the
aggregate, do not in any case materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the Group Members;




          (f) Liens in existence on the Closing Date listed on Schedule 7.3(f); provided
that no such Lien is spread to cover any additional Property after the Closing Date and that the
amount secured thereby is not increased;




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




92









 








          (h) Liens created pursuant to the Security Documents;




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




          (j) advance deposits (including extension payments) arising after the Closing Date in
connection with any Investment permitted by Section 7.8(g);




          (k) Liens on the property or assets of a Person which becomes a Subsidiary of a Borrower after
the Closing Date, or is acquired by a Borrower or any of its Subsidiaries after the Closing Date,
securing Indebtedness permitted by Section 7.2(f); provided that (i) such Liens existed at
the time such Person became a Subsidiary of a Borrower, (ii) such Liens were not granted in
connection with or in contemplation of the applicable Permitted Acquisition and (iii) the amount of
Indebtedness secured thereby is not increased (except as expressly provided in Section 7.2(f)) and
such Liens are not expanded to cover additional Property (other than proceeds thereof);




          (l) Liens on unearned premiums in respect of insurance policies securing insurance premium
financing permitted under Section 7.2(k); and




          (m) Liens not otherwise permitted by this Section 7.3 so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market
value (determined, in the case of each such Lien, as of the date such Lien is incurred) of the
assets subject thereto exceeds $5,000,000 at any one time.




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




          (a) any Solvent Subsidiary of a Borrower may be merged or consolidated with or into such
Borrower (provided that such Borrower shall be the continuing or surviving corporation) or
with or into any Wholly Owned Subsidiary Guarantor (provided that (i) such Subsidiary
Guarantor shall be the continuing or surviving corporation or (ii) simultaneously with such
transaction, the continuing or surviving corporation shall become a Subsidiary Guarantor and the
Borrowers shall comply with Section 6.10 in connection therewith);




          (b) any Subsidiary of the Borrowers may Dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any Loan Party;




          (c) any Borrower or any Subsidiary of any Borrower may merge with any Person in connection
with an acquisition permitted by Section 7.8(g), so long as (i) if such transaction involves a
Borrower, such Borrower is the continuing or surviving corporation and (ii) if such transaction
involves any Subsidiary of a Borrower, the surviving corporation must be or become a Subsidiary
Guarantor; and




          (d) any Subsidiary may Dispose of its assets (by merger, consolidation, dissolution or
otherwise) in a transaction permitted, in its entirety, by Section 7.5.




93









 








          7.5 Limitation on Disposition of Property. Dispose of any of its Property (including,
without limitation, receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary of the US Borrower, issue or sell any shares of such Subsidiary’s
Capital Stock to any Person, except:




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




          (b) Dispositions permitted by Section 7.4(b);




          (c) the sale or issuance of any Subsidiary’s Capital Stock to any Loan Party;




          (d) the Disposition of assets not otherwise permitted to be Disposed of pursuant to this
Section 7.5 having a fair market value of $40,000,000, in the aggregate for any fiscal year of the
US Borrower;




          (e) the Dispositions listed on Schedule 7.5(e);




          (f) the issuance and exchange of shares of the Capital Stock of the Canadian Borrower and the
US Borrower as part of the Migration (including, without limitation, issuances of Capital Stock of
the US Borrower from time to time in exchange for the Exchangeable Shares);




          (g) an exchange or “swap” of fixed, tangible assets of any Group Member for the assets of a
Person other than another Group Member in the ordinary course of business; provided that
(i) the assets received by such Group Member will be used or useful in such Group Member’s business
and (ii) such Group Member received reasonable equivalent value for such assets, such equivalent
value to be demonstrated to the reasonable satisfaction of the Administrative Agent;
provided further that the fair market value of all such assets of the Group Members
exchanged or “swapped” in any fiscal year of the US Borrower does not exceed $50,000,000; and




          (h) as a result of any Recovery Event.




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




          (a) any Subsidiary of a Borrower (including the Canadian Borrower) may make Restricted
Payments to such Borrower or any Subsidiary Guarantor;




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          (b) so long as no Default or Event of Default shall have occurred and be continuing, the US
Borrower may purchase its common stock or common stock options from present or former officers or
employees of any Group Member upon the death, disability or termination of employment of such
officer or employee, provided, that the aggregate amount of payments under this clause (d)
subsequent to the Closing Date (net of any proceeds received by the US Borrower subsequent to the
Closing Date in connection with resales of any common stock or common stock options so purchased)
shall not exceed $100,000;




          (c) [reserved];




          (d) the shares of Capital Holdings Company held by the US Borrower may be converted into
interest bearing intercompany Indebtedness;




          (e) a Borrower may make Restricted Payments to repurchase or redeem its common stock if no
Default or Event of Default has occurred and is continuing and the US Borrower’s Consolidated
Leverage Ratio pro forma for any repurchase or redemption pursuant to this clause 7.6(e) and any
related transactions is less than 3.50:1.00, and the aggregate amount of such Restricted Payments
(i) from the period beginning on the Closing Date until the first anniversary of the Closing Date
does not exceed $5,000,000 and (ii) does not exceed $25,000,000 at any time; and




          (f) a Borrower may pay to holders of its common shares and warrants issued in connection with
any Permitted Acquisition up to $150,000 per month for up to four months as a penalty for the
failure to register such common shares and warrants within the time frame agreed upon with such
holders.




          7.7 Limitation on Capital Expenditures. Make or commit to make any Capital
Expenditure, except (a) Capital Expenditures of the Group Members in the ordinary course of
business not exceeding (i) $68,000,000 during fiscal year 2008 and (ii) $60,000,000 during fiscal
year 2009 and each fiscal year thereafter plus, in each fiscal year, 10.0% of revenues for the
immediately preceding fiscal year from any Permitted Acquisitions or any exchange or “swap” as
permitted by Section 7.5(g), (b) Capital Expenditures made with the proceeds of any Reinvestment
Deferred Amount and (c) the acquisition of capital assets pursuant to any Acquisition
Documentation.




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




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




          (b) investments in Cash Equivalents;




          (c) Investments arising in connection with the incurrence of Indebtedness permitted by
Section 7.2(b)(i) and (iii) and 7.2(e);




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          (d) loans and advances to employees of any Group Member in the ordinary course of business
(including, without limitation, for travel, entertainment and relocation expenses) in an aggregate
amount for all Group Members not to exceed $100,000 at any one time outstanding;




          (e) Investments in assets useful in a Group Member’s business made by such Group Member with
the proceeds of any Reinvestment Deferred Amount;




          (f) Investments (other than those relating to the incurrence of Indebtedness permitted by
Section 7.8(c)) by any Group Member in a Borrower or any Person that, prior to such Investment, is
a Subsidiary Guarantor;




          (g) in addition to Investments otherwise expressly permitted by this Section, Investments by
the Canadian Borrower, the US Borrower or any Guarantor constituting acquisitions of other Persons
in the same or similar line of business as the Group Members (a “Permitted Acquisition”);
provided that





          (i) immediately prior to and after giving effect to any such Permitted Acquisition,
(x) no Default or Event of Default has occurred and is continuing and (y) the US Borrower
shall be in pro forma compliance with the financial covenants set forth in Section 7.1, and,
with respect to the Consolidated Leverage Ratio and Consolidated Senior Secured Leverage
Ratio, such pro forma Consolidated Leverage Ratio and Consolidated Senior Secured Leverage
Ratio will be at least 0.25 to 1.00 less than the Consolidated Leverage Ratio and the
Consolidated Senior Secured Leverage Ratio, respectively, otherwise required at the time,
and the US Borrower shall have certified each of the same to the Administrative Agent in
writing;




          (ii) if such Permitted Acquisition is structured as a stock acquisition, or a merger or
consolidation, then either (A) the Person so acquired becomes a Wholly Owned Subsidiary of
the US Borrower or (B) such Person is merged with and into either the US Borrower or a
Wholly Owned Subsidiary of the US Borrower (with the US Borrower or such Subsidiary of the
US Borrower being the surviving corporation in such merger);




          (iii) all of the provisions of Section 6.10 have been or will be complied with in
respect of such Permitted Acquisition and, if the purchase price for such Permitted
Acquisition exceeds $5,000,000, the Acquisition Documentation with respect to any such
Permitted Acquisition shall have been delivered to the Administrative Agent;




          (iv) the aggregate purchase price for all such Permitted Acquisitions shall not exceed
(x) $60,000,000 per fiscal year or (y) $30,000,000 for any single Permitted Acquisition;




          (v) immediately after consummation of such Permitted Acquisition, the aggregate amount
of Available Revolving Credit Commitments shall be equal to or greater than $10,000,000.



          (h) Investments in Specified Hedge Agreements permitted by Section 7.16;




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          (i) in addition to Investments otherwise expressly permitted by this Section, Investments by
any Group Member in an aggregate amount (valued at cost) not to exceed $3,500,000 in the aggregate,
after taking into account recoveries, returns, repayments, interest and other payments and
distributions received in cash thereon by any Loan Party, at any time outstanding during the term
of this Agreement;




          (j) Investments consisting of asset swaps or exchanges permitted by Section 7.5(g);




          (k) Investments consisting of promissory notes and deferred payment obligations received in
connection with a Disposition permitted by Section 7.5(d) in an aggregate principal amount not to
exceed $5,000,000 in the aggregate, after taking into account recoveries, returns, repayments,
interest and other payments and distributions received in cash thereon by any Loan Party, at any
time outstanding during the term of this Agreement; and




          (l) Investments consisting of deferred payment obligations in connection with the acquisition
of the Freedom Recycling landfill and transfer station development projects.




          7.9 Limitation on Optional Payments and Modifications of Debt Instruments and Other
Agreements. (a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease the Senior Subordinated
Notes or any refinancing thereof pursuant to Section 7.2(h), or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance, or enter into any derivative or other
transaction with any Derivatives Counterparty obligating any Group Member to make payments to such
Derivatives Counterparty as a result of any change in market value of the Senior Subordinated Notes
other than refinancings permitted by Section 7.2(h).




          (b) Make or offer to make any optional or voluntary payment, prepayment, repurchase or
redemption of, or otherwise voluntarily or optionally defease any Indebtedness incurred pursuant to
Sections 7.2(f) (except as expressly permitted thereby or except in connection with a sale of the
underlying asset which repays such Indebtedness in full) or (g) or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance (any such payment, prepayment,
repurchase, redemption or defeasance, collectively, a “Restricted Debt Repayment”) unless
(x) no Default or Event of Default has occurred and is continuing and (y) the US Borrower’s
Consolidated Leverage Ratio pro forma for any Restricted Debt Repayment pursuant to this clause
7.9(b) and any related transaction is less than 4.00:1.00.




          (c) Amend, modify or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of the Senior Subordinated Notes or any refinancing
thereof pursuant to Section 7.2(h), or any Indebtedness incurred pursuant to Sections 7.2(f) or
(g) (other than any such amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the rate or extend the
date for payment of interest thereon or relax any covenant or other restriction applicable to the
Group Members and (ii) does not involve the payment of a consent fee).




          (d) Designate any Indebtedness (other than the Obligations) as “Designated




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Senior Indebtedness” for purposes of the Senior Subordinated Note Indenture.




          (e) Amend its certificate of incorporation, by-laws or other governing documents in any manner
determined by the Administrative Agent to be adverse to the Lenders.




          7.10 Limitation on Transactions with Affiliates. Except as set forth on Schedule
7.10, enter into any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any management, advisory or
similar fees, with any Affiliate (other than a Loan Party) unless such transaction is
(a) (i) otherwise not prohibited by this Agreement, (ii) in the ordinary course of business of such
Group Member and (iii) upon fair and reasonable terms no less favorable to such Group Member than
it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate, or
(c) expressly permitted by Section 7.6.




          7.11 Limitation on Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by any Group Member of real or personal property which has been or is to
be sold or transferred by such Group Member to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property or rental
obligations of such Group Member, except for any arrangement with respect to which the sale of such
real or personal property was permitted by Section 7.5 and the capitalized lease created in
connection therewith was permitted by Section 7.2.




          7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal year of the US
Borrower to end on a day other than December 31 or change the US Borrower’s method of determining
fiscal quarters.




          7.13 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of any Group Member to create, incur,
assume or suffer to exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any other Loan Party, its
obligations under the Guarantee and US Collateral Agreement or the Canadian Collateral Agreement,
other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed thereby), (c) any
agreements governing Indebtedness permitted by Sections 7.2 (c), (d) or (f) (in which case any such
prohibition shall only be effective against the assets permitted to be subject to Liens permitted
by Sections 7.3(f), (g) or (k), as applicable), (d) the Senior Subordinated Note Indenture and
(e) provisions in leases that restrict the transfer of such lease by the lessee.




          7.14 Limitation on Restrictions on Subsidiary Distributions. Enter into or suffer to
exist or become effective any consensual encumbrance or restriction on the ability of any
Subsidiary to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held
by, or pay or subordinate any Indebtedness owed to any other Group Member, (b) make Investments in
any other Group Member or (c) transfer any of its assets to any other Group Member, except for such
encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the
Loan Documents, (ii) any restrictions with respect to a




98









 







Subsidiary of the US Borrower (other than the Canadian Borrower) imposed pursuant to an
agreement that has been entered into in connection with the Disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary, (iii) customary net worth provisions contained
in real property leases entered into by any Loan Party so long as such net worth provisions could
not reasonably be expected to impair materially the ability of the Loan Parties to meet their
ongoing obligations under this Agreement or any of the other Loan Documents, (iv) any restrictions
existing under (A) the Senior Subordinated Notes Indenture or (B) any agreement to be entered into
in connection with the incurrence of Indebtedness permitted by Sections 7.2(f) or (g) solely to the
extent such agreement is no more restrictive than this Agreement, and (v) with respect to clause
(c) only, (A) agreements described in clauses (b)-(d) of Section 7.13, to the extent set forth in
such clauses and (B) restrictions with respect to the transfer of any asset contained in an
agreement that has been entered into in connection with a disposition of such asset permitted
hereunder.




          7.15 Limitation on Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Group Members are engaged on the
Closing Date or that are reasonably related thereto.




          7.16 Limitation on Hedge Agreements. Enter into any Hedge Agreement other than Hedge
Agreements entered into in the ordinary course of business, and not for speculative purposes.




          7.17 Limitation on Performance Bonds. Create, incur, assume or suffer to exist any
secured obligations in respect of performance and surety bonds and other obligations of a like
nature other than performance and surety bonds incurred in connection with credit support
obligations related to the waste collection and disposal business in the ordinary course of
business, including, without limitation, bonds for closure and post closure obligations relating to
any landfill and bonds relating to municipal collection contracts.




SECTION 8. EVENTS OF DEFAULT



          If any of the following events shall occur and be continuing:



          (a) Any Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when
due in accordance with the terms hereof; or any Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation, or any Loan Party shall fail to pay any other amount payable by it
hereunder or under any other Loan Document, within five days after any such interest or other
amount becomes due in accordance with the terms hereof or thereof; or



          (b) Any representation or warranty made or deemed made by any Loan Party herein or in any
other Loan Document or that is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been inaccurate in any material respect on or as of the date made
or deemed made or furnished; or



          (c) (i)  Any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Canadian Borrower and the US
Borrower only), Section 6.7(a) or Section 7 of this Agreement, or in Sections




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5.2(a) and (d), 5.3(b)(iii) and (v), 5.5(a) and (c), 5.6(b)(i) and (ii), 5.7 and 5.8(b) of the
Guarantee and US Collateral Agreement, or (ii) Sections 5.2(a), 5.3(b)(iii) and (v), 5.5(a) and
(c), 5.6(b)(i), 5.7 and 5.8(b) of the Canadian Collateral Agreement; or




          (d) Any Loan Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue unremedied for a period of 30
days; or




          (e) any Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including, without limitation, any Guarantee Obligation, but excluding the
Obligations) on the scheduled or original due date with respect thereto beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness was created; or
(ii) default in making any payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such Indebtedness was created;
or (iii) default in the observance or performance of any other agreement or condition relating to
any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or to become subject to a
mandatory offer to purchase by the obligor thereunder or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults, events or conditions of
the type described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $5,000,000; or




          (f) (i)  any Group Member shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver, interim receiver,
receiver-manager, trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or any Group Member shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Group Member any case,
proceeding or other action of a nature referred to in clause (i) above that (A) results in the
entry of an order for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any
Group Member any case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint, possession, foreclosure or similar process against all or any substantial
part of its assets that results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) any Group Member shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or




100









 







(v) any Group Member shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or




          (g) (i)  Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Single Employer Plan, (ii) any “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan, or any Lien in favor of a Single Employer Plan or in favor of
the PBGC with respect to a Single Employer Plan shall arise on the assets of the US Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in
the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, or (v) the US Borrower or any Commonly Controlled
Entity shall incur any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan; and in each case in clauses (i) through (v) above, such
event or condition, together with all other such events or conditions, if any, could, in the sole
judgment of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or




          (h) One or more judgments or decrees shall be entered against any Group Member involving for
all Group Members taken as a whole a liability (not paid or fully covered by insurance as to which
the relevant insurance company has acknowledged coverage) of $5,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or




          (i) Any of the Security Documents shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 10.15), to be in full force and effect, or any Loan
Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of the
Security Documents shall cease to be enforceable and of the same effect and priority purported to
be created thereby; or




          (j) The guarantee contained in Section 2 of the Guarantee and US Collateral Agreement shall
cease, for any reason (other than by reason of the express release thereof pursuant to
Section 10.15), to be in full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or




          (k) Any Change of Control shall occur; or




          (l) The Senior Subordinated Notes or the guarantees thereof shall cease, for any reason, to be
validly subordinated to the Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and US Collateral Agreement, as the case may be, as provided in the Senior Subordinated
Note Indenture, or any Loan Party, any Affiliate of any Loan Party, the trustee in respect of the
Senior Subordinated Notes or the holders of at least 25% in aggregate principal amount of the
Senior Subordinated Notes shall so assert;




101









 







then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to any Borrower automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including, without limitation, all amounts
of Bankers’ Acceptances and L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder and whether or
not the Bankers’ Acceptances have matured) shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following actions may be taken:
(i) the Administrative Agent may, or upon the request of the Majority Revolving Credit Facility
Lenders, the Administrative Agent shall, by notice to the US Borrower and the Canadian Borrower
declare the Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) the Administrative Agent may, or upon the request
of the Required Lenders, the Administrative Agent shall, by notice to the US Borrower and the
Canadian Borrower, declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including, without limitation, all
amounts of Bankers’ Acceptances and L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder) and whether
or not the Bankers’ Acceptances have matured to be due and payable forthwith, whereupon the same
shall immediately become due and payable. In the case of all Letters of Credit with respect to
which presentment for honor shall not have occurred, or Bankers’ Acceptances which have not
matured, at the time of an acceleration pursuant to this paragraph at the time of an acceleration
pursuant to this paragraph, the applicable Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent or the Canadian Agent, as applicable, an amount in
immediately available funds equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit and the aggregate face amount of unmatured Bankers’ Acceptances (and each
Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties,
a continuing security interest in all amounts at any time on deposit in such cash collateral
account to secure the undrawn and unexpired amount of such Letters of Credit, the unmatured
Bankers’ Acceptances and all other Obligations). If at any time the Administrative Agent or the
Canadian Agent determines that any funds held in such cash collateral account are subject to any
right or claim of any Person other than the Administrative Agent, the Canadian Agent and the
Secured Parties or that the total amount of such funds is less than the aggregate undrawn and
unexpired amount of outstanding Letters of Credit or Bankers’ Acceptances, the applicable Borrower
shall, forthwith upon demand by the Administrative Agent or the Canadian Agent, as applicable, pay
to the Administrative Agent or the Canadian Agent, as applicable, as additional funds to be
deposited and held in such cash collateral account, an amount equal to the excess of (a) such
aggregate undrawn and unexpired amount over (b) the total amount of funds, if any, then held in
such cash collateral account that the Administrative Agent (or the Canadian Agent, as applicable)
determines to be free and clear of any such right and claim. Amounts held in such cash collateral
account with respect to Letters of Credit and Bankers’ Acceptances shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit and the
reimbursement obligations of the Borrowers with respect to matured Bankers’ Acceptances, and the
unused portion thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other Obligations of the Borrowers hereunder and under the
other Loan Documents. After all





102











 




such Bankers’ Acceptances shall have matured and after all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrowers hereunder and under the other Loan
Documents shall have
been paid in full, the balance, if any, in such cash collateral account shall be returned to the
applicable Borrower (or such other Person as may be lawfully entitled thereto).




SECTION 9. THE AGENTS; THE ARRANGERS




          9.1 Appointment. (a) Each Lender hereby irrevocably designates and appoints the
Agents as the agents of such Lender under this Agreement and the other Loan Documents, and each
Lender irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against
any Agent.




          (b) For greater certainty, and without limiting the powers of the Agents or any other Person
acting as an agent, attorney-in-fact or mandatary for the Agents under this Credit Agreement or
under any of the Loan Documents, each Secured Party (including, without limitation, the Canadian
Agent), hereby (a) irrevocably constitutes, to the extent necessary and confirms the constitution
of (to the extent necessary), the Administrative Agent as the holder of an irrevocable power of
attorney (fondé de pouvoir within the meaning of Article 2692 of the Civil Code of Québec) for the
purposes of holding on their behalf, and for their benefit, any Liens, including hypothecs
(“Hypothecs”), granted or to be granted by either Borrower or any other Loan Party on
movable or immovable property pursuant to the laws of the Province of Quebec to secure obligations
of either Borrower or any other Loan Party under any bond issued by either Borrower or any other
Loan Party and exercising such powers and duties which are conferred upon the Administrative Agent
in its capacity as fondé de pouvoir under any of the Hypothecs; and (b) appoints (and confirms the
appointment of) and agrees that the Administrative Agent, acting as agent for the Secured Parties,
may act as the bondholder and mandatary with respect to any bond that may be issued and pledged
from time to time for the benefit of the Secured Parties.




          (c) The said constitution of the fondé de pouvoir (within the meaning of Article 2692 of the
Civil Code of Quebec) as the holder of such irrevocable power of attorney and of the Administrative
Agent as bondholder and mandatary with respect to any bond that may be issued and pledged from time
to time for the benefit of the Secured Parties shall be deemed to have been ratified and confirmed
by any Assignee by the execution of an Assignment and Assumption and by a Qualified Counterparty by
its agreement to be bound by the provisions of this Section 9 as if it were a Lender party thereto.




          (d) Notwithstanding the provisions of Section 32 of An Act respecting the special powers of
legal persons (Quebec), the Administrative Agent may purchase, acquire and be the





103









 







holder of any
bond issued by either Borrower or any other Loan Party. Each of the US Borrower and the Canadian
Borrower hereby acknowledges that any such bond shall constitute a title of indebtedness, as such
term is used in Article 2692 of the Civil Code of Quebec.




          (e) The Administrative Agent herein appointed as fondé de pouvoir shall have the same rights,
powers and immunities as the Agents as stipulated in this Section 9 of the Credit Agreement, which
shall apply mutatis mutandis. Without limitation, the provisions of Section 9.9 shall apply
mutatis mutandis to the resignation and appointment of a successor to the Administrative Agent
acting as fondé de pouvoir.




          9.2 Delegation of Duties. Each Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.




          9.3 Exculpatory Provisions. Neither any Arranger, any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
court of competent jurisdiction to have resulted directly from its or such Person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Arrangers, the Agents under or in
connection with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Agreement
or any other Loan Document, or to inspect the properties, books or records of any Loan Party.




          9.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other experts selected by
such Agent. The Agents may deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance with Section 10.6 and all
actions required by such Section in connection with such transfer shall have been taken. Each
Agent shall be fully justified in failing or refusing to take any action under this Agreement or
any other Loan Document unless it shall first receive such advice or concurrence of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense that may be incurred by
it by









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reason of taking or continuing to take any such action. Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement),
and such request and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.




          9.5 Notice of Default. No Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent shall have received
notice from a Lender, a Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent shall receive such a notice, the Administrative Agent shall give notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so
specified by this Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.




          9.6 Non-Reliance on the Arrangers, the Agents and Other Lenders. Each Lender
expressly acknowledges that neither any of the Arrangers, any of the Agents nor any of their
respective officers, directors, employees, agents, attorneys and other advisors, partners,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Arranger, any
Agent to any Lender. Each Lender represents to the Agents and the Arrangers that it has,
independently and without reliance upon any Arranger, any Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own decision to make its
Loans (and in the case of any Issuing Lender, to issue its Letters of Credit) hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and without reliance
upon any Arranger, any Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, no Arranger and no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party that may come into the possession of any Arranger or Agent
or any of its officers, directors, employees, agents, attorneys and other advisors, partners,
attorneys-in-fact or affiliates.




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          9.7 Indemnification. The Lenders agree to indemnify each Arranger and each Agent in
its capacity as such (to the extent not reimbursed by any Borrower and without limiting the
obligation of any Borrower to do so), ratably according to their respective Aggregate Exposure
Percentages in effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance with such
Aggregate Exposure Percentages immediately prior to such date), for, and to save each Arranger and
each Agent harmless from and against, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including, without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against such Arranger or such Agent in any way relating to or
arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Arranger or such Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a court of competent jurisdiction to have resulted
directly from such Arranger’s or such Agent’s gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.




          9.8 Arrangers and Agents in their Individual Capacities. Each and each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Arranger or such Agent were not an Arranger or an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Arranger and each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the same as though it
were not an Arranger or an Agent, and the terms “Lender” and “Lenders” shall include the Arrangers
and the Agents in their individual capacities.




          9.9 Successor Agents. (a) The Administrative Agent may resign as Administrative Agent
upon 10 days notice to the Lenders and the Borrowers. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8(a) or Section 8(f) with respect to a Borrower shall
have occurred and be continuing) be subject to approval by the Borrowers (which approval shall not
be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former Administrative Agent’s
rights, powers and duties as Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the parties to this Agreement
or any holders of the Loans or issuers of Letters of Credit. If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders









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appoint a successor
agent as provided for above. The Canadian Agent and the Canadian Collateral Agent may resign as
Canadian Agent or Canadian Collateral Agent (as applicable) upon 10 days notice to the Lenders and
the Borrowers. If the Canadian Agent or the Canadian Collateral Agent shall resign as Canadian
Agent or Canadian Collateral Agent (as applicable) under this Agreement and the other Loan
Documents, then a majority of the Canadian Lenders
shall appoint from among the Canadian Lenders a successor agent for the Canadian Lenders,
whereupon such successor agent shall succeed to the rights, powers and duties of the Canadian Agent
or the Canadian Collateral Agent (as applicable), and the term “Canadian Agent” or “Canadian
Collateral Agent” (as applicable) shall mean such successor agent effective upon such appointment
and approval, and the former Canadian Agent’s or Canadian Collateral Agent’s (as applicable)
rights, powers and duties as Canadian Agent or Canadian Collateral Agent (as applicable) shall be
terminated, without any other or further act or deed on the part of such former Canadian Agent or
Canadian Collateral Agent (as applicable) or any of the parties to this Agreement or any holders of
the Loans or issuers of Letters of Credit. If no successor agent has accepted appointment as
Canadian Agent or Canadian Collateral Agent (as applicable) by the date that is 10 days following a
retiring Canadian Agent’s or Canadian Collateral Agent’ (as applicable) notice of resignation, the
retiring Canadian Agent’s or Canadian Collateral Agent’s (as applicable) resignation shall
nevertheless thereupon become effective, and the Canadian Lenders shall assume and perform all of
the duties of the Canadian Agent or the Canadian Collateral Agent (as applicable) hereunder until
such time, if any, as the such Lenders appoint a successor agent as provided for above. The
Syndication Agent and each Co-Documentation Agent may, at any time, by notice to the Lenders and
the Administrative Agent, resign as Syndication Agent or Co-Documentation Agent (as applicable)
hereunder, whereupon the duties, rights, obligations and responsibilities of the Syndication Agent
or such Co-Documentation Agent (as applicable) hereunder, if any, shall automatically be assumed
by, and inure to the benefit of, the Administrative Agent, without any further act by any Arranger,
any Agent or any Lender. After any retiring Agent’s resignation as Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement and the other Loan Documents.




          9.10 Authorization to Release Liens and Guarantees. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to effect any release of Liens or guarantee
obligations contemplated by Section 10.15.




          9.11 The Arrangers; the Syndication Agent; the Co-Documentation Agents. Each
Arranger, the Syndication Agent and each Co-Documentation Agent, in their respective capacities as
such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement
and the other Loan Documents.




          9.12 Withholding Tax. (a) To the extent required by any applicable law, the
Administrative Agent or the Canadian Agent may withhold from any interest payment to any Lender an
amount equivalent to any applicable withholding tax. If the forms or other documentation required
by Section 2.21(f) are not delivered to the Administrative Agent or the Canadian Agent, as
applicable, then the applicable Agent may withhold from any interest payment to any Lender not
providing such forms or other documentation, a maximum amount of the applicable withholding tax.








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          (b) If the Internal Revenue Service, Canada Revenue Agency or any authority of the United
States of America, Canada or other jurisdiction asserts a claim that the Administrative Agent or
the Canadian Agent did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent and the Canadian
Agent of a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent and the Canadian Agent fully for all amounts paid, directly or indirectly, by
the Administrative Agent or the Canadian Agent as tax or otherwise, including penalties and
interest, together with all expenses incurred, including legal expenses, allocated staff costs and
any out of pocket expenses.




          (c) If any Lender sells, assigns, grants a participation in, or otherwise transfers its rights
under this Agreement, the purchaser, assignee, participant or transferee, as applicable, shall
comply and be bound by the terms of Sections 2.21(f) and 9.12; provided that with respect
to any Participant, as set forth in Section 10.6(b), such Participant shall only be required to
comply with the requirements of Sections 2.21(f) if such Participant seeks to obtain the benefits
of Section 2.21.




SECTION 10. MISCELLANEOUS




          10.1 Amendments and Waivers. (a) Neither this Agreement or any other Loan Document,
nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with
the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the
relevant Loan Document may, or (with the written consent of the Required Lenders) the
Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to
time, (1) enter into written amendments, supplements or modifications hereto and to the other Loan
Documents (including amendments and restatements hereof or thereof) for the purpose of adding any
provisions to this Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (2) waive, on such terms and
conditions as may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall:





          (i) forgive the principal amount or extend the final scheduled date of maturity of any
Loan or Reimbursement Obligation, extend the scheduled date of any amortization payment in
respect of any Term Loan, reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Commitment of any Lender, in each case without the consent of each
Lender directly affected thereby;




          (ii) amend, modify or waive any provision of this Section or reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or transfer by
either Borrower of any of its rights and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the Collateral or release all or
substantially all of the Subsidiary Guarantors from their guarantee obligations



108









 






under the
Guarantee and US Collateral Agreement, in each case without the consent of all Lenders;




          (iii) amend, modify or waive any condition precedent to any extension of credit under
the Revolving Credit Facilities set forth in Section 5.2 (including, without
limitation, the waiver of an existing Default or Event of Default required to be waived
in order for such extension of credit to be made) without the consent of the Majority
Revolving Credit Facility Lenders;




          (iv) [reserved];




          (v) amend, modify or waive any provision of Section 9 or any other provision of any
Loan Document affecting the rights, duties and obligations of any Arranger or any Agent
without the consent of each Arranger and Agent directly affected thereby;




          (vi) amend, modify or waive any provision of Section 2.6 or 2.7 without the written
consent of each Swing Line Lender directly affected thereby;




          (vii) amend, modify or waive the pro rata provisions of Section 2.19, Section 6.5 of
the Guarantee and US Collateral Agreement or Section 6.5 of the Canadian Collateral
Agreement, in each case without the consent of each Lender directly affected thereby;




          (viii) amend, modify or waive any provision of Section 3 without the consent of each
Issuing Lender directly affected thereby;




          (ix) impose restrictions on assignments and participations that are more restrictive
than, or additional to, those set forth in Section 10.6; or




          (x) amend, modify or waive any provision of any Loan Document directly affecting the
rights, duties or obligations of the Canadian Agent without the consent of the Canadian
Agent.


Any such waiver and any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Loan Parties, the Lenders, the Arrangers, the Agents and
all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders, the
Arrangers and the Agents shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon. Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties required to sign
pursuant to the foregoing provisions of this Section; provided, that delivery of an
executed signature page of any such instrument by facsimile transmission shall be effective as
delivery of a manually executed counterpart thereof.



          (b) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended
(or amended and restated) with the written consent of the Required Lenders, the




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Administrative
Agent and each Loan Party to each relevant Loan Document (x) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof (collectively, the “Additional
Extensions of Credit”) to share ratably in the benefits of this Agreement and the other Loan
Documents with the Term Loans, and the Revolving Extensions
of Credit and the accrued interest and fees in respect thereof and (y) to include
appropriately the Lenders holding such credit facilities in any determination of the Required
Lenders or the Majority Revolving Credit Facility Lenders; provided, however, that
no such amendment shall permit the Additional Extensions of Credit to share with preference to the
Loans in the application of mandatory prepayments without the consent of the holders of more than
50% of the Loans with respect to the relevant Facility with whom such mandatory prepayments are
shared with preference to.




          (c) In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of (i) the Administrative Agent, the US Borrower and the Lenders providing the relevant
Replacement US Term Loans (as defined below) to permit the refinancing of all outstanding US Term
Loans (“Refinanced US Term Loans”) with a replacement term loan tranche (“Replacement
US Term Loans”) hereunder, and (ii) the Canadian Agent, the Canadian Borrower and the Lenders
providing the relevant Replacement Canadian Term Loans (as defined below) to permit the refinancing
of all outstanding Canadian Term Loans (“Refinanced Canadian Term Loans”) with a
replacement term loan tranche (“Replacement Canadian Term Loans”) hereunder,
provided that, in the case of clauses (i) and (ii), (w) the aggregate principal amount of
such Replacement US Term Loans or Replacement Canadian Term Loans, as applicable, shall not exceed
the aggregate principal amount of such Refinanced US Term Loans or Refinanced Canadian Term Loans,
as applicable, (x) the Applicable Margin for such Replacement US Term Loans or Replacement Canadian
Term Loans, as applicable, shall not be higher than the Applicable Margin for such Refinanced US
Term Loans or Refinanced Canadian Term Loans, as applicable, (y) the Weighted Average Life to
Maturity of such Replacement US Term Loans or Replacement Canadian Term Loans, as applicable, shall
not be shorter than the Weighted Average Life to Maturity of such Refinanced US Term Loans or
Refinanced Canadian Term Loans, as applicable, at the time of such refinancing (except to the
extent of amortization for periods where amortization has been eliminated as a result of prepayment
of the applicable Term Loans) and (z) all other terms applicable to such Replacement US Term Loans
or Replacement Canadian Term Loans, as applicable, shall be substantially identical to, or less
favorable to the Lenders providing such Replacement US Term Loans or Replacement Canadian Term
Loans, as applicable, than those applicable to such Refinanced US Term Loans or Refinanced Canadian
Term Loans, as applicable, except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the applicable Term Loans in effect
immediately prior to such refinancing.



          (d) In addition to the foregoing, (i) this Agreement may be amended in connection with any
Incremental Facility as provided in Section 2.26 and (ii) notwithstanding Section 10.1(a) and any
other provision of this Agreement, a Lender with Revolving Credit Commitments may reallocate its
Revolving Credit US/CA Commitment to a Revolving Credit CA Commitment with the consent of the
Borrowers only and without the consent of any other Lender.






110









 








          10.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of either Borrower, the Arrangers and the
Agents, as follows and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or on Schedule I to the Lender Addendum
to which such Lender is a party or, in the case of a Lender which becomes a party to this Agreement
pursuant to an Assignment and Assumption, in such Assignment and Assumption or (c) in the case of
any party, to such other address as such party may hereafter notify to the other parties hereto:




	 	 	 	 	 
	 

	 	The Borrowers:
	 	Waste Services, Inc.
	 

	 	 	 	1122 International Blvd., Suite 601
	 

	 	 	 	Burlington, Ontario L7L 6Z8
	 

	 	 	 	Attention: General Counsel
	 

	 	 	 	Telecopy: (905) 319-9408
	 

	 	 	 	Telephone: (905) 319-1237
	 
	 	 	 	 
	 

	 	The Administrative Agent:
	 	Barclays Bank PLC
	 

	 	 	 	200 Park Avenue
	 

	 	 	 	New York, New York 10166
	 

	 	 	 	Attention: David Barton, Director
	 

	 	 	 	Telecopy: (212) 412-7600
	 

	 	 	 	Telephone: (212) 412-7693
	 
	 	 	 	 
	 

	 	 	 	with a copy to
	 
	 	 	 	 
	 

	 	 	 	Latham & Watkins LLP
	 

	 	 	 	885 Third Avenue, Suite 1000
	 

	 	 	 	New York, New York 10022
	 

	 	 	 	Attention: Melissa S. Alwang
	 

	 	 	 	Telecopy: (212) 751-4864
	 

	 	 	 	Telephone: (212) 906-1200
	 
	 	 	 	 
	 

	 	The Canadian Agent:
	 	The Bank of Nova Scotia
	 

	 	 	 	c/o GWS Loan Operations
	 

	 	 	 	720 King Street West, 2nd Floor
	 

	 	 	 	Toronto, Ontario
	 

	 	 	 	Canada M5V 2T3
	 

	 	 	 	Attention: Simon Liu, GWS Loan
	 

	 	 	 	Administration and Agency Services
	 

	 	 	 	Telecopy: (416) 866-5991
	 

	 	 	 	Telephone: (416) 649-4044






111









 







	 	 	 	 	 
	 

	 	Issuing Lenders:
	 	As notified by such Issuing Lender to the Administrative Agent and
the Borrowers






provided that any notice, request or demand to or upon any Arranger, any Agent, any Issuing
Lender or any Lender shall not be effective until received; and provided further
that any notices or deliveries required to be given to any Lender hereunder may be effected by
delivery of notice to the Administrative Agent as provided above, followed by a distribution of
such notice by the
Administrative Agent to any Lender through IntraLinks (or any similar electronic system customarily
used by financial institutions), to the extent such system is being used by the Administrative
Agent, it being understood that the Administrative Agent shall bear no responsibility for any
failure of any Lender to receive any such notice or delivery and the Borrowers shall remain
responsible therefor.




          10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.




          10.4 Survival of Representations and Warranties. All representations and warranties
made herein, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.




          10.5 Payment of Expenses. The Borrowers jointly and severally agree (a) to pay or
reimburse the Arrangers and the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Facilities (other than fees payable to syndicate
members) and the development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable fees and
disbursements and other charges of counsel to the Administrative Agent and the charges of
Intralinks, (b) to pay or reimburse each Lender, the Arrangers and the Agents for all their costs
and expenses incurred in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in connection herewith or
therewith, including, without limitation, the fees and disbursements of counsel (including the
allocated fees and disbursements and other charges of in-house counsel) to each Lender and of
counsel to the Agents, (c) to pay, indemnify, or reimburse each Lender, the Arrangers and the
Agents for, and hold each Lender, the Arrangers and the Agents harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this





112









 







Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, each Arranger, each Agent, their
respective affiliates, and their respective officers, directors, trustees, employees, affiliates,
shareholders, attorneys and other advisors, agents and controlling persons (each, an
“Indemnitee”) for, and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any
such other documents, including, without
limitation, any of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with, or liability under any Environmental Law applicable to the operations of
any Group Member or any of the Properties or the use by unauthorized persons of information or
other materials sent through electronic, telecommunications or other information transmission
systems that are intercepted by such persons and the fees and disbursements and other charges of
legal counsel in connection with claims, actions or proceedings by any Indemnitee against any
Borrower hereunder (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that no Borrower shall have any obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are
found by a court of competent jurisdiction to have resulted directly from the gross negligence or
willful misconduct of such Indemnitee or any affiliate thereof. No Indemnitee shall be liable for
any damages arising from the use by unauthorized persons of Information or other materials sent
through electronic, telecommunications or other information transmission systems that are
intercepted by such persons or for any special, indirect, consequential or punitive damages in
connection with the Facilities. Without limiting the foregoing, and to the extent permitted by
applicable law, each Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries so to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee,
except to the extent such claim, demand, penalty, fine, liability, settlement, damage, cost or
expense is found by a court of competent jurisdiction to have resulted directly from the gross
negligence or willful misconduct of such Indemnitee. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements payable by any Borrower
pursuant to this Section shall be submitted to the address of the Borrowers set forth in Section
10.2, or to such other Person or address as may be hereafter designated by the Borrowers in a
notice to the Administrative Agent. The agreements in this Section shall survive repayment of the
Loans and all other amounts payable hereunder.




          10.6 Successors and Assigns; Participations and Assignments. (a) This Agreement
shall be binding upon and inure to the benefit of the Canadian Borrower, the US Borrower, the
Lenders, the Arrangers, the Agents, all future holders of the Loans and their respective successors
and assigns, except that neither Borrower may assign or transfer any of their respective rights or
obligations under this Agreement without the prior written consent of the Arrangers, the Agents and
each Lender.




          (b) Any Lender may, without the consent of either Borrower or any other Person, in accordance
with applicable law, at any time sell to one or more banks, financial institutions or other
entities (each, a “Participant”) participating interests in any Loan owing to such Lender,









113









 







any Commitment of such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating interest to a
Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the performance thereof,
such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Borrowers and the Agents shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement and
the other Loan Documents. In no event shall any
Participant under any such participation have any right to approve any amendment or waiver of
any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom,
except to the extent that such amendment, waiver or consent would require the consent of all
Lenders pursuant to Section 10.1. Each Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this Agreement, provided
that, in purchasing such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if such
Participant were a Lender hereunder. Each Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.18, 2.19, 2.20 and 2.21 with respect to its participation in
the Commitments and the Loans outstanding from time to time as if such Participant were a Lender;
provided that, in the case of Section 2.21, such Participant shall have complied with the
requirements of said Section, and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such Section than the transferor Lender
would have been entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.




          If and to the extent that a Non-U.S. Lender sells a participating interest to a Participant
which, pursuant to Section 9.12(c), seeks to obtain the benefits of Section 2.21, then (a) in the
case of a Loan that is not a Canadian Loan, such Lender shall promptly provide the US Borrower and
the Administrative Agent with documentation reflecting the portion of its Loan, Commitment and/or
any other interest of such Lender hereunder and under the other Loan Documents sold pursuant to
such participating interest on a properly completed and duly executed Internal Revenue Service Form
W-8IMY (or any subsequent versions thereof or successors thereto) with any required attachments, if
any, and the portion of its Loan, Commitment and/or any other interest of such Lender hereunder and
under the other Loan Documents or (b) in the case of a Canadian Loan, such Lender shall promptly
provide the Canadian Borrower and the Canadian Agent with documentation reflecting the portion of
its Loan, Commitment and/or any other interest of such Lender hereunder and under the other Loan
Documents sold pursuant to such participating interest in such form as the Canadian Agent shall
determine from time to time.




          (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written
notice to the Administrative Agent (and the Canadian Agent, in the case of Canadian Loans), at any
time and from time to time assign to any Lender or any affiliate, Related Fund or



114









 




Control
Investment Affiliate thereof or, with the consent of the US Borrower and the Administrative Agent
and, in the case of any assignment of Revolving Credit Commitments, the written consent of the
relevant Issuing Lender(s) and the relevant Swing Line Lender(s) which, in each case, shall not be
unreasonably withheld or delayed); provided (x) that no such consent need be obtained by
the Administrative Agent or its affiliates and (y) the consent of the US Borrower need not be
obtained with respect to any assignment of Term Loans, to an additional bank, financial institution
or other entity (an “Assignee”) of all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Assumption, substantially in
the form of Exhibit E (an “Assignment and Assumption”), executed by such Assignee and
such Assignor (and, where the consent of either Borrower, the Administrative Agent, the Canadian
Agent, the relevant Issuing Lender or the relevant Swing Line Lender is required pursuant to the
foregoing provisions, by the relevant Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register and with respect to the
Canadian Term Loan Facility and any Canadian Loans under the Revolving Credit Facilities, the
Canadian Agent; provided that no such assignment to an Assignee (other than any Lender or
any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (with
respect to Term Loans and $2,000,000 with respect to the Revolving Credit Facilities (other than,
in each case, in the case of an assignment of all of a Lender’s interests under this Agreement)),
unless otherwise agreed by the Borrowers and the Administrative Agent. Any such assignment need
not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and Assumption, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and
Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of an Assignor’s rights and obligations under this
Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.20, 2.21, 2.22,
9.12 and 10.5 in respect of the period prior to such effective date). Notwithstanding any
provision of this Section, no consent of the Borrowers shall be required for any assignment that
occurs at any time when any Event of Default shall have occurred and be continuing. For purposes
of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more
Related Funds shall be aggregated.




          (d) The Administrative Agent shall, on behalf of each Borrower, maintain at its address
referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register
(the “Register”) for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error, and each Borrower,
each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only
upon appropriate entries with respect thereto being made in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note
shall be registered on the Register only upon surrender for registration of assignment or transfer
of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption;
thereupon one or more new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the






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Administrative Agent to the
applicable Borrower marked “canceled”. The Register shall be available for inspection by any
Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any
reasonable time and from time to time upon reasonable prior notice.




          (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee
(and, in any case where the consent of any other Person is required by Section 10.6(c), by each
such other Person) together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (treating multiple, simultaneous assignments by or to
two or more Related Funds as a single assignment) (except that no such registration and
processing fee shall be payable in the case of an Assignee which is already a Lender or is an
affiliate or Related Fund of a Lender or a Person under common management with a Lender), the
Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the
effective date determined pursuant thereto record the information contained therein in the Register
and give notice of such acceptance and recordation to the relevant Borrower. On or prior to such
effective date, the relevant Borrower, at their own expense, upon request, shall execute and
deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable
Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or
applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the
Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired
by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving
Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note
and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the
Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the
form of the Note or Notes replaced thereby.




          (f) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions
of this Section concerning assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security interests in Loans and Notes,
including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.




          (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent, or the Canadian
Agent with respect to Canadian Term Loans and any Canadian Loans under the Revolving Credit
Facilities, and the US Borrower or the Canadian Borrower, as applicable, the option to provide to
the US Borrower, or the Canadian Borrower, as applicable, all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the US Borrower, or the Canadian Borrower,
as applicable, pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the







116









 







foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other indebtedness of
any SPC, it will not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws
of the United States of America or any state thereof or Canada or any province thereof. In
addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with
notice to, but without the prior written consent of, any Borrower or the applicable Agents and
without paying any
processing fee therefor, assign all or a portion of its interests in any Loans to the Granting
Lender, or with the prior written consent of any Borrower or the applicable Agents (which consent
shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance of Loans, and (B)
disclose on a confidential basis any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC; provided that non-public information with respect to any Borrower
may be disclosed only with such Borrower’s consent which will not be unreasonably withheld. This
paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at
the time of such proposed amendment.




          10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement provides
for payments to be allocated to a particular Lender or to the Lenders under a particular Facility,
if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in
Section 8(f), or otherwise) or any proceeds from Collateral (whether pursuant to the exercise of
the rights of any Secured Party under the Security Agreements or under law or otherwise), in a
greater proportion than any such payment to or collateral or proceeds of Collateral received by any
other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited
Lender shall purchase for cash from the other Lenders a participating interest in such portion of
the Obligations owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the
excess payment, benefits of such collateral or proceeds from Collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits or proceeds is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such recovery, but
without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to any Borrower, any such notice being expressly waived by the
Borrowers to the extent permitted by applicable law, upon any amount becoming due and payable by
any Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off
and appropriate and apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of any Borrower, as the case may be. Each Lender agrees to notify promptly
the Borrowers and the Administrative Agent after any such








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setoff and application made by such
Lender, provided that the failure to give such notice shall not affect the validity of such
setoff and application.




          10.8 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature page
of this Agreement or of a Lender Addendum by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrowers and the
Administrative Agent.




          10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




          10.10 Integration. This Agreement and the other Loan Documents, represent the entire
agreement of the Borrowers, the Agents, the Arrangers and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by any Arranger, any Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.




          10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.




          10.12 Submission To Jurisdiction; Waivers. Each Borrower hereby irrevocably and
unconditionally:




          (a) submits for itself and its Property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York located in the County of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the applicable Borrower, as the case may be at its address set forth in Section 10.2 or
at such other address of which the Administrative Agent shall have been notified pursuant thereto;





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          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.




          10.13 Acknowledgments. Each Borrower hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




          (b) neither any Arranger, any Agent nor any Lender has any fiduciary relationship with or duty
to either Borrower arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Arrangers, the Agents and the Lenders, on one hand, and
the Borrowers, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Arrangers, the Agents and the Lenders or
among the Borrowers and the Lenders.




          10.14 Confidentiality. Each of the Arrangers, the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided that nothing
herein shall prevent any Arranger, any Agent or any Lender from disclosing any such information (a)
to any Arranger, any Agent, any other Lender or any affiliate of any thereof, (b) to any
Participant or Assignee (each, a “Transferee”) or prospective Transferee that agrees to
comply with the provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, agents, attorneys, accountants and other professional advisors, (d) to
any financial institution that is a direct or indirect contractual counterparty in swap agreements
or such contractual counterparty’s professional advisor (so long as such contractual counterparty
or professional advisor to such contractual counterparty agrees to be bound by the provisions of
this Section or other confidentiality provisions as or more restrictive than those contained in
this Section 10.14), (e) upon the request or demand of any Governmental Authority having
jurisdiction over it, (f) in response to any order of any court or other Governmental Authority or
as may otherwise be required pursuant to any Requirement of Law, (g) if requested or required to do
so in connection with any litigation or similar proceeding, (h) that has been publicly disclosed
other than in breach of this Section, (i) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that requires access to
information about a Lender’s investment portfolio in connection with ratings issued with respect to
such Lender or (j) in connection with the exercise of any remedy hereunder or under any other Loan
Document. Notwithstanding anything to the contrary in the foregoing sentence or any other express
or implied agreement, arrangement or understanding, the parties hereto hereby agree that, from the
commencement of discussions with respect to the financing provided hereunder, any party hereto (and
each of its employees, representatives, or agents) is permitted to disclose to any and all persons,
without limitation of any kind, the tax structure and tax aspects








119









 







of the transactions contemplated
hereby, and all materials of any kind (including opinions or other tax analyses) related to such
tax structure and tax aspects.




          10.15 Release of Collateral and Guarantee Obligations.  




          (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document,
upon request of the US Borrower in connection with any Disposition of Property by any Group Member
permitted by the Loan Documents, the Administrative Agent shall (without notice to, or vote or
consent of, any Lender, or any affiliate of any Lender that is a
party to any Specified Hedge Agreement) take such actions as shall be required to release its
security interest in any Collateral being Disposed of in such Disposition, and to release any
guarantee obligations under any Loan Document of any Person being Disposed of in such Disposition,
to the extent necessary to permit consummation of such Disposition in accordance with the Loan
Documents; provided that the US Borrower shall have delivered to the Administrative Agent,
at least ten Business Days prior to the date of the proposed release (or such shorter period agreed
to by the Administrative Agent), a written request for release identifying the relevant Collateral
being Disposed of in such Disposition and the terms of such Disposition in reasonable detail,
including the date thereof, the price thereof and any expenses in connection therewith, together
with a certification by the US Borrower stating that such transaction is in compliance with this
Agreement and the other Loan Documents and that the proceeds of such Disposition will be applied in
accordance with this Agreement and the other Loan Documents.




          (b) Notwithstanding anything to the contrary contained herein or any other Loan Document, when
all Obligations (other than Obligations in respect of any Specified Hedge Agreements that have not
been terminated) have been paid in full, all Commitments have terminated or expired and no Letter
of Credit shall be outstanding, upon request of the US Borrower, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a
party to any Specified Hedge Agreement) take such actions as shall be required to release its
security interest in all Collateral, and to release all guarantee obligations provided for in any
Loan Document, whether or not on the date of such release there may be outstanding Obligations in
respect of Specified Hedge Agreements. Any such release of guarantee obligations shall be deemed
subject to the provision that such guarantee obligations shall be reinstated if after such release
any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or
must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of either Borrower or any other Loan Party, or upon or as a result of the
appointment of a receiver, interim receiver, receiver—manger, intervenor or conservator of, or
trustee or similar officer for, either Borrower or any other Loan Party or any substantial part of
its property, or otherwise, all as though such payment had not been made.




          (c) For purposes of this Agreement, a Letter of Credit shall not be deemed outstanding if (i)
the Loans, the Reimbursement Obligations and the other Obligations under the Loan Documents shall
have been paid in full and the Commitments have been terminated and (ii) the relevant Borrower has
either supported such Letter of Credit, on terms and conditions reasonably acceptable to the
relevant Issuing Lender, with another letter of credit from a financial institution reasonably
acceptable to such Issuing Lender or provided such Issuing



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Lender with cash collateral in a manner
and an amount acceptable to such Issuing Lender. Each Issuing Lender hereby acknowledges and
agrees that if a Letter of Credit has been supported with another letter or credit or cash
collateralized as provided in this Section, all obligations of the Lenders with respect to such
Letters of Credit shall have terminated, including the obligations of the Lenders to purchase L/C
Participations pursuant to Section 3.4 and the obligations of the Lenders to make Revolving Loans
pursuant to Section 2.4.




          10.16 Accounting Changes. In the event that any “Accounting Change” (as defined
below) shall occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the Borrowers and the
Administrative Agent agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Change with the desired result that the
criteria for evaluating the Borrowers’ financial condition shall be the same after such Accounting
Change as if such Accounting Change had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrowers, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Change had not occurred. “Accounting Change” refers
to any change in accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.




          10.17 Delivery of Lender Addenda. Each initial Lender shall become a party to this
Agreement by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender,
the Borrowers and the Administrative Agent.




          10.18 WAIVERS OF JURY TRIAL. EACH BORROWER, THE ARRANGERS, THE AGENTS AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          10.19 Subordination of Intercompany Indebtedness. The Borrowers agree that they will
not, and will not permit any Loan Party to, become obligated or otherwise liable for any
intercompany Indebtedness that is owed to any Group Member who is not a Guarantor, unless such
Group Member agrees in writing for the benefit of the Secured Parties that (a) such Indebtedness is
completely subordinated to the Obligations and subject in right of payment to the prior payment in
full of the Obligations, and (b) if an Event of Default has occurred and is continuing, no payment
on any such Indebtedness shall be made until the payment in full in cash of the Obligations. If
any payment on intercompany Indebtedness is received by such Group Member prior to such time as the
Obligations are paid in full, then such Group Member shall receive and hold the same in trust, as
trustee, for the benefit of the Administrative Agent and the other Secured Parties, and shall
forthwith deliver the same to the Administrative Agent in precisely the form received (except for
the endorsement or assignment of such Group Member where necessary or advisable in the
Administrative Agent’s reasonable judgment) for application to any of the Obligations, due or not
due, and, until so delivered, the same shall be segregated from the other assets of such Group
Member and held in trust by such Group Member as the property of the Administrative Agent for the
benefit of the Secured Parties.






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          10.20 Judgment Currency. (a) If, for the purpose of obtaining or enforcing judgment
against a Loan Party in any court in any jurisdiction, it becomes necessary to convert into any
other currency (such other currency being hereinafter in this Section 10.20 referred to as the
“Judgment Currency”) an amount due under any Loan Document in any currency (the “Obligation
Currency”) other than the Judgment Currency, the conversion shall be made at the rate of exchange
prevailing on the Business Day immediately preceding the date of actual payment of the amount due,
in the case of any proceeding in the courts of the State of New York or in the courts of any other
jurisdiction that will give effect to such conversion being made on
such date, or the date on which the judgment is given, in the case of any proceeding in the
courts of any other jurisdiction (the applicable date as of which such conversion is made pursuant
to this Section 10.20 being hereinafter in this Section 10.20 referred to as the “Judgment
Conversion Date”); and (b) If, in the case of any proceeding in the court of any jurisdiction
referred to in Section 10.20(a), there is a change in the rate of exchange prevailing between the
Judgment Conversion Date and the date of actual receipt of the amount due in immediately available
funds, the Loan Party shall pay such additional amount (if any, but in any event not a lesser
amount) as may be necessary to ensure that the amount actually received in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will produce the amount
of the Obligation Currency which could have been purchased with the amount of the Judgment Currency
stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from the Borrowers under this Section 10.20 shall be due as a
separate debt and shall not be affected by judgment being obtained for any other amounts due under
or in respect of any of the Loan Documents. The term “rate of exchange” in this Section 10.20
means the rate of exchange at which the Administrative Agent, on the relevant date at or about
12:00 noon (New York time), would be prepared to sell, in accordance with its normal course foreign
currency exchange practices, the Obligation Currency against the Judgment Currency.




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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Vice-President and Secretary 	 
	 



	 	 	 	 	 
	 	WASTE SERVICES, INC.

 	 
	 	By:  	/s/ Ivan R. Cairns
 	 
	 	 	Name:  	Ivan R. Cairns 	 
	 	 	Title:  	Executive Vice-President, General
Counsel and Corporate Secretary 	 



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	 	BARCLAYS BANK PLC,

as Administrative Agent

 	 
	 	By:  	/s/ David Barton
 	 
	 	 	Name:  	David Barton 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Syndication Agent and a Lender

 	 
	 	By:  	/s/ Maria F. Maia
 	 
	 	 	Name:  	Maria F. Maia 	 
	 	 	Title:  	Managing Director 	 



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Annex A




PRICING GRID FOR TERM LOANS,

REVOLVING CREDIT LOANS AND SWING LINE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin for	 	Applicable Margin for Base
	 	 	Eurodollar Loans and BA	 	Rate Loans and Canadian
	 	 	Equivalent Loans	 	Prime Rate Loans
	 	 	 	 	 	 	Revolving	 	 	 	 	 	Revolving
	 	 	 	 	 	 	Credit Loans	 	 	 	 	 	Credit Loans
	Consolidated Total Leverage	 	 	 	 	 	and Swing	 	 	 	 	 	and Swing
	Ratio	 	Term Loans	 	Line Loans	 	Term Loans	 	Line Loans
	< 3.00 to 1.00
	 	 	3.00	%	 	 	3.00	%	 	 	2.00	%	 	 	2.00	%
	> 3.00 to 1.00 and
< 3.50 to 1.00
	 	 	3.25	%	 	 	3.25	%	 	 	2.25	%	 	 	2.25	%
	> 3.50 to 1.00 and
< 4.00 to 1.00
	 	 	3.50	%	 	 	3.50	%	 	 	2.50	%	 	 	2.50	%
	> 4.00 to 1.00
	 	 	3.75	%	 	 	3.75	%	 	 	2.75	%	 	 	2.75	%





Changes in the Applicable Margin with respect to Term Loans, Revolving Credit Loans and Swing Line
Loans resulting from changes in the Consolidated Leverage Ratio shall become effective on the date
(the “Adjustment Date”) on which financial statements are delivered to the Lenders pursuant
to Sections 6.1(a) and (b) (but in any event not later than the 45th day after the end of each of
the first three quarterly periods of each fiscal year or the 90th day after the end of each fiscal
year, as the case may be) and shall remain in effect until the next change to be effected pursuant
to this paragraph. If any financial statements referred to above are not delivered within the time
periods specified above, then, until such financial statements are delivered, the Consolidated
Leverage Ratio as at the end of the fiscal period that would have been covered thereby shall for
the purposes of this definition be deemed to be greater than or equal to 4.00 to 1.00. Each
determination of the Consolidated Leverage Ratio pursuant to this Pricing Grid shall be made with
respect to the period of four consecutive fiscal quarters of the US Borrower ending at the end of
the period covered by the relevant financial statements.














 








Annex B




EXISTING LETTERS OF CREDIT

















 





ANNEX B




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 
	Beneficiary	 	Maturity Date	 	Amount US$
	AIG Insurance
	 	March 15, 2009
	 	10,194,937	
	 
	City of Tampa
	 	June 30, 2009
	 	300,000	
	 
	Evergreen National Indemnity
	 	July 7, 2009
	 	250,000	
	 
	City of Tampa
	 	December 21, 2008
	 	100,000	
	 
	TOTAL
	 	 	 	10,844,937	






 









 





Schedule 4.4

Consents, Authorizations, Filings and Notices



Consent of holders of outstanding 9 1/2% Senior Subordinated Notes to certain amendments to the
Indenture dated as of April 30, 2004.




 









 








Schedule 4.6

Material Litigation



None




 









 








Schedule 4.10

Taxes




None




 









 





Schedule 4.15(a)

Subsidiaries




	 	 	 	 	 	 	 	 	 
	 	 	Exact Legal Name of Subsidiary as	 	Jurisdiction of	 	 	 	 
	 	 	Reflected on the Certificate of	 	Incorporation /	 	Percentage of Capital Stock Owned by	 	Number of each Class of Capital Stock
	 	 	Incorporation (or Formation)	 	Formation	 	each Group Member	 	Owned by each Group Member
	1.

	 	Waste Services, Inc.
	 	Delaware
	 	None
	 	None
	 
	 	 	 	 	 	 	 	 
	2.

	 	Capital Environmental Holdings

Company
	 	Nova Scotia
	 	100% of outstanding shares of
common stock owned by Waste
Services, Inc.
	 	90,599,926 common shares
(Certificate No. C-42)
	 
	 	 	 	 	 	 	 	 
	3.

	 	Waste Services (CA) Inc.
	 	Ontario
	 	100% of the outstanding common
shares owned by Capital
Environmental Holdings Company.
	 	87,658,785 common shares
(Certificate No. 0007)

	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	32% of outstanding exchangeable
shares owned by Capital
Environmental Holdings Company	 	2,941,039 exchangeable shares
	 
	 	 	 	 	 	 	 	 
	4.

	 	Waste Services of Florida, Inc.
	 	Delaware
	 	100% owned by Waste Services, Inc.
	 	One share of common stock owned by
Waste Services, Inc. (Certificate
No. 2)
	 
	 	 	 	 	 	 	 	 
	5.

	 	Omni Waste of Osceola County LLC
	 	Florida
	 	100% participation owned by Waste
Services, Inc. (represents 100
points and a sharing ration of
100%)
	 	100% participation owned by Waste
Services, Inc. (represents 100
points and a sharing ration of 100%)
(Certificate No. 7)
	 
	 	 	 	 	 	 	 	 
	6.

	 	Jacksonville Florida Landfill, Inc.
	 	Delaware
	 	100% owned by Waste Services, Inc.
	 	One share of common stock owned by
Waste Services, Inc. (Certificate
No. 2)
	 
	 	 	 	 	 	 	 	 
	7.

	 	Sanford Recycling and Transfer, Inc.
	 	Florida
	 	100% owned by Waste Services of
Florida, Inc.
	 	1,000 shares of common stock owned
by Waste Services of Florida, Inc.
(Certificate No. 3)
	 
	 	 	 	 	 	 	 	 
	8.

	 	Taft Recycling, Inc.
	 	Florida
	 	100% owned by Waste Services of
Florida, Inc.
	 	97 shares of common stock owned by
Waste Services of Florida, Inc.
(Certificate No. 12)
	 
	 	 	 	 	 	 	 	 
	9.

	 	Sun Country Materials, LLC
	 	Delaware
	 	100% owned by Waste Services of
Florida, Inc.
	 	Sole Membership interest owned by
Waste Services of Florida, Inc.
(Certificate No. 2)






 









 






	 	 	 	 	 	 	 	 	 
	 	 	Exact Legal Name of Subsidiary as	 	Jurisdiction of	 	 	 	 
	 	 	Reflected on the Certificate of	 	Incorporation /	 	Percentage of Capital Stock Owned by	 	Number of each Class of Capital Stock
	 	 	Incorporation (or Formation)	 	Formation	 	each Group Member	 	Owned by each Group Member
	10.

	 	SLD Landfill, Inc.
	 	Delaware
	 	100% owned by Waste Services of
Florida, Inc.
	 	100 shares of common stock owned by
Waste Services of Florida, Inc.
(Certificate No.2)
	 
	 	 	 	 	 	 	 	 
	11.

	 	Waste Services of Arizona, Inc.
	 	Delaware
	 	100% owned by Waste Services, Inc.
	 	100 shares owned by Waste Services,
Inc. (Certificate No. C-2)
	 
	 	 	 	 	 	 	 	 
	12.

	 	Ram-Pak Compaction Systems Ltd.
	 	Canada
	 	100% owned by Waste Services (CA)
Inc.
	 	68 Class A shares owned by Waste
Services (CA) Inc. (Certificate No.
A-7)
	 
	 	 	 	 	 	 	 	 
	13.

	 	9180-1720 Quebec Inc.
	 	Quebec
	 	100% owned by Waste Services (CA)
Inc.
	 	804 Common shares owned by Waste
Services (CA) Inc.
	 
	 	 	 	 	 	 	 	 
	14.

	 	Freedom Recycling Holdings, LLC
	 	Florida
	 	100% participation owned by Waste
Services, Inc. (represents 100
points and a sharing ration of
100%)
	 	100% participation owned by Waste
Services, Inc. (represents 100
points and a sharing ration of 100%)
(Certificate No. 2)






 









 





Schedule 4.15(b)

Agreements Related to Capital Stock





	1.	 	Warrants to purchase shares of common stock at the ratio of one share for three warrants.





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Exercise	 	 	 	 	 	Number of Warrants
	Warrant	 	Price ($)	 	Expiry Date	 	Outstanding
	April 30, 2004 Warrants
	 	 	4.00	 	 	April 30, 2009	 	 	1,339,000	 
	 
	Martin, Larry
	 	 	5.75	 	 	February 24, 2009	 	 	200,000	 
	 
	Sutherland-Yoest, David
	 	 	2.70	 	 	September 7, 2011	 	 	1,000,000	 
	 
	DeGroote, Michael G
	 	 	2.84	 	 	March 28, 2010	 	 	264,085	 
	 
	Kelso Warrants
	 	 	3.00	 	 	May 6, 2010	 	 	7,150,000	 
	 
	TOTAL
	 	 	 	 	 	 	 	 	 	 	9,953,085	 







	2.	 	Provisions attaching to the exchangeable shares of Waste Services (CA) Inc.
	 
	3.	 	Stock options issued pursuant to the 1999 Stock Option Plan of Waste Services (CA) Inc. and
the 2007 Equity and Performance Incentive Plan.
	 
	4.	 	Restricted stock units granted pursuant to the 2007 Equity and Performance Incentive Plan.




 









 











Schedule 4.17

Environmental Matters





	1.	 	Potential soil and ground waster contamination associated with past uses of 1601 North
34th Street and 1400 North 35th Street, Tampa, Florida 33605.
Petroleum smells and staining. Likely contamination from fertilizer plant operated from 1915
to 1979. Estimated future remediation costs of $550,000. No remedial actions taken to date.
Geosyntec has been hired to submit an action plan to the FDEP prior to year end.
	 
	2.	 	Clearwater Material Transfer. Potential soil and ground water contamination associated with
past uses of 12875 60th Street North, Clearwater, Florida 33760. Contaminated groundwater
has been detected along the property line of the 126th Avenue Landfill (closed) that abuts the
CMT property. There is a high potential that soil and groundwater quality impacts could be
associated with the former 126th Avenue Landfill site which could adversely affect soil and
groundwater quality at the CMT property. FDEP is aware of this contamination and is
addressing the issue through litigation with the owner of the 126th Avenue Landfill. CMT has
not been asked to take any action. In addition, a septic system has been identified on the
CMT property that may, in the future, require remedial work. The estimated remedial cost
related to the septic system is $50,000, for which a reserve has been established.
	 
	3.	 	Potential soil and ground waster contamination associated with past uses of 5113 Uceta Road,
Tampa, Florida 33618. Blast grit on site from previous owner. FDEP pursuing prior owner
under consent order with prior owner. Estimated future remediation costs of up to $500,000.
	 
	4.	 	Potential ground water contamination at Sun Country Landfill. Remediation of ground water
plume anticipated over a number of years; estimated future costs of $150,000.
	 
	5.	 	Pro Disposal — Potential soil contamination at 2289 Brunner Lane, Ft. Myers, Florida 33912.
Surface stained soil to be removed. Estimated costs less than $25,000.
	 
	6.	 	Pro Disposal — Potential soil and ground water contamination at 3715 Progress Avenue, Naples,
Florida 34104. Petroleum related compounds and arsenic in soil will require soil removal and
monitoring. Estimated remediation costs of $150,000.
	 
	7.	 	Altamonte (Orlando) Hauling Fuel Island. A proposed remediation action plan has been
developed to address contamination resulting from a leak in the piping system of the fueling
station at the facility. The proposed remediation action plan has been submitted to FDEP for
its review and approval. The proposed plan would involve excavation and removal of
contaminated soil and groundwater, and installation of an air sparging system. The cost
estimate to restore soil and groundwater quality at the site to attempt to achieve No Further
Action status is $300,000.
	 
	8.	 	JED Landfill Title V Air Permit. On August 27, 2008, the JED Landfill received a Consent
Order from the Florida Department of Environmental Protection (FDEP) related




 









 






	 	 	to a warning letter received in 2007 regarding the timing of the installation of a gas
collection system and related reporting. Omni Waste of Osceola County, LLC, the owner of
the JED Landfill, has signed the Consent Order which will require payment of a fine of
$61,200 (which may be replaced with an agreed Pollution Prevention (P2) program which is
currently being discussed) and installation of the required gas collection systems by
December 31, 2008. Will likely be resolved by year end..






	9.	 	Sun Country Materials Landfill Warning Letter. On July 30, 2008, the Sun Country Materials C
& D Landfill received a warning letter from the FDEP regarding unacceptable waste in the
landfill, inadequate number of spotters, insufficient select waste layer, slopes steeper than
3 to 1, fill sequencing and phased closure of old fill. The proposed fine is $18,097 which we
have agreed to pay. A short form consent order will be drafted by the FDEP and will be
resolved by year end.




 









 











Schedule 4.19(a)

Filing Jurisdictions under Personal Property Security Legislation





	1.	 	US — UCC Filings





	 	 	 
	Loan Party	 	Filing Office
	Waste Services, Inc.

	 	Secretary of State, Delaware
	 
	Jacksonville Florida Landfill, Inc.

	 	Secretary of State, Delaware
	 
	Waste Services of Arizona, Inc.

	 	Secretary of State, Delaware
	 
	Waste Services of Florida, Inc.

	 	Secretary of State, Delaware
	 
	Omni Waste of Osceola County LLC

	 	Secretary of State, Florida
	 
	SLD Landfill, Inc.

	 	Secretary of State, Delaware
	 
	Sanford Recycling and Transfer, Inc.

	 	Secretary of State, Florida
	 
	Sun County Materials, LLC

	 	Secretary of State, Delaware
	 
	Taft Recycling, Inc.

	 	Secretary of State, Florida
	 
	Freedom Recycling Holdings, LLC

	 	Secretary of State, Florida







	2.	 	Canadian Personal Property Registrations





	 	 	 
	Jurisdiction	 	Debtor Name
	British Columbia

	 	Waste Services (CA) Inc.
	Alberta

	 	Waste Services (CA) Inc.
	Saskatchewan

	 	Waste Services (CA) Inc.
	Ontario

	 	Waste Services (CA) Inc.
	Ontario

	 	Ram-Pak Compaction Systems Ltd.
	Ontario

	 	Capital Environmental Holdings Company
	Ontario

	 	Waste Services, Inc.
	Ontario

	 	Waste Services of Arizona, Inc.
	Ontario

	 	Waste Services of Florida, Inc.
	Ontario

	 	Jacksonville Florida Landfill, Inc.
	Ontario

	 	Omni Waste of Osceola County LLC
	Ontario

	 	SLD Landfill, Inc.
	Ontario

	 	Sanford Recycling and Transfer, Inc.
	Ontario

	 	Sun County Materials, LLC






 









 






	 	 	 
	Jurisdiction	 	Debtor Name
	Ontario

	 	Taft Recycling, Inc.
	Ontario

	 	Freedom Recycling Holdings, LLC
	Nova Scotia

	 	Capital Environmental Holdings Company






 









 






Schedule 4.19(b)

UCC Financing Statements to be Terminated




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE DATE	 	 
	DEBTOR	 	SECURED PARTY	 	JURISDICTION	 	AND NUMBER	 	DESCRIPTION
	Waste Services, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 33437384
	 	All Assets
	Waste Services, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 41220088
	 	All Assets
	Waste Services of 

Florida, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 3343735
	 	All Assets
	Waste Services of 

Florida, Inc
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 41220104
	 	All Assets
	Jacksonville 

Florida Landfill, 

Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 41135997
	 	All Assets
	Jacksonville 

Florida Landfill, 

Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No: 41220062
	 	All Assets
	Pro Disposal, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Florida
	 	File No. 200604452193



Date: 12/27/2006
	 	All Assets
	U.S.A. Recycling 

Holdings, L.L.C.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Florida
	 	File No. 200705304254



Date: 04/13/2007
	 	All Assets
	U.S.A. Recycling 

L.L.C.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Florida
	 	File No. 200705304262



Date: 04/13/2007
	 	All Assets
	Freedom Recycling 

Holdings LLC
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Florida
	 	File No. 200705304246



Date: 04/13/2007
	 	All Assets






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE DATE	 	 
	DEBTOR	 	SECURED PARTY	 	JURISDICTION	 	AND NUMBER	 	DESCRIPTION
	SLD Landfill Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No. 64496352


Date: 12/21/2006
	 	All Assets
	Sun Country 

Materials, LLC
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No. 63133972


Date 09/11/2006
	 	All Assets
	Waste Services of 

Arizona, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No. 33437285


Date: 12/31/2003
	 	All Assets
	Waste Services of 

Arizona, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No. 41220112


Date: 04/30/2004
	 	All Assets
	Waste Services of 

Arizona, Inc.
	 	Lehman Commercial

Paper Inc., as

Administrative

Agent
	 	Delaware
	 	File No. 70827492


Date: 03/06/2007
	 	All Assets
	Southwest Dumpster, 

Inc.
	 	Comerica Bank, as

Agent
	 	Florida
	 	File No. 200704703147


Date: 1/30/2007
	 	Blanket Lien
	Pro Disposal, Inc.
	 	VFS US LCC
	 	Florida
	 	File No: 200407462242


File Date: 07/21/2004
	 	2004 Mack CHN613

s/n

1M1AA18Y04N157098

together with

accessories
	Pro Disposal, Inc.
	 	VFS US LLC
	 	Florida
	 	File No: 200500454866


File Date: 08/16/2005
	 	2006 Mack CHN613

s/n

1M2AG06Y56N003483

together with

accessories
	Pro Disposal, Inc.
	 	Stag Leasing, Inc.
	 	Florida
	 	File No: 20050000366X


File Date: 06/23/2005
	 	2006 Mack CHN613

s/n

1M1AJ06Y16N003841

together with

accessories
	Pro Disposal, Inc.
	 	VFS US LLC
	 	Florida
	 	File No: 20040861934X


File Date: 08/16/2005
	 	2005 Mack CHN613

s/n

1M1AJ06Y65N001646

together with

accessories
	Pro Disposal, Inc.
	 	VFS US LLC
	 	Florida
	 	File No: 200509517410


File Date: 04/25/2005
	 	3 — 2005 Mack CHN613

s/n

1M1AJ06Y55N001802,

1M1AJ06Y75N001803,

1M1AJ06Y95N001804

together with

accessories






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE DATE	 	 
	DEBTOR	 	SECURED PARTY	 	JURISDICTION	 	AND NUMBER	 	DESCRIPTION
	U.S.A. Recycling 

Holdings, L.L.C.
	 	Toyota Motor Credit

Corporation
	 	Florida
	 	File No.: 200500092506


File Date: 07/05/2005
	 	1 New 2005 Toyota

Industrial Forklift

Truck

Model 7FDU25

S/N: 7FDU25-61654
	USA Recycling, LLC
	 	Toyota Financial

Services
	 	Florida
	 	File No.: 200406190109


File Date: 02/19/2004
	 	1 New 2004 Toyota

Forklift

Model 7FDU25

S/N: 61007
	USA Recycling, LLC
	 	General Electric

Capital Corporation
	 	Florida
	 	File No: 200406177455


File Date: 02/17/2004
	 	1 Princeton Z2-3

Piggy back 86’ mast

low profile
	U.S.A. Recycling, 

L.L.C.
	 	Center Capital

Corporation
	 	Florida
	 	File No.: 20030446650


File Date: 06/06/2003
	 	Specific Equipment

- 24 20CY Roll Off

Steel Containers
	U.S.A. Recycling, 

L.L.C.
	 	Center Capital

Corporation
	 	Florida
	 	File No.: 200304655943


File Date: 08/07/2003
	 	Specific Equipment

- 24 EBCO 20CY Roll

off Steel

Containers
	U.S.A. Recycling, 

L.L.C.
	 	Center Capital

Corporation
	 	Florida
	 	File No.: 200407122905


File Date: 06/08/2004
	 	Specific Equipment
	U.S.A. Recycling, 

L.L.C.
	 	Center Capital

Corporation
	 	Florida
	 	File No.: 200603035130


File Date: 06/28/2006
	 	Specific Equipment
	U.S.A. Recycling, 

L.L.C.
	 	Center Capital

Corporation
	 	Florida
	 	File No.: 200603035173


File Date: 06/28/2006
	 	Specific Equipment
	U.S.A. Recycling 

L.L.C.
	 	Lakeland Bank

Equipment Leasing

Division
	 	Florida
	 	File No.: 200704625529


File Date: 01/22/2007
	 	Specific Equipment
	Pro Disposal, Inc.

(Defendant)
	 	Amanda K. Buckley
	 	Lee County, FL
	 	#BK 4154 PG 4310


File Date: 12/23/2003
	 	JUDGMENT

$863.34
	Waste Services of 

Arizona, Inc.
	 	TCF Leasing, Inc.
	 	Delaware
	 	File No: 50740622


File Date: 03/08/2005
	 	Specific Equipment

2003 Autocar WX64

with a Wittke Model

FLC 3102-40 Super

Duty Front Loader

Eject Style






 









 





	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party Name	 	Registration Particulars	 	Collateral Secured
	Registrations with respect to Waste Services (CA) Inc.
	 
	 	 	 	 	 	 
	Ontario

	 	Lehman Commercial

Paper Inc., as

Administrative Agent
	 	File No.: 602028252


Registration No.:
20031223 
1131 1590 5943
	 	Inventory, Equipment, Accounts, Other,

Motor Vehicle Included
	 
	 	 	 	 	 	 
	Alberta

	 	Lehman Commercial

Paper Inc., as

Administrative Agent
	 	Registration No.:

03122316387


Date: December 23, 2003
	 	All Present and after acquired personal
property of the debtor
	 
	 	 	 	 	 	 
	Alberta

	 	2038314 Ontario Inc. 

181 Bay Street, Suite
4400, Toronto ON
M5J 2T3
	 	Registration No.:

03123004677


Date: December 30, 2003
	 	Land Charge
	 
	 	 	 	 	 	 
	British Columbia

	 	2038314 Ontario Inc.

181 Bay Street, Suite

4400, Toronto ON

M5J 2T3
	 	Registration No.: 460362B 


Date: December 30, 2003
	 	An uncrystalized floating charge on land
	 
	 	 	 	 	 	 
	British Columbia

	 	Lehman Commercial

Paper Inc., as

Administrative Agent
	 	Registration No.: 455575B 


Date: December 23, 2003
	 	All of the presently owned or held and
after acquired property
	 
	 	 	 	 	 	 
	Registrations with respect to Ram-Pak Compaction Systems Ltd.
	 
	 	 	 	 	 	 
	Ram-Pak Compaction
Systems Ltd.

	 	Lehman Commercial

Paper Inc., as

Administrative Agent
	 	File No. 602028279


Registration No.:
20031223 1131 1590 5944
	 	Inventory, Equipment, Accounts, Other,

Motor Vehicle Included
	 
	 	 	 	 	 	 
	Registrations with respect to Waste Services, Inc.
	 
	 	 	 	 	 	 
	Waste Services, Inc.

	 	Lehman Commercial

Paper Inc., as

Administrative Agent
	 	File No. 602028297


Registration No.:
20031223 1132 1590 5946
	 	Inventory, Equipment, Accounts, Other,

Motor Vehicle Included
	 
	 	 	 	 	 	 
	Registrations with respect to Capital Environmental Resource Inc.
	 
	 	 	 	 	 	 
	Capital
Environmental
Resource Inc.

	 	Fanotech Enviro Inc.

220 Old North Road,

R.R. No. 3, Huntsville,
ON P1H 2J4
	 	File No: 614967804


Registration No.:
20050510 1135 1200 0928
	 	Equipment, Other, Motor Vehicle Included.

2003 Sterling Model Acterra VIN 

2FZAAHCS03AK85226

2003 Sterling Model Acterra VIN 

2FZAAHCS73AK85224

2003 Sterling Model Acterra VIN 

2FZAAHCSX3AK85220

2003 Sterling Model Acterra VIN 

2FZAAHCSX3AK85217

2003 Sterling Model Acterra VIN 

2FZAAHCS53AK85223






 









 





Schedule 4.24




Owned and Leased Property; Mortgaged Property




Canadian Properties — Owned and Leased



Waste Services (CA) Inc. owns the following properties (All Mortgaged Properties):



320 Saunders Road, Barrie, ON



779 Powerline Road, Brantford, ON



4800 Development Drive, Brockvillle, On



Centennial Drive, Brockville, ON — Part Lot 9, Concession 2, designated as Part 2 on Plan28R-10784



147 Ardelt Avenue, Kitchener, ON



180-184 James Street West, Orillia, ON



1152 Kenaston Road, Ottawa, ON



2628 Glenfield Road, Ottawa, ON



688 Harper Road, Peterborough, ON



1223 Confederation Street, Sarnia, ON



3354 Navan Road, Ottawa, ON



3544 and 3546 Navan Road, Ottawa, ON



3548 Navan Road, Ottawa, ON



3560 Navan Road, Ottawa, ON



3326 Navan Road, Ottawa, ON



53103 Strathmoor Way, Sherwood Park, AB*




          * To be purchased 9/30/08.



Coronation Landfill, Coronation, AB



1151 Herring Gull Way, Parksville, B.C.



Gap Landfill, Surprise Valley, SASK — Surface Parcel #112495002 as described in Certificate of
Title 107080208



Waste Services (CA) Inc. leases the following properties:



1122 International Blvd., Suite 601, Burlington, ON



1005 Skyview Drive, Suite 221, Burlington, ON



4090 Belgreen, Unit #6, Ottawa, ON



237 Barton Street East, Suite 201, Stoney Creek, ON



176 A Saunders Road, Barrie, ON




 









 







10 Hooper Road, Barrie, ON



580 Ecclestone Dr., Bracebridge, ON



306 Lake Avenue North, Hamilton, ON



23082 McCowan Road, Sutton West, ON



1266 McAdoo Lane, Kingston, ON



2332 County Road 41, Napanee, ON



2829 Hwy 35 South, Lindsay, ON



117 Advance Blvd., Brampton, ON



185 Strathmoor Way, Sherwood Park, AB



117-5025 90th Avenue S.E., Calgary, AB



8028 Edgar Industrial Green, Red Deer, AB



34321 Industrial Way, Abbotsford, B.C.



4624 Cumberland Road, Courtney, B.C.



8165 Dallas Drive , Kamloops, B. C.



1200 Carmi Avenue, Penticton, B.C.



US Properties — Owned and Leased



Waste Services, Inc. leases the following property:



5002 T-Rex Avenue, Suite 200, Boca Raton, FL 33431



Waste Services of Florida, Inc. owns the following properties (All Mortgaged Properties):



6800 Osteen Road, New Port Richey, FL 34653



3900 Orange Avenue, Sarasota, FL 34234



1601 North 34th Street/ 1400 North 35th Street, Tampa, FL 33605



5113 Uceta Road, Tampa, FL 33618



12875 60th Street North, Clearwater, FL 33760



3935 Rogers Industrial Park Blvd., Okahumpka, FL 34762



3813, 4019, 4070, 4100, 4150, 4170, 4180, 4204 NW 37th Court; 3757 NW 38th Street; and 3706 NW 41st
Street, Miami, FL: 33142 (Also sometimes referred to as “Hialeah”)



3715 Progress Avenue and 3706 Mercantile Avenue, Naples, FL 34104



16801 Stock Ct. Ft. Myers, FL 33912



16711 Gator Road, Fort Myers, FL 33912





 









 







2289 Bruner Lane, Ft. Myers, FL 33912



4251 Michigan Link Avenue, Ft. Myers, FL 33916



7580 Philips Highway, Jacksonville, Florida



Two parcels, respectively, located in the southeast 1/4 of Section 21, Township 31 South, Range 20
East, and the Southeast 1/4 of Section 22, Township 31 South, Range 20 East, and the Southeast 1/4 of
Section 22, Township 31 South, Range 20 East, Hillsborough City, Florida, (adjacent to Sun Country
Landfill, also sometimes referred to as the “Aaron Long Property”)



Waste Services of Florida, Inc. leases the following properties:



1378 SR 29 N., LaBelle, FL 33935



11500 43rd Street North, Clearwater, FL 33762



14220 Hays Road, Spring Hill, FL



1325 North Osprey Avenue, Sarasota, FL 34246



112 South 34th Street, Tampa, FL 33605



1098 and 1099 Miller Drive, Altamonte Springs, FL 32701



3737 Arnold Avenue, Naples, FL 34104



3600 Prospect Avenue, Naples, FL 34104



2465 Highland Avenue, Ft. Myers, FL 33916



Freedom Recycling Holdings, LLC owns the following property (Mortgaged Property):



Lot 6, Lena Business Park, 3407 81st Court East, Bradenton, FL. 34211



Sanford Recycling and Transfer, Inc. owns the following property (Mortgaged Property):



Properties commonly known as the “Transfer Facility” and the “Ice House,” 563 North White Cedar
Road, 555 North White Cedar Road and 3551 Rand Yard Road, Sanford FL 32771



Taft Recycling, Inc. owns the following property (Mortgaged Property):



375 West 7th Street, Taft, FL 32824



Sun Country Materials, LLC owns the following property (Mortgaged Property):



11457 County Road 672, Riverview, FL 33598



Omni Waste of Osceola County LLC owns the following property (Mortgaged Property):



1501 Omni Way, St. Cloud, FL 34773



SLD Landfill, Inc. owns the following property (Mortgaged Property):



30199 Zemel Road, Punta Gorda, FL 33955




 









 





Schedule 5.1(h)

Environmental Assessments




 









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.




	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Main
Facility”, 1099 Miller Drive, Altamonte
Springs, Seminole County, Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Fort
Myers Facility”, 2465 Highland Avenue,
Fort Myers, Lee County, Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s
“LaBelle Facility”, 1378 State Route 29
North, LaBelle, Hendry County, Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Lake
County Facility”, 3925 Rogers Industrial
Park Blvd, Okahumpka, Lake County,
Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s
“Tampa Facility”, 1915 N. 62nd Street,
Tampa, Hillsborough County, Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Taft
Transfer Facility”, 375 W. 7th Street,
Orlando, Orange County, Florida
	 
	 	 	 	 	 	 
	March-03

	 	FR0498
	 	Potential CERCLA PRP Cleanup

Liability Evaluation
	 	Multiple Florida Recycling Services Sites
	 
	 	 	 	 	 	 
	April-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Rand
Yard Facility”, 922 White Cedar Road,
Sanford, Seminole County, Florida






1 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.






	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	April-03

	 	FR0507
	 	Modified Phase I
Environmental Site

Assessment
	 	Florida Recycling Services, Inc.’s “Ft.
Myers Vacant Property”, 2491 Highland
Avenue, Fort Myers, Lee County, Florida
33916
	 
	August-03

	 	FR0498
	 	Phase I Environmental Site Assessment
	 	Florida Recycling Services, Inc.’s “Ft.
Myers Vacant Property”, 2491 Highland
Avenue, Fort Myers, Lee County, Florida
33916
	 
	 	 	 	 	 	 
	August-03

	 	FR0498
	 	Phase II Environmental Site
Assessment
	 	Florida Recycling Services, Inc.’s “Main
Facility”, 1099 Miller Drive, Altamonte
Springs, Seminole County, Florida
	 
	 	 	 	 	 	 
	August-03

	 	FR0498
	 	File Review and Phase II
Environmental Site
Assessment
	 	Florida Recycling Services, Inc.’s “Fort
Myers Facility”, 2465 Highland Avenue,
Fort Myers, Lee County, Florida
	 
	 	 	 	 	 	 
	August-03

	 	FR0498
	 	Phase II Environmental Site
Assessment
	 	Florida Recycling Service’s “La Belle
Facility”, 1378 State Route 29 North, La
Belle, Hendry County, Florida
	 
	 	 	 	 	 	 
	August-03

	 	FR0498
	 	Phase II Environmental Site
Assessment
	 	Florida Recycling Services, Inc.’s “Lake
County Facility”, 3925 Rogers Industrial
Park Blvd, Okahumpka, Lake County,
Florida
	 
	 	 	 	 	 	 
	August-03

	 	FR0498
	 	Phase II Environmental Site
Assessment
	 	Florida Recycling Services, Inc.’s “St.
Lucie County Facility”, 4100 Selvitz
Road, Fort Pierce, St. Lucie County,
Florida






2 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.






	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	August-03

	 	FR0498
	 	Phase II Environmental Site
Assessment
	 	Florida Recycling Services, Inc.’s “Taft
Transfer Facility”, 375 W. 7th Street,
Orlando, Orange County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Phase I Environmental Site Assessment
	 	Allied Waste Industries, Inc.’s “Tampa
Recyclery”, 3560 126th Avenue,
Clearwater, Pinellas County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc.’s “Tampa
Recyclery”, 3560 126th Avenue,
Clearwater, Pinellas County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Phase I Environmental Site Assessment
	 	Allied Waste Industries, Inc.’s “Tampa
Bay Hauling Facility”, 11500 43rd Street
N., Clearwater, Pinellas County, Florida
33762
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc.’s “Tampa
Bay Hauling Facility”, 11500 43rd Street
N., Clearwater, Pinellas County, Florida
33762
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Phase I Environmental Site Assessment
	 	Allied Waste Industries, Inc.’s “Pasco
Hauling Facility”, 6800 Osteen Road, New
Port Richey, Pasco County, Florida






3 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.






	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc.’s “Pasco
Hauling Facility”, 6800 Osteen Road, New
Port Richey, Pasco County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Phase I Environmental Site Assessment
	 	Allied Waste Industries, Inc.’s
“Sarasota HLG Facility”,3900 North
Orange Avenue, Sarasota, Sarasota
County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc.’s
“Sarasota HLG Facility”,3900 North
Orange Avenue, Sarasota, Sarasota
County, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Phase I Environmental Site
Assessment
	 	Allied Waste Industries, Inc’s.
“Sarasota Transfer Station and MRF”,
1325 North Osprey Avenue, Sarasota,
Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc’s.
“Sarasota Transfer Station and MRF”,
1325 North Osprey Avenue, Sarasota,
Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc’s. “Pasco
MRF Facility”, 14220 Hays Road,
Springhill, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Environmental Compliance
Review
	 	Allied Waste Industries, Inc’s. “McKay
Bay Transfer Facility”, 112 N. 34th
Street, Tampa, Florida
	 
	 	 	 	 	 	 
	December-03

	 	FR0568
	 	Potential CERCLA PRP Cleanup

Liability Evaluation
	 	Multiple Allied Waste Industries, Inc.
Locations in Florida
	 
	 	 	 	 	 	 
	April-04

	 	FE0606
	 	Phase I Environmental Site

Assessment
	 	Aaron Long Property, Just East of U.S.
301 and C.R. 672, Balm, Hillsborough
County, Florida






4 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.






	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	August-04

	 	FE0606
	 	Phase II Environmental Site
Assessment
	 	Aaron Long Property, Just East of U.S.
301 and C.R. 672, Balm, Hillsborough
County, Florida
	 
	 	 	 	 	 	 
	August-04

	 	FR0568
	 	Phase II Environmental Site
Assessment
	 	“Pasco Hauling Facility”, 6800 Osteen
Road, New Port Richey, Pasco County,
Florida
	 
	 	 	 	 	 	 
	August-04

	 	FE0608
	 	Phase I Environmental Site
Assessment
	 	Advanced Disposal Services’ “Stash
Yard”, 201 Parcel Lane, Orlando, Orange
County, Florida
	 
	 	 	 	 	 	 
	August-04

	 	FE0609
	 	Phase I Environmental Site
Assessment
	 	Advanced Disposal Services’ “Orlando
Division”, 9526 Sidney Hayes Road,
Orlando, Orange County, Florida
	 
	 	 	 	 	 	 
	June-05

	 	FE0771
	 	Phase I Environmental Site
Assessment
	 	“Icehouse Facility”, Sanford, Seminole
County, Florida
	 
	 	 	 	 	 	 
	March-06

	 	FE0893
	 	Modified Phase I
Environmental Site

Assessment
	 	Sun Country Materials Landfill, 11457

County Road 672, Balm, Hillsborough

County, Florida
	 
	 	 	 	 	 	 
	March-06

	 	FE0893
	 	Modified Phase I
Environmental Site

Assessment
	 	Liberty Waste & Recycling “Shop”, 1601
North 34th Street, Tampa, Hillsborough
County, Florida
	 
	 	 	 	 	 	 
	March-06

	 	FE0893
	 	Modified Phase I
Environmental Site

Assessment
	 	Liberty Waste, LLC Clearwater Materials
Transfer “CMT”, 12875 60th Street North,
Clearwater, Pinellas County, Florida
	 
	 	 	 	 	 	 
	March-06

	 	FE0893
	 	Modified Phase I
Environmental Site

Assessment
	 	Liberty Waste, LLC Tampa Materials
Transfer “TMT”, 5113 Uceta Road, Tampa,
Hillsborough County, Florida
	 
	 	 	 	 	 	 
	May-06

	 	FE0893
	 	Phase II Environmental Site
Assessment
	 	Liberty Waste & Recycling “Shop”, 1601
North 34th Street, Tampa, Hillsborough
County, Florida






5 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.





	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	May-06

	 	FE0893
	 	Phase II Environmental Due
Diligence
- File Review
	 	Liberty Waste, LLC Clearwater Materials
Transfer “CMT”, 12875 60th Street North,
Clearwater, Pinellas County, Florida
	 
	 	 	 	 	 	 
	May-06

	 	FE0893
	 	Phase II Environmental Due
Diligence
- File Review
	 	Liberty Waste, LLC Tampa Materials
Transfer “TMT”, 5113 Uceta Road, Tampa,
Hillsborough County, Florida
	 
	 	 	 	 	 	 
	October-06

	 	FE1061
	 	Modified Phase I
Environmental Site
Assessment
	 	“Container Storage Area”, 7450 NW 63
Street, Miami, Dade County, Florida
	 
	 	 	 	 	 	 
	October-06

	 	FE1061
	 	Modified Phase I
Environmental Site
Assessment
	 	“Allied Waste Industries Facility”, 3840
NW 37 Court, Miami, Dade County, florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1089
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“Southwest Land Developers, Inc (SLD)
Recycling and Disposal Site”, 30301
Zemel Road, Punta Gorda, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“Fort Myers MRF”, 16801 Stock Court,
Fort Myers, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“Naples MRF”, 3715 Progress Avenue,
Naples, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“Fort Myers Office”, 2289 Bruner Lane,
Fort Myers, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase II Environmental Site
Assessment
	 	“Fort Myers MRF”, 16801 Stock Court,
Fort Myers, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase II Environmental Site
Assessment
	 	“Naples MRF”, 3715 Progress Avenue,
Naples, Florida
	 
	 	 	 	 	 	 
	December-06

	 	FE1104
	 	Phase II Environmental Site
Assessment
	 	“Fort Myers Office”, 2289 Bruner Lane,
Fort Myers, Florida






6 of 7









 





Table 1 — Geosyntec Due Diligence Work Performed for

Waste Services Inc. and Capital Environmental Resources Inc.






	 	 	 	 	 	 	 
	Date Published	 	Geosyntec	 	 	 	Site Description/Location
	(Month-20XX)	 	Project Number	 	Document Title	 	at Time of Due Diligence
	January-07

	 	FE1162
	 	EDR Radius Map, Sanborn Map
Report
	 	“Mount Dora Disposal and Fill”, 3300 SR
46, Mount Dora, Florida
	 
	 	 	 	 	 	 
	January-07

	 	FE1162
	 	EDR Radius Map, Sanborn Map
Report
	 	“West Orange Environmental”, 7706 Avalon
Road, Winter Garden, Florida
	 
	 	 	 	 	 	 
	February-07

	 	FE1123
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“USA Recycling Material Recovery
Facility”, 16711 Gator Road, Fort Myers,
Florida
	 
	 	 	 	 	 	 
	February-07

	 	FE1123
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“Freedom Recycling Holdings, LLC”, 3407
81st Court East, Bradenton, Florida
	 
	 	 	 	 	 	 
	June-07

	 	FE1267
	 	Phase I Environmental Site
Assessment and Limited
Environmental Compliance
Review
	 	“WCA Fort Myers MRF”, 4251 Michigan Link
Avenue, Fort Myers, Florida
	 
	 	 	 	 	 	 
	October-07

	 	FE1367
	 	EDR Radius Map, EDR-City

Directory, Sanborn Map

Report
	 	“Lake Environmental C&D”, 21505 CR 455,
Clermont, Florida







7 of 7











 





	 	 	 
	117 Advance Boulevard, Brampton, ON

	 	XCG Consultants Environmental Compliance Review

(February 24, 2003)
 XCG Consultants Compliance
Audit (May 5, 1999)
	 
	 	 
	1266 McAdoo’s Lane R.R. #1

Glenburnie, ON

	 	Brian Forrestal (CERI) Environmental Inspection
Report
 (June 10, 1999)
	 
	 	 
	1450 McAdoo’s Lane, R.R. #1

Glenburnie, ON

	 	Brian Forrestal (CERI) Environmental Inspection
Report 
(June 10, 1999)
	 
	 	 
	34321 Industrial Way 
Abbotsford, BC

	 	XCG Consultants Environmental Survey (July 28,
1999)
 XCG Consultants — Draft Phase 1 ESA (March
5, 2004)
	 
	 	 
	28 and 29 Hwy 35 South
Lindsay, ON

	 	Brian Forrestal (CERI) Environmental Risk
Assessment
 (May 1998)
	 
	 	 
	53103 Strathmoor Way
Sherwood Park, 

ASB

	 	Stanley Environmental, Environmental Site
Assessment
 (March 1998)
	 
	 	 
	4624 Cumberland Road,
Cumberland, BC

	 	Stanley Environmental Phase 1 ESA (October, 1997)
	 
	 	 
	1200 Carmi Avenue,
Penticton, BC

	 	Stanley Environmental Phase 1 ESA (October, 1997)
	 
	 	 
	688 Harper Road,
Peterborough, ON

	 	Brian Forrestal (CERI) Environmental Risk
Assessment Report
 (January 1998)
 Golder
Associates Phase II Environmental Site
Investigation 
(February, 1998)
	 
	 	 
	10 Hooper Road, Barrie, ON

	 	Forrestal Associates Phase 1 ESA (August 7, 1997)
	 
	 	 
	176A Saunders Road,
Barrie, ON

	 	Environmental Risk Assessment Summary (CERI)

(August 4, 1999)
	 
	 	 
	300 and 306 Lake Avenue North,

Hamilton, On

	 	XCG Consultants Operational Compliance Status
Report
 (April 26, 1999)
	 
	 	 
	23082 McCowan Road,
Sutton West, ON

	 	XCG Consultants Baseline Phase 1/Phase 2
Environmental Site 
Assessment (August 3, 1999)

XCG Consultants Environmental Risk Assessment
Summary 
(July 14, 1999)
	 
	 	 
	Gap Landfill
Class II Environmental
Landfill
 Minton, Saskatchewan

	 	EBA Engineering Consultants Due Diligence Audit

(December 22, 2003)
	 
	 	 
	779 Powerline Road, 
Brantford, ON

	 	Forrestal Associates Environmental Site
Assessment 
(July 23, 1997)
	 
	 	 
	147 and 155 Ardelt Avenue,

Kitchener, ON

	 	Forrestal Associates Environmental Inspection
Report 
(July 23, 1997)
	 
	 	 
	1151 Herring Gull Way
Parksville, BC

	 	Stanley Environmental Consultants Phase 1 ESA

(August 21, 1997)
	 
	 	 
	Paintearth Municipal Landfill

Coronation Landfill
Coronation, AB

	 	Comprehensive Annual Report for the year ended
December 31,
 2002
 (March 31, 2003)
	 
	 	 
	1152 Kenaston Street,
Ottawa, ON

	 	Forrestal Associates Environmental Site
Assessment 
(August 6, 1997)
	 
	 	 
	1223 Confederation Street,
Sarnia, ON

	 	Forrestal Associates Environmental Site
Assessment 
(August 11, 1997)






 









 






	 	 	 
	3354 Navan Road,
Ottawa, ON

	 	Annual Operations and Monitoring Report (March
2003) 
XCG Consultants Environmental Compliance
Review 
(February 2003)
 Draft XCG Consultants
Environmental Compliance Review 
(February 2004)

Gartner Lee Letter Report (January 21, 2002)
	 
	 	 
	500 and 580 Ecclestone Drive,

Bracebridge, On

	 	Forrestal Associates Environmental Risk
Assessment 
(November 11, 1997)
	 
	 	 
	180 James Street West,
Orillia, ON

	 	XCG Consultants Environmental Compliance Review (February

24, 2003)
 Brian Forrestal (CERI)
Environmental Risk Assessment Report (May, 1998)
	 
	 	 
	Nibourg Waste Management
2332 County
Road 41
Napanee, ON

	 	XCG Phase 1 ESA (Oct/Nov, 2006)
 XCG Phase 2 ESA (Oct/Nov, 2006)
	 
	 	 
	Part Ni/2 Lot 10, Concession 11,

Township of Innisfil, Barrie, ON

	 	Skelton Brumwell & Associates Ltd. 
Environmental
Site Assessment, (August 1, 2007)
	 
	 	 
	2628 Glanfield Rd.,
Ottawa, ON

	 	Golder Associates Ltd.
 Phase 1 Environmental
Site Assessment (June, 2002)






 









 





Schedule 6.15

Post Closing Obligations



Real Estate Post Closing Obligations



Within 30 days of the Closing Date, the Administrative Agent shall have received, and the Title
Insurance Company shall have received, new or updated maps or plats of an as-built survey of the
sites of the Mortgaged Properties located in the United States of America.



Within 45 days of the Closing Date, the Administrative Agent shall have received, in respect of
each Mortgaged Property located in the United States of America, a mortgagee’s title insurance
policy (or policies) or marked up unconditional binder for such insurance in accordance with
Section 5.1(n) of the Credit Agreement. In addition, the Consent Judgment of Continuing
Garnishment recorded on February 3, 2007 in ORBook 17428, Pg 734, Clerk of Circuit Court,
Hillsborough County naming Waste Services, Inc., as garnishee shall be discharged or otherwise
removed from the title policies covering the properties located in Hillsborough County, FL.



Any and all notices of commencement recorded or filed against any of the Mortgaged Properties shall
be promptly discharged of record upon the completion of the work which was the subject of such
notice.



Borrower, or its counsel, representative or agent, shall provide an explanation reasonably
acceptable to the Administrative Agent of the items marked with asterisks below, and the final
Title Policy affected thereby shall be issued, or an endorsement to such Title Policy shall be
issued, resolving any issues with or objections to title to the reasonable satisfaction of
Administrative Agent.




#1: 7580 Phillips Hwy., Jacksonville, FL, County: Duval

Waste Services of Florida, Inc. (Delaware)

Title Co.: First American Title Insurance Company; insured amount: $2,602,968.80

Title No. FA-C-369760; Agent’s Title No. NCS-369760-CLW2



*Lehman Commercial Paper Inc., as the predecessor-in-interest to Barclays Bank PLC, as the
administrative agent (“LCPI”), executed and delivered a Subordination, Non-Disturbance and
Attornment Agreement dated 3/5/08 with Advanced Disposal Services Jacksonville, LLC, as tenant (the
“SNDA”) (re: Lease dated 3/1/08). The SNDA is not shown as a title exception. Is the
lease still in effect?




#4: 6800 Osteen Rd., New Port Richey, FL, County: Pasco

Waste Services of Florida, Inc. (Delaware)

Title Co.: First American Title Insurance Company; insured amount: $659,379.40

Title No. FA-C-369766; Agent’s Title No. NCS-369766-CLW2



* A “new” exception on the updated title commitment lists an Eminent Domain Resolution Instrument
No. 2004211386 recorded on 11/4/04. What effect, if any, did such instrument have on the insured
property?




 









 








#9: J.E.D. Landfill, 1501 Omni Way, St. Cloud, FL, County: Osceola

Omni Waste of Osceola County, LLC (Florida) (formerly an Ohio LLC)

Title Co.: First American Title Insurance Company; insured amount: $3,876,053.80

Title No. FA-C-369777; Agent’s Title No. NCS-369777-CLW2



* Regarding the unrecorded agreement for Lease/Purchase of Real Property dated as of February 25,
2000, by and between Omni Waste, LLC, an Ohio LLC, and H. Clay Whaley, Jr. and Henry C. Whaley III,
is this lease still in effect, and if so, are its terms subordinated to the insured mortgage?




#18: “Transfer Facility,” County: Seminole

Sanford Recycling and Transfer, Inc. (Florida)

Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $900,000

Title No./Order No. 2645526



* Regarding the Memo of Post Closing and Escrow Agreement recorded in Bk 5495, Page 458, can
Section 3 (escrow funds for road) be affirmatively insured over in the final title policy? Should
not the ingress/egress easement with “Seller” named therein be added as an insured beneficial
easement?




#19: “Ice House,” County: Seminole

Sanford Recycling and Transfer, Inc. (Florida)

Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $900,000

Title No./Order No. 2642966



* Regarding the Memo of Post Closing and Escrow Agreement recorded in Bk 5495, Page 458 from
Property 18 above (“Transfer Facility”), should not the ingress/egress right mentioned as
benefiting Property #19, “Ice House”, be added as an insured beneficial easement?




#24: “Taft,” FL (375 West 7th Street, Taft, FL), County: Orange

Taft Recycling, Inc. (Florida)

Title Co.: Land America/Lawyers Title Insurance Corporation; insured amount: $1,483,000.00

Title No./Order No. 2642955




* Updated Survey to reflect additions to the legal description re: vacated portions of
7th Street and beneficial cross access easement as shown in the updated title
commitment.




#29: 30199 Zemel Road, Punta Gorda, FL, County: Charlotte

SLD Landfill, Inc. (Delaware)

Title Co.: Chicago Title Insurance Company; insured amount: $2,500,000

Title No. 2008 06555; Agent’s Title No. 51900-0023



* The legal description in the updated title commitment is missing a “Less and Excepted” parcel.




 









 







* Satisfaction and removal of the following title exception: Release of Lien recorded on December
11, 2007 in ORBook 3240, Pg 638, Charlotte County Clerk, is contingent on receipt and clearance of
funds (regarding Claim of Lien recorded on October 31, 2007 in ORBook 3227, Pg 482, Charlotte
County Clerk re: Better Roads, Inc. for $176,204.60 for asphalt paving ).



* New Communication System Right of Way and Easement to Embarq Florida, Inc. recorded on June 8,
2007 in ORBook 3170, Pg 594, Charlotte County Clerk, seems to run across Conservation Easement (to
be shown on updated survey) — Need confirmation that such easement does not violate the terms,
provisions, covenants and conditions of the Conservation Easement.



#30: “Freedom Recycling”, Lena Business Park, Lot 6, Bradenton, FL, County: Manatee



Freedom Recycling Holdings, LLC (Florida)
Title Co.: Attorney’s Title Insurance Fund, Inc.; insured amount: $550,000
Title File and Reference No. 15-2008-1696 (51900-0023)



* Requirement in updated title commitment for an Estoppel Letter from the declarant under
Declaration of CC&R’s in ORBook 1745, Pg 7330, Public Records of Manatee County re: assessments
paid, to be satisfied.



Other Post Closing Obligations



Within 30 days of the Closing Date, the US Borrower shall have duly executed and delivered, or
shall have caused each applicable Loan Party to duly execute and deliver, an account control
agreement (in form reasonably satisfactory to the Administrative Agent) with respect to each of the
Deposit Accounts (as defined in the Guarantee and US Collateral Agreement) set forth in Schedule 2
to the Guarantee and US Collateral Agreement, executed and delivered by each of the parties
thereto.



Within 45 days of the Closing Date, the Canadian Borrower shall have delivered to the
Administrative Agent and the Canadian Collateral Agent an acknowledgement and confirmation
agreement from each of the following: (i) Ricoh Canada Inc., (ii) Konica Minolta Business
Solutions (Canada) Ltd., (iii) John Deere Limited (iv) Citicorp Vendor Finance, Ltd., and (v) Honda
Canada Finance Inc., with respect to each of their respective personal property registrations
against the applicable Loan Party, each in form and substance reasonably satisfactory to the
Administrative Agent and the Canadian Collateral Agent.




 









 





Schedule 7.2(d)

Existing Indebtedness





	1.	 	A Promissory Note for approximately $2,500,000 in connection with the acquisition of Omni
Waste of Osceola County LLC in favor of Evadne Gannarelli.
	 
	2.	 	Capital Lease Obligations in the amount of approximately $1,200,000.
	 
	3.	 	In November 2002, Waste Services (CA) Inc. entered into a put or pay disposal agreement with
RCI Environnement Inc. and certain of its affiliates and Intersan Inc. pursuant to which Waste
Services (CA) Inc. and RCI Environnement Inc. and its affiliates agreed to deliver certain
volumes of waste to the landfills and transfer stations of Intersan Inc. over a seven year
period. Waste Services (CA) Inc. has issued a letter of credit for Cdn. $4,000,000 to secure
its obligation.
	 
	4.	 	Installment Sales Contract with Caterpillar Financial for a Caterpillar Wheel Loader GP
Bucket Setco Solid Tire and Rim, Serial # JMS000860 payable in equal monthly installments of
$9,624.44 commencing December 1, 2006, with a current balance of approximately $345,000.
	 
	5.	 	Note dated June 29, 2007 payable to WCA Corporation (assigned to CSFB) in the original
principal amount of $10,500,000 payable without interest in 84 monthly payments of $125,000.00
on the last business day of each month until Jun 2014 — current balance approximately
$8,625,000 .
	 
	6.	 	Deferred obligation to complete closure of adjacent C&D landfill in connection with
acquisition of SLD Landfill. Estimated cost of approximately $1,800,000.
	 
	7.	 	Deferred obligation of approximately $195,000 to Cassidy Homes in connection with acquisition
of Sun Country Landfill. Future contingent obligation of approximately $500,000 as building
permits obtained for dwelling units.










 









 











Schedule 7.3 (f)

Existing Liens





	 	1.	 	Security deposit of $2,100,000 paid to members of the Ward family re proposed
acquisition of RIP, Inc.
	 
	 	2.	 	Security deposit of $550,000 paid to Hathis Wadi LLC re proposed acquisition of land
adjacent to SLD Landfill.
	 
	 	3.	 	Liens on domestic assets as follows:





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE	 	 
	 	 	SECURED	 	 	 	DATE AND	 	 
	DEBTOR	 	PARTY	 	JURISDICTION	 	NUMBER	 	DESCRIPTION
	

Waste Services, Inc.
 

1325 North Osprey Avenue,

Sarasota, FL 34326

	 	

Phoenix 
Funding

Group, LLC
	 	Florida
	 	File Date:08/25/2008


File #: 20080901225X
	 	1- DM4 Channel 80GB DVR w CD & DVD Burner

2-Samsung Color Day/Night High Resolution
Cameras SCC 2311

2-Camera Housings w/ Sunshield/ Heater
HPV 36HS
	 
	 	 	 	 	 	 	 	 
	

Waste Services, Inc.


5113 Uceta Road,


Tampa, FL 33618

	 	

Phoenix
 Funding

Group, LLC
	 	Florida
	 	File Date:08/25/2008


File #: 200809012225
	 	1- DM4 Channel 80GB DVR w CD & DVD Burner

2-Samsung Color Day/Night High Resolution Cameras SCC 2311

2-Camera Housings w/ Sunshield/ Heater
HPV 36HS
	 
	 	 	 	 	 	 	 	 
	

Waste Services, Inc.


11457 CR 672.


Balm, FL 33598

	 	

Phoenix
 Funding

Group, LLC
	 	Florida
	 	File Date:
08/25/2008



File #: 200809012233
	 	1- DM4 Channel 80GB DVR w CD & DVD Burner

2-Samsung Color Day/Night High Resolution
Cameras SCC 2311

2-Camera Housings w/ Sunshield/ Heater
HPV 36HS
	 
	 	 	 	 	 	 	 	 
	

Waste Services, Inc.


12875 60th Street.


Clearwater, FL 33760

	 	

Phoenix
 Funding

Group, LLC
	 	Florida
	 	File Date: 08/25/2008



File #: 200809012241
	 	1- DM4 Channel 80GB DVR w CD & DVD Burner

2-Samsung Color Day/Night High Resolution
Cameras SCC 2311

2-Camera Housings w/ Sunshield/ Heater
HPV 36HS
	 
	 	 	 	 	 	 	 	 
	Waste Services, Inc.


11500
43rd Street N., 


Clearwater, FL 33762

	 	
Ervin 
Leasing

Company
	 	Florida
	 	File Date:
11/20/2007



File #: 200707043202
	 	Filing for information only



1 Taridan Telephone System, per Schedule

A, 
Ervin Leasing Company Lease No.
158963-01
	 
	 	 	 	 	 	 	 	 
	Waste Services, Inc.

11500 43rd Street N.,

Clearwater, FL 33762

	 	Ervin
 Leasing

Company
	 	Delaware
	 	File Date:
08/02/2007


File #: 3154696
	 	Filing for information only.



1 Taridan Telephone System per Schedule A 



Ervin Leasing Company Lease No. 158963-02.
	 
	Waste Services of Florida,
Inc.
 

6800 Osten Road, New Port

Richy, FL 34653

	 	
US Express
 Leasing,
Inc.
	 	Florida
	 	File Date:
03/23/2007


File #: 200705123896
	 	All items of personal property leased
pursuant to that certain Lease Agreement
dated March 20, 2007, together with all
related software, all additions,
attachments, accessories and accessions
thereto, whether or not furnished by the
supplier thereof; and any and all
substitutions, replacements and exchanges
therefor and all insurance proceeds
thereof.






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE	 	 
	 	 	SECURED	 	 	 	DATE AND	 	 
	DEBTOR	 	PARTY	 	JURISDICTION	 	NUMBER	 	DESCRIPTION
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc.
 

1601 N. 34 St., Tampa, FL

33605

	 	

US Express
 Leasing,
Inc.
	 	Florida
	 	File Date:
09/10/2007


File #: 200706485678
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 31, 2007, together with all
related software, all additions,
attachments, accessories and accessions
thereto, whether or not furnished by the
supplier thereof; and any and all
substitutions, replacements and exchanges
therefor and all insurance proceeds
thereof. 


1 Kyocera Mita 2050 S/N J3106793
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc.
 

5002 T-Rex Ave., Suite 200

Boca Raton, FL

	 	

US Express 
Leasing
Inc.
	 	Delaware
	 	File Date:
08/17/2006


File #: 62861458
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 9, 2006, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof. 


1 Kyocera Mita 5035 S/N M3041516
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc.
 

3900 N. Orange Street,

Sarasota, FL

	 	

US Express 
Leasing
Inc.
	 	Delaware
	 	File Date:
02/27/2007


File #: 07351504
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 9, 2006, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof.


1 Kyocera Mita 5035 S/N M3042712
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc. 


11500 43rd Street

North, Clearwater, FL

	 	
US Express 
Leasing
Inc.
	 	Delaware
	 	File Date:
05/11/2007


File #: 1786101
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 9, 2006, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof.


1 Kyocera Mita 5050 copier system
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc.


1325 N. Osprey Ave.,

Sarasota, FL

	 	

US Express 
Leasing
Inc.
	 	Delaware
	 	File Date: 05/31/2007


File #: 2035227
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 9, 2006, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof. 


1 Kyocera Mita 2050 copier system






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	ORIGINAL FILE	 	 
	 	 	SECURED	 	 	 	DATE AND	 	 
	DEBTOR	 	PARTY	 	JURISDICTION	 	NUMBER	 	DESCRIPTION
	 
	 	 	 	 	 	 	 	 
	Waste Services of Florida,
Inc. 


2602 North 34th
Street,
 Tampa, FL

	 	US Express 
Leasing
Inc.
	 	Delaware
	 	File Date:
09/25/2007


File #: 3610325
	 	All items of personal property pursuant
to that certain Leased Agreement dated
August 9, 2006, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof. 


1 Kyocera FS-C5030N S/N E7510112
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc. 


11500 43rd
Street,
 Clearwater, FL 33762

	 	
CIT 
Technology 

Financing 
Services,
Inc.
	 	Florida
	 	File Date:
08/06/2008


File #: 200808893511
	 	2 Kyocera Mita 5050-K8310681, K8310687


1 Konica Minolta 253-A02E)11004831


1 Kyocera Mita 2560- S8501462 plus all
other types of office equipment and
products, computers, security systems and
other items of equipment leased to and/or
financed for debtor/lessee by secured
party/lessor and including all
replacements, upgrades and substitutions
hereafter occurring to all of the
foregoing equipment and all now existing
and future attachments, parts,
accessories and add -ons for all of the
foregoing items and types of equipment
and all proceeds and products thereof.
	 
	 	 	 	 	 	 	 	 
	
Waste Services of Florida,
Inc.

	 	
Credit
 Suisse

Funding LLC
	 	Delaware
	 	File Date:
06/03/2008
 

File #: 1989175
	 	  All assets and personal property of
Debtor in connection with or related to
that certain real property located in Lee
County, FL having a legal description as
set forth in Schedule A:

 Tract or Parcel of Land lying in the East
One-half (E1/2) of the southeast quarter
of Section 17, Township 44 South, Range
25 East, Lee County County, FL. 
	 
	 	 	 	 	 	 	 	 
	
Waste Services, Inc.

11500 43rd St.
North,
 Clearwater, FL 33762

	 	
US Express 
Leasing
Inc.
	 	Delaware
	 	File Date:
04/11/2007


File #: 1358067
	 	All items of personal property pursuant
to that certain Leased Agreement dated
April 9, 2007, together with all related
software, all additions, attachments,
accessories and accessions thereto,
whether or not furnished by the supplier
thereof; and any and all substitutions,
replacements and exchanges therefor and
all insurance proceeds thereof.



1 Tadiran Coral IPX500 Telephone System
	 
	 	 	 	 	 	 	 	 
	Waste Services, Inc. 

11500 43rd St.
North, 
Clearwater, FL 33762

	 	Ervin 
Leasing

Company
	 	Delaware
	 	File Date: 08/02/2007

File#: 3154696
	 	Taridan Telephone System
	 
	 	 	 	 	 	 	 	 
	Omni Waste of Osceola 

County, LLC

	 	Caterpillar

Financial 
Services
	 	Florida
	 	File Date:
04/08/2004


File #:
200406604272
	 	One Caterpillar D7RIILGP track-type
tractor SN AFG00527 and substitutions,
replacements, additions and accessions
thereto.
	 
	 	 	 	 	 	 	 	 
	Liberty Waste, LLC

	 	Caterpillar

Financial
 Services

Corporation
	 	Florida
	 	File Date:
01/05/2006


File #: 20060155196
	 	One Caterpillar 966GII Wheel Loader SN
AXJ02913 and substitutions, replacements,
additions and accessions thereto.
	 
	 	 	 	 	 	 	 	 
	Pro Disposal, Inc.

	 	Caterpillar

Financial 
Services

Corporation
	 	Florida
	 	File Date:
11/03/2006


File #: 200604059734
	 	One Caterpillar 980H Wheel Loader W/GP
Bucket A/N: JMS00860 and substitutions,
replacements, additions and accessions
thereto






 









 





          C. Liens on Canadian assets.



     4. Liens in Canada.



	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party Name	 	Registration Particulars	 	Collateral Secured
	Registrations with respect to Waste Services (CA) Inc.

	 	 	 	 
	 
	 	 	 	 	 	 
	Ontario

	 	Ricoh Canada Inc.
 

100-1235 North Service Rd. W,

Oakville, ON L6M 2W2
	 	File No. 641025945


Registration No. 20071128

1949 1531 9958
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Ontario

	 	Xerox Canada Ltd.


33 Bloor Street,
3rd Floor,

Toronto, ON M4W 3H1
	 	File No.: 640460682


Registration No.: 20071105

1701 1462 2484
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Ontario

	 	Wakefield Canada Inc.


3620 Lakeshore Blvd. W.,

Toronto, ON M8W 1P2
	 	File No.: 632582082


Registration No.: 20070202

1433 8077 7777
	 	Equipment

Secured Amount : $4,447

1-225-006 Graco Fireball 300 50

1 Grease Pump 

Pkg 2 — 993091 Graco Bench Tank 

Pkgs 1 — 244-100 Falcon Grease Pump

Total Value $4,447.25
	 
	 	 	 	 	 	 
	Ontario

	 	VFS Canada Inc.


73 Industrial Parkway North,
Aurora, ON L4G 4G4
	 	File No.: 630828261


Registration No.: 20061122
 1711 8077 1904

Amended by: 20061208
 1447
8077 3071
	 	Equipment, Other, Motor Vehicle Included

2007 Mack MR688S VIN #:
  1M2K189CX7MO34253 c/w 40 cubic yard 

Universal Front End Loader Model
LM200FE 
SN8003-3-1620 including dual
camera 
spotlights, camera
 back up
system and fork alarm
	 

	 	
	 	
	 	
	 
	 	 	 	 	 	 
	Ontario

	 	Xerox Canada Ltd.


33 Bloor Street E,
3rd Floor,

Toronto, ON M4W 3H1
	 	File No.: 626749236


Registration No.: 20060705

1404 1462 5776
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Ontario

	 	Konica Minolta Business

Solutions (Canada) Ltd./
Solutions
D’Affairs Konica

Minolta (Canada) Ltee


P.O. Box 37, Station A,

Mississauga, ON L5A 2Y9
	 	File No.: 626020119


Registration No.: 20060609

1818 7029 0696
	 	Equipment, Other

1 Minolta Bizhub C350 Bizhub
Photocopier plus all accessories with
all attachments, accessories and
proceeds thereof
	 
	 	 	 	 	 	 
	Ontario

	 	John Deere Limited


1001 Champlain Ave., Suite
401, Burlington, ON L7L 5Z4
	 	File No.: 624614454


Registration No.: 20060426
1441 8077 6309
	 	Equipment, Other, Motor Vehicle Included
2006 John Deere Model 624J V.I.N #: 
DW624JZ604862
	 
	 	 	 	 	 	 
	Ontario

	 	Konica Minolta Business

Solutions (Canada) Ltd. /
Solutions
D’Affairs Konica

Minolta (Canada) Ltee


P.O. Box 37, Station A,

Mississauga, ON L5A 2Y9
	 	File No.: 624108942


Registration No.: 20060407

1559 7029 9848
	 	Equipment, Other

1 Konica Minolta C250 copier with
accessories with all attachments,
accessories and proceeds thereof
	 
	 	 	 	 	 	 
	Ontario

	 	De Lage Landen Financial

Services Canada Inc. #100,

1235 North Service Rd. W.,

Oakville, ON L6M 2W2
	 	File No.: 622698642


Registration No.: 20060213

1701 1462 1428
	 	Equipment, Other

All goods supplied by the secured party
pursuant to a lease with the secured
party, together with all parts and
accessories thereto and accessions
thereto and all replacements or
substitutions for such goods and
proceeds thereof , including insurance
proceeds.






 










 






	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party Name	 	Registration Particulars	 	Collateral Secured
	Ontario

	 	IFC (Canada) Inc.


155 Rexdale Blvd., Suite 504,
	 	File No.: 622460673


Registration No.: 20060202
	 	Equipment, Other

Secured Amount: $16,200
3 -40 cubic yard compactor containers
	 

	 	Toronto, ON M9W 5Z8


National Bank of Canada


3901 Highway 7 West

Vaughan, Ontario L4L 8L5
	 	1449 1862 4876
	 	 
	 
	 	 	 	 	 	 
	Ontario

	 	Xerox Canada Ltd.


33 Bloor Street E,
3rd Floor,

Toronto, ON M4W 3H1
	 	File No.: 610653879


Registration No.: 20041117

1405 1462 7441
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Ontario

	 	Xerox Canada Ltd.


33 Bloor Street E,
3rd Floor,
 Toronto
ON M4W 3H1
	 	File No.: 644460948


Registration No.: 20080423

1406 1462 7608
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Alberta

	 	Irwin Commercial Finance

Canada Corporation


Suite 300, Park Place 666

Burrard Street, Vancouver BC

V6C 2X8
	 	Registration No.:

05063003999


Date: June 30, 2005
	 	1 GB00915 2005 DEAWOO G25P

Forklift(s) together with all
attachments accessories and
replacements substitutions additions
and improvements thereto and all
proceeds and a right to an insurance
payment or other payment that
indemnifies or compensates for loss or
damage to the collateral or proceeds of
the collateral
	 
	 	 	 	 	 	 
	Alberta

	 	Ford Credit Canada Leasing

Company


	 	Registration No.:

06112916736
	 	1FTRW14W87FA12821 2007 Ford F150
	 

	 	P.O. Box 2400, Edmonton AB

T5J 5C7
	 	Date: November 29, 2006	 	 
	 
	 	 	 	 	 	 
	Alberta

	 	Ford Credit Canada Leasing

Company


	 	Registration No.:

06120426702


	 	1FTRW14W87FA12821 2007 Ford F150
	 

	 	P.O. Box 2400, Edmonton, AB

T5J 5C7
	 	Date: December 4, 2006	 	 
	 
	 	 	 	 	 	 
	Alberta

	 	VFS Canada Inc. 


73 Industrial Parkway North, 

Aurora, ON L4G 4C4
	 	Registration No.:

06120732208


Date: December 7, 2006
	 	1M2K189CX7M034253 2007 Mack MR688S

together with (1) all present and
after-acquired parts, accessions,
attachments and replacements thereto;
and (2) proceeds
	 
	 	 	 	 	 	 
	Alberta

	 	Ford Credit Canada Leasing, A 

division of Canadian


	 	Registration No.: 

07022116532


	 	1FTPW14V97FA73027 2007 Ford F150
	 

	 	P.O. Box 2400, Edmonton, AB 

T5J 5C7
	 	Date: February 21, 2007	 	 
	 
	 	 	 	 	 	 
	Alberta

	 	Wakefield Canada Inc. 


3620 Lakeshore Blvd. West, 

Toronto ON M8W 1P2
	 	Registration No.: 

07090412664


Date: September 4, 2007
	 	1 — 1110 Bench Tank Pkg 1135 Litre 1 -

2199UPGD Preset Digital handle upgrade
total value $2,165






 









 






	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party Name	 	Registration Particulars	 	Collateral Secured
	Alberta

	 	John Deere Credit Inc. 


1001 Champlain Ave, Suite
401, 
Burlington ON L7L 5Z4
	 	Registration No.: 

08020110008


Date: February 1, 2008
	 	T00320A156404 2008 John Deere 320

One John Deere 320 Skid Steer together
with all attachments, accessories,
accessions, replacements,
substitutions, additions and
improvements thereto and all proceeds
of every type, item or kind in any form
derived directly or indirectly from any
dealing with collateral including
without limitation trade-ins, equipment
inventory, goods, notes, chattel paper,
contract rights, accounts, rental
payments, securities, intangibles,
documents of title and money and all
proceeds of proceeds and a right to any
insurance payment and any other payment
that indemnifies or compensates for
loss or damage to the collateral or the
proceeds of the collateral
	 
	 	 	 	 	 	 
	Alberta

	 	Caterpillar Financial
Services Limited


	 	Registration No.:

08021317645


	 	CAT042DAFDP22837 2005 Caterpillar 420D
	 

	 	700 Dorval Drive, Suite 705,

Oakville, ON L6K 3V3
	 	Date: February 13, 2008	 	 
	 
	 	 	 	 	 	 
	British Columbia

	 	Onset Capital Corporation 


Suite 300, 666 Burrard
Street,
 Vancouver, BC V6C
2X8
	 	Registration No.: 073007C


Date: December 2, 2004
	 	Portable Buildings, together with all
attachments, accessories, accessions
replacements, substitutions, additions
and improvements there to and all
proceeds and a right to any insurance
payment or other payment that
indemnifies or compensates for loss or
damage to the collateral or proceeds
	 
	 	 	 	 	 	 
	British Columbia

	 	Irwin Commercial Finance

Canada Corporation 


Suite 300, Park Place, 666

Burrard Street, Vancouver, BC 

V6C 2X8
	 	Registration No.: 204723C 


Date: February 24, 2005
	 	Copiers, together with all attachments,
accessories, accessions replacements,
substitutions, additions and
improvements there to and all proceeds
and a right to any insurance payment or
other payment that indemnifies or
compensates for loss or damage to the
collateral or proceeds
	 
	 	 	 	 	 	 
	Registrations with respect to Waste Services, Inc.

	 	 	 	 
	 
	 	 	 	 	 	 
	Ontario

	 	Citicorp Vendor Finance, Ltd. 


123 Front Street West,
16th 
Floor,
Toronto ON M5J 2M2
	 	File No.: 633154239


Registration No.: 20070301

1154 1862 0990
	 	Inventory, Equipment, Accounts, Other
All leases (as defined in the master
sale and assignment agreement dated
April 19, 1999 between debtor and
secured party) (the “Agreement”) that
are purchased by secured party or are
assigned to secured party from time to
time pursuant to the Agreement,
together with (i) any guarantees of the
obligations of any lessee under the
lease or other security in respect of
the leased, (ii) all sums due under the
leases or the guarantees or security
described in (i) above, (ii) the
equipment subject to the leases (and as
defined therein) and (iii) all proceeds
of the foregoing.
	 
	 	 	 	 	 	 
	Registrations with respect to Waste Services, Inc.

	 	 	 	 
	 
	 	 	 	 	 	 
	Ontario

	 	KEC Investments Inc.


155 Rexdale Blvd., Suite 504
Toronto, Ontario M9W 5Z8

National Bank of Canada


3901 Highway 7 West 

Vaughan, Ontario L4L 8L5

	 	File No.: 618186429


Registration No.: 20050823 
1135 1862 4621
	 	Equipment, Other

Secured Amount: $15,000
RP-4260-35 Self Contained Compactor
with rear feed






 









 






	 	 	 	 	 	 	 
	Jurisdiction	 	Secured Party Name	 	Registration Particulars	 	Collateral Secured
	Ontario

	 	XEROX Canada Ltd.


33 Bloor Street East, 3rd Floor, 
Toronto
ON M4W 3H1

	 	File No.: 625639374


Registration No.: 20060530
 1704 1462 7504
	 	Equipment, Other
	 
	 	 	 	 	 	 
	Ontario

	 	Honda Canada Finance Inc. 


3650 Victoria Park Ave, #302, 

North York ON L2H 3P7
	 	File No.: 639907974


Registration No.: 20071015

1951 1531 1303
	 	Consumer Goods, Equipment 

Secured Amount : $61,432

Date of Maturity: 06OCT2011

2008 Acura MDX VIN-2HNYD28898H000125
	 
	 	 	 	 	 	 
	Registrations with respect to Capital Environmental Resource Inc.

	 
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc.


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 616675217


Registration No.: 20041230

1045 8077 8033
	 	Equipment

Secured Amount: $8,215

2-245-319 Graco Workbench Tank
Packages,
 22506 Grease Pump, 22578 Oil
Pump
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc.


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 606812913


Registration No.: 20040628

1444 8077 0668
	 	Equipment

Secured Amount: $3,923

2-237022 Hose Reel, 238457 Meter,
244100 
Pump, 244089 Pump
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 604706598


Registration No.: 20040419

1403 8077 7244
	 	Equipment 

Secured Amount: $8,163

2-1100 Steel Totes, 2-Fireball Pumps,
2-Hose 
Reels, 2-Meters, Misc.
Accessories
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc.


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No:604198116


Registration No.: 20040331

1042 8077 6428
	 	Equipment

Secured Amount: $6,424

2-245-319 Graco Workbench Tank
Packages, 2-225-378 Gear Oil Pumps
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 603300006


Registration No.: 20040224

1451 8077 4919
	 	Equipment

Secured Amount: $6,673

2-225378 Gear Oil Pumps, 2-993084
Workbench 
Tank Packages, 225006 Pump
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 602524854


Registration No.: 20040116

1451 8077 3424
	 	Equipment

Secured Amount: $5,582

2-93-030 Graco 1135 Litre Workbench
Tank Packages
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 602205525


Registration No.: 20040102

1742 8077 2937
	 	Equipment

Secured Amount: $16,595

2-Used Workbench Packages, 2-993030

Workbench Tank Packages, 993084
Workbench 
Tank Package, 225006 Pump,
2-237022 Reels, 2-238503 Meters,
2-225006 Pumps
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 600639678


Registration No.: 20031030

1442 8077 0370
	 	Equipment

Secured Amount: $5,608

2-993030 Workbench Tank Packages
	 
	 	 	 	 	 	 
	Ontario

	 	Castrol Canada Inc. 


3620 Lakeshore Blvd, Toronto, 

ON M8W 1P2
	 	File No: 600639831


Registration No.: 20031030

1442 8077 0386
	 	Equipment

Secured Amount: $5,144

2-993-028 Graco Workbench Tank Packages







 









 








Schedule 7.5 (e)

Certain Dispositions



1. Potential Sale of Michigan Links Transfer Station to City of Fort Myers. The Borrower has
submitted a letter of intent to the City of Fort Myers for a purchase price of $8,000,000.



2. Sale of 7580 Philips Highway, Jacksonville, FL to Advanced Disposal (ADS) on exercise of
purchase option contained in the lease of the property. The option to purchase is exercisable at
ADS’s option in the period April 1, 2009 through March 31, 2012 for a purchase price of $6,000,000
payable on closing. If the closing occurs after July 30, 2009, the purchase price increases by the
percentage increase in the CPI every 12 months from April 1, 2009 to the end of the month
immediately preceding the closing,



3. Potential Sale of Keswick, Ontario containers and customers to Miller Waste for cash of
approximately Cdn. $2,500,000. The closing of this transaction is expected by the end of the
4th quarter of 2008.




 









 





Schedule 7.10

Transactions with Affiliates





	1.	 	In November 2002, the Canadian Borrower entered into a put or pay disposal agreement with RCI
Environnement Inc. and certain of its affiliates and Intersan Inc. pursuant to which the
Canadian Borrower and RCI and its affiliates agreed to deliver certain volumes of waste to the
landfills and transfer station of Intersan Inc. over a seven year period. The RCI companies
are controlled by Lucien Rémillard, a director of the US Borrower. The Canadian Borrower has
issued a letter of credit for Cdn. $4,000,000 to secure its obligation.
	 
	2.	 	Pursuant to a subscription agreement dated November 8, 2006 among the US Borrower, Prides
Capital Fund 1, LP and others, Prides Capital Fund 1, LP subscribed for $26,500,000 in common
stock of the Borrower at $9.50 per share. Pursuant to that agreement, a nominee of Prides,
Charlie McCarthy, was, on December 18, 2006, appointed a director of the Borrower for a term
ending in 2009.
	 
	3.	 	As required by registration rights agreements dated December 15, 2006, the US Borrower filed
a registration statement on Form S-3 with the Securities and Exchange Commission on December
21, 2006 to register stock issued in private placements on December 15, 2006 to Westbury
(Bermuda) Limited, affiliates of Kelso & Company and Prides Capital Fund 1, LP.
	 
	4.	 	The Canadian Borrower leases office premises in Burlington, Ontario from Westbury
International (1991) Corporation, a property development company owned by Michael H. DeGroote,
a director of the US Borrower.






 










 





Execution Version








 

 






GUARANTEE AND US COLLATERAL AGREEMENT




made by




WASTE SERVICES, INC.,




WASTE SERVICES (CA) INC.




and certain of their respective Subsidiaries




in favor of




BARCLAYS BANK PLC,

as Administrative Agent




Dated as of October 8, 2008




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINED TERMS
	 	 	2	 
	 
	 	 	 	 
	1.1. Definitions. (a)
	 	 	2	 
	1.2. Other Definitional Provisions
	 	 	10	 
	 
	 	 	 	 
	SECTION 2. GUARANTEE
	 	 	10	 
	 
	 	 	 	 
	2.1. Guarantee
	 	 	10	 
	2.2. Rights of Reimbursement, Contribution and Subrogation
	 	 	11	 
	2.3. Amendments, etc. with respect to the Borrower Obligations
	 	 	13	 
	2.4. Guarantee Absolute and Unconditional
	 	 	13	 
	2.5. Reinstatement
	 	 	14	 
	2.6. Payments
	 	 	14	 
	2.7. Withholding Taxes
	 	 	14	 
	 
	 	 	 	 
	SECTION 3. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL
	 	 	15	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	17	 
	 
	 	 	 	 
	4.1. Representations in Credit Agreement
	 	 	17	 
	4.2. Title; No Other Liens
	 	 	17	 
	4.3. Perfected First Priority Liens
	 	 	17	 
	4.4. Name; Jurisdiction of Organization, etc
	 	 	18	 
	4.5. Inventory and Equipment
	 	 	18	 
	4.6. Farm Products
	 	 	18	 
	4.7. Investment Property
	 	 	18	 
	4.8. Receivables
	 	 	19	 
	4.9. Intellectual Property
	 	 	20	 
	4.10. Vehicles
	 	 	22	 
	4.11. Letter of Credit Rights
	 	 	22	 
	4.12. Commercial Tort Claims
	 	 	22	 
	 
	 	 	 	 
	SECTION 5. COVENANTS
	 	 	22	 
	 
	 	 	 	 
	5.1. Covenants in Credit Agreement
	 	 	22	 
	5.2. Delivery and Control of Instruments, Chattel Paper, Negotiable
Documents, Investment Property and Deposit Accounts
	 	 	23	 
	5.3. Maintenance of Insurance
	 	 	24	 
	5.4. Payment of Obligations
	 	 	24	 
	5.5. Maintenance of Perfected Security Interest; Further Documentation
	 	 	25	 
	5.6. Changes in Locations, Name, Jurisdiction of Incorporation, etc
	 	 	26	 
	5.7. Notices
	 	 	26	 
	5.8. Investment Property
	 	 	26	 
	5.9. Receivables
	 	 	27	 






i









 






	 	 	 	 	 
	 	 	Page	 
	5.10. Intellectual Property
	 	 	28	 
	5.11. Vehicles
	 	 	31	 
	 
	 	 	 	 
	SECTION 6. REMEDIAL PROVISIONS
	 	 	31	 
	 
	 	 	 	 
	6.1. Certain Matters Relating to Receivables
	 	 	31	 
	6.2. Communications with Obligors; Grantors Remain Liable
	 	 	32	 
	6.3. Pledged Securities
	 	 	33	 
	6.4. Proceeds to be Turned Over To Administrative Agent
	 	 	34	 
	6.5. Application of Proceeds
	 	 	34	 
	6.6. Code and Other Remedies
	 	 	35	 
	6.7. Registration Rights
	 	 	36	 
	6.8. Deficiency
	 	 	37	 
	 
	 	 	 	 
	SECTION 7. THE ADMINISTRATIVE AGENT
	 	 	38	 
	 
	 	 	 	 
	7.1. Administrative Agent’s Appointment as Attorney-in-Fact, etc
	 	 	38	 
	7.2. Duty of Administrative Agent
	 	 	39	 
	7.3. Execution of Financing Statements
	 	 	40	 
	7.4. Authority of Administrative Agent
	 	 	40	 
	7.5. Appointment of Co-Collateral Agents
	 	 	40	 
	 
	 	 	 	 
	SECTION 8. MISCELLANEOUS
	 	 	41	 
	 
	 	 	 	 
	8.1. Amendments in Writing
	 	 	41	 
	8.2. Notices
	 	 	41	 
	8.3. No Waiver by Course of Conduct; Cumulative Remedies
	 	 	41	 
	8.4. Enforcement Expenses; Indemnification
	 	 	41	 
	8.5. Successors and Assigns
	 	 	42	 
	8.6. Set-Off
	 	 	42	 
	8.7. Counterparts
	 	 	43	 
	8.8. Severability
	 	 	43	 
	8.9. Section Headings
	 	 	43	 
	8.10. Integration
	 	 	43	 
	8.11. GOVERNING LAW
	 	 	43	 
	8.12. Submission to Jurisdiction; Waivers
	 	 	43	 
	8.13. Acknowledgments
	 	 	44	 
	8.14. Additional Guarantors
	 	 	44	 
	8.15. Releases
	 	 	44	 
	8.16. WAIVER OF JURY TRIAL
	 	 	45	 
	8.17. Pledged ULC Shares Limitation
	 	 	45	 






ii









 






	 	 	 
	ANNEXES:
	 
	 	 
	1

	 	Form of Assumption Agreement
	 
	 	 
	SCHEDULES:
	 
	 	 
	1

	 	Notice Addresses of Guarantors
	2

	 	Description of Pledged Investment Property
	3

	 	Filings and Other Actions Required to Perfect Security Interests
	4

	 	Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office
	5

	 	Location of Inventory and Equipment
	6

	 	Intellectual Property
	7

	 	Vehicles
	8

	 	Commercial Tort Claims
	 
	 	 
	EXHIBITS:
	 
	 	 
	A

	 	Form of Acknowledgment and Consent
	B-1

	 	Form of Intellectual Property Security Agreement
	B-2

	 	Form of After-Acquired Intellectual Property Security Agreement






iii









 






GUARANTEE AND US COLLATERAL AGREEMENT




     This GUARANTEE AND US COLLATERAL AGREEMENT, dated as of October 8, 2008, made by each of WASTE
SERVICES (CA) INC., an Ontario corporation (the “Canadian Borrower”), WASTE SERVICES, INC.,
a Delaware corporation (the “US Borrower” and, together with the Canadian Borrower, the
“Borrowers”), and the other signatories hereto (together with the Borrowers and any other
entity that may become a party hereto as provided herein, the “Loan Parties”), in favor of
BARCLAYS BANK PLC, as Administrative Agent (in such capacity, together with its permitted
successors and assigns in such capacity, the “Administrative Agent”) for (i) the several
banks and other financial institutions or entities (the “Lenders”) from time to time party
to the Credit Agreement, dated as of October 8, 2008 (as amended, restated, supplemented, replaced
or otherwise modified from time to time, the “Credit Agreement”), among the Borrowers, the
Lenders from time to time party thereto, Barclays Capital, the investment banking division of
Barclays Bank PLC, and Banc of America Securities LLC, as joint lead arrangers and joint lead
bookrunners (collectively, in such capacities, the “Arrangers”), Bank of America, N.A., as
syndication agent (in such capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank
and The Bank of Nova Scotia, as co-documentation agents (collectively, in such capacities, the
“Co-Documentation Agents”), the Administrative Agent and The Bank of Nova Scotia, as
Canadian agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Canadian Agent”) and Canadian collateral agent (in such capacity, together
with its permitted successors and assigns in such capacity, the “Canadian Collateral
Agent”), and (ii) the other Secured Parties (as hereinafter defined).



W
I T N E S S E
T H:




          WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrowers upon the terms and subject to the conditions set forth
therein;




          WHEREAS, the Borrowers are members of an affiliated group of companies that includes each
other Loan Party;




          WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be used in
part to enable the Borrowers to make valuable transfers to one or more of the other Loan Parties in
connection with the operation of their respective businesses;




          WHEREAS, the Borrowers and the other Loan Parties are engaged in related businesses, and each
Guarantor will derive substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement; and




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors and the
Guarantors shall have executed and delivered this Agreement to the Administrative Agent for the
ratable benefit of the Secured Parties;




 









 








          NOW, THEREFORE, in consideration of the premises and to induce the Arranger, the
Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders
to make their respective extensions of credit to the Borrowers thereunder, each Grantor hereby
agrees with the Administrative Agent, for the ratable benefit of the Secured Parties, as follows:




SECTION 1. DEFINED TERMS




          1.1. Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the
following terms which are defined in Article 8 or 9 of the Uniform Commercial Code in effect in the
State of New York on the date hereof are used herein as so defined: Accounts, Account Debtor,
Authenticate, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account,
Commodity Contract, Commodity Intermediary, Documents, Electronic Chattel Paper, Entitlement Order,
Equipment, Farm Products, Financial Asset, Fixtures, Goods, Instruments, Inventory, Letter of
Credit Rights, Money, Payment Intangibles, Securities Account, Securities Intermediary, Security,
Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.




          (b) The following terms shall have the following meanings:





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




     “Agreement”: this Guarantee and US Collateral Agreement, as the same may be
amended, restated, supplemented, replaced or otherwise modified from time to time.




     “Arrangers”: as defined in the preamble hereto.




     “Borrower Obligations”: the collective reference to the Canadian Borrower
Obligations and the US Borrower Obligations.




     “Borrowers”: as defined in the preamble hereto.




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




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




     “Canadian Borrower Obligations”: the collective reference to the Obligations
(as defined in the Credit Agreement) with respect to the Canadian Borrower.




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




     “Co-Documentation Agents”: as defined in the preamble hereto.




     “Collateral”: as defined in Section 3.



2









 






     “Collateral Account”: (i) any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4 or (ii) any cash collateral account
established as provided in Section 2.8(k), 2.13(e) or 8 of the Credit Agreement.




     “Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 6), granting any
right under any Copyright, including, without limitation, the grant of rights to
manufacture, print, publish, copy, import, export, distribute, exploit and sell materials
derived from any Copyright.




     “Copyrights”: (i) all domestic and foreign copyrights, whether or not the
underlying works of authorship have been published, including but not limited to copyrights
in software and databases, all Mask Works (as defined in 17 U.S.C. 901 of the U.S. Copyright
Act) and all works of authorship and other intellectual property rights therein, all
copyrights of works based on, incorporated in, derived from or relating to works covered by
such copyrights, all right, title and interest to make and exploit all derivative works
based on or adopted from works covered by such copyrights, and all copyright registrations,
copyright applications, mask works registrations, and mask works applications and any
renewals or extensions thereof, including, without limitation, each registration and
application identified in Schedule 6, (ii) the rights to print, publish and
distribute any of the foregoing, (iii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all Copyright Licenses entered into
in connection therewith, payments arising out of any other sale, lease, license or other
disposition thereof and damages and payments for past, present or future infringements
thereof), and (v) all other rights of any kind whatsoever accruing thereunder or pertaining
thereto.




     “Credit Agreement”: as defined in the preamble hereto.




     “Deposit Account”: (i) all “deposit accounts” as defined in Article 9 of the
UCC, (ii) all other accounts maintained with any financial institution (other than
Securities Accounts or Commodity Accounts) and (iii) shall include, without limitation, all
of the accounts listed in Schedule 2 hereto under the heading “Deposit Accounts” (as
such schedule may be amended from time to time) together, in each case, with all funds held
therein and all certificates or instruments representing any of the foregoing.




     “Excluded Assets”: any permit, lease, license, contract, property right or
agreement to which any Grantor is a party or any of its rights or interests thereunder if
and only for so long as the grant of a security interest hereunder shall constitute or
result in a breach, termination or default under any such permit, lease, license, contract,
property right or agreement (other than to the extent that any such term would be rendered
ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant
jurisdiction or any other applicable law or principles of equity); provided,
however, that such security interest shall attach immediately to any portion of such



3









 







permit, lease, license, contract, property rights or agreement that does not result in
any of the consequences specified above.




     “Excluded Foreign Subsidiary Voting Stock”: the voting Capital Stock of any
Excluded Foreign Subsidiary.




     “Federal Assignment of Claims Act”: 31 U.S.C. § 3727 and 41 U.S.C. §15.




     “General Intangibles”: all “general intangibles” as such term is defined in
Section 9-102(a)(42) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, including, without limitation, with respect to any
Grantor, all rights of such Grantor to receive any tax refunds, all Hedge Agreements and all
contracts, agreements, instruments and indentures and all licenses, permits, concessions,
franchises and Authorizations issued by Governmental Authorities in any form, and portions
thereof, to which such Grantor is a party or under which such Grantor has any right, title
or interest or to which such Grantor or any property of such Grantor is subject, as the same
may from time to time be amended, restated, supplemented, replaced or otherwise modified,
including, without limitation, (i) all rights of such Grantor to receive moneys due and to
become due to it thereunder or in connection therewith, (ii) all rights of such Grantor to
receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto,
(iii) all rights of such Grantor to damages arising thereunder, and (iv) all rights of such
Grantor to terminate and to perform, compel performance and to exercise all remedies
thereunder.




     “Grantors”: the collective reference to the US Borrower and each Domestic
Subsidiary.




     “Guarantor Obligations”: with respect to (i) any Guarantor that is not a
Borrower, all obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2) or any other Loan
Document to which such Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to any Secured Party
that are required to be paid by such Guarantor pursuant to the terms of this Agreement or
any other Loan Document), (ii) the US Borrower, all obligations and liabilities of the US
Borrower in its capacity as Guarantor of the Canadian Borrower Obligations, which arise
under or in connection with Section 2, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to any Secured Party
that are required to be paid by such Guarantor pursuant to the terms of this Agreement or
any other Loan Document), and (iii) the Canadian Borrower, all obligations and liabilities
of the Canadian Borrower in its capacity as Guarantor of the US Borrower Obligations, which
arise under or in connection with Section 2, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to any Secured Party
that are required to be paid by such Guarantor pursuant to the terms of this Agreement or
any other Loan Document).



4









 






     “Guarantors”: the collective reference to each signatory hereto.




     “Insurance”: shall mean: (i) all insurance policies covering any or all of the
Collateral (regardless of whether the Administrative Agent is the loss payee thereof) and
(ii) any key man life insurance policies.




     “Intellectual Property”: the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including, without limitation, the Copyrights,
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark
Licenses, the Trade Secrets and the Trade Secret Licenses, and all rights to sue at law or
in equity for any past, present and future infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.




     “Intercompany Note”: any promissory note evidencing loans made by any Grantor
to any other Group Member.




     “Investment Property”: the collective reference to (i) all “investment
property” as such term is defined in Section 9-102(a)(49) of the Uniform Commercial Code in
effect in the State of New York on the date hereof including, without limitation, all
Certificated Securities and Uncertificated Securities, all Security Entitlements, all
Securities Accounts, all Commodity Contracts and all Commodity Accounts (other than any
Excluded Foreign Subsidiary Voting Stock excluded from the definition of “Pledged Equity
Interests”), (ii) security entitlements, in the case of any United States Treasury
book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United
States federal agency book-entry securities, as defined in the corresponding United States
federal regulations governing such book-entry securities, and (iii) whether or not
constituting “investment property” as so defined, all Pledged Notes, all Pledged Equity
Interests, all Pledged Security Entitlements and all Pledged Commodity Contracts.




     “Issuers”: the collective reference to each issuer of a Pledged Security.




     “Lenders”: as defined in the preamble hereto.




     “Loan Parties”: as defined in the preamble hereto.




     “New York UCC”: the Uniform Commercial Code as from time to time in effect in
the State of New York.




     “Obligations”: (i) in the case of each Borrower, its Borrower Obligations, and
(ii) in the case of each Guarantor, its Guarantor Obligations.




     “Patent License”: all agreements, whether written or oral, providing for the
grant by or to any Grantor of any right to manufacture, use, import, export, distribute or
sell any invention covered in whole or in part by a Patent, including, without limitation,
any of the foregoing referred to in Schedule 6.



5









 






     “Patents”: (i) all domestic and foreign patents, patent applications and
patentable inventions, including, without limitation, each issued patent and patent
application identified in Schedule 6, all certificates of invention or similar
property rights (ii) all inventions and improvements described and claimed therein,
(iii) the right to sue or otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (iv) all income, royalties, damages and other
payments now and hereafter due and/or payable with respect thereto (including, without
limitation, payments under all Patent Licenses entered into in connection therewith,
payments arising out of any other sale, lease, license or other disposition thereof and
damages and payments for past, present or future infringement thereof), and (v) all
reissues, divisions, continuations, continuations-in-part, substitutes, renewals, and
extensions thereof, all improvements thereon and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto.




     “Pledged Alternative Equity Interests”: shall mean all interests of any Grantor
in participation or other interests in any equity or profits of any business entity and the
certificates, if any, representing such interests and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in exchange for any
or all of such interests and any other warrant, right or option to acquire any of the
foregoing; provided, however, that Pledged Alternative Equity Interests
shall not include any Pledged Stock, Pledged Partnership Interests, Pledged LLC Interests
and Pledged Trust Interests.




     “Pledged CEHC Shares”: shall mean the Pledged Stock consisting of shares in the
capital stock of a ULC, including, for the avoidance of doubt, but not limited to, all
shares of capital stock of Capital Environmental Holdings Company, now owned or hereafter
acquired by such Grantor, and the certificates, if any, representing such shares and any
interest of such Grantor in the entries on the books of Capital Environmental Holdings
Company of such shares and all dividends, distributions, cash, warrants, rights, options,
instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such
            shares and any other warrant, right or option to acquire any of the foregoing.




     “Pledged Commodity Contracts”: all commodity contracts listed in
Schedule 2 (as such Schedule may be amended from time to time) and all other
commodity contracts to which any Grantor is party from time to time.




     “Pledged Debt Securities”: all debt securities now owned or hereafter acquired
by any Grantor, including, without limitation, the debt securities listed in Schedule
2, (as such Schedule may be amended from time to time) together with any other
certificates, options, rights or security entitlements of any nature whatsoever in respect
of the debt securities of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect.



6









 






     “Pledged Equity Interests”: shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests, Pledged Trust Interests and Pledged Alternative
Equity Interests.




     “Pledged LLC Interests”: shall mean all interests of any Grantor now owned or
hereafter acquired in any limited liability company including, without limitation, all
limited liability company interests listed in Schedule 2 hereto under the heading
“Pledged LLC Interests” (as such schedule may be amended from time to time) and the
certificates, if any, representing such limited liability company interests and any interest
of such Grantor on the books and records of such limited liability company and all
dividends, distributions, cash, warrants, rights, options, instruments, securities and other
property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company interests and any
other warrant, right or option to acquire any of the foregoing.




     “Pledged Notes”: all promissory notes now owned or hereafter acquired by any
Grantor including, without limitation, those listed in Schedule 2 (as such Schedule
may be amended from time to time) and all Intercompany Notes at any time issued to any
Grantor.




     “Pledged Partnership Interests”: shall mean all interests of any Grantor now
owned or hereafter acquired in any general partnership, limited partnership, limited
liability partnership or other partnership including, without limitation, all partnership
interests listed in Schedule 2 hereto under the heading “Pledged Partnership
Interests” (as such schedule may be amended from time to time) and the certificates, if any,
representing such partnership interests and any interest of such Grantor on the books and
records of such partnership and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such
partnership interests and any other warrant, right or option to acquire any of the
foregoing.




     “Pledged Securities”: the collective reference to the Pledged Debt Securities,
the Pledged Notes and the Pledged Equity Interests.




     “Pledged Security Entitlements”: all security entitlements with respect to the
financial assets listed in Schedule 2 (as such Schedule may be amended from time to
time) and all other security entitlements of any Grantor.




     “Pledged Stock”: shall mean all shares of capital stock now owned or hereafter
acquired by such Grantor, including, without limitation, all shares of capital stock
described on Schedule 2 hereto under the heading “Pledged Stock” (as such schedule
may be amended from time to time), and the certificates, if any, representing such shares
and any interest of such Grantor in the entries on the books of the issuer of such shares
and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares and any other
warrant, right or



7









 







option to acquire any of the foregoing; provided, however, that in no
event shall more than 65% of the total outstanding Excluded Foreign Subsidiary Voting Stock
be required to be pledged hereunder.




     “Pledged Trust Interests”: shall mean all interests of any Grantor now owned
or hereafter acquired in a Delaware business trust or other trust including, without
limitation, all trust interests listed in Schedule 2 hereto under the heading
“Pledged Trust Interests” (as such schedule may be amended from time to time) and the
certificates, if any, representing such trust interests and any interest of such Grantor on
the books and records of such trust or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of
such trust interests and any other warrant, right or option to acquire any of the foregoing.




     “Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of
the Uniform Commercial Code in effect in the State of New York on the date hereof and, in
any event, shall include, without limitation, all dividends or other income from the Pledged
Securities, collections thereon or distributions or payments with respect thereto.




     “Receivable”: all Accounts and any other right to payment for goods or other
property sold, leased, licensed or otherwise disposed of or for services rendered, whether
or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment
Intangible and whether or not it has been earned by performance. References herein to
“Receivables” shall include any Supporting Obligation or collateral securing such
Receivable.




     “Secured Parties”: collectively, the Arrangers, the Administrative Agent, the
Syndication Agent, the Co-Documentation Agents, the Canadian Agent, the Lenders and, with
respect to any Specified Hedge Agreement, any Qualified Counterparty that has agreed to be
bound by the provisions of Section 9 of the Credit Agreement as if it were a Lender party
thereto; provided that no Qualified Counterparty shall have any rights in connection with
the management or release of any Collateral or the obligations of any Guarantor under this
Agreement.




     “Securities Act”: the Securities Act of 1933, as amended.




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




     “Taxes”: all present and future taxes, surtaxes, duties, levies, imposts,
rates, fees, assessments, withholdings and other charges of any nature (including income,
corporate, capital (including large corporations), net worth, sales, consumption, use,
transfer, goods and services, value-added, stamp, registration, franchise, withholding,
payroll, employment, health, education, excise, business, school, property, occupation,
customs, anti-dumping and countervail taxes, surtaxes, duties, levies, imposts, rates, fees,
assessments, withholdings and other charges) imposed by any Governmental Authority, together
with any fines, interest, penalties or other additions on, to, in lieu of, for non-



8









 







collection of or in respect of these taxes, surtaxes, duties, levies, imposts, rates,
fees, assessments, withholdings and other charges.




     “Trademark License”: any agreement, whether written or oral, providing for the
grant by or to any Grantor of any right to use any Trademark, including, without limitation,
any of the foregoing referred to in Schedule 6.




     “Trademarks”: (i) all domestic and foreign trademarks, service marks, trade
names, corporate names, company names, business names, trade dress, trade styles, logos, or
other indicia of origin or source identification, Internet domain names, trademark and
service mark registrations, and applications for trademark or service mark registrations and
any renewals thereof, including, without limitation, each registration and application
identified in Schedule 6, (ii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all Trademark Licenses entered into
in connection therewith, and damages and payments for past, present or future infringements
thereof), and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business connected with the use of,
and symbolized by, each of the above.




     “Trade Secret License”: any agreement, whether written or oral, providing for
the grant by or to any Grantor of any right to use any Trade Secret, including, without
limitation, any of the foregoing referred to in Schedule 6.




     “Trade Secrets”: (i) all trade secrets and all confidential and proprietary
information, including know-how, manufacturing and production processes and techniques,
inventions, research and development information, technical data, financial, marketing and
business data, pricing and cost information, business and marketing plans, and customer and
supplier lists and information, including, without limitation, any of the foregoing referred
to in Schedule 6, (ii) the right to sue or otherwise recover for any and all past,
present and future infringements and misappropriations thereof, (iii) all income, royalties,
damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments arising out of the sale, lease, license, assignment
or other disposition thereof, and damages and payments for past, present or future
infringements thereof), and (iv) all other rights of any kind whatsoever of any Grantor
accruing thereunder or pertaining thereto.




     “ULC”: shall mean any unlimited company, unlimited liability company or
unlimited liability corporation or any similar entity existing under the laws of any
province or territory of Canada and any successor to any such entity, including, for the
avoidance of doubt, but not limited to, Capital Environmental Holdings Company.




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




     “US Borrower Obligations”: the collective reference to the Obligations (as
defined in the Credit Agreement) with respect to the US Borrower.



9









 






     “Vehicles”: all cars, trucks, trailers, construction and earth moving
equipment and other Equipment of any nature covered by a certificate of title law of any
jurisdiction and, in any event including, without limitation, the vehicles listed in
Schedule 7 and all tires and other appurtenances to any of the foregoing.



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




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




          (c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.




          (d) The expressions “payment in full,” “paid in full” and any other similar terms or phrases
when used herein with respect to the Borrower Obligations or the Guarantor Obligations shall mean
the unconditional, final and irrevocable payment in full, in immediately available funds, of all of
the Borrower Obligations or the Guarantor Obligations, as the case may be.




SECTION 2. GUARANTEE




          2.1. Guarantee.




          (a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their
respective successors, indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrowers when due (whether at the stated maturity, by acceleration or
otherwise) of the Borrower Obligations; provided that the guarantee set forth in this
Section 2 of the US Borrower shall be limited to the prompt and complete payment and performance by
the Canadian Borrower when due (whether at the stated maturity, by acceleration or otherwise) of
the Canadian Borrower Obligations, and the guarantee set forth in this Section 2 of the Canadian
Borrower shall be limited to the prompt and complete payment and performance by the US Borrower
when due (whether at the stated maturity, by acceleration or otherwise) of the US Borrower
Obligations.




          (b) If and to the extent required in order for the Obligations of any Guarantor to be
enforceable under applicable federal, state and other laws relating to the insolvency of debtors,
the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can
lawfully be guaranteed by such Guarantor under such laws, after giving effect
to any rights of contribution, reimbursement and subrogation arising under Section 2.2. Each
Guarantor acknowledges and agrees that, to the extent not prohibited by applicable law, (i) such
Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee,
including such Guarantor in its capacity as debtor in possession exercising any powers of a




10









 







bankruptcy trustee) has no personal right under such laws to reduce, or request any judicial relief
that has the effect of reducing, the amount of its liability under this Agreement, (ii) such
Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee,
including such Guarantor in its capacity as debtor in possession exercising any powers of a
bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section
2.1(b) or to reduce, or request judicial relief reducing, the amount of its liability under this
Agreement, and (iii) the limitation set forth in this Section 2.1(b) may be enforced only to the
extent required under such laws in order for the obligations of such Guarantor under this Agreement
to be enforceable under such laws and only by or for the benefit of a creditor, representative of
creditors or bankruptcy trustee of such Guarantor or other Person entitled, under such laws, to
enforce the provisions thereof.




          (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
be incurred or permitted in an amount exceeding the maximum liability of such Guarantor under
Section 2.1(b) without impairing the guarantee contained in this Section 2 or affecting the rights
and remedies of any Secured Party hereunder.




          (d) The guarantee contained in this Section 2 shall remain in full force and effect until
payment in full of the Obligations, notwithstanding that from time to time during the term of the
Credit Agreement the Borrowers may be free from any Borrower Obligations.




          (e) No payment made by any of the Borrowers, any of the Guarantors, any other guarantor or any
other Person or received or collected by any Secured Party from the any of the Borrowers, any of
the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in reduction of or in
payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor under this Section 2 which shall, notwithstanding any such payment
(other than any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower Obligations), remain
liable for the Borrower Obligations up to the maximum liability of such Guarantor hereunder until
the Borrower Obligations (other than Obligations in respect of any Specified Hedge Agreement) are
paid in full, no Letter of Credit shall be outstanding (except Letters of Credit which have been
supported with a letter of credit or cash collateralized in accordance with Section 10.15(c) of the
Credit Agreement) and the Commitments are terminated or have expired.




          2.2. Rights of Reimbursement, Contribution and Subrogation. In case any payment is made on
account of the Obligations by any Guarantor or is received or collected on account of the
Obligations from any Guarantor or its property:




          (a) (i) If such payment is made by a Borrower or from its property, then, if and to the extent
such payment is made on account of Obligations arising from or relating to a Loan
made to such Borrower or a Letter of Credit issued for account of such Borrower, such Borrower
shall not be entitled (A) to demand or enforce reimbursement or contribution in respect of such
payment from any other Guarantor or (B) to be subrogated to any claim, interest, right or remedy of
any Secured Party against any other Person, including any other Guarantor or its property.




11









 








          (b) If such payment is made by a Guarantor or from its property, such Guarantor shall be
entitled, subject to and upon payment in full of the Obligations, (A) to demand and enforce
reimbursement for the full amount of such payment from the US Borrower (with respect to any
payment on the US Borrower Obligations) or the Canadian Borrower (with respect to any payment on
the Canadian Borrower Obligations) and (B) to demand and enforce contribution in respect of such
payment from each other Guarantor which has not paid its fair share of such payment, as necessary
to ensure that (after giving effect to any enforcement of reimbursement rights provided hereby)
each Guarantor pays its fair share of the unreimbursed portion of such payment. For this purpose,
the fair share of each Guarantor as to any unreimbursed payment shall be determined based on an
equitable apportionment of such unreimbursed payment among all Guarantors based on the relative
value of their assets and any other equitable considerations deemed appropriate by the court.




          (c) If and whenever (after payment in full of the Obligations) any right of reimbursement or
contribution becomes enforceable by any Guarantor against any other Guarantor under Sections 2.2(a)
and 2.2(b), such Guarantor shall be entitled, subject to and upon payment in full of the
Obligations, to be subrogated (equally and ratably with all other Guarantors entitled to
reimbursement or contribution from any other Guarantor as set forth in this Section 2.2) to any
security interest that may then be held by the Administrative Agent upon any Collateral granted to
it in this Agreement. Such right of subrogation shall be enforceable solely against the
Guarantors, and not against the Secured Parties, and neither the Administrative Agent nor any other
Secured Party shall have any duty whatsoever to warrant, ensure or protect any such right of
subrogation or to obtain, perfect, maintain, hold, enforce or retain any Collateral for any purpose
related to any such right of subrogation. If subrogation is demanded by any Guarantor, then (after
payment in full of the Obligations) the Administrative Agent shall deliver to the Guarantors making
such demand, or to a representative of such Guarantors or of the Guarantors generally, an
instrument satisfactory to the Administrative Agent transferring, on a quitclaim basis without any
recourse, representation, warranty or obligation whatsoever, whatever security interest the
Administrative Agent then may hold in whatever Collateral may then exist that was not previously
released or disposed of by the Administrative Agent.




          (d) All rights and claims arising under this Section 2.2 or based upon or relating to any
other right of reimbursement, indemnification, contribution or subrogation that may at any time
arise or exist in favor of any Guarantor as to any payment on account of the Obligations made by it
or received or collected from its property shall be fully subordinated in all respects to the prior
payment in full of all of the Obligations. Until payment in full of the Obligations, no Guarantor
shall demand or receive any collateral security, payment or distribution whatsoever (whether in
cash, property or securities or otherwise) on account of any such right or claim. If any such
payment or distribution is made or becomes available to any Guarantor in any bankruptcy case or
receivership, insolvency or liquidation proceeding, such payment or distribution shall be delivered
by the person making such payment or distribution directly to the
Administrative Agent, for application to the payment of the Obligations. If any such payment
or distribution is received by any Guarantor, it shall be held by such Guarantor in trust, as
trustee of an express trust for the benefit of the Secured Parties, and shall forthwith be
transferred and delivered by such Guarantor to the Administrative Agent, in the exact form received
and, if necessary, duly endorsed.





12









 








          (e) The obligations of the Guarantors under the Loan Documents, including their liability for
the Obligations and the enforceability of the security interests granted thereby, are not
contingent upon the validity, legality, enforceability, collectibility or sufficiency of any right
of reimbursement, contribution or subrogation arising under this Section 2.2. The invalidity,
insufficiency, unenforceability or uncollectibility of any such right shall not in any respect
diminish, affect or impair any such obligation or any other claim, interest, right or remedy at any
time held by any Secured Party against any Guarantor or its property. The Secured Parties make no
representations or warranties in respect of any such right and shall have no duty to assure,
protect, enforce or ensure any such right or otherwise relating to any such right.




          (f) Each Guarantor reserves any and all other rights of reimbursement, contribution or
subrogation at any time available to it as against any other Guarantor, but (i) the exercise and
enforcement of such rights shall be subject to Section 2.2(d) and (ii) neither the Administrative
Agent nor any other Secured Party shall ever have any duty or liability whatsoever in respect of
any such right, except as provided in Section 2.2(c).




          2.3. Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any
of the Borrower Obligations made by any Secured Party may be rescinded by such Secured Party and
any of the Borrower Obligations continued, and the Borrower Obligations, or the liability of any
other Person upon or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
increased, extended, amended, modified, accelerated, compromised, waived, surrendered or released
by any Secured Party, and the Credit Agreement and the other Loan Documents and any other documents
executed and delivered in connection therewith may be amended, restated, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the requisite Lenders under the
Credit Agreement or all Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by any Secured Party for the
payment of the Borrower Obligations may be sold, exchanged, waived, surrendered or released. No
Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Borrower Obligations or for the guarantee contained in this Section
2 or any property subject thereto.




          2.4. Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof
of reliance by any Secured Party upon the guarantee contained in this Section 2 or acceptance of
the guarantee contained in
this Section 2; the Borrower Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between any of the Borrowers and
any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon the guarantee contained
in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon any of the Borrowers or any of the Guarantors with
respect to the Borrower Obligations.




13









 







Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment and performance without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower Obligations or any other
collateral security therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by any Secured Party, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance hereunder) which may at any time be available to or be asserted
by any of the Borrowers or any other Person against any Secured Party, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of such Borrower or such Guarantor)
which constitutes, or might be construed to constitute, an equitable or legal discharge of the
Borrowers of the Borrower Obligations or of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise
pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall
be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as
it may have against any Borrower, any Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and
any failure by any Secured Party to make any such demand, to pursue such other rights or remedies
or to collect any payments from any Borrower, any Guarantor or any other Person or to realize upon
any such collateral security or guarantee or to exercise any such right of offset, or any release
of any Borrower, any Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall
include the commencement and continuance of any legal proceedings.




          2.5. Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by any Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or any Guarantor, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.




          2.6. Payments. Each Guarantor hereby guarantees that payments hereunder with respect to the US Borrower
Obligations will be paid to the Administrative Agent without set-off or counterclaim in Dollars in
immediately available funds at the office of the Administrative Agent located at the Payment Office
specified in the Credit Agreement and that payments hereunder with respect to the Canadian Borrower
Obligations will be paid to the Canadian Agent without set-off or counterclaim in Canadian Dollars
in immediately available funds at the office of the Canadian Agent located at the Canadian Payment
Office specified in the Credit Agreement.




          2.7. Withholding Taxes. Any and all payments by any Guarantor under this Agreement or any other Loan Document shall
be made, in full, without set-off or counterclaim and free and clear of and without deduction or
withholding for or on account of any Taxes unless such Guarantor is required by law to make payment
subject to such Taxes. If any Guarantor




14









 







shall be required by law to deduct or withhold any Taxes
from or in respect of any sum payable hereunder, such Guarantor shall make such deductions or
withholdings, and such Guarantor shall pay the full amount deducted or withheld to the relevant
taxing or other authority in accordance with applicable laws. If any Taxes (except for Taxes
imposed on or measured by the net income of each Secured Party by the jurisdiction under the laws
of which it is organized or carries on business or any political subdivisions thereof) or amounts
in respect thereof must be deducted or withheld from any amounts payable or paid by such Guarantor
hereunder, such Guarantor shall pay such additional amounts as may be necessary to ensure that each
Secured Party receives a net amount equal to the full amount which it would have received had
payment (including of any additional amounts payable under this Section 2) not been made subject to
such Taxes.




SECTION 3. GRANT OF SECURITY INTEREST;

CONTINUING LIABILITY UNDER COLLATERAL




          (a) Each Grantor hereby assigns and transfers to the Administrative Agent, and hereby grants
to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest
in, all of the personal property of such Grantor, including, without limitation, the following
property, in each case, wherever located and now owned or at any time hereafter acquired, created
or developed by such Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Collateral”), as collateral
security for the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor’s Obligations:





     (i) all Accounts;




     (ii) all Chattel Paper;




     (iii) all Deposit Accounts;




     (iv) all Documents;




     (v) all Equipment;




     (vi) all General Intangibles;




     (vii) all Instruments;




     (viii) Insurance;




     (ix) all Intellectual Property;




     (x) all Inventory;




     (xi) all Investment Property;



15









 






          (xii) all Letter of Credit Rights;




          (xiii) all Money;




          (xiv) all Vehicles;




          (xv) all Goods not otherwise described above;




          (xvi) any Collateral Account;




          (xvii) all books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer printouts, tapes,
disks and other electronic storage media and related data processing software and similar
items that at any time evidence or contain information relating to any of the Collateral or
are otherwise necessary or helpful in the collection thereof or realization thereupon;




          (xviii) Commercial Tort Claims now or hereafter described in Schedule 8; and




          (xix) to the extent not otherwise included, all other property of the Grantor and all
Proceeds, products, accessions, rents and profits of any and all of the foregoing and all
collateral security, Supporting Obligations and guarantees given by any Person with respect
to any of the foregoing.



               Notwithstanding anything to the contrary in this Agreement, none of the Excluded Assets shall
constitute Collateral.




               (b) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for
all obligations under the Collateral and nothing contained herein is intended or shall be a
delegation of duties to the Administrative Agent or any Secured Party, (ii) each Grantor shall
remain liable under each of the agreements included in the Collateral, including, without
limitation, any Receivables, any agreements relating to Pledged Partnership Interests or Pledged
LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with
and pursuant to the terms and provisions thereof and neither the Administrative Agent nor any
Secured Party shall have any obligation or liability under any of such agreements by reason of or
arising out of this Agreement or any other document related thereto nor shall the Administrative
Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency
of any payment received by it or have any obligation to take any action to collect or enforce any
rights under any agreement included in the Collateral, including, without limitation, any
agreements relating to any Receivables, Pledged Partnership Interests or Pledged LLC Interests and
(iii) the exercise by the Administrative Agent of any of its rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and agreements included in the
Collateral.




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SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Arrangers, the Administrative Agent, the Canadian Agent, the Syndication Agent
and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrowers thereunder, each Grantor (and each Loan Party, if
applicable) hereby represents and warrants to the Secured Parties that:




          4.1. Representations in Credit Agreement. In the case of each Loan Party, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Loan Party or to the Loan Documents to which such Loan
Party is a party, each of which is hereby incorporated herein by reference, are true and correct,
in all material respects (without duplication of any materiality qualifier contained therein),
except for representations and warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and correct in all material respects
(without duplication of any materiality qualifier contained therein) as of such earlier date, and
the Secured Parties shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to any
Borrower’s knowledge shall, for the purposes of this Section 4.l, be deemed to be a reference to
such Loan Party’s knowledge.




          4.2. Title; No Other Liens. Such Grantor owns each item of the Collateral free and clear of any and all Liens or claims,
including, without limitation, liens arising as a result of such Grantor becoming bound (as a
result of merger or otherwise) as Grantor under a security agreement entered into by another
Person, except for Permitted Liens. No financing statement, mortgage or other public notice with
respect to all or any part of the Collateral is on file or of record in any public office, except
such as have been filed in favor of the Administrative Agent, for the ratable benefit of the
Secured Parties, pursuant to this Agreement or as are permitted by the Credit Agreement.




          4.3. Perfected First Priority Liens.  The security interests granted pursuant to this Agreement (i) upon completion of the
filings and other actions specified on Schedule 3 (all of which, in the case of all filings
and other documents referred to on said Schedule, have been delivered to the Administrative Agent
in duly completed and duly executed form, as applicable (except, with respect to Vehicles and
Deposit Accounts, to the extent required to be so delivered pursuant to the terms of the Loan
Documents), and may be filed by the Administrative Agent at any time) and payment of all filing
fees, will constitute valid fully perfected security interests in all of the Collateral
in favor of the Administrative Agent, for the ratable benefit of the Secured Parties, as collateral
security for such Grantor’s Obligations, enforceable in accordance with the terms hereof and
(ii) are prior to all other Liens on the Collateral except for Permitted Liens. Without limiting
the foregoing, each Grantor has taken all actions necessary or desirable, including without
limitation those specified in Section 5.2 to: (i) establish the Administrative Agent’s “control”
(within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment
Property constituting Certificated Securities, Uncertificated Securities, Securities
Entitlements, Commodity Accounts or Securities Accounts (each as defined in the UCC), (ii)
establish the Administrative Agent’s “control” (within the meaning of Section 9-104 of the UCC)
over all Deposit Accounts, (iii) in the event such Grantor obtains any Letter of Credit Rights,
establish the Administrative Agent’s “control” (within the meaning of Section 9-107 of the UCC)
over all such Letter of Credit Rights, (iv) in the event such Grantor obtains any




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Electronic
Chattel Paper, establish the Administrative Agent’s control (within the meaning of Section 9-105 of
the UCC) over all such Electronic Chattel Paper and (v) in the event such Grantor obtains any
“transferable records” (as defined in UETA), establish the Administrative Agent’s “control” (within
the meaning of Section 16 of the Uniform Electronic Transaction Act as in effect in the applicable
jurisdiction (“UETA”)) over all such “transferable records” under and as defined in UETA.




          4.4. Name; Jurisdiction of Organization, etc. On the date hereof, such Grantor’s exact legal name (as indicated on the public record of such
Grantor’s jurisdiction of formation or organization), jurisdiction of organization, organizational
i.d. number, if any, and the location of such Grantor’s chief executive office or sole place of
business are specified on Schedule 4. Each Grantor is organized solely under the law of
the jurisdiction so specified and has not filed any certificates of domestication, transfer or
continuance in any other jurisdiction. Except as specified on Schedule 4, it has not
changed its name, jurisdiction of organization, chief executive office or sole place of business or
its corporate structure in any way (e.g. by merger, consolidation, change in corporate form or
otherwise) within the past five years and has not within the last five years become bound (whether
as a result of merger or otherwise) as Grantor under a security agreement entered into by another
Person, which has not heretofore been terminated.




          4.5. Inventory and Equipment.  (a) On the date hereof, the Inventory and the Equipment (other than mobile goods) are
kept at the locations listed in Schedule 5. Within the five years preceding execution of
this agreement, such Grantor has not changed the location of its Equipment and Inventory except as
otherwise disclosed in Schedule 5.




          (b) any Inventory now or hereafter produced by any Grantor included in the Collateral have
been and will be produced in compliance with the requirements of the Fair Labor Standards Act, as
amended; and




          (c) none of the Inventory or Equipment is in the possession of an issuer of a negotiable
document (as defined in Section 7-104 of the UCC) therefor or is otherwise in the possession of any
bailee or warehouseman.




          4.6. Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm Products.




          4.7. Investment Property.  (a) Schedule 2 hereto (as such schedule may be amended from time to time) sets forth
under the headings “Pledged Stock”, “Pledged LLC Interests,” “Pledged Partnership Interests” and
“Pledged Trust Interests,” respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests owned by any Grantor and such Pledged Equity
Interests constitute the percentage of issued and outstanding shares of stock, percentage of
membership interests, percentage of partnership interests or percentage of beneficial interest of
the respective issuers thereof indicated on such Schedule. Schedule 2 hereto (as such
schedule may be amended from time to time) sets forth under the heading “Pledged Debt Securities”
or “Pledged Notes” all of the Pledged Debt Securities and Pledged Notes owned by any Grantor and
all of such Pledged Debt Securities and Pledged Notes has been duly authorized, authenticated or
issued, and delivered and is the legal,




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valid and binding obligation of the issuers thereof
enforceable in accordance with their terms and is not in default and constitutes all of the issued
and outstanding inter-company indebtedness evidenced by an instrument or certificated security of
the respective issuers thereof owing to such Grantor. Schedule 2 hereto (as such schedule
may be amended from time to time) sets forth under the headings “Securities Accounts,”
“Commodities Accounts,” and “Deposit Accounts” respectively, all of the Securities Accounts,
Commodities Accounts and Deposit Accounts in which each Grantor has an interest. Each Grantor is
the sole entitlement holder or customer of each such account, and such Grantor has not consented
to, and is not otherwise aware of, any Person (other than the Administrative Agent pursuant hereto)
having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any
other interest in, any such Securities Account, Commodity Account or Deposit Account or any
securities, commodities or other property credited thereto.




          (b) The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of
the issued and outstanding shares of all classes of the Capital Stock of each Issuer owned by such
Grantor or, in the case of Excluded Foreign Subsidiary Voting Stock, if less, 65% of the
outstanding Excluded Foreign Subsidiary Voting Stock of each relevant Issuer.




          (c) All the shares of the Pledged Equity Interests have been duly and validly issued and are
fully paid and nonassessable.




          (d) None of the Pledged LLC Interests nor Pledged Partnership Interests are or represent
interests in issuers that are: (i) registered as investment companies, (ii) are dealt in or traded
on securities exchanges or markets or (iii) have opted to be treated as “securities” under Article
8 of the Uniform Commercial Code other than (x) the Pledged LLC Interests consisting of Omni Waste
of Osceola County LLC and Freedom Recycling Holdings, LLC, each of which are “securities” under
Article 8 of the Uniform Commercial Code or (y) such other Pledged LLC Interests or Pledged
Partnership Interests as to which such Grantor shall have notified the Administrative Agent thereof
and delivered to the Administrative Agent certificated securities representing such Pledged LLC
Interests and Pledged Partnership Interests.




          (e) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property and Deposit Accounts pledged by it hereunder, free of any and all Liens or
options in favor of, or claims of, any other Person, except Permitted Liens, and there are no
outstanding warrants, options or other rights to purchase, or shareholder,
voting trust or similar agreements outstanding with respect to, or property that is
convertible into, or that requires the issuance or sale of, any Pledged Equity Interests.




          (f) Each Issuer that is not a Grantor hereunder has executed and delivered to the
Administrative Agent an Acknowledgment and Agreement, in substantially the form of Exhibit A, to
the pledge of the Pledged Securities pursuant to this Agreement.




          4.8. Receivables. (a) No amount payable to such Grantor under or in connection with any Receivable is evidenced
by any Instrument or Tangible Chattel Paper which has not been delivered to the Administrative
Agent or constitutes Electronic Chattel Paper that has not been subjected to the control (within
the meaning of Section 9-105 of the UCC) of the Administrative Agent.




19









 








          (b) None of the obligors on any Receivables in excess of $500,000 per fiscal year individually
or $2,000,000 in the aggregate (or such higher amount as the Administrative Agent may reasonably
agree to) is a Governmental Authority except obligors or Receivables as to which such Grantor has
obtained all necessary consents to assignment required by the Federal Assignment of Claims Act or
any similar state or local law.




          (c) To the knowledge of each Grantor, each material Receivable (i) is and will be the legal,
valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied
obligation of such Account Debtor, (ii) is and will be enforceable in accordance with its terms,
(iii) is not and will not be subject to any setoffs, defenses, taxes, counterclaims (except with
respect to refunds, returns and allowances in the ordinary course of business with respect to
damaged merchandise or defective services) and (iv) is and will be in compliance with all
applicable laws and regulations.




          4.9. Intellectual Property. (a) Schedule 6 lists all registered Intellectual Property owned by such Grantor in
its own name on the date hereof, and all Patent Licenses, Copyright Licenses and Trademark
Licenses. Except as set forth in Schedule 6, or as could not reasonably be expected to have a
Material Adverse Effect, such Grantor is the exclusive owner of the entire and unencumbered right,
title and interest in and to all of the Intellectual Property owned by such Grantor, subject only
to the license terms of the licensing or franchise agreements referred to in paragraph (c) below.




          (b) On the date hereof, all material Intellectual Property is valid, subsisting, unexpired and
enforceable, has not been abandoned and neither the operation of such Grantor’s business as
currently conducted or as contemplated to be conducted nor the use of any Intellectual property in
connection therewith materially conflicts with, infringes, misappropriates, dilutes, misuses or
otherwise violates the intellectual property rights of any other Person.




          (c) Except as set forth in Schedule 6, (i) none of the material Intellectual Property
owned by such Grantor is the subject of any licensing or franchise agreement pursuant to which such
Grantor is the licensor or franchisor, and (ii) there are no other agreements, obligations, orders
or judgments which affect the use of any material Intellectual Property owned by such Grantor.




          (d) The rights of such Grantor in or to the material Intellectual Property owned by such
Grantor do not materially conflict with or infringe upon the rights of any third party, and no
claim has been asserted that the use of such Intellectual Property does or may so infringe upon the
rights of any third party. To the knowledge of such Grantor, there is currently no infringement or
unauthorized use of any item of material Intellectual Property owned by such Grantor.




          (e) No holding, decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity or enforceability of, or such Grantor’s rights in, any
Intellectual Property in any respect that could reasonably be expected to have a Material Adverse
Effect. Such Grantor is not aware of any uses of any item of material Intellectual Property owned
by such Grantor that could reasonably be expected to lead to such




20









 







item becoming invalid or
unenforceable including, without limitation, unauthorized uses by third parties and uses which were
not supported by the goodwill of the business connected with Trademarks and Trademark Licenses.




          (f) No action or proceeding is pending, or, to the knowledge of such Grantor, threatened, on
the date hereof (i) seeking to limit, cancel or question the validity of any material Intellectual
Property owned by such Grantor or such Grantor’s ownership interest therein, (ii) alleging that any
services provided by, processes used by, or products manufactured or sold by such Grantor
materially infringe any patent, trademark, copyright, or any other right of any third party, (iii)
alleging that any material Intellectual Property is being licensed, sublicensed or used in
violation of any patent, trademark, copyright or any other right of any third party, or (iv) which,
if adversely determined, would have a material adverse effect on the value of any Intellectual
Property owned by such Grantor. To the knowledge of such Grantor, no Person is engaging in any
activity that infringes upon the material Intellectual Property owned by such Grantor or upon the
rights of such Grantor therein. Except as set forth in Schedule 6 hereto, such Grantor has
not granted any license, release, covenant not to sue, non-assertion assurance, or other right to
any Person with respect to any part of the registered Intellectual Property owned by such Grantor.
The consummation of the transactions contemplated by this Agreement will not result in the
termination or impairment of any of the material Intellectual Property owned by such Grantor or
used by such Grantor in the operation of its business.




          (g) With respect to each material Copyright License, Trademark License and Patent License:
(i) such license is valid and binding and in full force and effect and represents the entire
agreement between the respective licensor and licensee with respect to the subject matter of such
license; (ii) such license will not cease to be valid and binding and in full force and effect on
terms identical to those currently in effect as a result of the rights and interests granted
herein, nor will the grant of such rights and interests constitute a breach or default under such
license or otherwise give the licensor or licensee a right to terminate such license; (iii) such
Grantor has not received any notice of termination or cancellation under such license; (iv) such
Grantor has not received any notice of a breach or default under such license, which breach or
default has not been cured; (v) such Grantor has not granted to any other third party any rights,
adverse or otherwise, under such license; and (vi) such Grantor is not in breach or default in any
material respect, and no event has occurred that, with notice and/or lapse of time, would
constitute such a breach or default or permit termination, modification or acceleration under such
license.




          (h) Except as set forth in Schedule 6, such Grantor has performed all acts and has
paid all required fees and taxes to maintain each and every item of material registered
Intellectual Property in full force and effect and to protect and maintain its interest therein.
Such Grantor has used proper statutory notice in connection with its use of each material Patent,
Trademark and Copyright included in the Intellectual Property. 




          (i) None of the material Trade Secrets of such Grantor has been used, divulged, disclosed or
appropriated to the detriment of such Grantor for the benefit of any other Person; (ii) no
employee, independent contractor or agent of such Grantor has misappropriated any trade secrets of
any other Person in the course of the performance of his or her duties as an employee, independent
contractor or agent of such Grantor; and (iii) no employee, independent contractor




21









 







or agent of such
Grantor is in default or breach of any term of any employment agreement, non-disclosure agreement,
assignment of inventions agreement or similar agreement or contract relating in any way to the
protection, ownership, development, use or transfer of such Grantor’s material Intellectual
Property.




          (j) Such Grantor has made all filings and recordations necessary to adequately protect its
interest in its material Intellectual Property including, without limitation, recordation of its
interests in the Patents and Trademarks with the United States Patent and Trademark Office and in
corresponding national and international patent offices, and recordation of any of its interests in
the Copyrights with the United States Copyright Office and in corresponding national and
international copyright offices.




          (k) Such Grantor has taken all steps to use consistent standards of quality in the
manufacture, distribution and sale of all products sold and provision of all services provided
under or in connection with any item of material Intellectual Property and has taken all steps to
ensure that all licensed users of any kind of material Intellectual Property use such consistent
standards of quality.




          (l) No Grantor is subject to any settlement or consents, judgment, injunction, order, decree,
covenants not to sue, non-assertion assurances or releases that would impair the validity or
enforceability of, or such Grantor’s rights in, any material Intellectual Property.




          4.10. Vehicles. Schedule 7 is a complete and correct list of all Vehicles owned by such Grantor as of
September 30, 2008.




          4.11. Letter of Credit Rights. No Grantor is a beneficiary or assignee under any letter of credit except, after the
Closing Date as to which such Grantor has provided the Administrative Agent with written notice
thereof..




          4.12. Commercial Tort Claims. No Grantor has any commercial tort claims except, after the Closing Date as to which such
Grantor has provided the Administrative Agent with written notice thereof.




SECTION 5. COVENANTS




          Each Grantor (and each Loan Party, if applicable) covenants and agrees with the Secured
Parties that, from and after the date of this Agreement until the Obligations (other than
Obligations in respect of any Specified Hedge Agreement) shall have been paid in full, no Letter of
Credit shall be outstanding (except Letters of Credit which have been supported with any letter of
credit or cash collateralized in accordance with Section 10.15(c) of the Credit Agreement) and the
Commitments shall have terminated or expired:




          5.1. Covenants in Credit Agreement. Each Loan Party shall take, or shall refrain from taking, as the case may be, each action
that is necessary to be taken or not taken, as the case may be, so that no Default or Event of
Default is caused by the failure to take such action or to refrain from taking such action by such
Loan Party or any of its Subsidiaries.





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          5.2. Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment
Property and Deposit Accounts. (a) If any of the Collateral is or shall become evidenced or represented by any Instrument,
Certificated Security, Negotiable Document or Tangible Chattel Paper, such Instrument (other than
checks received in the ordinary course of business), Certificated Security, Negotiable Documents or
Tangible Chattel Paper shall be promptly delivered to the Administrative Agent, duly endorsed in a
manner satisfactory to the Administrative Agent, to be held as Collateral pursuant to this
Agreement.




          (b) If any of the Collateral is or shall become “Electronic Chattel Paper” such Grantor shall
ensure that (i) a single authoritative copy exists which is unique, identifiable, unalterable
(except as provided in clauses (iii), (iv) and (v) of this paragraph), (ii) that such authoritative
copy identifies the Administrative Agent as the assignee and is communicated to and maintained by
the Administrative Agent or its designee, (iii) that copies or revisions that add or change the
assignee of the authoritative copy can only be made with the participation of the Administrative
Agent, (iv) that each copy of the authoritative copy and any copy of a copy is readily identifiable
as a copy and not the authoritative copy and (v) any revision of the authoritative copy is readily
identifiable as an authorized or unauthorized revision.




          (c) If any of the Collateral is or shall become evidenced or represented by an Uncertificated
Security, such Grantor shall cause the Issuer thereof either (i) to register the Administrative
Agent as the registered owner of such Uncertificated Security, upon original issue or registration
of transfer or (ii) to agree in writing with such Grantor and the Administrative Agent that such
Issuer will comply with instructions with respect to such Uncertificated Security originated by the
Administrative Agent without further consent of such Grantor, such agreement to be in form and
substance reasonably satisfactory to the Administrative Agent.




          (d) Each Grantor shall maintain Securities Entitlements, Securities Accounts and Deposit
Accounts only with financial institutions that have agreed to comply with entitlement orders and
instructions issued or originated by the Administrative Agent without further consent of such
Grantor, such agreement to be substantially in form and substance reasonably acceptable to the
Administrative Agent.




          (e) If any of the Collateral is or shall become evidenced or represented by a Commodity
Contract, such Grantor shall cause the Commodity Intermediary with respect to such Commodity
Contract to agree in writing with such Grantor and the Administrative Agent that such Commodity
Intermediary will apply any value distributed on account of such Commodity Contract as directed by
the Administrative Agent without further consent of such Grantor, such agreement to be in form and
substance reasonably acceptable to the Administrative Agent.




          (f) In addition to and not in lieu of the foregoing, if any Issuer of any Investment Property
is organized under the law of, or has its chief executive office in, a jurisdiction outside of the
United States, each Grantor shall take such additional actions, including, without limitation,
causing the issuer to register the pledge on its books and records, as may be necessary or
advisable or as may be reasonably requested by the Administrative Agent, under the laws of such
jurisdiction to insure the validity, perfection and priority of the security interest of the
Administrative Agent.





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          5.3. Maintenance of Insurance. (a) Such Grantor will maintain, with financially sound and reputable insurance companies,
insurance on all its property (including, without limitation, all Inventory, Equipment and
Vehicles) in at least such amounts and against at least such risks as are usually insured against
in the same general area by similarly situated companies engaged in the same or a similar business
and consistent with past practices of such Grantor; and furnish to the Administrative Agent with
copies for each Secured Party, upon written request, full information as to the insurance carried;
provided that in any event such Grantor will maintain, (i) property and casualty insurance
on all real and personal property on an all risks basis (including the perils of flood and quake
and loss by fire, explosion and theft), covering the repair or replacement cost of all such
property and consequential loss coverage for business interruption and extra expense (which shall
include construction expenses and such other business interruption expenses as are otherwise
generally available to similar businesses), and (ii) public liability insurance. All such
insurance with respect to such Grantor shall be provided by insurers or reinsurers which (x) in the
case of
United States insurers and reinsurers, have an A.M. Best policyholders rating of not less than
A- with respect to primary insurance and B+ with respect to excess insurance and (y) in the case of
non-United States insurers or reinsurers, the providers of at least 80% of such insurance have
either an ISI policyholders rating of not less than A, an A.M. Best policyholders rating of not
less than A- or a surplus of not less than $500,000,000 with respect to primary insurance, and an
ISI policyholders rating of not less than BBB with respect to excess insurance, or, if the relevant
insurance is not available from such insurers, such other insurers as the Administrative Agent may
approve in writing. All insurance shall (i) provide that the Administrative Agent shall receive at
least 30 days prior written notice of any cancellation thereof or material reduction in amount or
material change in coverage thereof, (ii) if reasonably requested by the Administrative Agent,
include a breach of warranty clause and (iii) be reasonably satisfactory in all other respects to
the Administrative Agent.




          (b) Such Grantor will deliver to the Administrative Agent on behalf of the Secured Parties,
(i) on the Closing Date, a recently dated certificate showing the amount and types of insurance
coverage as of such date, (ii) upon request of any Secured Party from time to time, full
information as to the insurance carried, (iii) promptly following receipt of notice from any
insurer, a copy of any notice of cancellation or material change in coverage from that existing on
the Closing Date, (iv) forthwith, notice of any cancellation or nonrenewal of coverage by such
Grantor, and (v) promptly after such information is available to such Grantor, full information as
to any claim for an amount in excess of $1,000,000 with respect to any property and casualty
insurance policy maintained by such Grantor. Each Secured Party shall be named as additional
insured on all such liability insurance policies of such Grantor and the Administrative Agent shall
be named as loss payee on all property and casualty insurance policies of such Grantor.




          5.4. Payment of Obligations. Such Grantor will pay and discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of
any kind (including, without limitation, claims for labor, materials and supplies) against or with
respect to the Collateral, except that no such charge need be paid if the amount or validity
thereof is currently being contested in good




24









 







faith
by appropriate proceedings, reserves in
conformity with GAAP with respect thereto have been provided on the books of such Grantor and such
proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any
material portion of the Collateral or any interest therein.




          5.5. Maintenance of Perfected Security Interest; Further Documentation.(a) Such Grantor shall maintain the security interest created by this Agreement as a
perfected security interest (except with respect to Vehicles and Deposit Accounts, solely to the
extent required to be so perfected pursuant to the terms of the Loan Documents) having at least the
priority described in Section 4.3 and shall defend such security interest against the claims
and demands of all Persons whomsoever.




          (b) Such Grantor will furnish to the Secured Parties from time to time statements and
schedules further identifying and describing the Collateral and such other reports in connection
with the assets and property of such Grantor as the Administrative Agent may reasonably request,
all in reasonable detail.




          (c) At any time and from time to time, upon the written request of the Administrative Agent,
and at the sole expense of such Grantor, such Grantor will promptly and duly authorize, execute and
deliver, and have recorded, such further instruments and documents and take such further actions as
the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted, including, without
limitation, (i) the filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Administrative Agent to obtain “control”
(within the meaning of the applicable Uniform Commercial Code) with respect thereto, including
without limitation, executing and delivering and causing the relevant depositary bank or securities
intermediary to execute and deliver a Control Agreement in form and substance reasonably
satisfactory to the Administrative Agent.




          5.6. Changes in Locations, Name, Jurisdiction of Incorporation, etc. (a) Such Grantor will not, except upon 15 days’ prior written notice to the Administrative
Agent and delivery to the Administrative Agent of duly authorized and, where required, executed
copies of all additional financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the security interests
provided for herein: (i) without limiting the prohibitions on mergers involving the Grantors
contained in the Credit Agreement, change its legal name, jurisdiction of organization or the
location of its chief executive office or sole place of business from that referred to in Section
4.4; or (ii) change its legal name, identity or structure to such an extent that any financing
statement filed by the Administrative Agent in connection with this Agreement would become
misleading.




          (b) Such Grantor shall not permit any of the Inventory or Equipment (other than mobile goods)
to be kept at a location other than those listed in Schedule 5; unless such Grantor
delivers within 15 days a written supplement to Schedule 5 showing any additional location
at which Inventory or Equipment (other than mobile goods) shall be kept.





25









 








          5.7. Notices. Such Grantor will advise the Administrative Agent promptly, in reasonable detail, of the
occurrence of any event which could reasonably be expected to have a material adverse effect on the
aggregate value of the Collateral or on the security interests created hereby.




          5.8. Investment Property. (a) If such Grantor shall become entitled to receive or shall receive any stock or other
ownership certificate (including, without limitation, any certificate representing a stock dividend
or a distribution in connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in respect of the
Capital Stock or other Pledged Equity Interest of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests
in the Pledged Securities, or otherwise in respect thereof, such Grantor shall accept the same as
the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the
same forthwith to the Administrative Agent in the exact form received, duly endorsed by such
Grantor to the Administrative Agent, if required, together with an undated stock power covering
such certificate duly executed in blank by such Grantor to be held by the Administrative Agent,
subject to the terms hereof, as additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Securities upon the liquidation or dissolution of any Issuer
shall be paid over to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be made on or in
respect of the Pledged Securities or any property shall be distributed upon or with respect to the
Pledged Securities pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless
otherwise subject to a perfected security interest in favor of the Administrative Agent, be
delivered to the Administrative Agent to be held by it hereunder as additional collateral security
for the Obligations. If any sums of money or property so paid or distributed in respect of the
Pledged Securities shall be received by such Grantor, such Grantor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money or property in trust for
the Secured Parties, segregated from other funds of such Grantor, as additional collateral security
for the Obligations.




          (b) Without the prior written consent of the Administrative Agent, such Grantor will not (i)
vote to enable, or take any other action to permit, any Issuer to issue any stock, partnership
interests, limited liability company interests or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or exchange for any stock,
partnership interests, limited liability company interests or other equity securities of any nature
of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, any of the Investment Property or Proceeds thereof or any interest therein
(except, in each case, pursuant to a transaction expressly permitted by the Credit Agreement),
(iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement, (iv) enter into any agreement or
undertaking restricting the right or ability of such Grantor or the Administrative Agent to sell,
assign or transfer any of the Investment Property or Proceeds thereof or any interest therein or
(v) without the prior written consent of the Administrative Agent, cause or permit any Issuer of
any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes




26









 







of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged
Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the UCC;
provided, however, notwithstanding the foregoing, if any Issuer of any Pledged
Partnership Interests or Pledged LLC Interests takes any such action in violation of the foregoing
in this clause (v), such Grantor shall promptly notify the Administrative Agent in writing of
any such election or action and, in such event, shall take all steps necessary or advisable to
establish the Administrative Agent’s “control” thereof.




          (c) In the case of each Grantor which is an Issuer, such Issuer (i) agrees that it will be
bound by the terms of this Agreement relating to the Pledged Securities issued by it and will
comply with such terms insofar as such terms are applicable to it and (ii) acknowledges that the
terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect
to all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Pledged Securities issued by it. In addition, each Grantor which is either an Issuer or an owner
of any Pledged Security hereby consents to the grant by each other Grantor of the security interest
hereunder in favor of the Administrative Agent and to the transfer of any Pledged Security to the
Administrative Agent or its nominee following an Event of Default and to the substitution of the
Administrative Agent or its nominee as a partner, member or shareholder of the Issuer of the
related Pledged Security.




          5.9. Receivables.(a) Other than in the ordinary course of business consistent with its past practice and so
long as no Event of Default shall have occurred and be continuing, such Grantor will not (i) grant
any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable
for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for
the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable other
than in the ordinary course of business consistent with its past practice or (v) amend, supplement
or modify any Receivable in any manner that could adversely affect the value thereof.




          (b) Such Grantor will deliver to the Administrative Agent a copy of each material demand,
notice or document received by it that questions or calls into doubt the validity or enforceability
of more than 5% of the aggregate amount of the then outstanding Receivables.




          (c) Each Grantor shall perform and comply in all material respects with all of its obligations
with respect to the Receivables.




          5.10. Intellectual Property.(a) Such Grantor (either itself or through licensees) will (i) continue to use each material
Trademark on each and every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such Trademark in full force
free from any claim of abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark and take all necessary steps to ensure that all
licensed users of such Trademark maintain as in the past such quality, (iii) use such Trademark
with the appropriate notice of registration and all other notices and legends required by
applicable Requirements of Law, (iv) not adopt or use any mark which is confusingly similar
or a colorable imitation of such Trademark unless the Administrative Agent, for the ratable
benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to
this Agreement and the Intellectual Property Security




27









 







Agreement, and (v) not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark may become invalidated or impaired in any way.




          (b) Such Grantor (either itself or through licensees) will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or dedicated to the public.




          (c) Such Grantor (either itself or through licensees) (i) will employ each material Copyright
and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of the Copyrights may become invalidated
or otherwise impaired. Such Grantor will not (either itself or through licensees) do any act
whereby any material portion of the Copyrights may fall into the public domain.




          (d) Such Grantor (either itself or through licensees) will not do any act that knowingly uses
any material Intellectual Property to infringe the intellectual property rights of any other
Person.




          (e) Such Grantor (either itself or through licensees) will use proper statutory notice in
connection with the use of each material Patent, Trademark and Copyright included in the
Intellectual Property.




          (f) Such Grantor will notify the Administrative Agent immediately if it knows, or has reason
to know, that any application or registration relating to any material Intellectual Property may
become forfeited, abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office, the United States
Copyright Office or any court or tribunal in any country) regarding such Grantor’s ownership of, or
the validity of, any material Intellectual Property or such Grantor’s right to register the same or
to own and maintain the same.




          (g) Promptly upon such Grantor’s acquisition or creation of any copyrightable work, invention,
trademark or other similar property that is material to the business of Grantor, apply for
registration thereof with the United states Copyright Office, the United States Patent and
Trademark Office and other appropriate office. Whenever such Grantor, either by itself or through
any agent, employee, licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in any other country or any political subdivision
thereof, such Grantor shall report such filing to the Administrative Agent within five Business
Days after the last day of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded, any and all
agreements, instruments, documents, and papers as the Administrative Agent may request to evidence
the Secured Parties’ security interest in any Copyright, Patent, Trademark or other Intellectual
Property and the goodwill and general intangibles of such Grantor relating thereto or represented
thereby.




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          (h) Such Grantor will take all reasonable and necessary steps, including, without limitation,
in any proceeding before the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency in any other country or any political subdivision thereof,
to maintain and pursue each application (and to obtain the relevant registration) and to maintain
each registration of material Intellectual Property, including, without limitation, the payment of
required fees and taxes, the filing of responses to office actions issued by the United States
Patent and Trademark Office and the United States Copyright Office, the filing of applications for
renewal or extension, the filing of affidavits of use and affidavits of incontestability, the
filing of divisional, continuation, continuation-in-part, reissue, and renewal applications or
extensions, the payment of maintenance fees, and the participation in interference, reexamination,
opposition, cancellation, infringement and misappropriation proceedings.




          (i) Such Grantor (either itself or through licensees) will not, without the prior written
consent of the Administrative Agent, discontinue use of or otherwise abandon any Intellectual
Property, or abandon any application or any right to file an application for letters patent,
trademark, or copyright, unless such Grantor shall have previously determined that such use or the
pursuit or maintenance of such Intellectual Property is no longer desirable in the conduct of such
Grantor’s business and that the loss thereof could not reasonably be expected to have a Material
Adverse Effect and, in which case, such Grantor shall give prompt notice of any such abandonment to
the Administrative Agent in accordance herewith.




          (j) In the event that any material Intellectual Property is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably
deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the Administrative Agent after
it learns thereof and take such actions as such Grantor shall reasonably deem appropriate
including, without limitation, suing for infringement, misappropriation or dilution, seeking
injunctive relief where appropriate and recovering any and all damages for such infringement,
misappropriation or dilution.




          (k) Such Grantor agrees that, should it obtain an ownership interest in any item of
Intellectual Property which is not now a part of the Collateral (the “After-Acquired Intellectual
Property”), (i) the provisions of Section 3 shall automatically apply thereto, (ii) any such
After-Acquired Intellectual Property, and in the case of trademarks, the goodwill of the business
connected therewith or symbolized thereby, shall automatically become part of the Intellectual
Property Collateral, (iii) it shall give prompt (and, in any event within five Business Days after
the last day of the fiscal quarter in which such Grantor acquires such ownership interest) written
notice thereof to the Administrative Agent in accordance herewith, and (iv) it shall promptly and
take the actions specified in Section 5.10(m).




          (l) Such Grantor agrees to execute an Intellectual Property Security Agreement with respect to
its Intellectual Property in substantially the form of Exhibit B-1 in order to record the security
interest granted herein to the Administrative Agent for the ratable benefit of the Secured Parties
with the United States Patent and Trademark Office, the United States Copyright Office, and any
other applicable Governmental Authority.




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          (m) Such Grantor agrees to execute an After-Acquired Intellectual Property Security Agreement
with respect to its After-Acquired Intellectual Property in substantially the form of Exhibit B-2
in order to record the security interest granted herein to the Administrative Agent for the ratable
benefit of the Secured Parties with the United States Patent and Trademark Office, the United
States Copyright Office, and any other applicable Governmental Authority.




          (n) Such Grantor shall take all steps reasonably necessary to protect the secrecy of all
material Trade Secrets, including, without limitation, entering into confidentiality agreements
with employees and labeling and restricting access to secret information and documents.




          5.11. Vehicles.(a) No Vehicle shall be removed from the state which has issued the certificate of title or
ownership therefor for a period in excess of four months, except that up to 5% of the total number
of Vehicles may be so removed as consistent with the Loan Parties’ past practices at any time.




          (b) With respect to any Vehicle owned by a Grantor, at the reasonable request of the
Administrative Agent, take such action (or cause its Subsidiaries to take such action), including
endorsing certificates of title or executing applications for transfer of title, as is reasonably
required by the Administrative Agent to enable it to properly perfect and protect its Lien on such
Vehicles and to transfer the same upon an Event of Default; provided that the Administrative Agent
shall not register its security interest in such certificates of title or applications for transfer
of title until an Event of Default has occurred.




SECTION 6. REMEDIAL PROVISIONS




          6.1. Certain Matters Relating to Receivables. (a) The Administrative Agent shall have the right to make test verifications of
the Receivables (which verifications shall be (in the name of the applicable Grantor only unless a
Default or Event of Default has occurred and is continuing) in any manner and through any medium
that it reasonably considers advisable, and each Grantor shall furnish all such assistance and
information as the Administrative Agent may require in connection with such test verifications. At
any time and from time to time, after the occurrence and during the continuance of a Default or
Event of Default, upon the Administrative Agent’s request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others satisfactory to the
Administrative Agent to furnish to the Administrative Agent reports showing reconciliations, aging
and test verifications of, and trial balances for, the Receivables.




          (b) The Administrative Agent hereby authorizes each Grantor to collect such Grantor’s
Receivables and each Grantor hereby agrees to continue to collect all amounts due or to become due
to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each
material right it may have under any Receivable and any Supporting
Obligation, in each case, at its own expense; provided, however, that the
Administrative Agent may curtail or terminate said authority at any time after the occurrence and
during the continuance of an Event of Default. If required by the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, any payments of
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly endorsed by such Grantor
to




30









 







the Administrative Agent if required, in a Collateral Account maintained under the sole dominion
and control of the Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Secured Parties only as provided in Section 6.5, and (ii) until so turned over,
shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such
Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying
in reasonable detail the nature and source of the payments included in the deposit.




          (c) At any time after the occurrence and during the continuance of an Event of Default, at the
Administrative Agent’s request, each Grantor shall deliver to the Administrative Agent all original
and other documents evidencing, and relating to, the agreements and transactions which gave rise to
the Receivables, including, without limitation, all original orders, invoices and shipping
receipts.




          6.2. Communications with Obligors; Grantors Remain Liable.(a) The Administrative Agent may at any time communicate with obligors under the Receivables
to verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of
any Receivables; provided that such communication shall be in the name of the applicable Grantor
unless a Default or Event of Default exists and is continuing.




          (b) After the occurrence and during the continuance of an Event of Default, the Administrative
Agent may notify, or require any Grantor to notify, the Account Debtor or counterparty on any
Receivable of the security interest of the Administrative Agent therein and may, upon written
notice to the applicable Grantor, notify, or require any Grantor to notify, the Account Debtor or
counterparty to make all payments under the Receivables directly to the Administrative Agent.




          (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any agreement giving rise
thereto. No Secured Party shall have any obligation or liability under any Receivable (or any
agreement giving rise thereto) by reason of or arising out of this Agreement or the receipt by any
Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any
manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any
agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been assigned to it or
to which it may be entitled at any time or times.




          6.3. Pledged Securities. (a) Unless an Event of Default shall have occurred and be continuing and the Administrative
Agent shall have given notice to the relevant Grantor of the Administrative Agent’s intent to
exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted to
receive all cash dividends paid in respect of the Pledged Equity Interests and all payments made in
respect of the Pledged Notes, in each case paid in the normal course of business of the relevant
Issuer and consistent with past practice, to the extent permitted in the Credit Agreement,
and to exercise all voting and corporate rights with




31









 







respect to the Pledged Securities;
provided, however, that no vote shall be cast or corporate or other ownership right
exercised or other action taken which, in the Administrative Agent’s reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document.




          (b) If an Event of Default shall occur and be continuing: (i) all rights of each Grantor to
exercise or refrain from exercising the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become
vested in the Administrative Agent who shall thereupon have the sole right, but shall be under no
obligation, to exercise or refrain from exercising such voting and other consensual rights and (ii)
the Administrative Agent shall have the right, without notice to any Grantor, to transfer all or
any portion of the Investment Property to its name or the name of its nominee or agent. In
addition, the Administrative Agent shall have the right at any time, without notice to any Grantor,
to exchange any certificates or instruments representing any Investment Property for certificates
or instruments of smaller or larger denominations. In order to permit the Administrative Agent to
exercise the voting and other consensual rights which it may be entitled to exercise pursuant
hereto and to receive all dividends and other distributions which it may be entitled to receive
hereunder each Grantor shall promptly execute and deliver (or cause to be executed and delivered)
to the Administrative Agent all proxies, dividend payment orders and other instruments as the
Administrative Agent may from time to time reasonably request and each Grantor acknowledges that
the Administrative Agent may utilize the power of attorney set forth herein.




          (c) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged
by such Grantor hereunder to (i) comply with any instruction received by it from the Administrative
Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or further instructions
from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other
payments with respect to the Pledged Securities directly to the Administrative Agent.




          6.4. Proceeds to be Turned Over To Administrative Agent. In addition to the rights of the Secured Parties specified in Section 6.1 with respect to
payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds
received by any Grantor consisting of cash, Cash Equivalents, checks and other near-cash items
shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Administrative
Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the
Administrative Agent, if required). All Proceeds received by the Administrative Agent hereunder
shall be held by the Administrative Agent in a Collateral Account maintained under its sole
dominion and control. All Proceeds while held by the Administrative Agent in a Collateral Account
(or by such Grantor in trust for the Secured Parties) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until applied as provided
in Section 6.5.





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          6.5. Application of Proceeds. At such intervals as may be agreed upon by the Borrowers and the Administrative Agent, or, if
an Event of Default shall have occurred and be continuing, at any time at the Administrative
Agent’s election, the Administrative Agent may (notwithstanding the provisions of Section 2.12 of
the Credit Agreement) apply all or any part of the net Proceeds (after deducting fees and expenses
as provided in Section 6.6) constituting Collateral realized through the exercise by the
Administrative Agent of its remedies hereunder, whether or not held in any Collateral Account, and
any proceeds of the guarantee set forth in Section 2, in payment of the Obligations in the
following order:





     First, to the Administrative Agent, to pay incurred and unpaid fees and
expenses of the Secured Parties under the Loan Documents;




     Second, to the Administrative Agent, for application by it towards payment of
amounts then due and owing and remaining unpaid in respect of the Obligations, pro
rata among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;




     Third, to the Administrative Agent, for application by it towards prepayment of
the Obligations not then due and owing, pro rata among the Lenders according
to the amounts of the Obligations then held by the Lenders; and




     Fourth, any balance of such Proceeds remaining after the Obligations shall have
been paid in full, no Letters of Credit shall be outstanding (unless such Letters of Credit
have been supported with a letter of credit or cash collateralized in accordance with
Section 10.15(c) of the Credit Agreement) and the Commitments shall have terminated or
expired shall be paid over to the Borrowers or to whomsoever may be lawfully entitled to
receive the same.



          6.6. Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, the Administrative Agent, on behalf
of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them
in this Agreement and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the
New York UCC applies to the affected Collateral) or its rights under any other applicable law or in
equity. Without limiting the generality of the foregoing, the Administrative Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice of any kind (except
any notice required by law referred to below) to or upon any Grantor or any other Person (all and
each of which demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s
board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. Each Secured Party shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption
in any Grantor, which




33









 







right or equity is hereby waived and released. Each purchaser at any such
sale shall hold the property sold absolutely free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of
redemption, stay and/or appraisal which it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten (10) days notice to such Grantor of the time
and place of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and place to which it was
so adjourned. The Administrative Agent may sell the Collateral without giving any warranties as to
the Collateral. The Administrative Agent may specifically disclaim or modify any warranties of
title or the like. This procedure will not be considered to adversely effect the commercial
reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be
commercially unreasonable for the Administrative Agent to dispose of the Collateral or any portion
thereof by using Internet sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of
assets. Each Grantor hereby waives any claims against the Administrative Agent arising by reason
of the fact that the price at which any Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale, even if the Administrative
Agent accepts the first offer received and does not offer such Collateral to more than one offeree.
Each Grantor further agrees, at the Administrative Agent’s request, to assemble the Collateral and
make it available to the Administrative Agent at places which the Administrative Agent shall
reasonably select, whether at such Grantor’s premises or elsewhere. The Administrative Agent shall
have the right to enter onto the property where any Collateral is located and take possession
thereof with or without judicial process.




          (b) The Administrative Agent shall apply the net proceeds of any action taken by it pursuant
to this Section 6.6, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the Collateral or in any
way relating to the Collateral or the rights of the Secured Parties hereunder, including, without
limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations and only after such application and after the payment by the Administrative Agent of
any other amount required by any provision of law, including, without limitation, Section 9-615(a)
of the New York UCC, need the Administrative Agent account for the surplus, if any, to any Grantor.
If the Administrative Agent sells any of the Collateral upon credit, the Grantor will be credited
only with payments actually made by the purchaser and received by the Administrative Agent and
applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the
Collateral, the Administrative Agent may resell the Collateral and the Grantor shall be credited
with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against any Secured Party arising out of the exercise by
them of any rights hereunder.




          (c) In the event of any Disposition of any of the material Intellectual Property pursuant to
the Secured Parties’ rights hereunder, the goodwill of the business connected with




34









 







and symbolized
by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall
supply the Administrative Agent or its designee with such Grantor’s know-how and expertise, and
with documents and things embodying the same, relating to the manufacture, distribution,
advertising and sale of products or the provision of services relating to any material Intellectual
Property subject to such Disposition, and such Grantor’s customer lists and other records and
documents relating to such Intellectual Property and to the manufacture, distribution, advertising
and sale of such products and services.




          6.7. Registration Rights. (a) If the Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Equity Interests or the Pledged Debt Securities pursuant to Section 6.6, and if in the
opinion of the Administrative Agent it is necessary or advisable to have the Pledged Equity
Interests or the Pledged Debt Securities, or that portion thereof to be sold, registered under the
provisions of the Securities Act, the relevant Grantor will cause the Issuer thereof to (i) execute
and deliver, and cause the directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may be, in the opinion
of the Administrative Agent, necessary or advisable to register the Pledged Equity Interests or the
Pledged Debt Securities, or that portion thereof to be sold, under the provisions of the Securities
Act, (ii) use its best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the first public
offering of the Pledged Equity Interests or the Pledged Debt Securities, or that portion thereof to
be sold, and (iii) make all amendments thereto and/or to the related prospectus which, in the
opinion of the Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the SEC applicable thereto.
Each Grantor agrees to cause such Issuer to comply with the provisions of the securities or “Blue
Sky” laws of any and all jurisdictions which the Administrative Agent shall designate and to
make available to its security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act.




          (b) Each Grantor recognizes that the Administrative Agent may be unable to effect a public
sale of any or all the Pledged Equity Interests or the Pledged Debt Securities, by reason of
certain prohibitions contained in the Securities Act and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof to a restricted
group of purchasers which will be obliged to agree, among other things, to acquire such securities
for their own account for investment and not with a view to the distribution or resale thereof.
Each Grantor acknowledges and agrees that any such private sale may result in prices and other
terms less favorable than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a commercially reasonable
manner. The Administrative Agent shall be under no obligation to delay a sale of any of the
Pledged Equity Interests or the Pledged Debt Securities for the period of time necessary to permit
the Issuer thereof to register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do so.




          (c) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Pledged Equity
Interests or the Pledged Debt Securities pursuant to this Section 6.7 valid and binding and




35









 







in
compliance with any and all other applicable Requirements of Law. Each Grantor further agrees that
a breach of any of the covenants contained in this Section 6.7 will cause irreparable injury to the
Secured Parties, that the Secured Parties have no adequate remedy at law in respect of such breach
and, as a consequence, that, to the extent permitted by law, each and every covenant contained in
this Section 6.7 shall be specifically enforceable against such Grantor, and, to the extent
permitted by law, such Grantor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that no Event of Default has
occurred and is continuing under the Credit Agreement or a defense of payment.




          6.8. Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Obligations and the fees and
disbursements of any attorneys employed by any Secured Party to collect such deficiency.




SECTION 7. THE ADMINISTRATIVE AGENT




          7.1. Administrative Agent’s Appointment as Attorney-in-Fact, etc. (a) Each Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any
officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Agreement, and, without
limiting the generality of the foregoing, each Grantor hereby gives the Administrative Agent
the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do
any or all of the following:





     (i) in the name of such Grantor or its own name, or otherwise, take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Receivable or with respect to any other Collateral and file
any claim or take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of collecting any and all
such moneys due under any Receivable or with respect to any other Collateral whenever
payable;




     (ii) in the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Administrative Agent may
request to evidence the Secured Parties’ security interest in such Intellectual Property and
the goodwill and general intangibles of such Grantor relating thereto or represented
thereby;




     (iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement
and pay all or any part of the premiums therefor and the costs thereof;



36









 






     (iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any
endorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and




     (v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Administrative
Agent or as the Administrative Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3) sign and endorse
any invoices, freight or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect of any
Collateral; (5) defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (6) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions, and in such
manner, as the Administrative Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Administrative Agent were
the absolute owner thereof for all purposes, and do, at the Administrative Agent’s option
and such Grantor’s expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary to protect,
preserve or realize upon the Collateral and the Secured Parties’ security interests therein
and to effect the intent of this Agreement, all as fully and effectively as such Grantor
might do.


Anything in this Section 7.1(a) to the contrary notwithstanding, the Administrative Agent agrees
that, except as provided in Section 7.1(b), it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be
continuing.




          (b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Administrative Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement; provided, however,
that unless an Event of Default has occurred and is continuing or time is of the essence, the
Administrative Agent shall not exercise this power without first making demand on the Grantor and
the Grantor failing to promptly comply therewith.




          (c) The expenses of the Administrative Agent incurred in connection with actions undertaken as
provided in this Section 7.1, together with interest thereon at a rate per annum equal to the rate
per annum at which interest would then be payable on past due Base Rate Loans under the Credit
Agreement, from the date of payment by the Administrative Agent to the date




37









 







reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent on demand.




          (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.




          7.2. Duty of Administrative Agent. The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, nor any other Secured
Party nor any of their respective officers, directors, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or
to take any other action whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Secured Parties hereunder are solely to protect the Secured Parties’ interests in
the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers.
The Secured Parties shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers, and neither they nor any of their officers, directors, partners,
employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be
responsible to any Grantor for any act or failure to act hereunder, except to the extent that any
such act or failure to act is found by a court of competent jurisdiction to have
resulted directly from their own gross negligence or willful misconduct in breach of a duty
owed to such Grantor.




          7.3. Execution of Financing Statements. Each Grantor acknowledges that pursuant to Section 9-509(b) of the New York UCC and any other
applicable law, the Administrative Agent is authorized to file or record financing or continuation
statements, and amendments thereto, and other filing or recording documents or instruments with
respect to the Collateral in such form and in such offices as the Administrative Agent reasonably
determines appropriate to perfect or maintain the perfection of the security interests of the
Administrative Agent under this Agreement. Each Grantor agrees that such financing statements may
describe the collateral in the same manner as described in the Security documents or as “all
assets” or “all personal property” of the undersigned, whether now owned or hereafter existing or
acquired by the undersigned or such other description as the Administrative Agent, in its sole
judgment, determines is necessary or advisable. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.




          7.4. Authority of Administrative Agent. Each Grantor acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative Agent or the exercise
or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this Agreement shall, as between
the Administrative Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with




38









 







respect thereto as may exist from time to time among them, but, as
between the Administrative Agent and the Grantors, the Administrative Agent shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.




          7.5. Appointment of Co-Collateral Agents. At any time or from time to time, in order to comply with any Requirement of Law, the
Administrative Agent may appoint another bank or trust company or one of more other persons, either
to act as co-agent or agents on behalf of the Secured Parties with such power and authority as may
be necessary for the effectual operation of the provisions hereof and which may be specified in the
instrument of appointment (which may, in the discretion of the Administrative Agent, include
provisions for indemnification and similar protections of such co-agent or separate agent);
provided, however, that no such co-agent or separate agent shall be authorized to take any action
with respect to any Collateral unless and except to the extent authorized in writing by the
Administrative Agent.




SECTION 8. MISCELLANEOUS




          8.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, restated,
supplemented or otherwise modified except in accordance with Section 10.1 of the Credit Agreement
and unless in writing and signed by the Administrative Agent.




          8.2. Notices. All notices, requests and demands to or upon the Administrative Agent or any Grantor hereunder
shall be effected in the manner provided for in Section 10.2 of the Credit Agreement;
provided that any such notice, request or demand to or upon any Guarantor (other than any
Borrower) shall be addressed to such Guarantor at its notice address set forth on Schedule
1.




          8.3. No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1),
delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.




          8.4. Enforcement Expenses; Indemnification.  (a) Each Loan Party agrees to pay or reimburse each Secured Party for all its costs and
expenses incurred in collecting against such Loan Party under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents
to which such Loan Party is a party, including, without limitation, the fees and disbursements of
counsel (including the




39









 







allocated fees and expenses of in-house counsel) to each Secured Party and
of counsel to the Administrative Agent.




          (b) Each Loan Party agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or similar taxes which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this Agreement.




          (c) Each Loan Party agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the Borrowers would be
required to do so pursuant to Section 10.5 of the Credit Agreement.




          (d) The agreements in this Section shall survive repayment of the Obligations and all other
amounts payable under the Credit Agreement and the other Loan Documents.




          (e) Each Loan Party agrees that the provisions of Section 2.20 of the Credit Agreement are
hereby incorporated herein by reference, mutatis mutandis, and each Secured Party
shall be entitled to rely on each of them as if they were fully set forth herein.




          8.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Loan Party and shall
inure to the benefit of the Secured Parties and their successors and assigns; provided that
no Loan Party may assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.




          8.6. Set-Off. Each Loan Party hereby irrevocably authorizes each Secured Party at any time and from time to
time while an Event of Default shall have occurred and be continuing, without notice to such Loan
Party or any other Loan Party, any such notice being expressly waived by each Loan Party, to
set-off and appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Secured Party to or for the credit or the account of such Loan
Party, or any part thereof in such amounts as such Secured Party may elect, against and on account
of the obligations and liabilities of such Loan Party to such Secured Party hereunder, in any
currency, whether arising hereunder, under the Credit Agreement or any other Loan Document whether
or not any Secured Party has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured. Each Secured Party shall notify such Loan Party
promptly of any such set-off and the application made by such Secured Party of the proceeds
thereof, provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Secured Party under this Section are in addition
to other rights and remedies (including, without limitation, other rights of set-off) which such
Secured Party may have. The rights of the Secured Parties under this Section 8.6 are subject to
the adjustment provisions of Section 10.7(a) of the Credit Agreement applicable to Lenders
thereunder.





40









 








          8.7. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by telecopy), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.




          8.8. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.




          8.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration in the interpretation hereof.




          8.10. Integration. This Agreement and the other Loan Documents represent the agreement of the Loan Parties, the
Administrative Agent and the other Secured Parties with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties by any Secured
Party relative to the subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Loan Documents.




          8.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW RULES THAT WOULD RESULT IN
APPLICATION OF A DIFFERENT GOVERNING LAW.




          8.12. Submission to Jurisdiction; Waivers. Each Loan Party hereby irrevocably and unconditionally:





     (a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;




     (b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




     (c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Loan Party at its address referred to in Section 8.2 or at
such other address of which the Administrative Agent shall have been notified pursuant
thereto;



41









 






     (d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.



          8.13. Acknowledgments. Each Loan Party hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;




          (b) no Secured Party has any fiduciary relationship with or duty to any Loan Party arising out
of or in connection with this Agreement or any of the other Loan Documents, and the relationship
between the Loan Parties, on the one hand, and the Secured Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Loan Parties
and the Secured Parties.




          8.14. Additional Guarantors. Each Subsidiary of either Borrower that is required to become a party to this Agreement
pursuant to Section 6.10 of the Credit Agreement shall become a Guarantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of
Annex 1 hereto.




          8.15. Releases. (a) At such time as the Loans, the Reimbursement Obligations and the other Obligations (other
than Obligations in respect of Specified Hedge Agreements that have not been terminated) shall have
been paid in full, the Commitments have been terminated or expired and no Letters of Credit shall
be outstanding except Letters of Credit which have been supported with another letter of credit or
cash collateralized in accordance with Section 10.15(c) of the Credit Agreement, the Collateral
shall be released from the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent and each Loan Party
hereunder shall terminate, all without delivery of any instrument or performance of any act by any
party, and all rights to the Collateral shall revert to the Loan Parties. At the request and sole
expense of any Loan Party following any such termination, the Administrative Agent shall deliver to
such Loan Party any Collateral held by the Administrative Agent hereunder, and execute and deliver
to such Loan Party such documents as such Loan Party shall reasonably request to evidence such
termination.




          (b) If any of the Collateral shall be Disposed of by any Loan Party in a transaction permitted
by the Credit Agreement, then the Administrative Agent, at the request and sole expense of such
Loan Party, shall execute and deliver to such Loan Party all releases or other
documents reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Borrowers, a Subsidiary Guarantor shall be
released from its obligations hereunder in the event that all the Capital Stock of such Subsidiary





42









 







Guarantor shall be Disposed of in a transaction permitted by the Credit Agreement; provided
that the Borrowers shall have delivered to the Administrative Agent, at least ten Business Days
prior to the date of the proposed release, a written request for release identifying the relevant
Subsidiary Guarantor and the terms of the Disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a certification by the Borrowers
stating that such transaction is in compliance with the Credit Agreement and the other Loan
Documents and that the Proceeds of such Disposition will be applied in accordance therewith.




          (c) Each Loan Party acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement originally filed in
connection herewith without the prior written consent of the Administrative Agent subject to such
Loan Party’s rights under Section 9-509(d)(2) of the New York UCC.




          8.16. WAIVER OF JURY TRIAL. EACH LOAN PARTY AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          8.17. Pledged ULC Shares Limitation. Notwithstanding any provisions to the contrary contained in this Agreement, the Credit
Agreement, any other Loan Document or any other document or agreement among all or some of the
parties hereto, each Grantor is as of the date of this Agreement the sole registered and beneficial
owner of all Pledged ULC Shares as described in Schedule 2 to this Agreement and will remain so
until such time as such Pledged ULC Shares are fully and effectively transferred into the name of
the Administrative Agent, any other Secured Party or any other person on the books and records of
such ULC. Nothing in this Agreement, the Credit Agreement, any other Loan Document or any other
document or agreement delivered among all or some of the parties hereto is intended to or shall
constitute the Administrative Agent, any other Secured Party or any person other than a Grantor to
be a member or shareholder of any ULC until such time as written notice is given to the applicable
Grantor and all further steps are taken so as to register the Administrative Agent, any other
Secured Party or any person as holder of the Pledged ULC Shares. The granting of the pledge and
Security Interest pursuant to the Loan Documents does not make the Administrative Agent, any other
Secured Party a successor to any Grantor as a member or shareholder of any ULC, and neither the
Administrative Agent, any other Secured Party nor any of their respective successors or assigns
hereunder shall be deemed to become a member or shareholder of any ULC by accepting this Agreement
or exercising any right granted herein unless and until such time, if any, when the Administrative
Agent, any other Secured Party or any successor or assign therof expressly becomes a registered
member or shareholder of any ULC. Each pledgor of Pledged ULC Shares pursuant to the Loan
Documents shall be entitled to receive and retain for its own account any dividends or other
distributions if any, in respect of the Collateral, and shall have the right to vote such Pledged
ULC Shares and to control the direction, management and policies of the ULC issuing such
Pledged ULC Shares to the same extent as such pledgor would if such Pledged ULC Shares were not
pledged to the Administrative Agent, any other Secured Party or to any other person pursuant
hereto. To the extent any provision hereof would have the effect of constituting the
Administrative Agent or any other Secured Party to be a member or shareholder




43









 







of any ULC prior to
such time, such provision shall be severed herefrom and ineffective with respect to the relevant
Pledged ULC Shares without otherwise invalidating or rendering unenforceable this Agreement or
invalidating or rendering unenforceable such provision insofar as it relates to Collateral other
than Pledged ULC Shares. Notwithstanding anything herein to the contrary (except to the extent, if
any, that the Administrative Agent, any other Secured Party or any of their successors or assigns
hereafter expressly becomes a registered member or shareholder of any ULC), neither the
Administrative Agent, any other Secured Party nor any of their respective successors or assigns
shall be deemed to have assumed or otherwise become liable for any debts or obligations of any ULC.
Except upon the exercise by the Administrative Agent, any other Secured Party or other persons of
rights to sell or otherwise dispose of Pledged ULC Shares or other remedies following the
occurrence and during the continuance of an Event of Default, each pledgor of such Pledged ULC
Shares shall not cause or permit, or enable any ULC in which it holds Pledged ULC Shares to cause
or permit, the Administrative Agent or any other Secured Party to: (a) be registered as member or
shareholder of such ULC; (b) have any notation entered in its favour in the share register of such
ULC; (c) be held out as member or shareholder of such ULC; (d) receive, directly or indirectly, any
dividends, property or other distributions from such ULC by reason of the Administrative Agent, or
any other Secured Party or other person holding a security interest in the Pledged ULC Shares; or
(e) act as a member or shareholder of such ULC, or exercise any rights of a member or shareholder
of such ULC, including the right to attend a meeting of such ULC or vote the shares of such ULC.




[Remainder of page intentionally left blank]




44









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered as of the date first above written.




	 	 	 	 	 
	 	WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WASTE SERVICES OF ARIZONA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WASTE SERVICES OF FLORIDA, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JACKSONVILLE FLORIDA LANDFILL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	OMNI WASTE OF OSCEOLA COUNTY LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SLD LANDFILL, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SANFORD RECYCLING AND TRANSFER, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	SUN COUNTRY MATERIALS, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TAFT RECYCLING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CAPITAL ENVIRONMENTAL HOLDINGS COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	RAM-PAK COMPACTION SYSTEMS LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	FREEDOM RECYCLING HOLDINGS, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit A to

Guarantee and US Collateral Agreement




FORM OF ACKNOWLEDGMENT AND CONSENT




          The undersigned hereby acknowledges receipt of a copy of the Guarantee and US Collateral
Agreement, dated as of October 8, 2008 (the “Agreement”), made by the Grantors party
thereto for the benefit of Barclays Bank PLC, as Administrative Agent; capitalized terms used but
not defined herein have the meanings given such terms therein. The undersigned agrees for the
benefit of the Administrative Agent and the Lenders as follows:




          1. The undersigned will be bound by the terms of the Agreement and will comply with such terms
insofar as such terms are applicable to the undersigned.




          2. The undersigned confirms the statements made in the Agreement with respect to the
undersigned including, without limitation, in Section 4.7 and Schedule 2.




          3. The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c)
or 6.7 of the Agreement.




	 	 	 	 	 
	 	 	[NAME OF ISSUER]
	 
	 	 	 	 
	 

	 	By	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Address for Notices:
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	Fax:	 	 
	 

	 	 	 	 





A-1









 






Exhibit B-1 to

Guarantee and US Collateral Agreement




FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT




          This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of [                    ] (as amended, restated,
supplemented or otherwise modified from time to time, this “Intellectual Property Security
Agreement”), is made by each of the signatories hereto (collectively, the “Grantors”)
in favor of Barclays Bank PLC, as administrative agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Administrative Agent”) for the
Secured Parties (as defined in the Credit Agreement referred to below).




          WHEREAS, Waste Services (CA) Inc., an Ontario corporation, and Waste Services, Inc., a
Delaware corporation, have entered into that certain Credit Agreement, dated as of October 8, 2008
(as amended, restated, supplemented, replaced or otherwise modified from time to time, the
“Credit Agreement”), with the Lenders from time to time party thereto, Barclays Capital,
the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC, as joint
lead arrangers and joint lead bookrunners, Bank of America, N.A., as syndication agent, Bosic Inc.,
SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents, the Administrative Agent and
The Bank of Nova Scotia, as Canadian agent and Canadian collateral agent. Capitalized terms used
and not defined herein have the meanings given such terms in the Credit Agreement.




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered that certain Guarantee and US Collateral Agreement, dated as of October 8,
2008, in favor of the Administrative Agent (as amended, restated, supplemented, replaced or
otherwise modified from time to time, the “Guarantee and US Collateral Agreement”).




          WHEREAS, under the terms of the Guarantee and US Collateral Agreement, the Grantors have
granted a security interest in certain Property, including, without limitation, certain
Intellectual Property of the Grantors to the Administrative Agent for the ratable benefit of the
Secured Parties, and have agreed as a condition thereof to execute this Intellectual Property
Security Agreement for recording with the United States Patent and Trademark Office, the United
States Copyright Office, and other applicable Governmental Authorities.




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantors agree as follows:




          SECTION 1. Grant of Security. Each Grantor hereby grants to the Administrative Agent for the ratable benefit of the Secured
Parties a security interest in and to all of such Grantor’s right, title and interest in and to the
following (the “Intellectual Property Collateral”), as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor’s Obligations:




B-1-1









 








          (a) (i) all trademarks, service marks, trade names, corporate names, company names, business
names, trade dress, trade styles, logos, or other indicia of origin or source identification,
Internet domain names, trademark and service mark registrations, and applications for trademark or
service mark registrations and any new renewals thereof, including, without limitation, each
registration and application identified in Schedule 1, (ii) the right to sue or otherwise recover
for any and all past, present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future infringements thereof), and
(iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business connected with the use of, and
symbolized by, each of the above (collectively, the “Trademarks”);




          (b) (i) all patents, patent applications and patentable inventions, including, without
limitation, each issued patent and patent application identified in Schedule 1, (ii) all inventions
and improvements described and claimed therein, (iii) the right to sue or otherwise recover for any
and all past, present and future infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all licenses entered into in connection therewith,
and damages and payments for past, present or future infringements thereof), and (v) all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals, and extensions thereof, all
improvements thereon and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (collectively, the “Patents”);




          (c) (i) all copyrights, whether or not the underlying works of authorship have been published,
including but not limited to copyrights in software and databases, all Mask Works (as defined in 17
U.S.C. 901 of the Copyright Act), and all works of authorship and other intellectual property
rights therein, all copyrights of works based on, incorporated in, derived from or relating to
works covered by such copyrights, all right, title and interest to make and exploit all derivative
works based on or adopted from works covered by such copyrights, and all copyright registrations
and copyright applications, mask works registrations and mask works applications, and any renewals
or extensions thereof, including, without limitation, each registration and application identified
in Schedule 1, (ii) the rights to print, publish and distribute any of the foregoing, (iv) the
right to sue or otherwise recover for any and all past, present and future infringements and
misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter
due and/or payable with respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages and payments for past, present or future
infringements thereof), and (v) all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (“Copyrights”);




          (d) (i) all trade secrets and all confidential and proprietary information, including
know-how, manufacturing and production processes and techniques, inventions, research and
development information, technical data, financial, marketing and business data, pricing and cost
information, business and marketing plans, and customer and supplier lists and information,
including, without limitation, any of the foregoing identified in Schedule 1, (ii) the right to sue
or otherwise recover for any and all past, present and future infringements and misappropriations





B-1-2









 







thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all licenses entered
into in connection therewith, and damages and payments for past, present or future infringements
thereof), and (iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto (collectively, the “Trade Secrets”);




          (e) (i) all licenses or agreements, whether written or oral, providing for the grant by or to
any Grantor of: (A) any right to use any Trademark or Trade Secret, (B) any right to manufacture,
use, import, export, distribute, offer for sale or sell any invention covered in whole or in part
by a Patent, and (C) any right under any Copyright including, without limitation, the grant of
rights to manufacture, distribute, print, publish, copy, import, export, exploit and sell materials
derived from any Copyright including, without limitation, any of the foregoing identified in
Schedule 1, (ii) the right to sue or otherwise recover for any and all past, present and future
infringements and misappropriations of any of the foregoing, (iii) all income, royalties, damages
and other payments now and hereafter due and/or payable with respect thereto (including, without
limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (iv) all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto; and




          (f) any and all proceeds of the foregoing.




          SECTION 2. Recordation. Each Grantor authorizes and requests that the Register of Copyrights, the Commissioner of
Patents and Trademarks and any other applicable government officer record this Intellectual
Property Security Agreement.




          SECTION 3. Execution in Counterparts. This Intellectual Property Security Agreement may be executed in any number of counterparts
(including by telecopy), each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.




          SECTION 4. Governing Law. This Intellectual Property Security Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.




          SECTION 5. Conflict Provision. This Intellectual Property Security Agreement has been entered into in conjunction with the
provisions of the Guarantee and US Collateral Agreement and the Credit Agreement. The rights and
remedies of each party hereto with respect to the security interest granted herein are without
prejudice to, and are in addition to those set forth in the Guarantee and US Collateral Agreement
and the Credit Agreement, all terms and provisions of which are incorporated herein by reference.
In the event that any provisions of this Intellectual Property Security Agreement are in conflict
with the Guarantee and US Collateral Agreement or the Credit Agreement, the provisions of the
Guarantee and US Collateral Agreement or the Credit Agreement shall govern.




[Remainder of page intentionally left blank]




B-1-3









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security
Agreement to be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



State of




			
	 	 	 
	County of
	 	                                        , 2004







     Then personally appeared the above named                                         , as                     
                     of the
[COMPANY], and acknowledged the foregoing instrument to be her free act and deed as
                                         of the [COMPANY], before me,



Notary Public




My commission expires:




B-1-4









 





Schedule 1




COPYRIGHTS




PATENTS




TRADEMARKS




TRADE SECRETS




INTELLECTUAL PROPERTY LICENSES




 









 





Exhibit B-2 to

Guarantee and US Collateral Agreement




FORM OF AFTER-ACQUIRED INTELLECTUAL PROPERTY SECURITY AGREEMENT




(FIRST SUPPLEMENTAL FILING)




          This INTELLECTUAL PROPERTY SECURITY AGREEMENT (FIRST SUPPLEMENTAL FILING), dated as of
[                     ___, ___] (as amended, restated, supplemented or otherwise modified from time to time,
this “First Supplemental Intellectual Property Security Agreement”), is made by each of the
signatories hereto (collectively, the “Grantors”) in favor of Barclays Bank PLC, as
administrative agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Administrative Agent”) for the Secured Parties (as defined in the Credit
Agreement referred to below).




          WHEREAS, Waste Services (CA) Inc., an Ontario corporation, and Waste Services, Inc., a
Delaware corporation, have entered into that certain Credit Agreement, dated as of October 8, 2008
(as amended, restated, supplemented, replaced or otherwise modified from time to time, the
“Credit Agreement”), with the Lenders from time to time party thereto, , Barclays Capital,
the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC, as joint
lead arrangers and joint lead bookrunners, Bank of America, N.A., as syndication agent, Bosic Inc.,
SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents, the Administrative Agent and
The Bank of Nova Scotia, as Canadian agent and Canadian collateral agent. Capitalized terms used
and not defined herein have the meanings given such terms in the Credit Agreement.




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered that certain Guarantee and US Collateral Agreement, dated as of October 8,
2008, in favor of the Administrative Agent (as amended, restated, supplemented, replaced or
otherwise modified from time to time, the “Guarantee and US Collateral Agreement”).




          WHEREAS, under the terms of the Guarantee and US Collateral Agreement, the Grantors have
granted a security interest in certain Property, including, without limitation, certain
Intellectual Property, including but not limited to After-Acquired Intellectual Property of the
Grantors to the Administrative Agent for the ratable benefit of the Secured Parties, and have
agreed as a condition thereof to execute this First Supplemental Intellectual Property Security
Agreement for recording with the United States Patent and Trademark Office, the United States
Copyright Office, and other applicable Governmental Authorities.




          WHEREAS, the Intellectual Property Security Agreement was recorded against certain United
States Intellectual Property at [INSERT REEL/FRAME NUMBER] [IF SECOND OR LATER SUPPLEMENTAL, ADD
PRIOR REEL/FRAME NUMBERS].




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantors agree as follows:




B-2-1









 








          SECTION 1. Grant of Security. Each Grantor hereby grants to the Administrative Agent for the ratable benefit of the Secured
Parties a security interest in and to all of such Grantor’s right, title and interest in and to the
following (the “Intellectual Property Collateral”), as collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor’s Obligations:




          (a) (i) all trademarks, service marks, trade names, corporate names, company names, business
names, trade dress, trade styles, logos, or other indicia of origin or source identification,
Internet domain names, trademark and service mark registrations, and applications for trademark or
service mark registrations and any new renewals thereof, including, without limitation, each
registration and application identified in Schedule 1, (ii) the right to sue or otherwise recover
for any and all past, present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future infringements thereof), and
(iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business connected with the use of, and
symbolized by, each of the above (collectively, the “Trademarks”);




          (b) (i) all patents, patent applications and patentable inventions, including, without
limitation, each issued patent and patent application identified in Schedule 1, (ii) all inventions
and improvements described and claimed therein, (iii) the right to sue or otherwise recover for any
and all past, present and future infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all licenses entered into in connection therewith,
and damages and payments for past, present or future infringements thereof), and (v) all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals, and extensions thereof, all
improvements thereon and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto (collectively, the “Patents”);




          (c) (i) all copyrights, whether or not the underlying works of authorship have been published,
including but not limited to copyrights in software and databases, all Mask Works (as defined in 17
U.S.C. 901 of the Copyright Act), and all works of authorship and other intellectual property
rights therein (including, but not limited to, Business Software, as defined in the Intellectual
Property Agreement), all copyrights of works based on, incorporated in, derived from or relating to
works covered by such copyrights, all right, title and interest to make and exploit all derivative
works based on or adopted from works covered by such copyrights, and all copyright registrations
and copyright applications, mask works registrations and mask works applications, and any renewals
or extensions thereof, including, without limitation, each registration and application identified
in Schedule 1, (ii) the rights to print, publish and distribute any of the foregoing, (iii) the
right to sue or otherwise recover for any and all past, present and future infringements and
misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter
due and/or payable with respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (v) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto (“Copyrights”);





B-2-2









 








          (d) (i) all trade secrets and all confidential and proprietary information, including
know-how, manufacturing and production processes and techniques, inventions, research and
development information, technical data, financial, marketing and business data, pricing and cost
information, business and marketing plans, and customer and supplier lists and information,
(ii) the right to sue or otherwise recover for any and all past, present and future infringements
and misappropriations thereof, (iii) all income, royalties, damages and other payments now and
hereafter due and/or payable with respect thereto (including, without limitation, payments under
all licenses entered into in connection therewith, and damages and payments for past, present or
future infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto (collectively, the “Trade Secrets”);




          (e) (i) all licenses or agreements, whether written or oral, providing for the grant by or to
any Grantor of: (A) any right to use any Trademark or Trade Secret, (B) any right to manufacture,
use, import, export, distribute, offer for sale or sell any invention covered in whole or in party
by a Patent, and (C) any right under any Copyright including, without limitation, the grant of
rights to manufacture, distribute, print, publish, copy, import, export, exploit and sell materials
derived from any Copyright including, without limitation, any of the foregoing identified in
Schedule 1, (ii) the right to sue or otherwise recover for any and all past, present and future
infringements and misappropriations of any of the foregoing, (iii) all income, royalties, damages
and other payments now and hereafter due and/or payable with respect thereto (including, without
limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (iv) all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto; and




          (f) any and all proceeds of the foregoing.




          SECTION 2. Recordation. Each Grantor authorizes and requests that the Register of Copyrights, the Commissioner of
Patents and Trademarks and any other applicable government officer record this First Supplemental
Intellectual Property Security Agreement.




          SECTION 3. Execution in Counterparts. This First Supplemental Intellectual Property Security Agreement may be executed in any number
of counterparts (including by telecopy), each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.




          SECTION 4. Governing Law. This First Supplemental Intellectual Property Security Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.




          SECTION 5. Conflict Provision. This First Supplemental Intellectual Property Security Agreement has been entered into in
conjunction with the provisions of the Guarantee and US Collateral Agreement and the Credit
Agreement. The rights and remedies of each party hereto with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth in the Guarantee
and US Collateral Agreement and the Credit Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this Intellectual Property
Security Agreement are in conflict with the




B-2-3









 







Guarantee and US Collateral Agreement or the Credit
Agreement, the provisions of the Guarantee and US Collateral Agreement or the Credit Agreement
shall govern.




[Remainder of page intentionally left blank]




B-2-4









 








          IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security
Agreement to be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



State of




			
	 	 	 
	County of
	 	                                        , 2004







          Then personally appeared the above named                                         , as                
                          of the
[COMPANY], and acknowledged the foregoing instrument to be her free act and deed as
                                         of the [COMPANY], before me,




Notary Public




My commission expires:




B-2-5









 





Schedule 1




COPYRIGHTS




PATENTS




TRADEMARKS




TRADE SECRETS




INTELLECTUAL PROPERTY LICENSES




 









 





Annex 1 to

Guarantee and US Collateral Agreement




          ASSUMPTION AGREEMENT, dated as of [                    , ___], made by                     
                    , a
                                         corporation (the “Additional Guarantor”), in favor of Barclays Bank PLC, as
administrative agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Administrative Agent”) for (i) the banks and other financial institutions
and entities (the “Lenders”) parties to the Credit Agreement referred to below, and (ii)
the other Secured Parties (as defined in the Guarantee and US Collateral Agreement (as hereinafter
defined)). All capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.




W I T N E S S E T H:




          WHEREAS, Waste Services (CA) Inc., an Ontario corporation (the “US Borrower”), Waste
Services, Inc., a Delaware corporation (the “Canadian Borrower” and, together with the US
Borrower, the “Borrowers”), the Lenders from time to time party thereto, , Barclays
Capital, the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC,
as joint lead arrangers and joint lead bookrunners, Bank of America, N.A., as syndication agent,
Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents, the
Administrative Agent and The Bank of Nova Scotia, as Canadian agent and Canadian collateral agent,
have entered into that certain Credit Agreement, dated as of October 8, 2008 (as amended, restated,
supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”);




          WHEREAS, in connection with the Credit Agreement, the Borrowers and certain of their
respective Affiliates (other than the Additional Guarantor) have entered into the Guarantee and US
Collateral Agreement, dated as of October 8, 2008 (as amended, restated, supplemented, replaced or
otherwise modified from time to time, the “Guarantee and US Collateral Agreement”) in favor
of the Administrative Agent for the benefit of the Secured Parties;




          WHEREAS, the Credit Agreement requires the Additional Guarantor to become a party to the
Guarantee and US Collateral Agreement; and




          WHEREAS, the Additional Guarantor has agreed to execute and deliver this Assumption Agreement
in order to become a party to the Guarantee and US Collateral Agreement;




          NOW, THEREFORE, IT IS AGREED:




          1. Guarantee and US Collateral Agreement. By executing and delivering this Assumption Agreement, the Additional Guarantor, as provided
in Section 8.14 of the Guarantee and US Collateral Agreement, hereby becomes a party to the
Guarantee and US Collateral Agreement as a Guarantor thereunder with the same force and effect as
if originally named therein as a Guarantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and liabilities of a
Guarantor thereunder. [If such Additional Guarantor




 









 







is a US Subsidiary, add: In addition, by
executing and delivering this Assumption Agreement, the Additional Guarantor, as provided in
Section 8.14 of the Guarantee and US Collateral Agreement, hereby becomes a party to the Guarantee
and US Collateral Agreement as a Grantor thereunder with the same force and effect as if originally
named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly
assumes all obligations and liabilities of a Grantor thereunder. The information set forth in
Annex 1-A hereto is hereby added to the information set forth in Schedules
[                                        ]1 to the Guarantee and US Collateral Agreement.] The Additional
Guarantor hereby represents and warrants that each of the representations and warranties contained
in Section [If such Additional Guarantor is not a US Subsidiary: 4.1] [If such Additional
Guarantor is a US Subsidiary: 4] of the Guarantee and US Collateral Agreement is true and correct
as to such Guarantor on and as the date hereof (after giving effect to this Assumption Agreement)
as if made on and as of such date.




          2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.




          IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.




	 	 	 	 	 
	 	[ADDITIONAL GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Refer to each Schedule which needs to be supplemented.






2











 





Execution Version




      




CANADIAN COLLATERAL AGREEMENT




made by




WASTE SERVICES (CA) INC.




CAPITAL ENVIRONMENTAL HOLDINGS COMPANY




and




RAM-PAK COMPACTION SYSTEMS LTD.




in favor of




THE BANK OF NOVA SCOTIA

as Canadian Collateral Agent




Dated as of October 8, 2008




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	SECTION 1 – DEFINED TERMS
	 	 	2	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	2	 
	1.2 Other Definitional Provisions
	 	 	8	 
	 
	 	 	 	 
	SECTION 2 – [RESERVED]
	 	 	9	 
	 
	 	 	 	 
	SECTION 3 – GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL
	 	 	9	 
	 
	 	 	 	 
	3.1 Grant of Security Interest; Continuing Liability Under Collateral
	 	 	9	 
	 
	 	 	 	 
	SECTION 4 – REPRESENTATIONS AND WARRANTIES
	 	 	10	 
	 
	 	 	 	 
	4.1 Representations in Credit Agreement; Grantor Representations
	 	 	11	 
	4.2 Title; No Other Liens
	 	 	11	 
	4.3 Perfected First Priority Liens
	 	 	11	 
	4.4 Name; Jurisdiction of Organization, Etc
	 	 	11	 
	4.5 Inventory and Equipment
	 	 	12	 
	4.6 Farm Products
	 	 	12	 
	4.7 Investment Property
	 	 	12	 
	4.8 Receivables
	 	 	13	 
	4.9 Intellectual Property
	 	 	13	 
	4.10 Motor Vehicles
	 	 	15	 
	 
	 	 	 	 
	SECTION 5 – COVENANTS
	 	 	16	 
	 
	 	 	 	 
	5.1 Covenants in Credit Agreement
	 	 	16	 
	5.2 Delivery and Control of Instruments, Chattel Paper, Negotiable
Documents, Investment Property and Deposit Accounts
	 	 	16	 
	5.3 Maintenance of Insurance
	 	 	16	 
	5.4 Payment of Obligations
	 	 	17	 
	5.5 Maintenance of Perfected Security Interest; Further Documentation
	 	 	18	 
	5.6 Changes in Locations, Name, Jurisdiction of Incorporation, Etc
	 	 	18	 
	5.7 Notices
	 	 	18	 
	5.8 Investment Property
	 	 	19	 
	5.9 Receivables
	 	 	20	 
	5.10 Intellectual Property
	 	 	20	 
	 
	 	 	 	 
	SECTION 6 – REMEDIAL PROVISIONS
	 	 	23	 
	 
	 	 	 	 
	6.1 Certain Matters Relating to Receivables
	 	 	23	 
	6.2 Communications with Obligors; Grantors Remain Liable
	 	 	23	 






i









 






	 	 	 	 	 
	6.3 Pledged Securities
	 	 	24	 
	6.4 Proceeds to be Turned Over To Canadian Collateral Agent
	 	 	25	 
	6.5 Application of Proceeds
	 	 	25	 
	6.6 PPSA and Other Remedies
	 	 	26	 
	6.7 Distribution Rights
	 	 	27	 
	6.8 Deficiency
	 	 	28	 
	6.9 Appointment of Receiver
	 	 	29	 
	 
	 	 	 	 
	SECTION 7 – THE CANADIAN COLLATERAL AGENT
	 	 	29	 
	 
	 	 	 	 
	7.1 Canadian Collateral Agent’s Appointment as Attorney-in-Fact, Etc
	 	 	29	 
	7.2 Duty of Canadian Collateral Agent
	 	 	31	 
	7.3 Execution of Financing Statements
	 	 	31	 
	7.4 Authority of Canadian Collateral Agent
	 	 	32	 
	7.5 Appointment of Co-Collateral Agents
	 	 	32	 
	 
	 	 	 	 
	SECTION 8 – MISCELLANEOUS
	 	 	32	 
	 
	 	 	 	 
	8.1 Amendments in Writing
	 	 	32	 
	8.2 Notices
	 	 	32	 
	8.3 No Waiver by Course of Conduct; Cumulative Remedies
	 	 	33	 
	8.4 Enforcement Expenses; Indemnification
	 	 	33	 
	8.5 Judgment Currency
	 	 	33	 
	8.6 Successors and Assigns
	 	 	34	 
	8.7 Permitted Liens
	 	 	34	 
	8.8 Set-Off
	 	 	34	 
	8.9 Counterparts
	 	 	35	 
	8.10 Severability
	 	 	35	 
	8.11 Section Headings
	 	 	35	 
	8.12 Integration
	 	 	35	 
	8.13 Governing Law
	 	 	35	 
	8.14 Submission to Jurisdiction; Waivers
	 	 	35	 
	8.15 Acknowledgments
	 	 	36	 
	8.16 Acknowledgement of fondé de pouvoir
	 	 	36	 
	8.17 Additional Grantors
	 	 	36	 
	8.18 Releases
	 	 	37	 
	8.19 Waiver Of Jury Trial
	 	 	37	 





SCHEDULES



Schedule 1 – Notice Addresses of Grantors



Schedule 2 – Description of Pledged Investment Property



Schedule 3 – Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office




ii









 







Schedule 4 – Location of Inventory and Equipment



Schedule 5 – Intellectual Property



Schedule 6 – Motor Vehicles



EXHIBITS



Exhibit A – Form of Acknowledgement and Consent



Exhibit B-1 – Form of Intellectual Property Security Agreement



Exhibit B-2 – Form of After-Acquired Intellectual Property Security Agreement



ANNEXES



Annex 1 – Assumption Agreement





iii









 








CANADIAN COLLATERAL AGREEMENT




     CANADIAN COLLATERAL AGREEMENT, dated as of October 8, 2008, made by WASTE SERVICES (CA) INC.,
an Ontario corporation (the “Canadian Borrower”), CAPITAL ENVIRONMENTAL HOLDINGS COMPANY, a
Nova Scotia corporation, and RAM-PAK COMPACTION SYSTEMS LTD., a Canada corporation (each a
“Grantor” and, together with the Canadian Borrower and any other entity that may become a
party hereto as provided in Section 8.15 herein, the “Grantors”), in favor of THE BANK OF
NOVA SCOTIA, as Canadian collateral agent (in such capacity, together with its permitted successors
and assigns in such capacity, the “Canadian Collateral Agent”) for (i) the banks and other
financial institutions or entities (the “Lenders”) from time to time party to the Credit
Agreement, dated as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the “Credit Agreement”), among the Canadian Borrower, Waste
Services, Inc., a Delaware corporation (the “US Borrower” and, together with the Canadian
Borrower, the “Borrowers”), the Lenders from time to time party thereto, Barclays Capital,
the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC, as joint
lead arrangers and joint lead bookrunners (collectively, in such capacities, the
“Arrangers”), Bank of America, N.A., as syndication agent (in such capacity, the
“Syndication Agent”), Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as
co-documentation agents (collectively, in such capacities, the “Co-Documentation Agents”),
Barclays Bank PLC, as administrative agent (in such capacity, together with its permitted
successors and assigns in such capacity, the “Administrative Agent”), and The Bank of Nova
Scotia, as Canadian agent (n such capacity, together with its permitted successors and assigns in
such capacity, the “Canadian Agent”) and Canadian Collateral Agent, and (ii) the other
Secured Parties (as hereinafter defined).



WITNESSETH:




     A. WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrowers upon the terms and subject to the conditions set forth
therein;



     B. WHEREAS, each Borrower is a member of an affiliated group of companies that includes each
Grantor;



     C. WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be used
in part to enable the Borrowers to make valuable transfers to one or more of the Grantors in
connection with the operation of their respective businesses;



     D. WHEREAS, the Borrowers and the Grantors are engaged in related businesses, and each Grantor
will derive substantial direct and indirect benefit from the making of the extensions of credit
under the Credit Agreement; and



     E. WHEREAS, it is a condition precedent to the obligation of the Lenders to make their
respective extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall
have executed and delivered this Agreement to the Canadian Collateral Agent for the ratable benefit
of the Secured Parties;



 









 





     NOW, THEREFORE, in consideration of the premises and to induce the Arrangers, the
Administrative Agent, the Canadian Agent, the Canadian Collateral Agent, the Syndication Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrowers thereunder, each Grantor hereby agrees with the Canadian
Collateral Agent, for the ratable benefit of the Secured Parties, as follows:


SECTION 1 – DEFINED TERMS



1.1 Definitions




     (a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement, and all terms defined in the PPSA
(as defined herein) (including, without limitation, “chattel paper”, “consumer goods”, “document of
title”, “equipment”, “goods”, “instrument”, “inventory”, “investment property”, “proceeds”,
“financing statement” and “financing change statement”), and not otherwise defined in this
Agreement, shall have the meanings specified therein.



     (b) The following terms shall have the following meanings:



     “Account Debtor”: any entity that is or that may become obligated to any Grantor
under, or with respect to, an Account.



     “Account”: all accounts and book debts and generally all debts, dues, claims, choses
in action, and demands of every kind and nature howsoever arising or secured, including under
letters of credit and advices of credit, which are now due, owing, or accruing, or growing due to,
or owned by, any Grantor.



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



     “Agreement”: this Canadian Collateral Agreement, as the same may be amended,
restated, supplemented, replaced or otherwise modified from time to time.



     “Arrangers”: as defined in the preamble hereto.



     “Borrowers”: as defined in the preamble hereto.



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



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



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



     “Co-Documentation Agents”: as defined in the preamble hereto.



     “Collateral”: as defined in Section 3.1(a).



     “Collateral Account”: (i) any collateral account established by the Canadian
Collateral Agent as provided in Section 6.1 or 6.4 or (ii) any cash collateral account established
as provided in Section 8 of the Credit Agreement.



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     “Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 5), granting any right
under any Copyright, including, without limitation, the grant of rights to manufacture, print,
publish, copy, import, export, distribute, exploit and sell materials derived from any Copyright.



     “Copyrights”: (i) all domestic and foreign copyrights, whether or not the underlying
works of authorship have been published, including but not limited to copyrights in software and
databases and all works of authorship and other intellectual property rights therein, all
copyrights of works based on, incorporated in, derived from or relating to works covered by such
copyrights, all right, title and interest to make and exploit all derivative works based on or
adopted from works covered by such copyrights, and all copyright registrations and copyright
applications, and any renewals or extensions thereof, including, without limitation, each
registration and application identified in Schedule 5, (ii) the rights to print, publish
and distribute any of the foregoing, (iii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) all income, royalties,
damages and other payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all Copyright Licenses entered into in connection therewith,
payments arising out of any other sale, lease, license or other disposition thereof and damages and
payments for past, present or future infringements thereof), and (v) all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.



     “Deposit Account”: any demand, time, savings, passbook or like account maintained
with a depository institution and shall include, without limitation, all of the accounts listed on
Schedule 2 hereto under the heading “Deposit Accounts” (as such schedule may be amended
from time to time) together, in each case, with all funds held therein and all certificates or
instruments representing any of the foregoing.



     “Excluded Assets”: (i) the last day of the term of any lease, but upon the
enforcement of the security interest hereunder, the applicable Grantor shall stand possessed of
such last day in trust to assign the same to any Person acquiring such term, (ii) consumer goods,
and (iii) any Intangible to the extent the grant by the relevant Grantor of a security interest
pursuant to this Agreement in such Grantor’s right, title and interest in such Intangible is
(w) prohibited by legally enforceable provisions of any permit, contract, agreement, instrument or
indenture governing such Intangible, (x) would give any other party to such permit, contract,
agreement, instrument or indenture a legally enforceable right to terminate its obligations
thereunder, (y) is permitted only with the consent of another party, if the requirement to obtain
such consent is legally enforceable and such consent has not been obtained, or (z) would for other
reasons be held by a court not to constitute property capable of being subject to a security
interest; provided, however, that such security interest shall attach immediately
to (i) any portion of such Intangible that does not result in any of the consequences specified
above and (ii) to the Excluded Assets listed in clause (iii) above upon written notice thereof by
the Canadian Collateral Agent to the Grantors following the occurrence of an Event of Default.



     “Financial Administration Act (Canada)”: R.S.C. 1985, c. F-11.



     “Grantor” and “Grantors”: as defined in the preamble hereto.



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     “Industrial Design”: (i) all industrial designs, design patents and other designs,
all registrations and recordings thereof and all applications in connection therewith including all
registrations, recordings and applications identified in Schedule 5, and (ii) all records
thereof and all reissues, extensions or renewals thereof.



     “Industrial Design License”: means any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any industrial design, including, without
limitation, any of the foregoing referred to in Schedule 5.



     “Insurance”: shall mean (i) all insurance policies covering any or all of the
Collateral (regardless of whether the Canadian Collateral Agent is the loss payee thereof), and
(ii) any key man life insurance policies.



     “Intangibles”: has the meaning given to it in the PPSA, including, without
limitation, with respect to any Grantor, all rights of such Grantor to receive any tax refunds, all
Hedge Agreements and all contracts, agreements, instruments and indentures and all licenses,
permits, concessions, franchises and authorizations issued by Governmental Authorities in any form,
and portions thereof, to which such Grantor is a party or under which such Grantor has any right,
title or interest or to which such Grantor or any property of such Grantor is subject, as the same
may from time to time be amended, supplemented, replaced or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder
or in connection therewith, (ii) all rights of such Grantor to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect thereto, (iii) all rights of such Grantor to damages
arising thereunder, and (iv) all rights of such Grantor to terminate and to perform, compel
performance and to exercise all remedies thereunder.



     “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under Canadian, multinational, or
foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Industrial Design
Licenses, the Industrial Designs, the Trade Secrets and the Trade Secret Licenses, and all rights
to sue at law or in equity for any past, present and future infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.



     “Intercompany Note”: any promissory note evidencing loans made by any Grantor to a
Group Member.



     “Investment Property”: the collective reference to (i) all “investment property” as
such term is defined in Section 1(1) of the PPSA, and (ii) whether or not constituting “investment
property” as so defined, all Pledged Notes, all Pledged Equity Interests, all Pledged Security
Entitlements and all Pledged Commodity Contracts.



     “Issuers”: the collective reference to each issuer of a Pledged Security.



     “Motor Vehicles”: has the meaning given to it in the PPSA, including, without
limitation, the vehicles listed on Schedule 6 and all tires and other appurtenances to any
of the foregoing.



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     “Obligations”: with respect to any Grantor, all obligations and liabilities of such
Grantor which may arise under or in connection with this Agreement (including, without limitation,
Section 2 of the Guarantee and US Collateral Agreement and, in the case of the Canadian Borrower,
the Credit Agreement) or any other Loan Document to which such Grantor is a party, in each case
whether on account of primary obligations, guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to any Secured Party that are required to be paid by such Grantor pursuant
to the terms of this Agreement or any other Loan Document). Notwithstanding the foregoing, for
purposes of Sections 6.5 and 8.18, the term “Obligations” shall include all Obligations of the Loan
Parties under and as defined in the Loan Documents, including the Obligations of the Borrowers
under the Credit Agreement.



     “Patent License”: any agreement, whether written or oral, providing for the grant by
or to any Grantor of any right to manufacture, use, import, export, distribute or sell any
invention covered in whole or in part by a Patent, including, without limitation, any of the
foregoing referred to in Schedule 5.



     “Patents”: (i) all domestic and foreign patents, patent applications and patentable
inventions, including, without limitation, each issued patent and patent application identified in
Schedule 5, all certificates of invention or similar property rights, (ii) all inventions
and improvements described and claimed therein, (iii) the right to sue or otherwise recover for any
and all past, present and future infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all Patent Licenses entered into in connection
therewith, payments arising out of any other sale, lease, license or other disposition thereof and
damages and payments for past, present or future infringement thereof), and (v) all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals, and extensions thereof, all
improvements thereon and all other rights of any kind whatsoever accruing thereunder or pertaining
thereto.



     “Pledged Alternative Equity Interests”: shall mean all interests of any Grantor in
participation or other interests in any equity or profits of any business entity and the
certificates, if any, representing such interests and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such interests
and any other warrant, right or option to acquire any of the foregoing; provided,
however, that Pledged Alternative Equity Interests shall not include any Pledged Stock,
Pledged Partnership Interests, Pledged LLC Interests and Pledged Trust Interests.



     “Pledged Commodity Contracts”: all commodity contracts listed on Schedule 2
(as such schedule may be amended from time to time) and all other commodity contracts to which any
Grantor is party from time to time.



     “Pledged Debt Securities”: all debt securities now owned or hereafter acquired by any
Grantor, including, without limitation, the debt securities listed on Schedule 2, (as such
schedule may be amended from time to time) together with any other certificates, options, rights or



5









 







security entitlements of any nature whatsoever in respect of the debt securities of any Person
that may be issued or granted to, or held by, any Grantor while this Agreement is in effect.



     “Pledged Equity Interests”: shall mean all Pledged Stock, Pledged LLC Interests,
Pledged Partnership Interests, Pledged Trust Interests and Pledged Alternative Equity Interests.



     “Pledged LLC Interests”: shall mean all interests of any Grantor now owned or
hereafter acquired in any limited liability company including, without limitation, all limited
liability company interests listed on Schedule 2 hereto under the heading “Pledged LLC
Interests” (as such schedule may be amended from time to time) and the certificates, if any,
representing such limited liability company interests and any interest of such Grantor on the books
and records of such limited liability company and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all of such limited
liability company interests and any other warrant, right or option to acquire any of the foregoing.



     “Pledged Notes”: all promissory notes now owned or hereafter acquired by any Grantor
including, without limitation, those listed on Schedule 2 (as such schedule may be amended
from time to time), and all Intercompany Notes at any time issued to any Grantor.



     “Pledged Partnership Interests”: shall mean all interests of any Grantor now owned or
hereafter acquired in any general partnership, limited partnership, limited liability partnership
or other partnership including, without limitation, all partnership interests listed on
Schedule 2 hereto under the heading “Pledged Partnership Interests” (as such schedule may
be amended from time to time) and the certificates, if any, representing such partnership interests
and any interest of such Grantor on the books and records of such partnership and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such partnership interests and any other warrant, right or option to
acquire any of the foregoing.



     “Pledged Securities”: the collective reference to the Pledged Debt Securities, the
Pledged Notes and the Pledged Equity Interests.



     “Pledged Security Entitlements”: all security entitlements with respect to the
financial assets listed on Schedule 2 (as such schedule may be amended from time to time)
and all other security entitlements of any Grantor.



     “Pledged Stock”: shall mean all shares of capital stock now owned or hereafter
acquired by such Grantor, including, without limitation, all shares of capital stock described on
Schedule 2 hereto under the heading “Pledged Stock” (as such schedule may be amended from
time to time), and the certificates, if any, representing such shares and any interest of such
Grantor in the entries on the books of the issuer of such shares and all dividends, distributions,
cash, warrants, rights, options, instruments, securities and other property or proceeds from time
to time received, receivable or otherwise distributed in respect of or in exchange for any or all
of such shares and any other warrant, right or option to acquire any of the foregoing.



6









 





     “Pledged Trust Interests”: shall mean all interests of any Grantor now owned or
hereafter acquired in a business trust or other trust including, without limitation, all trust
interests listed on Schedule 2 hereto under the heading “Pledged Trust Interests” (as such
schedule may be amended from time to time) and the certificates, if any, representing such trust
interests and any interest of such Grantor on the books and records of such trust or on the books
and records of any securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such trust interests and any other warrant, right or option to acquire
any of the foregoing.



     “PPSA”: means the Personal Property Security Act, including the Regulations thereto,
as in effect from time to time in the Province of Ontario, provided that, if perfection or
the effect of perfection or non-perfection or the priority of any Lien on the Collateral is
governed by the personal property security legislation or other applicable legislation with respect
to personal property security as in effect in a jurisdiction other than Ontario, “PPSA” means the
Personal Property Security Act or such other applicable legislation as in effect from time to time
in such other jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.



     “Receivable”: all Accounts and any other right to payment for goods or other property
sold, leased, licensed, assigned, or otherwise disposed of or for services rendered, whether or not
such right is evidenced by an instrument or chattel paper and whether or not it has been earned by
performance. References herein to “Receivables” shall include collateral securing such Receivable.



     “Secured Parties”: collectively, the Arrangers, the Administrative Agent, the
Canadian Collateral Agent, the Canadian Agent, the Syndication Agent, the Lenders and, with respect
to any Specified Hedge Agreement, any Qualified Counterparty that has agreed to be bound by the
provisions of Section 9 of the Credit Agreement as if it were a Lender party thereto;
provided that no Qualified Counterparty shall have any rights in connection with the
management or release of any Collateral or the obligations of any Grantor under this Agreement.



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



     “Taxes”: all present and future taxes, surtaxes, duties, levies, imposts, rates,
fees, assessments, withholdings and other charges of any nature (including income, corporate,
capital (including large corporations), net worth, sales, consumption, use, transfer, goods and
services, value-added, stamp, registration, franchise, withholding, payroll, employment, health,
education, excise, business, school, property, occupation, customs, anti-dumping and countervail
taxes, surtaxes, duties, levies, imposts, rates, fees, assessments, withholdings and other charges)
imposed by any Governmental Authority, together with any fines, interest, penalties or other
additions on, to, in lieu of, for non-collection of or in respect of these taxes, surtaxes, duties,
levies, imposts, rates, fees, assessments, withholdings and other charges.



     “Trademark License”: any agreement, whether written or oral, providing for the grant
by or to any Grantor of any right to use any Trademark, including, without limitation, any of the
foregoing referred to in Schedule 5.



7









 





     “Trademarks”: (i) all domestic and foreign trademarks, service marks, trade names,
corporate names, company names, business names, trade dress, trade styles, logos, or other indicia
of origin or source identification, Internet domain names, and all goodwill associated therewith,
trademark and service mark registrations, and applications for trademark or service mark
registrations and any renewals thereof, including, without limitation, each registration and
application identified in Schedule 5, (ii) the right to sue or otherwise recover for any
and all past, present and future infringements and misappropriations thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all Trademark Licenses entered into in connection
therewith, and damages and payments for past, present or future infringements thereof), and
(iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto, together in
each case with the goodwill of the business connected with the use of, and symbolized by, each of
the above.



     “Trade Secret License”: any agreement, whether written or oral, providing for the
grant by or to any Grantor of any right to use any Trade Secret, including, without limitation, any
of the foregoing referred to in Schedule 5.



     “Trade Secrets”: (i) all trade secrets and all confidential and proprietary
information, including know-how, manufacturing and production processes and techniques, inventions,
research and development information, technical data, financial, marketing and business data,
pricing and cost information, business and marketing plans, and customer and supplier lists and
information, including, without limitation, any of the foregoing referred to in Schedule 5,
(ii) the right to sue or otherwise recover for any and all past, present and future infringements
and misappropriations thereof, (iii) all income, royalties, damages and other payments now and
hereafter due and/or payable with respect thereto (including, without limitation, payments arising
out of the sale, lease, license, assignment or other disposition thereof, and damages and payments
for past, present or future infringements thereof), and (iv) all other rights of any kind
whatsoever of any Grantor accruing thereunder or pertaining thereto.



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


1.2 Other Definitional Provisions




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



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



     (c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.



8









 





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



SECTION 2 – [RESERVED]



SECTION 3 – GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL



3.1 Grant of Security Interest; Continuing Liability Under Collateral




     (a) Each Grantor hereby assigns and transfers to the Canadian Collateral Agent, and hereby
grants to the Canadian Collateral Agent, for the ratable benefit of the Secured Parties, a security
interest in all of the personal property of such Grantor, including, without limitation, the
following personal property, in each case, wherever located and now owned or at any time hereafter
acquired, created or developed by such Grantor, or in which such Grantor now has or at any time in
the future may acquire any right, title or interest (collectively, the “Collateral”), as
collateral security for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of such Grantor’s Obligations:




	 	(i)	 	all Accounts;
	 
	 	(ii)	 	all chattel paper;
	 
	 	(iii)	 	all Deposit Accounts (and all cash, cheques and other negotiable instruments,
funds and other evidences of payment held therein);
	 
	 	(iv)	 	all documents of title;
	 
	 	(v)	 	all equipment of whatever kind and wherever situated;
	 
	 	(vi)	 	all Intangibles;
	 
	 	(vii)	 	all instruments;
	 
	 	(viii)	 	Insurance;
	 
	 	(ix)	 	all Intellectual Property, (except that, such grant and assignment shall be by
way of security interest only and not an absolute assignment);
	 
	 	(x)	 	all inventory of whatever kind and wherever situated;
	 
	 	(xi)	 	all Investment Property;
	 
	 	(xii)	 	all money;
	 
	 	(xiii)	 	all Motor Vehicles;
	 
	 	(xiv)	 	all other personal property;




9









 






	 	(xv)	 	any Collateral Account;






	 	(xvi)	 	all books, records, ledger cards, files, correspondence, customer lists,
blueprints, technical specifications, manuals, computer software, computer printouts,
tapes, disks and other electronic storage media and related data processing software
and similar items that at any time evidence or contain information relating to any of
the Collateral or are otherwise necessary or helpful in the collection thereof or
realization thereupon; and
	 
	 	(xvii)	 	to the extent not otherwise included, all other personal property of the Grantor and
all proceeds, products, accessions, rents and profits of any and all of the foregoing
and all collateral security and guarantees given by any Person with respect to any of
the foregoing.





     Notwithstanding anything to the contrary in this Agreement, none of the Excluded Assets shall
constitute Collateral.



     (b) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for
all obligations under the Collateral and nothing contained herein is intended or shall be a
delegation of duties to the Canadian Collateral Agent or any Secured Party, (ii) each Grantor shall
remain liable under each of the agreements included in the Collateral, including, without
limitation, any Receivables, any agreements relating to Pledged Partnership Interests or Pledged
LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with
and pursuant to the terms and provisions thereof and neither the Canadian Collateral Agent nor any
Secured Party shall have any obligation or liability under any of such agreements by reason of or
arising out of this Agreement or any other document related thereto nor shall the Canadian
Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or
sufficiency of any payment received by it or have any obligation to take any action to collect or
enforce any rights under any agreement included in the Collateral, including, without limitation,
any agreements relating to any Receivables, Pledged Partnership Interests or Pledged LLC Interests,
and (iii) the exercise by the Canadian Collateral Agent of any of its rights hereunder shall not
release any Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral.



     (c) Each Grantor acknowledges that value has been given and agrees that the security interest
granted hereby will attach when such Grantor signs this Agreement and such Grantor has any rights
in the Collateral and it has not agreed to postpone the time for attachment of the Liens granted
hereunder.



SECTION 4 – REPRESENTATIONS AND WARRANTIES




     To induce the Arrangers, the Administrative Agent, the Canadian Agent, the Canadian Collateral
Agent, the Syndication Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective extensions of credit to the Borrowers thereunder, each Grantor
hereby represents and warrants to the Secured Parties that:



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4.1 Representations in Credit Agreement; Grantor Representations.




     In the case of each Grantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Grantor or to the Loan Documents to which such Grantor is a
party, each of which is hereby incorporated herein by reference, are true and correct, in all
material respects (without duplication of any materiality qualifier contained therein), except for
representations and warranties expressly stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material respects (without
duplication of any materiality qualifier contained therein) as of such earlier date, and the
Secured Parties shall be entitled to rely on each of them as if they were fully set forth herein,
provided that each reference in each such representation and warranty to the Borrowers’
knowledge shall, for the purposes of this Section 4.1, be deemed to be a reference to such
Grantor’s knowledge.



4.2 Title; No Other Liens.




     Such Grantor owns each item of the Collateral free and clear of any and all Liens or claims,
including, without limitation, liens arising as a result of such Grantor becoming bound (as a
result of merger, amalgamation, or otherwise) as Grantor under a security agreement entered into by
another Person, except for Permitted Liens.



4.3 Perfected First Priority Liens.




     The security interests granted pursuant to this Agreement (i) constitute valid, fully
perfected security interests in all of the Collateral in favor of the Canadian Collateral Agent,
for the ratable benefit of the Secured Parties, as collateral security for such Grantor’s
Obligations, enforceable in accordance with the terms hereof, and (ii) are prior to all other Liens
on the Collateral except for Permitted Liens.



4.4 Name; Jurisdiction of Organization, Etc.




     On the date hereof, such Grantor’s exact legal name (as indicated on the public record of such
Grantor’s jurisdiction of formation or organization), jurisdiction of organization, organizational
identification number, if any, and the location of such Grantor’s chief executive office or
domicile (for purposes of the Québec Civil Code), as the case may be, are specified on Schedule
3. Each Grantor is organized solely under the law of the jurisdiction so specified and has not
filed any certificates of domestication, transfer or continuance in any other jurisdiction. Except
as specified on Schedule 3, it has not changed its name, jurisdiction of organization,
chief executive office or domicile (for purposes of the Québec Civil Code), as the case may be, or
its corporate structure in any way (e.g., by merger, consolidation, amalgamation, change in
corporate form or otherwise) within the past three years and has not within the last three years
become bound (whether as a result of merger, amalgamation, or otherwise) as Grantor under a
security agreement entered into by another Person, which has not heretofore been terminated, other
than Permitted Liens.



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4.5 Inventory and Equipment.




     (a) On the date hereof, all inventory and equipment (other than mobile goods or equipment that
is customarily kept at customer locations) are kept at the locations listed on Schedule 4;
and



     (b) none of the inventory or equipment is in the possession of an issuer of a negotiable
document in respect of such inventory or equipment or is otherwise in the possession of any bailee
or warehouseman.


4.6 Farm Products.




     None of the Collateral constitutes, or is the proceeds of, farm products.


4.7 Investment Property.




     (a) Schedule 2 hereto (as such schedule may be amended from time to time) sets forth
under the headings “Pledged Stock”, “Pledged LLC Interests,” “Pledged Partnership Interests” and
“Pledged Trust Interests,” respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests owned by any Grantor and such Pledged Equity
Interests constitute the percentage of issued and outstanding shares of stock, percentage of
membership interests, percentage of partnership interests or percentage of beneficial interest of
the respective issuers thereof indicated on such schedule. Schedule 2 hereto (as such
schedule may be amended from time to time) sets forth under the heading “Pledged Debt Securities”
or “Pledged Notes” all of the Pledged Debt Securities and Pledged Notes owned by any Grantor and
all of such Pledged Debt Securities and Pledged Notes has been duly authorized, authenticated or
issued, and delivered and is the legal, valid and binding obligation of the issuers thereof
enforceable in accordance with their terms and is not in default and constitutes all of the issued
and outstanding inter-company indebtedness evidenced by an instrument or certificated security of
the respective issuers thereof owing to such Grantor. Schedule 2 hereto (as such schedule
may be amended from time to time) sets forth under the headings “Securities Accounts,” “Commodities
Accounts,” and “Deposit Accounts” respectively, all of the securities accounts, commodities
accounts and deposit accounts in which each Grantor has an interest. Each Grantor is the sole
entitlement holder or customer of each such account and such Grantor has not consented to, and is
not otherwise aware of, any Person (other than the Canadian Collateral Agent pursuant hereto)
having the right to obtain dominion or control over, or any other interest in, any securities
account, commodity account or deposit account or any securities, commodities or other property
credited thereto;



     (b) The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of
the issued and outstanding shares of all classes of the Capital Stock of each Issuer owned by such
Grantor.



     (c) All the shares of the Pledged Equity Interests have been duly and validly issued and are
fully paid and nonassessable.



12









 





     (d) None of the Pledged LLC Interests nor Pledged Partnership Interests are or represent
interests in issuers that are: (i) registered as investment companies, or (ii) are dealt in or
traded on securities exchanges or markets.



     (e) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property and Deposit Accounts pledged by it hereunder, free of any and all Liens or
options in favor of, or claims of, any other Person, except Permitted Liens.



     (f) Each Issuer that is not a Grantor hereunder has executed and delivered to the Canadian
Collateral Agent an Acknowledgement and Consent Agreement, in substantially the form of Exhibit
A, in respect of the pledge of the Pledged Securities pursuant to this Agreement.



     (g) No Grantor has granted “control” within the meaning of such term under Section 1(2) of the
PPSA over any Investment Property to any Person other than the Canadian Collateral Agent.



4.8 Receivables.




     (a) No amount payable to such Grantor under or in connection with any Receivable is evidenced
by any instrument or chattel paper which has not been delivered to the Canadian Collateral Agent.



     (b) None of the obligors on any Receivables in excess of US$500,000 per fiscal year
individually or US$2,000,000 in the aggregate (or such higher amount as the Canadian Collateral
Agent may reasonably agree to) is a Governmental Authority except obligors or Receivables as to
which such Grantor has in compliance with Section 6.14 of the Credit Agreement obtained all
necessary consents to assignment required by the Financial Administration Act (Canada) or any other
applicable law.



     (c) To the knowledge of each Grantor, each material Receivable (i) is and will be the legal,
valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied
obligation of such Account Debtor, (ii) is and will be enforceable in accordance with its terms,
(iii) is not and will not be subject to any setoffs, defenses, taxes, counterclaims (except with
respect to refunds, returns and allowances in the ordinary course of business with respect to
damaged merchandise or defective services) and (iv) is and will be in compliance with all
applicable laws and regulations.



4.9 Intellectual Property.




     (a) Schedule 5 lists all registered Intellectual Property owned by such Grantor in its
own name on the date hereof. Except as set forth in Schedule 5, or as could not reasonably
be expected to have a Material Adverse Effect, such Grantor is the exclusive owner of the entire
and unencumbered right, title and interest in and to all of the Intellectual Property owned by such
Grantor, subject only to the license terms of the licensing or franchise agreements referred to in
paragraph (c) below.



     (b) On the date hereof, all Intellectual Property is valid, subsisting, unexpired and
enforceable, has not been abandoned and neither the operation of such Grantor’s business as



13









 







currently conducted or as contemplated to be conducted nor the use of any material
Intellectual Property in connection therewith materially conflicts with, infringes,
misappropriates, dilutes, misuses, or otherwise violates the intellectual property rights of any
other Person.



     (c) Except as set forth in Schedule 5, on the date hereof (i) none of the material
Intellectual Property owned by such Grantor is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor, and (ii) there are no other
agreements, obligations, orders or judgments which affect the use of any material Intellectual
Property owned by such Grantor.



     (d) The rights of such Grantor in or to the material Intellectual Property owned by such
Grantor do not materially conflict with or infringe upon the rights of any third party, and no
claim has been asserted that the use of such Intellectual Property does or may infringe upon the
rights of any third party. To the knowledge of such Grantor, there is currently no infringement or
unauthorized use of any item of material Intellectual Property owned by such Grantor.



     (e) No holding, decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity or enforceability of, or such Grantor’s rights in, any
material Intellectual Property in any respect that could reasonably be expected to have a Material
Adverse Effect. Such Grantor is not aware of any uses of any item of material Intellectual
Property owned by such Grantor that could reasonably be expected to lead to such item becoming
invalid or unenforceable including, without limitation, unauthorized uses by third parties and uses
which were not supported by the goodwill of the business connected with Trademarks and Trademark
Licenses.



     (f) No action or proceeding is pending, or, to the knowledge of such Grantor, threatened, on
the date hereof (i) seeking to limit, cancel or question the validity of any material Intellectual
Property owned by such Grantor or such Grantor’s ownership interest therein, (ii) alleging that any
services provided by, processes used by, or products manufactured or sold by such Grantor
materially infringe any patent, trademark, copyright, industrial design, or any other right of any
third party, (iii) alleging that any material Intellectual Property is being licensed, sublicensed
or used in violation of any patent, trademark, copyright, industrial design, or any other right of
any third party, or (iv) which, if adversely determined, would have a material adverse effect on
the value of any Intellectual Property owned by such Grantor. To the knowledge of such Grantor, no
Person is engaging in any activity that infringes upon the material Intellectual Property owned by
such Grantor or upon the rights of such Grantor therein. Except as set forth in Schedule 5
hereto, such Grantor has not granted any license, release, covenant not to sue, non-assertion
assurance, or other right to any Person with respect to any part of the registered Intellectual
Property owned by such Grantor. The consummation of the transactions contemplated by this
Agreement will not result in the termination or impairment of any of the material Intellectual
Property owned by such Grantor or used by such Grantor in the operation of its business.



     (g) With respect to each material Copyright License, Trademark License, Industrial Design
License and Patent License: (i) such license is valid and binding and in full force and effect and
represents the entire agreement between the respective licensor and licensee with respect to the
subject matter of such license; (ii) such license will not cease to be valid and



14









 







binding and in full force and effect on terms identical to those currently in effect as a
result of the rights and interests granted herein, nor will the grant of such rights and interests
constitute a breach or default under such license or otherwise give the licensor or licensee a
right to terminate such license; (iii) such Grantor has not received any notice of termination or
cancellation under such license; (iv) such Grantor has not received any notice of a breach or
default under such license, which breach or default has not been cured; (v) such Grantor has not
granted to any other third party any rights, adverse or otherwise, under such license; and
(vi) such Grantor is not in breach or default in any material respect, and no event has occurred
that, with notice and/or lapse of time, would constitute such a breach or default or permit
termination, modification or acceleration under such license.



     (h) Except as set forth in Schedule 5, such Grantor has performed all acts and has
paid all required fees and taxes to maintain each and every item of material registered
Intellectual Property in full force and effect and to protect and maintain its interest therein.



     (i) None of the material Trade Secrets of such Grantor has been used, divulged, disclosed or
appropriated to the detriment of such Grantor for the benefit of any other Person; (ii) no
employee, independent contractor or agent of such Grantor has misappropriated any Trade Secrets of
any other Person in the course of the performance of his or her duties as an employee, independent
contractor or agent of such Grantor; and (iii) no employee, independent contractor or agent of such
Grantor is in default or breach of any term of any employment agreement, nondisclosure agreement,
assignment of inventions agreement or similar agreement or contract relating in any way to the
protection, ownership, development, use or transfer of such Grantor’s material Intellectual
Property.



     (j) Such Grantor has made all filings and recordations necessary to adequately protect its
interest in its Intellectual Property including, without limitation, recordation of its interests
in the Patents, Copyrights, Industrial Designs and Trademarks with the Canadian Intellectual
Property Office and any other applicable laws.



     (k) Such Grantor has taken all steps to use consistent standards of quality in the
manufacture, distribution and sale of all products sold and provision of all services provided
under or in connection with any item of material Intellectual Property and has taken all steps to
ensure that all licensed users of any kind of material Intellectual Property use such consistent
standards of quality.



     (l) No Grantor is subject to any settlement or consents, judgment, injunction, order, decree,
covenants not to sue, non-assertion assurances or releases that would impair the validity or
enforceability of, or such Grantor’s rights in, any material Intellectual Property.



4.10 Motor Vehicles.




     Schedule 6 is a complete and correct list (including vehicle identification numbers)
of all Motor Vehicles owned by such Grantor as of September 30, 2008.



15









 





SECTION 5 – COVENANTS




     Each Grantor covenants and agrees with the Secured Parties that, from and after the date of
this Agreement until the Obligations (other than Obligations in respect of any Specified Hedge
Agreement) shall have been paid in full, no Letter of Credit shall be outstanding (except Letters
of Credit which have been supported with another letter of credit or cash collateralized in
accordance with Section 10.15(c) of the Credit Agreement) and the Commitments shall have terminated
or expired:




	5.1	 	Covenants in Credit Agreement.





     Each Grantor shall take, or shall refrain from taking, as the case may be, each action that is
necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is
caused by the failure to take such action or to refrain from taking such action by such Grantor or
any of its Subsidiaries.




	5.2	 	Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property
and Deposit Accounts.





     (a) If any of the Collateral is or shall become evidenced or represented by any instrument,
certificated security, negotiable document or chattel paper, such instrument (other than cheques
received in the ordinary course of business), certificated security, negotiable documents or
chattel paper shall be promptly delivered to the Canadian Collateral Agent, duly endorsed in a
manner satisfactory to the Canadian Collateral Agent, to be held as Collateral pursuant to this
Agreement.



     (b) If any of the Collateral is or shall become evidenced or represented by an uncertificated
security, such Grantor shall cause the Issuer, or the applicable securities intermediary, thereof
either (i) to register the Canadian Collateral Agent as the registered owner of such uncertificated
security, upon original issue or registration of transfer, or (ii) to agree in writing with such
Grantor and the Canadian Collateral Agent that such Issuer, or the applicable securities
intermediary, will comply with instructions with respect to such uncertificated security originated
by the Canadian Collateral Agent without further consent of such Grantor, such agreement to be in
form and substance reasonably satisfactory to the Canadian Collateral Agent.



     (c) In addition to and not in lieu of the foregoing, if any Issuer of any Investment Property
is organized under the law of, or has its chief executive office in, a jurisdiction outside of
Canada, each Grantor shall take such additional actions, including, without limitation, causing the
issuer to register the pledge on its books and records, as may be necessary or advisable or as may
be reasonably requested by the Canadian Collateral Agent, under the laws of such jurisdiction to
insure the validity, perfection and priority of the security interest of the Canadian Collateral
Agent.




	5.3	 	Maintenance of Insurance.





     (a) Such Grantor will maintain, with financially sound and reputable insurance companies,
insurance on all its property (including, without limitation, all inventory, equipment and Motor
Vehicles) in at least such amounts and against at least such risks as are usually



16









 







insured against in the same general area by similarly situated companies engaged in the same
or a similar business and consistent with past practices of such Grantor; and furnish to the
Canadian Collateral Agent with copies for each Secured Party, upon written request, full
information as to the insurance carried; provided that in any event such Grantor will
maintain, (i) property and casualty insurance on all real and personal property on an all risks
basis (including the perils of flood and quake and loss by fire, explosion and theft), covering the
repair or replacement cost of all such property and consequential loss coverage for business
interruption and extra expense (which shall include construction expenses and such other business
interruption expenses as are otherwise generally available to similar businesses), and (ii) public
liability insurance. All such insurance with respect to such Grantor shall be provided by such
insurers or reinsurers which have either an ISI policyholders rating of not less than A, an A.M.
Best policyholders rating of not less than A or a surplus of not less than $500,000,000 with
respect to primary insurance, and an ISI policyholders rating of not less than BBB with respect to
excess insurance, or, if the relevant insurance is not available from such insurers, such other
insurers as the Canadian Collateral Agent may approve in writing. All insurance shall (i) provide
that the Canadian Collateral Agent shall receive at least 30 days’ prior written notice of any
cancellation thereof, (ii) if reasonably requested by the Canadian Collateral Agent, include a
breach of warranty clause and (iii) be reasonably satisfactory in all other respects to the
Canadian Collateral Agent.



     (b) Such Grantor will deliver to the Canadian Collateral Agent on behalf of the Secured
Parties, (i) on the Closing Date, a recently dated certificate showing the amount and types of
insurance coverage as of such date, (ii) upon request of any Secured Party from time to time, full
information as to the insurance carried, (iii) promptly following receipt of notice from any
insurer, a copy of any notice of cancellation or material change in coverage from that existing on
the Closing Date, (iv) forthwith, notice of any cancellation or nonrenewal of coverage by such
Grantor, and (v) promptly after such information is available to such Grantor, full information as
to any claim for an amount in excess of US$1,000,000 with respect to any property and casualty
insurance policy maintained by such Grantor. Each Secured Party shall be named as additional
insured on all such liability insurance policies of such Grantor and the Canadian Collateral Agent
shall be named as loss payee on all property and casualty insurance policies of such Grantor and
such Grantor shall promptly furnish or cause to be furnished to the Canadian Collateral Agent
certificates and endorsements evidencing that the requirements of this Section 5.3 have been
satisfied.



5.4 Payment of Obligations.




     Such Grantor will pay and discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all Taxes imposed upon the Collateral or in respect of
income or profits therefrom, as well as all claims of any kind (including, without limitation,
claims for labor, materials and supplies) against or with respect to the Collateral, except that no
such charge need be paid if the amount or validity thereof is currently being contested in good
faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of such Grantor and such proceedings could not reasonably be expected to
result in the sale, forfeiture or loss of any material portion of the Collateral or any interest
therein.



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5.5 Maintenance of Perfected Security Interest; Further Documentation.




     (a) Such Grantor shall maintain the security interest created by this Agreement as a perfected
security interest (to the extent required to be so perfected pursuant to the terms of the Loan
Documents) having at least the priority described in Section 4.3 and shall defend such security
interest against the claims and demands of all Persons whomsoever.



     (b) Such Grantor will furnish to the Secured Parties from time to time statements and
schedules further identifying and describing the Collateral and such other reports in connection
with the assets and property of such Grantor as the Canadian Collateral Agent may reasonably
request, all in reasonable detail.



     (c) At any time and from time to time, upon the written request of the Canadian Collateral
Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly authorize,
execute and deliver, and have recorded, such further instruments and documents and take such
further actions as the Canadian Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing statements or financing change
statements under the PPSA (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby.



5.6 Changes in Locations, Name, Jurisdiction of Incorporation, Etc.




     (a) Such Grantor will not, except upon 15 days’ prior written notice to the Canadian
Collateral Agent and delivery to the Canadian Collateral Agent of duly authorized and, where
required, executed copies of all additional financing statements, financing change statements and
other documents reasonably requested by the Canadian Collateral Agent to maintain the validity,
perfection and priority of the security interests provided for herein: (i) without limiting the
prohibitions on mergers involving the Grantors contained in the Credit Agreement, change its legal
name, jurisdiction of organization or the location of its chief executive office or domicile (for
purposes of the Québec Civil Code) from that referred to in Section 4.4; or (ii) change its legal
name, identity or structure to such an extent that any financing statement filed by the Canadian
Collateral Agent in connection with this Agreement would become misleading.



     (b) Such Grantor shall not permit any inventory or equipment (other than mobile goods or
equipment that is customarily kept at customer locations) to be kept at a location other than those
listed on Schedule 4, unless such Grantor delivers a written supplement to Schedule
4 showing any additional location at which inventory or equipment (other than mobile goods or
equipment that is customarily kept at customer locations) shall be kept within 15 days of
establishing such location.



5.7 Notices.




     Such Grantor will advise the Canadian Collateral Agent promptly, in reasonable detail, of the
occurrence of any event which could reasonably be expected to have a material adverse effect on the
aggregate value of the Collateral or on the security interests created hereby.



18









 





5.8 Investment Property.




     (a) If such Grantor shall become entitled to receive or shall receive any stock or other
ownership certificate (including, without limitation, any certificate representing a stock dividend
or a distribution in connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in respect of the
Capital Stock or other Pledged Equity Interest of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests
in the Pledged Securities, or otherwise in respect thereof, such Grantor shall accept the same as
the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the
same forthwith to the Canadian Collateral Agent in the exact form received, duly endorsed by such
Grantor to the Canadian Collateral Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor, to be held by the Canadian
Collateral Agent, subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Securities upon the liquidation or
dissolution of any Issuer shall be paid over to the Canadian Collateral Agent to be held by it
hereunder as additional collateral security for the Obligations, and in case any distribution of
capital shall be made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security interest in favor
of the Canadian Collateral Agent, be delivered to the Canadian Collateral Agent to be held by it
hereunder as additional collateral security for the Obligations. If any sums of money or property
so paid or distributed in respect of the Pledged Securities shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered to the Canadian Collateral Agent,
hold such money or property in trust for the Secured Parties, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.



     (b) Without the prior written consent of the Canadian Collateral Agent, such Grantor will not
(i) vote to enable, or take any other action to permit, any Issuer to issue any stock, partnership
interests, limited liability company interests or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or exchange for any stock,
partnership interests, limited liability company interests or other equity securities of any nature
of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, any of the Investment Property or Proceeds thereof or any interest therein
(except, in each case, pursuant to a transaction expressly permitted by the Credit Agreement),
(iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement, or (iv) enter into any agreement or
undertaking restricting the right or ability of such Grantor or the Canadian Collateral Agent to
sell, assign or transfer any of the Investment Property or Proceeds thereof or any interest
therein.



     (c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Pledged Securities issued by it and will
comply with such terms insofar as such terms are applicable to it, and (ii) acknowledges that the
terms of Sections 6.3(c)and 6.7 shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it pursuant to Sections 6.3(c) or 6.7 with respect to the Pledged
Securities



19









 







issued by it. In addition, each Grantor which is either an Issuer or an owner of any Pledged
Security hereby consents to the grant by each other Grantor of the security interest hereunder in
favor of the Canadian Collateral Agent and to the transfer of any Pledged Security to the Canadian
Collateral Agent or its nominee following an Event of Default and to the substitution of the
Canadian Collateral Agent or its nominee as a partner, member or shareholder of the Issuer of the
related Pledged Security.



5.9 Receivables.




     (a) Other than in the ordinary course of business consistent with its past practice and so
long as no Event of Default shall have occurred and be continuing, such Grantor will not (i) grant
any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable
for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for
the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable other
than in the ordinary course of business consistent with its past practice, or (v) amend, supplement
or modify any Receivable in any manner that could adversely affect the value thereof.



     (b) Such Grantor will deliver to the Canadian Collateral Agent a copy of each material demand,
notice or document received by it that questions or calls into doubt the validity or enforceability
of more than 5% of the aggregate amount of the then outstanding Receivables.



     (c) Each Grantor shall perform and comply in all material respects with all of its obligations
with respect to the Receivables.



5.10 Intellectual Property.




     (a) Such Grantor (either itself or through licensees) will (i) continue to use each material
Trademark on each and every trademark class of goods applicable to its current line as reflected in
its current catalogues, brochures and price lists in order to maintain such Trademark in full force
free from any claim of abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark and take all necessary steps to ensure that all
licensed users of such Trademark maintain as in the past such quality, (iii) use such Trademark and
all other notices and legends required by applicable Requirements of Law, (iv) not adopt or use any
mark which is confusingly similar or a colorable imitation of such Trademark unless the Canadian
Collateral Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected security
interest in such mark pursuant to this Agreement and the Intellectual Property Security Agreement,
and (v) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to
do any act whereby such Trademark may become invalidated or impaired in any way.



     (b) Such Grantor (either itself or through licensees) will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or dedicated to the public.



     (c) Such Grantor (either itself or through licensees) (i) will employ each material Copyright,
and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of the Copyrights may become



20









 







invalidated or otherwise impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any material portion of the Copyrights may fall into the public domain.



     (d) Such Grantor (either itself as through licensees) will not do any act, or omit to do any
act, whereby any material Industrial Design may become forfeited, abandoned or dedicated to the
public.



     (e) Such Grantor (either itself or through licensees) will not do any act that knowingly uses
any material Intellectual Property to infringe the intellectual property rights of any other
Person.



     (f) Such Grantor will notify the Canadian Collateral Agent immediately if it knows, or has
reason to know, that any application or registration relating to any material Intellectual Property
may become forfeited, abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such determination or
development in, any proceeding in the Canadian Intellectual Property Office or with any other
Governmental Authority, court or tribunal in any other jurisdiction) regarding such Grantor’s
ownership of, or the validity of, any material Intellectual Property or such Grantor’s right to
register the same or to own and maintain the same.



     (g) Promptly upon such Grantor’s acquisition or creation of any copyrightable work, invention,
trademark or other similar property that is material to the business of Grantor, apply for
registration thereof with the Canadian Intellectual Property Office and any other appropriate
office. Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the
Canadian Intellectual Property Office, or any similar office or agency in any other country or any
political subdivision thereof, such Grantor shall report such filing to the Canadian Collateral
Agent within five Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Canadian Collateral Agent, such Grantor shall execute and deliver, and
have recorded, any and all agreements, instruments, documents, and papers as the Canadian
Collateral Agent may request to evidence the Secured Parties’ security interest in any Copyright,
Patent, Trademark, Industrial Design, or other Intellectual Property and the goodwill and
Intangibles of such Grantor relating thereto or represented thereby.



     (h) Such Grantor will take all reasonable and necessary steps, including, without limitation,
in any proceeding involving the Canadian Intellectual Property Office, or any similar office or
agency in any other country or any political subdivision thereof, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain each registration of material
Intellectual Property, including, without limitation, the payment of required fees and taxes, the
filing of responses to office actions issued by the Canadian Intellectual Property Office, the
filing of applications for renewal or extension, the filing of affidavits of use and affidavits of
incontestability, the filing of divisional, continuation, continuation-in-part, reissue, and
renewal applications or extensions, the payment of maintenance fees, and the participation in
interference, reexamination, opposition, cancellation, infringement and misappropriation
proceedings.



21









 





     (i) Such Grantor (either itself or through licensees) will not, without the prior written
consent of the Canadian Collateral Agent, discontinue use of or otherwise abandon any Intellectual
Property, or abandon any application or any right to file an application for letters patent,
trademark, copyright or industrial design, unless such Grantor shall have previously determined
that such use or the pursuit or maintenance of such Intellectual Property is no longer desirable in
the conduct of such Grantor’s business and that the loss thereof could not reasonably be expected
to have a Material Adverse Effect and, in which case, such Grantor shall give prompt notice of any
such abandonment to the Canadian Collateral Agent in accordance herewith.



     (j) In the event that any material Intellectual Property is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably
deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the Canadian Collateral Agent
after it learns thereof and take such actions as such Grantor shall reasonably deem appropriate,
including, without limitation, suing for infringement, misappropriation or dilution, seeking
injunctive relief where appropriate and recovering any and all damages for such infringement,
misappropriation or dilution.



     (k) Such Grantor agrees that, should it obtain an ownership interest in any item of
Intellectual Property which is not now a part of the Collateral (the “After-Acquired
Intellectual Property”), (i) the provisions of Section 3 shall automatically apply thereto,
(ii) any such After-Acquired Intellectual Property, and in the case of trademarks, the goodwill of
the business connected therewith or symbolized thereby, shall automatically become part of the
Intellectual Property Collateral, (iii) it shall give prompt (and, in any event within five
Business Days after the last day of the fiscal quarter in which such Grantor acquires such
ownership interest) written notice thereof to the Canadian Collateral Agent in accordance herewith,
and (iv) it shall promptly take the actions specified in Section 5.11(m).



     (l) Such Grantor agrees to execute an Intellectual Property Security Agreement with respect to
its Intellectual Property in substantially the form of Exhibit B-1 in order to record the
security interest granted herein to the Canadian Collateral Agent for the ratable benefit of the
Secured Parties with the Canadian Intellectual Property Office and any other applicable
Governmental Authority.



     (m) Such Grantor agrees to execute an After-Acquired Intellectual Property Security Agreement
with respect to its After-Acquired Intellectual Property in substantially the form of Exhibit
B-2 in order to record the security interest granted herein to the Canadian Collateral Agent
for the ratable benefit of the Secured Parties with the Canadian Intellectual Property Office and
any other applicable Governmental Authority.



     (n) Such Grantor shall take all steps reasonably necessary to protect the secrecy of all
material Trade Secrets, including, without limitation, entering into confidentiality agreements
with employees and labeling and restricting access to secret information and documents.



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SECTION 6 – REMEDIAL PROVISIONS



6.1 Certain Matters Relating to Receivables.




     (a) The Canadian Collateral Agent shall have the right to make test verifications of the
Receivables (which verifications shall be in the name of the applicable Grantor only unless a
Default or Event of Default exists and is continuing) in any manner and through any medium that it
reasonably considers advisable, and each Grantor shall furnish all such assistance and information
as the Canadian Collateral Agent may require in connection with such test verifications. At any
time and from time to time, after the occurrence and during the continuance of a Default or Event
of Default, upon the Canadian Collateral Agent’s request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others satisfactory to the
Canadian Collateral Agent to furnish to the Canadian Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the Receivables.



     (b) The Canadian Collateral Agent hereby authorizes each Grantor to collect such Grantor’s
Receivables and each Grantor hereby agrees to continue to collect all amounts due or to become due
to such Grantor under the Receivables and diligently exercise each material right it may have under
any Receivable at its own expense; provided, however, that the Canadian Collateral
Agent may curtail or terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Canadian Collateral Agent at any time after
the occurrence and during the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days)
deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Canadian
Collateral Agent if required, in a Collateral Account maintained under the sole dominion and
control of the Canadian Collateral Agent, subject to withdrawal by the Canadian Collateral Agent
for the account of the Secured Parties only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds
of such Grantor. Each such deposit of proceeds of Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included in the deposit.



     (c) At any time after the occurrence and during the continuance of an Event of Default, at the
Canadian Collateral Agent’s request, each Grantor shall deliver to the Canadian Collateral Agent
all original and other documents evidencing, and relating to, the agreements and transactions which
gave rise to the Receivables, including, without limitation, all original orders, invoices and
shipping receipts.



6.2 Communications with Obligors; Grantors Remain Liable.




     (a) The Canadian Collateral Agent may at any time communicate with obligors under the
Receivables to verify with them to the Canadian Collateral Agent’s satisfaction the existence,
amount and terms of any Receivables; provided that such communication shall be in the name
of the applicable Grantor unless a Default or Event of Default exists and is continuing



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     (b) After the occurrence and during the continuance of an Event of Default, the Canadian
Collateral Agent may notify, or require any Grantor to notify, the Account Debtor or counterparty
on any Receivable of the security interest of the Canadian Collateral Agent therein and may, upon
written notice to the applicable Grantor, notify, or require any Grantor to notify, the Account
Debtor or counterparty to make all payments under the Receivables directly to the Canadian
Collateral Agent;



     (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables (or any agreement giving rise thereto) to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise thereto. No Secured Party shall have any obligation or
liability under any Receivable (or any agreement giving rise thereto) by reason of or arising out
of this Agreement or the receipt by any Secured Party of any payment relating thereto, nor shall
any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under
or pursuant to any Receivable (or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.



6.3 Pledged Securities.




     (a) Unless an Event of Default shall have occurred and be continuing and the Canadian
Collateral Agent shall have given notice to the relevant Grantor of the Canadian Collateral Agent’s
intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged Equity Interests and all
payments made in respect of the Pledged Notes, in each case paid in the normal course of business
of the relevant Issuer and consistent with past practice, to the extent permitted in the Credit
Agreement, and to exercise all voting and corporate rights with respect to the Pledged Securities;
provided, however, that no vote shall be cast or corporate or other ownership right
exercised or other action taken which, in the Canadian Collateral Agent’s reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document.



     (b) If an Event of Default shall occur and be continuing: (i) all rights of each Grantor to
exercise or refrain from exercising the voting and other consensual rights which it would otherwise
be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become
vested in the Canadian Collateral Agent who shall thereupon have the sole right, but shall be under
no obligation, to exercise or refrain from exercising such voting and other consensual rights, and
(ii) the Canadian Collateral Agent shall have the right, without notice to any Grantor, to transfer
all or any portion of the Investment Property to its name or the name of its nominee or agent. In
addition, the Canadian Collateral Agent shall have the right at any time, without notice to any
Grantor, to exchange any certificates or instruments representing any Investment Property for
certificates or instruments of smaller or larger denominations. In order to permit the Canadian
Collateral Agent to exercise the voting and other consensual rights which it may be entitled to
exercise pursuant hereto and to receive all dividends and other distributions



24









 







which it may be entitled to receive hereunder each Grantor shall promptly execute and deliver
(or cause to be executed and delivered) to the Canadian Collateral Agent all proxies, dividend
payment orders and other instruments as the Canadian Collateral Agent may from time to time
reasonably request and each Grantor acknowledges that the Canadian Collateral Agent may utilize the
power of attorney set forth herein.



     (c) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged
by such Grantor hereunder to (i) comply with any instruction received by it from the Canadian
Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing
and (y) is otherwise in accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected
in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other
payments with respect to the Pledged Securities directly to the Canadian Collateral Agent.



6.4 Proceeds to be Turned Over To Canadian Collateral Agent.




     In addition to the rights of the Secured Parties specified in Section 6.1 with respect to
payments of Receivables, if an Event of Default shall occur and be continuing, all proceeds
received by any Grantor consisting of cash, Cash Equivalents, cheques, instruments, and other
near-cash items shall be held by such Grantor in trust for the Secured Parties, segregated from
other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the Canadian Collateral Agent in the exact form received by such Grantor (duly endorsed by such
Grantor to the Canadian Collateral Agent, if required). All proceeds received by the Canadian
Collateral Agent hereunder shall be held by the Canadian Collateral Agent in a Collateral Account
maintained under its sole dominion and control. All proceeds while held by the Canadian Collateral
Agent in a Collateral Account (or by such Grantor in trust for the Secured Parties) shall continue
to be held as collateral security for all the Obligations and shall not constitute payment thereof
until applied as provided in Section 6.5.



6.5 Application of Proceeds.




     At such intervals as may be agreed upon by the Borrowers and the Canadian Collateral Agent,
or, if an Event of Default shall have occurred and be continuing, at any time at the Canadian
Collateral Agent’s election, the Canadian Collateral Agent may, notwithstanding the provisions of
Section 2.12 of the Credit Agreement, apply all or any part of the net proceeds (after deducting
fees and expenses as provided in Section 6.6) constituting Collateral realized through the exercise
by the Canadian Collateral Agent of its remedies hereunder, whether or not held in any Collateral
Account, in payment of the Obligations in the following order:



     First, to the Canadian Collateral Agent, to pay incurred and unpaid fees and expenses
of the Secured Parties under the Loan Documents;



     Second, to the Canadian Collateral Agent, for application by it towards payment of
amounts then due and owing and remaining unpaid in respect of the Obligations, pro rata among the
Secured Parties according to the amounts of the Obligations then due and owing and remaining unpaid
to the Secured Parties;



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     Third, to the Canadian Collateral Agent, for application by it towards prepayment of
the Obligations, pro rata among the Lenders according to the amounts of the Obligations then held
by the Lenders; and



     Fourth, any balance of such proceeds remaining after the Obligations shall have been
paid in full, no Letters of Credit shall be outstanding (unless such Letters of Credit have been
supported by another letter of credit or cash collateralized in accordance with Section 10.15(c) of
the Credit Agreement) and the Commitments shall have terminated or expired shall be paid over to
the Borrowers or to whomsoever may be lawfully entitled to receive the same.



6.6 PPSA and Other Remedies.




     (a) If an Event of Default shall occur and be continuing, the Canadian Collateral Agent, on
behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted
to them in this Agreement and in any other instrument or agreement securing, evidencing or relating
to the Obligations, all rights and remedies of a secured party under the PPSA or its rights under
any other applicable law or in equity. Without limiting the generality of the foregoing, the
Canadian Collateral Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license,
assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or
any part thereof (or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker’s board or office of any Secured Party or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party
shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in any Grantor, which right or equity is hereby waived and
released. Each purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted
by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any
time in the future have under any rule of law or statute now existing or hereafter enacted. Each
Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’
notice to such Grantor of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Canadian Collateral Agent shall
not be obligated to make any sale of Collateral regardless of notice of sale having been given.
The Canadian Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Canadian Collateral Agent may sell
the Collateral without giving any warranties as to the Collateral. The Canadian Collateral Agent
may specifically disclaim or modify any warranties of title or the like. This procedure will not
be considered to adversely effect the commercial reasonableness of any sale of the Collateral.
Each Grantor agrees that it would not be commercially unreasonable for the Canadian Collateral
Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for
the auction of assets of the types



26









 







included in the Collateral or that have the reasonable capability of doing so, or that match
buyers and sellers of assets. Each Grantor hereby waives any claims against the Canadian
Collateral Agent arising by reason of the fact that the price at which any Collateral may have been
sold at such a private sale was less than the price which might have been obtained at a public
sale, even if the Canadian Collateral Agent accepts the first offer received and does not offer
such Collateral to more than one offeree. Each Grantor further agrees, at the Canadian Collateral
Agent’s request, to assemble the Collateral and make it available to the Canadian Collateral Agent
at places which the Canadian Collateral Agent shall reasonably select, whether at such Grantor’s
premises or elsewhere. The Canadian Collateral Agent shall have the right to enter onto the
property where any Collateral is located and take possession thereof with or without judicial
process.



     (b) The Canadian Collateral Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind
incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral
or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including,
without limitation, reasonable legal fees and disbursements, to the payment in whole or in part of
the Obligations and only after such application and after the payment by the Canadian Collateral
Agent of any other amount required by any provision of law, need the Canadian Collateral Agent
account for the surplus, if any, to any Grantor. If the Canadian Collateral Agent sells any of the
Collateral upon credit, the Grantor will be credited only with payments actually made by the
purchaser and received by the Canadian Collateral Agent and applied to indebtedness of the
purchaser. In the event the purchaser fails to pay for the Collateral, the Canadian Collateral
Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To
the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may
acquire against any Secured Party arising out of the exercise by them of any rights hereunder.



     (c) In the event of any Disposition of any of the material Intellectual Property pursuant to
the Secured Parties’ rights hereunder, the goodwill of the business connected with and symbolized
by any Trademarks subject to such Disposition shall be included, and the applicable Grantor shall
supply the Canadian Collateral Agent or its designee with such Grantor’s know-how and expertise,
and with documents and things embodying the same, relating to the manufacture, distribution,
advertising and sale of products or the provision of services relating to any material Intellectual
Property subject to such Disposition, and such Grantor’s customer lists and other records and
documents relating to such Intellectual Property and to the manufacture, distribution, advertising
and sale of such products and services.



6.7 Distribution Rights.




     (a) If the Canadian Collateral Agent shall determine to exercise its right to sell any or all
of the Pledged Equity Interests or the Pledged Debt Securities pursuant to Section 6.6, and if in
the opinion of the Canadian Collateral Agent it is necessary or advisable to have the Pledged
Equity Interests or the Pledged Debt Securities, or that portion thereof to be sold, or qualified
for distribution by prospectus under the provisions of the Securities Act (Ontario) or other
applicable legislation of any other jurisdiction with an analogous in purpose or effect (such Act
and any similar legislation as from time to time in effect being called the “Securities
Laws”), the relevant



27









 







Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and documents, and do or cause
to be done all such other acts as may be, in the opinion of the Canadian Collateral Agent,
necessary or advisable to qualify the Pledged Equity Interests or the Pledged Debt Securities, or
that portion thereof to be sold, or distributed by prospectus under the provisions of the
Securities Laws, and (ii) make all amendments thereto and/or to the related prospectus which, in
the opinion of the Canadian Collateral Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Laws and the rules and regulations of the Ontario Securities
Commission or any similar Governmental Authority applicable thereto. Each Grantor agrees to cause
such Issuer to comply with the provisions of the applicable Securities Laws.



     (b) Each Grantor recognizes that the Canadian Collateral Agent may be unable to effect a
public sale of any or all the Pledged Equity Interests or the Pledged Debt Securities, by reason of
certain prohibitions contained in the Securities Laws or otherwise, and may be compelled to resort
to one or more private sales thereof to a restricted group of purchasers which will be obliged to
agree, among other things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any
such private sale may result in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Canadian Collateral Agent shall
be under no obligation to delay a sale of any of the Pledged Equity Interests or the Pledged Debt
Securities for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Laws, even if such Issuer would agree to do so.



     (c) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Pledged Equity
Interests or the Pledged Debt Securities pursuant to this Section 6.7 valid and binding and in
compliance with the Securities Laws any and all other applicable Requirements of Law. Each Grantor
further agrees that a breach of any of the covenants contained in this Section 6.7 will cause
irreparable injury to the Secured Parties that, to the extent permitted by law, the Secured Parties
have no adequate remedy at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 6.7 shall be specifically enforceable against such Grantor, and,
to the extent permitted by law, such Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a defense that no Event of
Default has occurred and is continuing under the Credit Agreement or a defense of payment.



6.8 Deficiency.




     Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay its Obligations and the fees and
disbursements of any legal counsel employed by any Secured Party to collect such deficiency.



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6.9 Appointment of Receiver




     The Canadian Collateral Agent may appoint or reappoint any person, persons, or entity, whether
officer(s), employee(s) or agent(s) of the Canadian Collateral Agent, to be a receiver,
receiver-manager or receiver and manager (each, a “Receiver”) of all or any part of the
Collateral and may remove any Receiver so appointed and appoint another in its stead. Any Receiver
shall, to the extent permitted by applicable law, so far as concerns responsibility for its acts,
be deemed to be the agent of the Grantors and not an agent of the Canadian Collateral Agent or any
other Secured Party. None of the Canadian Collateral Agent or any other Secured Party shall be in
any way responsible for any misconduct, negligence or nonfeasance on the part of such Receiver or
its servants, agents or employees. Subject to the provisions of the instrument appointing it, any
Receiver shall have all of the powers and rights as have been granted to the Canadian Collateral
Agent under this Section 6 or as otherwise provided by law. To facilitate the foregoing powers,
any such Receiver may, to the exclusion of all others, enter upon, use and occupy all premises
owned or occupied by any Grantors wherein Collateral may be situate, maintain Collateral upon such
premises, borrow money on a secured or an unsecured basis and use Collateral directly in carrying
on any Grantor’s business or otherwise as such Receiver shall, in its discretion, determine.
Except as may be otherwise directed by the Canadian Collateral Agent, all money received from time
to time by such Receiver in carrying out its appointment shall be received in trust for and be paid
over to the Canadian Collateral Agent.


SECTION 7 – THE CANADIAN COLLATERAL AGENT



7.1 Canadian Collateral Agent’s Appointment as Attorney-in-Fact, Etc.




     (a) Each Grantor hereby irrevocably constitutes and appoints the Canadian Collateral Agent and
any officer or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor
and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the Canadian Collateral
Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:




	 	(i)	 	in the name of such Grantor or its own name, or otherwise, take possession of
and endorse and collect any cheques, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Receivable or with respect to any other
Collateral and file any claim or take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Canadian Collateral Agent for the
purpose of collecting any and all such moneys due under any Receivable or with respect
to any other Collateral whenever payable;
	 
	 	(ii)	 	in the case of any Intellectual Property, execute and deliver, and have
recorded, any and all agreements, instruments, documents and papers as the Canadian
Collateral Agent may request to evidence the Secured Parties’ security interest in




29









 






	 	 	 	such Intellectual Property and the goodwill and Intangibles of such Grantor relating
thereto or represented thereby;






	 	(iii)	 	pay or discharge Taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this
Agreement and pay all or any part of the premiums therefor and the costs thereof;
	 
	 	(iv)	 	execute, in connection with any sale provided for in Section 6.6 or 6.7, any
endorsements, assignments or other instruments of conveyance or transfer with respect
to the Collateral; and
	 
	 	(v)	 	(1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Canadian
Collateral Agent or as the Canadian Collateral Agent shall direct; (2) ask or demand
for, collect, and receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising out of any
Collateral; (3) sign and endorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the Collateral;
(4) commence and prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit, action or
proceeding brought against such Grantor with respect to any Collateral; (6) settle,
compromise or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Canadian Collateral Agent may deem appropriate;
(7) assign any Copyright, Patent, Industrial Design or Trademark (along with the
goodwill of the business to which any such Copyright, Patent, Industrial Design, or
Trademark pertains), throughout the world for such term or terms, on such conditions,
and in such manner, as the Canadian Collateral Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely as
though the Canadian Collateral Agent were the absolute owner thereof for all purposes,
and do, at the Canadian Collateral Agent’s option and such Grantor’s expense, at any
time, or from time to time, all acts and things which the Canadian Collateral Agent
deems necessary to protect, preserve or realize upon the Collateral and the Secured
Parties’ security interests therein and to effect the intent of this Agreement, all as
fully and effectively as such Grantor might do.
	 
	 	(vi)	 	Anything in this 7.1(a) to the contrary notwithstanding, the Canadian
Collateral Agent agrees that, except as provided in Section 7.1(b), it will not
exercise any rights under the power of attorney provided for in this Section 7.1(a)
unless an Event of Default shall have occurred and be continuing.





     (b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Canadian Collateral Agent, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement;



30









 




provided, however, that unless an Event of Default has occurred and is
continuing or time is of the essence, the Canadian Collateral Agent shall not exercise this power
without first making demand on the Grantor and the Grantor failing to promptly comply therewith.




     (c) The expenses of the Canadian Collateral Agent incurred in connection with actions
undertaken as provided in this Section 7.1, together with interest thereon at a rate per annum
equal to the rate per annum at which interest would then be payable on past due Canadian Prime Rate
Loans under the Credit Agreement, from the date of payment by the Canadian Collateral Agent to the
date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Canadian
Collateral Agent on demand.



     (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.



7.2 Duty of Canadian Collateral Agent.




     The Canadian Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under the PPSA or otherwise, shall be to
deal with it in the same manner as the Canadian Collateral Agent deals with similar property for
its own account. Neither the Canadian Collateral Agent, nor any other Secured Party, nor any of
their respective officers, directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any
of the Collateral or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take
any other action whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Secured Parties hereunder are solely to protect the Secured Parties’ interests in
the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers.
The Secured Parties shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers, and neither they nor any of their officers, directors, partners,
employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be
responsible to any Grantor for any act or failure to act hereunder, except to the extent that any
such act or failure to act is found by a court of competent jurisdiction to have resulted directly
from their own gross negligence or willful misconduct in breach of a duty owed to such Grantor.



7.3 Execution of Financing Statements.




     Pursuant to the PPSA and any other applicable law, each Grantor authorizes the Canadian
Collateral Agent to file or record financing statements or financing change statements, and
amendments thereto, and other filing or recording documents or instruments with respect to the
Collateral in such form and in such offices as the Canadian Collateral Agent reasonably determines
appropriate to perfect or maintain the perfection of the security interests of the Canadian
Collateral Agent under this Agreement. Each Grantor agrees that such financing statements may
describe the collateral in the same manner as described in the Security Documents or as “all
assets” or “all present and after-acquired property” of the undersigned, whether now owned or
hereafter existing or acquired by the undersigned or such other



31









 







description as the Canadian Collateral Agent, in its sole judgment, determines is necessary or
advisable. A photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for filing or recording in
any jurisdiction.



7.4 Authority of Canadian Collateral Agent.




     Each Grantor acknowledges that the rights and responsibilities of the Canadian Collateral
Agent under this Agreement with respect to any action taken by the Canadian Collateral Agent or the
exercise or non-exercise by the Canadian Collateral Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising out of this Agreement
shall, as between the Canadian Collateral Agent and the other Secured Parties, be governed by the
Credit Agreement and by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Canadian Collateral Agent and the Grantors, the Canadian Collateral
Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and
valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.



7.5 Appointment of Co-Collateral Agents.




     At any time or from time to time, in order to comply with any Requirement of Law, the Canadian
Collateral Agent may appoint another bank or trust company or one of more other persons, either to
act as co-agent or agents on behalf of the Secured Parties with such power and authority as may be
necessary for the effectual operation of the provisions hereof and which may be specified in the
instrument of appointment (which may, in the discretion of the Canadian Collateral Agent, include
provisions for indemnification and similar protections of such co-agent or separate agent);
provided, however, that any such co-agent or separate agent shall not be authorized
to take any action with respect to the Collateral unless and except to the extent authorized in
writing by the Canadian Collateral Agent.


SECTION 8 – MISCELLANEOUS



8.1 Amendments in Writing.




     None of the terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 10.1 of the Credit Agreement and unless in
writing and signed by the Canadian Collateral Agent.



8.2 Notices.




     All notices, requests and demands to or upon the Canadian Collateral Agent or any Grantor
hereunder shall be effected in the manner provided for in Section 10.2 of the Credit Agreement;
provided that any such notice, request or demand to or upon any Grantor shall be addressed
to such Grantor at its notice address set forth on Schedule 1.



32









 





8.3 No Waiver by Course of Conduct; Cumulative Remedies.




     No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1),
delay, indulgence, omission or otherwise, be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies provided by
law.



8.4 Enforcement Expenses; Indemnification.




     (a) Each Grantor agrees to pay or reimburse each Secured Party for all its costs and expenses
incurred in enforcing or preserving any rights under this Agreement and the other Loan Documents to
which such Grantor is a party, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Secured Party and of
counsel to the Canadian Collateral Agent.



     (b) Each Grantor agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or similar taxes which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this Agreement.



     (c) Each Grantor agrees to pay, and to save the Secured Parties harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the Borrowers would be
required to do so pursuant to Section 10.5 of the Credit Agreement.



     (d) The agreements in this Section shall survive repayment of the Obligations and all other
amounts payable under the Credit Agreement and the other Loan Documents.



8.5 Judgment Currency




     (a) If, for the purpose of obtaining or enforcing judgment against a Grantor in any court in
any jurisdiction, it becomes necessary to convert into any other currency (the “Judgment
Currency”) an amount due under this Agreement in any currency (the “Obligation
Currency”) other than the Judgment Currency, the conversion shall be made at the rate of
exchange prevailing on the Business Day immediately preceding the date of actual payment of the
amount due, in the case of any proceeding in the courts of the State of New York, the Province of
Ontario, or in the courts of any other jurisdiction that will give effect to such conversion being
made on such date, or the date on which the judgment is given, in the case of any proceeding in the
courts of any other jurisdiction (the applicable date as of which such conversion is made being
referred to as the “Judgment Conversion Date”).



33









 





     (b) If, in the case of any proceeding in the court of any jurisdiction referred to in
Section 8.5(a), there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt of the amount due in immediately available funds,
the applicable Grantor shall pay such additional amount (if any, but in any event not a lesser
amount) as may be necessary to ensure that the amount actually received in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will produce the amount
of the Obligation Currency which could have been purchased with the amount of the Judgment Currency
stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from a Grantor under this Section 8.5 shall be due as a separate
debt and shall not be affected by judgment being obtained for any other amounts due under or in
respect of this Agreement. The term “rate of exchange” in this Section 8.5 means the rate of
exchange at which the Canadian Collateral Agent, on the relevant date at or about 12:00 noon (New
York time), would be prepared to sell, in accordance with its normal course foreign currency
exchange practices, the Obligation Currency against the Judgment Currency.



8.6 Successors and Assigns.




     This Agreement shall be binding upon the successors and assigns of each Grantor and shall
inure to the benefit of the Secured Parties and their successors and assigns; provided that
no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Canadian Collateral Agent.



8.7 Permitted Liens.




     The inclusion of reference to Permitted Liens in this Agreement or in any other Loan Document
is not intended to subordinate and shall not subordinate, and shall not be interpreted as
subordinating, any Lien created by this Agreement or by any other Loan Document to any Permitted
Lien.



8.8 Set-Off.




     Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to
time while an Event of Default shall have occurred and be continuing, without notice to such
Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off
and appropriate and apply any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Secured Party to or for the credit or the account of such Grantor, or any part
thereof in such amounts as such Secured Party may elect, against and on account of the obligations
and liabilities of such Grantor to such Secured Party hereunder, in any currency, whether arising
hereunder, under the Credit Agreement or any other Loan Document, whether or not any Secured Party
has made any demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. Each Secured Party shall notify such Grantor promptly of any such
set-off and the application made by such Secured Party of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of each Secured Party under this Section are in



34









 







addition to other rights and remedies (including, without limitation, other rights of
set-off), which such Secured Party may have.



8.9 Counterparts.




     This Agreement may be executed by one or more of the parties to this Agreement on any number
of separate counterparts (including by telecopy), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.



8.10 Severability.




     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.



8.11 Section Headings.




     The Section headings used in this Agreement are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration in the interpretation hereof.



8.12 Integration.




     This Agreement and the other Loan Documents represent the agreement of the Grantors, the
Canadian Collateral Agent and the other Secured Parties with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or warranties by any Secured
Party relative to the subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Loan Documents.



8.13 Governing Law




     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA APPLICABLE THEREIN.



8.14 Submission to Jurisdiction; Waivers.




     Each Grantor hereby irrevocably and unconditionally:



     (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of (a) the courts of
the State of New York, the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof, and (b) the courts of the Province of Ontario, and
appellate courts from any thereof;



35









 





     (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or at such other address of
which the Canadian Collateral Agent shall have been notified pursuant thereto;



     (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.



8.15 Acknowledgments.




     Each Grantor hereby acknowledges that:



     (a) it has received a copy of the Credit Agreement and a copy of this Agreement;



     (b) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;



     (c) no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of
or in connection with this Agreement or any of the other Loan Documents, and the relationship
between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and



     (d) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and
the Secured Parties.



8.16 Acknowledgement of fondé de pouvoir.




     Each of the Grantors hereby acknowledges that any bond issued by any Grantor, or any Borrower,
and purchased, acquired, or otherwise held by or pledged to the Canadian Collateral Agent in its
capacity as fondé de pouvoir pursuant to Section 9.1 of the Credit Agreement, shall constitute a
title of indebtedness, as such term is used in Article 2692 of the Civil Code of Québec.



8.17 Additional Grantors.




     Each Subsidiary of a Group Member, which Subsidiary is organized under the laws of Canada or
any province thereof and that is required to become a party to this Agreement pursuant to Section
6.10 of the Credit Agreement shall become a Grantor for all purposes of this



36









 







Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.



8.18 Releases.




     (a) At such time as the Loans, the Reimbursement Obligations and the other Obligations (other
than Obligations in respect of Specified Hedge Agreements that have not been terminated) shall have
been paid in full, the Commitments have been terminated or expired and no Letters of Credit shall
be outstanding, except Letters of Credit which have been supported with another letter of credit or
cash collateralized in accordance with Section 10.15(c) of the Credit Agreement, the Collateral
shall be released from the Liens created hereby, and this Agreement and all obligations (other than
those expressly stated to survive such termination) of the Canadian Collateral Agent and each
Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act
by any party, and all rights to the Collateral shall revert to the Grantors. At the request and
sole expense of any Grantor following any such termination, the Canadian Collateral Agent shall
deliver to such Grantor any Collateral held by the Canadian Collateral Agent hereunder, and execute
and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence
such termination.



     (b) If any of the Collateral shall be Disposed of by any Grantor in a transaction permitted by
the Credit Agreement, then the Canadian Collateral Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such Collateral. At the
request and sole expense of the Borrowers, a Grantor shall be released from its obligations
hereunder in the event that all the Capital Stock of such Grantor shall be Disposed of in a
transaction permitted by the Credit Agreement; provided that the Borrowers shall have
delivered to the Canadian Collateral Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release identifying the relevant Grantor and the terms of
the Disposition in reasonable detail, including the price thereof and any expenses in connection
therewith, together with a certification by the Borrowers stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents and that the Proceeds of such
Disposition will be applied in accordance therewith.



     (c) Each Grantor acknowledges that it is not authorized to file any financing statement or
financing change statement or amendment or termination statement with respect to any financing
statement or financing change statement originally filed in connection herewith without the prior
written consent of the Canadian Collateral Agent, subject to such Grantor’s rights under the PPSA.



8.19 Waiver Of Jury Trial




     EACH GRANTOR AND THE CANADIAN COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.



37









 





[SIGNATURE PAGE FOLLOWS]




38









 








     IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	CAPITAL ENVIRONMENTAL HOLDINGS COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	RAM-PAK COMPACTION SYSTEMS LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



39









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA,

as Canadian Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



40









 






	 	 	 	 	 



Exhibit A – Form of Acknowledgement and Consent




ACKNOWLEDGMENT AND CONSENT





     The undersigned hereby acknowledges receipt of a copy of the Canadian Collateral Agreement
dated as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified
from time to time, the “Agreement”), made by the Grantors parties thereto for the benefit
of The Bank of Nova Scotia, as Canadian Collateral Agent; capitalized terms used but not defined
herein have the meanings given such terms therein. The undersigned agrees for the benefit of the
Canadian Collateral Agent and the other Secured Parties as follows:



     1. The undersigned will be bound by the terms of the Agreement and will comply with such terms
insofar as such terms are applicable to the undersigned.



     2. The undersigned confirms the statements made in the Agreement with respect to the
undersigned including, without limitation, in Section 4.7 and Schedule 2.



     3. The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c)
and 6.7 of the Agreement.



	 	 	 	 	 
	 	 	[NAME OF ISSUER]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 

	 	Address
	 	for Notices:
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	Fax:	 	 
	 

	 	 	 	 





CANADIAN COLLATERAL AGREEMENT




A-1









 








Exhibit B-1 – Form of Intellectual Property Security Agreement




INTELLECTUAL PROPERTY SECURITY AGREEMENT




     This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of [                    ] (as amended, restated,
supplemented or otherwise modified from time to time, the “Intellectual Property Security
Agreement”), is made by each of the signatories hereto (collectively, the “Grantors”)
in favor of The Bank of Nova Scotia, as Canadian collateral agent (in such capacity, together with
its permitted successors and assigns in such capacity, the “Canadian Collateral Agent”) for
the Secured Parties (as defined in the Credit Agreement referred to below).



     WHEREAS, Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”),
and Waste Services, Inc., a Delaware corporation (the “US Borrower”, and together with the
Canadian Borrower, the “Borrowers”), have entered into a Credit Agreement, dated as of
October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”), with the several banks and other financial institutions or
entities (the “Lenders”) from time to time party thereto, Barclays Capital, the investment
banking division of Barclays Bank PLC, and Banc of America Securities LLC, as Arrangers, Bank of
America, N.A., as Syndication Agent, Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as
Co-Documentation Agents, Barclays Bank PLC, as Administrative Agent, and The Bank of Nova Scotia,
as Canadian Agent and Canadian Collateral Agent. Capitalized terms used and not defined herein
have the meanings given such terms in the Credit Agreement.



     WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered that certain Canadian Collateral Agreement, dated as of October 8, 2008, in
favor of the Canadian Collateral Agent (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the “Canadian Collateral Agreement”).



     WHEREAS, under the terms of the Canadian Collateral Agreement, the Grantors have granted a
security interest in certain Property, including, without limitation, certain Intellectual Property
of the Grantors to the Canadian Collateral Agent for the ratable benefit of the Secured Parties,
and have agreed as a condition thereof to execute this Intellectual Property Security Agreement for
recording with the Canadian Intellectual Property Office and other applicable Governmental
Authorities.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantors agree as follows:



     SECTION 1. Grant of Security. Each Grantor hereby grants to the Canadian Collateral
Agent, for the ratable benefit of the Secured Parties, a security interest in and to all of such
Grantor’s right, title and interest in and to the following (the “Intellectual Property
Collateral”), as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of such Grantor’s Obligations:



CANADIAN COLLATERAL AGREEMENT




B-1-1









 








     (a) (i) all trademarks, service marks, trade names, corporate names, company names, business
names, trade dress, trade styles, logos, or other indicia of origin or source identification,
Internet domain names, trademark and service mark registrations, and applications for trademark or
service mark registrations and any new renewals thereof, including, without limitation, each
registration and application identified in Schedule 1, (ii) the right to sue or otherwise
recover for any and all past, present and future infringements and misappropriations thereof, (iii)
all income, royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future infringements thereof), and (iv)
all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto,
together in each case with the goodwill of the business connected with the use of, and symbolized
by, each of the above (collectively, the “Trademarks”);



     (b) (i) all patents, patent applications and patentable inventions, including, without
limitation, each issued patent and patent application identified in Schedule 1, (ii) all
inventions and improvements described and claimed therein, (iii) the right to sue or otherwise
recover for any and all past, present and future infringements and misappropriations thereof, (iv)
all income, royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future infringements thereof), and (v) all
reissues, divisions, continuations, continuations-in-part, substitutes, renewals, and extensions
thereof, all improvements thereon and all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto (collectively, the “Patents”);



     (c) (i) all copyrights, whether or not the underlying works of authorship have been published,
including but not limited to copyrights in software and databases, and all works of authorship and
other intellectual property rights therein, all copyrights of works based on, incorporated in,
derived from or relating to works covered by such copyrights, all right, title and interest to make
and exploit all derivative works based on or adopted from works covered by such copyrights, and all
copyright registrations and copyright applications, and any renewals or extensions thereof,
including, without limitation, each registration and application identified in Schedule 1,
(ii) the rights to print, publish and distribute any of the foregoing, (iii) the right to sue or
otherwise recover for any and all past, present and future infringements and misappropriations
thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all licenses entered
into in connection therewith, and damages and payments for past, present or future infringements
thereof), and (v) all other rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto (“Copyrights”);



     (d) all industrial designs, design patents and other designs, all registrations and recordings
thereof and all applications in connection therewith including all registrations, recordings and
applications identified in Schedule 1, (ii) all records thereof and all reissues,
extensions or renewals thereof, (iii) the right to sue or otherwise recover for any and all past,
present and future infringements and misappropriations thereof, (iv) all income, royalties, damages
and other payments now and hereafter due and/or payable with respect thereto (including, without
limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (v) all other



CANADIAN COLLATERAL AGREEMENT




B-1-2









 







rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto
(“Industrial Designs”);




     (e) (i) all trade secrets and all confidential and proprietary information, including
know-how, manufacturing and production processes and techniques, inventions, research and
development information, technical data, financial, marketing and business data, pricing and cost
information, business and marketing plans, and customer and supplier lists and information,
including, without limitation, any of the foregoing identified in Schedule 1, (ii) the
right to sue or otherwise recover for any and all past, present and future infringements and
misappropriations thereof, (iii) all income, royalties, damages and other payments now and
hereafter due and/or payable with respect thereto (including, without limitation, payments under
all licenses entered into in connection therewith, and damages and payments for past, present or
future infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto (collectively, the “Trade Secrets”);



     (f) (i) all licenses or agreements, whether written or oral, providing for the grant by or to
any Grantor of: (A) any right to use any Trademark or Trade Secret, (B) any right to manufacture,
use, import, export, distribute, offer for sale or sell any invention covered in whole or in part
by a Patent, (C) any right under any Copyright including, without limitation, the grant of rights
to manufacture, distribute, exploit and sell materials derived from any Copyright including,
without limitation, any of the foregoing identified in Schedule 1, and (D) any right under
any Industrial Design, (ii) the right to sue or otherwise recover for any and all past, present and
future infringements and misappropriations of any of the foregoing, (iii) all income, royalties,
damages and other payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all licenses entered into in connection therewith, and damages
and payments for past, present or future infringements thereof), and (iv) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto; and



     (g) any and all proceeds of the foregoing.



     SECTION 2. Recordation. Each Grantor authorizes and requests that the Canadian
Intellectual Property Office record this Intellectual Property Security Agreement.



     SECTION 3. Execution in Counterparts. This Intellectual Property Security Agreement
may be executed in any number of counterparts (including by telecopy), each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.



     SECTION 4. Governing Law. This Intellectual Property Security Agreement shall be
governed by, and construed and interpreted in accordance with, the law of the Province of Ontario
and the laws of Canada applicable therein.



     SECTION 5. Conflict Provision. This Intellectual Property Security Agreement has been
entered into in conjunction with the provisions of the Canadian Collateral Agreement and the Credit
Agreement. The rights and remedies of each party hereto with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth in the Canadian
Collateral Agreement and the Credit Agreement, all terms and provisions of which are



CANADIAN COLLATERAL AGREEMENT




B-1-3









 







incorporated herein by reference. In the event that any provisions of this Intellectual
Property Security Agreement are in conflict with the Canadian Collateral Agreement or the Credit
Agreement, the provisions of the Canadian Collateral Agreement or the Credit Agreement shall
govern.




[SIGNATURE PAGE FOLLOWS]




CANADIAN COLLATERAL AGREEMENT




B-1-4









 








     IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security
Agreement to be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CANADIAN COLLATERAL AGREEMENT




B-1-5









 








Schedule 1




COPYRIGHTS




PATENTS




TRADEMARKS




INDUSTRIAL DESIGNS




TRADE SECRETS




INTELLECTUAL PROPERTY LICENSES




CANADIAN COLLATERAL AGREEMENT




B-1-6









 








Exhibit B-2 – Form of After-Acquired Intellectual Property Security Agreement




AFTER-ACQUIRED INTELLECTUAL PROPERTY SECURITY AGREEMENT




(FIRST SUPPLEMENTAL FILING)





     This INTELLECTUAL PROPERTY SECURITY AGREEMENT (FIRST SUPPLEMENTAL FILING), dated as of
                    , ___, (as amended, restated, supplemented or otherwise modified from time to time, the
“First Supplemental Intellectual Property Security Agreement”), is made by each of the
signatories hereto (collectively, the “Grantors”) in favor of The Bank of Nova Scotia, as
Canadian collateral agent (in such capacity, together with its permitted successors and assigns in
such capacity, the “Canadian Collateral Agent”) for the Secured Parties (as defined in the
Credit Agreement referred to below).



     WHEREAS, Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”),
and Waste Services, Inc., a Delaware corporation (the “US Borrower”, and together with the
Canadian Borrower, the “Borrowers”), have entered into a Credit Agreement, dated as of
October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”), with the several banks and other financial institutions or
entities (the “Lenders”) from time to time party thereto, Barclays Capital, the investment
banking division of Barclays Bank PLC, and Banc of America Securities LLC, as Arrangers, Bank of
America, N.A., as Syndication Agent, Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as
Co-Documentation Agents, Barclays Bank PLC, as Administrative Agent, and The Bank of Nova Scotia,
as Canadian Agent and Canadian Collateral Agent. Capitalized terms used and not defined herein
have the meanings given such terms in the Credit Agreement.



     WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrowers under the Credit Agreement that the Grantors shall have
executed and delivered that certain Canadian Collateral Agreement, dated as of October 8, 2008, in
favor of the Canadian Collateral Agent (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the “Canadian Collateral Agreement”).



     WHEREAS, under the terms of the Canadian Collateral Agreement, the Grantors have granted a
security interest in certain Property, including, without limitation, certain Intellectual
Property, including but not limited to After-Acquired Intellectual Property of the Grantors to the
Canadian Collateral Agents for the ratable benefit of the Secured Parties, and have agreed as a
condition thereof to execute this First Supplemental Intellectual Property Security Agreement for
recording with the Canadian Intellectual Property Office and other applicable Governmental
Authorities.



     WHEREAS, the Intellectual Property Security Agreement was recorded against certain
intellectual property at [INSERT DATE INITIAL INTELLECTUAL PROPERTY AGREEMENT WAS FILED] [IF SECOND
OR LATER SUPPLEMENTAL, ADD ADDITIONAL DATES].



CANADIAN COLLATERAL AGREEMENT




B-2-1









 








     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantors agree as follows:



     SECTION 1. Grant of Security. Each Grantor hereby grants to the Canadian Collateral
Agent for the ratable benefit of the Secured Parties a security interest in and to all of such
Grantor’s right, title and interest in and to the following (the “Intellectual Property
Collateral”), as collateral security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of such Grantor’s Obligations:




	 	(a)	 	(i) all trademarks, service marks, trade names, corporate names, company names,
business names, trade dress, trade styles, logos, or other indicia of origin or source
identification, Internet domain names, trademark and service mark registrations, and
applications for trademark or service mark registrations and any new renewals thereof,
including, without limitation, each registration and application identified in
Schedule 1, (ii) the right to sue or otherwise recover for any and all past,
present and future infringements and misappropriations thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all licenses entered into in
connection therewith, and damages and payments for past, present or future
infringements thereof), and (iv) all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto, together in each case with the
goodwill of the business connected with the use of, and symbolized by, each of the
above (collectively, the “Trademarks”);
	 
	 	(b)	 	(i) all patents, patent applications and patentable inventions, including,
without limitation, each issued patent and patent application identified in
Schedule 1, (ii) all inventions and improvements described and claimed therein,
(iii) the right to sue or otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (iv) all income, royalties, damages and
other payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all licenses entered into in connection therewith,
and damages and payments for past, present or future infringements thereof), and (v)
all reissues, divisions, continuations, continuations-in-part, substitutes, renewals,
and extensions thereof, all improvements thereon and all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto (collectively, the
“Patents”);
	 
	 	(c)	 	(i) all copyrights, whether or not the underlying works of authorship have been
published, including but not limited to copyrights in software and databases, and all
works of authorship and other intellectual property rights therein (including, but not
limited to, Business Software, as defined in the Intellectual Property Agreement), all
copyrights of works based on, incorporated in, derived from or relating to works
covered by such copyrights, all right, title and interest to make and exploit all
derivative works based on or adopted from works covered by such copyrights, and all
copyright registrations and copyright applications, and any renewals or extensions
thereof, including, without limitation, each registration and application identified in
Schedule 1, (ii) the rights to print, publish and distribute





CANADIAN COLLATERAL AGREEMENT




B-2-2









 









	 	 	 	any of the foregoing, (iii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) all
income, royalties, damages and other payments now and hereafter due and/or payable
with respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages and payments for past, present or
future infringements thereof), and (v) all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (“Copyrights”);
	 
	 	(d)	 	all industrial designs, design patents and other designs, all registrations and
recordings thereof and all applications in connection therewith including all
registrations, recordings and applications identified in Schedule 1, (ii) all
records thereof and all reissues, extensions or renewals thereof, (iii) the right to
sue or otherwise recover for any and all past, present and future infringements and
misappropriations thereof, (iv) all income, royalties, damages and other payments now
and hereafter due and/or payable with respect thereto (including, without limitation,
payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (v) all other rights
of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto
(“Industrial Designs”);
	 
	 	(e)	 	(i) all trade secrets and all confidential and proprietary information,
including know-how, manufacturing and production processes and techniques, inventions,
research and development information, technical data, financial, marketing and business
data, pricing and cost information, business and marketing plans, and customer and
supplier lists and information, (ii) the right to sue or otherwise recover for any and
all past, present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all licenses entered
into in connection therewith, and damages and payments for past, present or future
infringements thereof), and (iv) all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto (collectively, the “Trade
Secrets”);
	 
	 	(e)	 	(i) all licenses or agreements, whether written or oral, providing for the
grant by or to any Grantor of: (A) any right to use any Trademark or Trade Secret, (B)
any right to manufacture, use, import, export, distribute, offer for sale or sell any
invention covered in whole or in part by a Patent, (C) any right under any Copyright
including, without limitation, the grant of rights to manufacture, distribute, print,
publish, copy, import, export, exploit and sell materials derived from any Copyright
including, without limitation, any of the foregoing identified in Schedule 1,
and (D) any right under any Industrial Design, (ii) the right to sue or otherwise
recover for any and all past, present and future infringements and misappropriations of
any of the foregoing, (iii) all income, royalties, damages and other payments now and
hereafter due and/or payable with respect thereto (including, without limitation,
payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future





CANADIAN COLLATERAL AGREEMENT




B-2-3









 









	 	 	 	infringements thereof), and (iv) all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto; and
	 
	 	(f)	 	any and all proceeds of the foregoing.





     SECTION 2. Recordation. Each Grantor authorizes and requests that the Canadian
Intellectual Property Office and any other applicable government officer record this First
Supplemental Intellectual Property Security Agreement.



     SECTION 3. Execution in Counterparts. This First Supplemental Intellectual Property
Security Agreement may be executed in any number of counterparts (including by telecopy), each of
which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.



     SECTION 4. Governing Law. This First Supplemental Intellectual Property Security
Agreement shall be governed by, and construed and interpreted in accordance with, the law of the
Province of Ontario and the laws of Canada applicable therein.



     SECTION 5. Conflict Provision. This First Supplemental Intellectual Property Security
Agreement has been entered into in conjunction with the provisions of the Canadian Collateral
Agreement and the Credit Agreement. The rights and remedies of each party hereto with respect to
the security interest granted herein are without prejudice to, and are in addition to those set
forth in the Canadian Collateral Agreement and the Credit Agreement, all terms and provisions of
which are incorporated herein by reference. In the event that any provisions of this Intellectual
Property Security Agreement are in conflict with the Canadian Collateral Agreement or the Credit
Agreement, the provisions of the Canadian Collateral Agreement or the Credit Agreement shall
govern.



[SIGNATURE PAGE FOLLOWS]




CANADIAN COLLATERAL AGREEMENT




B-2-4









 








     IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security
Agreement to be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



CANADIAN COLLATERAL AGREEMENT




B-2-5









 








Schedule 1




COPYRIGHTS




PATENTS




TRADEMARKS




INDUSTRIAL DESIGNS




TRADE SECRETS




INTELLECTUAL PROPERTY LICENSES




CANADIAN COLLATERAL AGREEMENT




B-2-6









 








Annex 1 – Assumption Agreement





     ASSUMPTION AGREEMENT, dated as of                     , 200___, made by                                      
   , a
                                         corporation (the “Additional Grantor”), in favor of The Bank of Nova
Scotia, as Canadian collateral agent (in such capacity, together with its permitted successors and
assigns in such capacity, the “Canadian Collateral Agent”) for (i) the several banks and
other financial institutions or entities (the “Lenders”) party to the Credit Agreement
referred to below, and (ii) the other Secured Parties (as defined in the Canadian Collateral
Agreement (as hereinafter defined)). All capitalized terms not defined herein shall have the
meaning ascribed to them in such Credit Agreement.



W I T N E S S E T H:




     WHEREAS, Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”),
and Waste Services, Inc., a Delaware corporation (the “US Borrower”, and together with the
Canadian Borrower, the “Borrowers”), have entered into a Credit Agreement, dated as of
October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”), with the several banks and other financial institutions or
entities (the “Lenders”) from time to time party thereto, Barclays Capital, the investment
banking division of Barclays Bank PLC, and Banc of America Securities LLC, as Arrangers, Bank of
America, N.A., as Syndication Agent, Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as
Co-Documentation Agents, Barclays Bank PLC, as Administrative Agent, and The Bank of Nova Scotia,
as Canadian Agent and Canadian Collateral Agent;



     WHEREAS, in connection with the Credit Agreement, the Borrowers and certain of their
respective Affiliates (other than the Additional Grantor) have entered into the Canadian Collateral
Agreement, dated as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the “Canadian Collateral Agreement”), in favor of the Canadian
Collateral Agent for the benefit of the Secured Parties;



     WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the
Canadian Collateral Agreement; and



     WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Canadian Collateral Agreement;



     NOW, THEREFORE, IT IS AGREED:



     1. Canadian Collateral Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 8.15 of the Canadian Collateral
Agreement, hereby becomes a party to the Canadian Collateral Agreement as a Grantor thereunder with
the same force and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Grantor
thereunder. The information set forth in Annex 1-A hereto is hereby



CANADIAN COLLATERAL AGREEMENT




Annex-1-1









 







added to the information set forth in Schedules                     1 to the Canadian
Collateral Agreement. The Additional Grantor hereby represents and warrants that each of the
representations and warranties contained in Section 4 of the Canadian Collateral Agreement is true
and correct as to such Grantor on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.




     2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA
APPLICABLE THEREIN.



     IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 
	 	[ADDITIONAL GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	Refer to each Schedule which needs to be supplemented.





CANADIAN COLLATERAL AGREEMENT





Annex-1-2











 





EXHIBIT A-1




GUARANTEE AND US COLLATERAL AGREEMENT




[To be provided separately.]




A-1-1









 





EXHIBIT A-2




CANADIAN COLLATERAL AGREEMENT




[To be provided separately.]




A-2-1









 





EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




     This Compliance Certificate is delivered to you pursuant to Section 6.2(b) of the Credit
Agreement, dated as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise
modified from time to time, the “Credit Agreement”), among Waste Services (CA) Inc., an
Ontario corporation (the “Canadian Borrower”), Waste Services, Inc., a Delaware corporation
(the “US Borrower” and together with the Canadian Borrower, the “Borrowers”), the
several banks and other financial institutions or entities from time to time party thereto (the
“Lenders”), Barclays Capital, the investment banking division of Barclays Bank PLC, and
Banc of America Securities LLC, as joint lead arrangers and joint lead bookrunners (collectively,
in such capacities, the “Arrangers”), Bank of America, N.A., as syndication agent (in such
capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank and The Bank of Nova Scotia,
as co-documentation agents (collectively, in such capacities, the “Co-Documentation
Agents”), Barclays Bank PLC, as administrative agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Administrative Agent”), and The
Bank of Nova Scotia, as Canadian agent (in such capacity, together with its permitted successors
and assigns in such capacity, the “Canadian Agent”) and Canadian collateral agent (in such
capacity, together with its permitted successors and assigns in such capacity, the “Canadian
Collateral Agent”). Terms defined in the Credit Agreement and not otherwise defined herein are
used herein with the meanings so defined.



     1. I am the duly elected, qualified and acting [Chief Financial Officer] [Vice
President-Finance] of the US Borrower.



     2. I have reviewed and am familiar with the contents of this Certificate.



     3. I have reviewed the terms of the Credit Agreement and the other Loan Documents and have
made, or caused to be made under my supervision, a review in reasonable detail of the transactions
and condition of the Group Members during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the “Financial Statements”). Such review did not
disclose the existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this Certificate, of any
condition or event which constitutes a Default or Event of Default[, except as set forth below].



     4. Attached hereto as Attachment 2 are the computations showing compliance with the
covenants set forth in Section 7.1 of the Credit Agreement.



     IN WITNESS WHEREOF, I execute this Certificate this [___] day of [                    ].



	 	 	 	 	 
	 	WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



B-1









 






	 	 	 	 	 



Attachment 1 to

EXHIBIT B




[Financial Statements]




[Attached hereto.]




B-2









 





Attachment 2

to EXHIBIT B





     The information described herein is as of                      ___, 200_, and pertains to the period
from                      ___, 20___to                      ___, 20___.



[Set forth Covenant Calculations]





B-3









 








EXHIBIT C




FORM OF CLOSING DATE CERTIFICATE




     Pursuant to Section 5.1(i) of the Credit Agreement, dated as of October 8, 2008 (the
“Credit Agreement”; terms defined therein being used herein as therein defined), among
Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”), Waste Services,
Inc., a Delaware corporation (the “US Borrower” and together with the Canadian Borrower,
the “Borrowers”), the several banks and other financial institutions or entities from time
to time party thereto (the “Lenders”), Barclays Capital, the investment banking division of
Barclays Bank PLC, and Banc of America Securities LLC, as joint lead arrangers and joint lead
bookrunners (collectively, in such capacities, the “Arrangers”), Bank of America, N.A., as
syndication agent (in such capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank
and The Bank of Nova Scotia, as co-documentation agents (collectively, in such capacities, the
“Co-Documentation Agents”), Barclays Bank PLC, as administrative agent (in such capacity,
together with its permitted successors and assigns in such capacity, the “Administrative
Agent”), and The Bank of Nova Scotia, as Canadian agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Canadian Agent”) and Canadian
collateral agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Canadian Collateral Agent”), the undersigned [INSERT TITLE OF OFFICER] of
[INSERT NAME OF COMPANY] (the “Company”) hereby certifies as follows:



          1. The representations and warranties of the Company set forth in each of the Loan Documents
to which it is a party or which are contained in any certificate furnished by or on behalf of the
Company pursuant to any of the Loan Documents to which it is a party are true and correct in all
material respects (without duplication of any materiality qualifier contained therein) on and as of
the date hereof with the same effect as if made on the date hereof except for representations and
warranties expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects (without duplication
of any materiality qualifier contained therein) as of such earlier date.




          2. [                    ] is the duly elected and qualified Corporate Secretary of the Company
and the signature set forth for such officer below is such officer’s true and genuine signature.




          3. No Default or Event of Default has occurred and is continuing as of the date hereof or
after giving effect to the Loans to be made and/or Letters of Credit to be issued on the date
hereof. [Borrower only]




          The undersigned Corporate Secretary of the Company certifies as follows:




          4. There are no liquidation or dissolution proceedings pending or, to my knowledge, threatened
against the Company, nor has any other event occurred adversely affecting or threatening the
continued corporate existence of the Company.




          5. The Company is a [corporation] [limited liability company] duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.




          6. Attached hereto as Annex 1 is a true and complete copy of resolutions duly adopted
by the Board of Directors of the Company on [                                        ]; such resolutions




C-1









 







have not in any
way been amended, modified, revoked or rescinded, have been in full force and effect since their
adoption to and including the date hereof and are now in full force and effect and are the only
corporate proceedings of the Company now in force relating to or affecting the matters referred to
therein.




          7. Attached hereto as Annex 2 is a true and complete copy of the [By-Laws][Limited
Liability Company Agreement] of the Company as in effect on the date hereof.




          8. Attached hereto as Annex 3 is a true and complete copy of the [Certificate]
[Articles] of [Incorporation][Formation] of the Company as in effect on the date hereof, and such
certificate has not been amended, repealed, modified or restated.




          9. The following persons are now duly elected and qualified officers of the Company holding
the offices indicated next to their respective names below, and such officers have held such
offices with the Company at all times since the date indicated next to their respective titles to
and including the date hereof and the signatures appearing opposite their respective names below
are the true and genuine signatures of such officers, and each of such officers is duly authorized
to execute and deliver on behalf of the Company each of the Loan Documents to which it is a party
and any certificate or other document to be delivered by the Company pursuant to the Loan Documents
to which it is a party:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name	 	Office	 	 	Date	 	 	Signature	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 





     IN WITNESS WHEREOF, the Company has caused this certificate to be executed by the following
officers duly authorized, as of the date set forth below.



	 	 	 
	 

	 	 
	Name:

	 	Name:
	Title:

	 	Title:





Date: October 8, 2008





C-2









 








ANNEX 1




[Board Resolutions]





C-3









 








ANNEX 2




[By-Laws][Limited Liability Company Agreement]





C-4









 








ANNEX 3




[Certificate][Articles] of [Incorporation][Formation]





C-5









 








EXHIBIT D-1




FORM OF US MORTGAGE




[To be provided separately.]




D-1-1









 





EXHIBIT D-2




FORM OF CANADIAN MORTGAGE




[To be provided separately.]




D-2-1









 





EXHIBIT E




FORM OF ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption Agreement (the “Assignment”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as it may be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to
all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage interest
identified below of all of the Assignor’s outstanding rights and obligations under the respective
facilities identified below (including, to the extent included in any such facilities, letters or
credit and swingline loans) (the “Assigned Interest”). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and the Credit
Agreement, without representation or warranty by the Assignor.



	 	 	 	 	 
	1.
	 	Assignor:	 	                                        
	 
	 	 	 	 
	2.
	 	Assignee:	 	                                         [and is an affiliate/Related Fund/Control Investment Affiliate1]
	 
	 	 	 	 
	3.
	 	Borrowers:	 	Waste Services (CA) Inc. and Waste Services, Inc.
	 
	 	 	 	 
	4.
	 	Administrative Agent:	 	Barclays Bank PLC, as the administrative agent under the Credit Agreement
	 
	 	 	 	 
	5.
	 	Credit Agreement:	 	Credit Agreement, dated as of October 8, 2008 among Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”), Waste Services, Inc., a Delaware corporation (the “US Borrower” and together with the Canadian Borrower, the “Borrowers”), the Lenders from time to time party thereto, Barclays Bank PLC, as administrative agent, and the other agents party thereto
	 
	 	 	 	 
	6.
	 	Assigned Interest:	 	 








 




			
	1	 	Select as applicable




E-1









 










	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	Percentage Assigned
	 	 	Commitment/Loans	 	Commitment/Loans	 	of
	Facility Assigned	 	for all Lenders	 	Assigned	 	Commitment/Loans2
	                    3
	 	$                    
	 	$                    
	 	                    %
	                    
	 	$                    
	 	$                    
	 	                    %
	                    
	 	$                    
	 	$                    
	 	                    %





Effective Date:                     , 20___[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




7. Notice and Wire Instructions:



	 	 	 	 	 	 	 
	[NAME OF ASSIGNOR]	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	Notices:	 	Notices:
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	Attention:
	 	 	 	Attention:
	 

	 	Telecopier:
	 	 	 	Telecopier:
	 
	 	 	 	 	 	 
	with a copy to:	 	with a copy to:
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	Attention:
	 	 	 	Attention:
	 

	 	Telecopier:
	 	 	 	Telecopier:
	 
	 	 	 	 	 	 
	Wire Instructions:	 	Wire Instructions:








 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder.
	 
	3	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Credit Commitment”, “Term Loan Commitment”, etc.)




E-2









 










     The terms set forth in this Assignment are hereby agreed to:



	 	 	 	 	 
	 	 	ASSIGNOR
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Title:
	 
	 	 	 	 
	 	 	ASSIGNEE
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 






	 	 	 	 	 
	[Consented to and] Accepted:	 	 
	 
	 	 	 	 
	BARCLAYS BANK PLC,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	[Accepted:	 	 
	 
	 	 	 	 
	THE BANK OF NOVA SCOTIA,	 	 
	as Canadian Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:]
	 	 	 	 
	 
	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	[WASTE SERVICES, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:]
	 	 	 	 
	 
	 	 	 	 
	[WASTE SERVICES (CA) INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:]
	 	 	 	 






E-3









 






	 	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	[[                                        ],	 	 
	as Issuing Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:]
	 	 	 	 
	 
	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	[[                                        ],	 	 
	as Swing Line Lender	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:]
	 	 	 	 






E-4









 






ANNEX 1




STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ASSUMPTION AGREEMENT





	1.	 	Representations and Warranties.






	 	1.1	 	Assignor. The Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii)
the Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with any Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any other instrument or document delivered pursuant thereto, other than this
Assignment (herein collectively the “Loan Documents”), or any
collateral thereunder, (iii) the financial condition of any Borrower, any of
their respective Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by any
Borrower, any of their respective Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
	 
	 	1.2	 	Assignee. The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement,
(iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision, and (v) if it is a Non-US Lender, attached to
the Assignment is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at that time, continue
to make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.




E-5









 












	2.	 	Payments. All payments with respect to the Assigned Interests shall be made on the
Effective Date as follows: from and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.






	3.	 	General Provisions. This Assignment shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This Assignment may be
executed in any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall
be effective as delivery of a manually executed counterpart of this Assignment. This
Assignment shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to conflict of laws principles thereof.





[Remainder of page intentionally left blank]




E-6









 








EXHIBIT F-1




FORM OF LEGAL OPINION OF AKIN GUMP STRAUSS HAUER & FELD LLP




[To be provided separately.]




F-1-1









 





EXHIBIT F-2




FORM OF LEGAL OPINION OF BLAKES, CASSELS & GRAYDON LLP




[To be provided separately.]




F-2-1









 





EXHIBIT F-3




FORM OF LEGAL OPINION OF STEWART MCKELVEY




[To be provided separately.]




F-3-1









 





EXHIBIT G-1




FORM OF TERM NOTE



THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.




			
	 	 	 
	$[                    ]
	 	New York, New York
	 
	 	                    , 200_






     FOR VALUE RECEIVED, the undersigned, [Waste Services, Inc., a Delaware corporation] [Waste
Services (CA) Inc., an Ontario corporation] (the “[US][Canadian] Borrower”), hereby
unconditionally promises to pay to [                                        ] (the “Lender”) or its registered
assigns at the Payment Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of [the United States][Canada] and in immediately available funds, the principal amount of
(a) [[                                        ] DOLLARS ($[                    ])] [[                                        ] CANADIAN DOLLARS (Cdn.$[                    ])], or,
if less, (b) the unpaid principal amount of the [Canadian][US][Incremental] Term Loan made by the
Lender pursuant to Section 2.1 of the Credit Agreement. The principal amount shall be paid in the
amounts and on the dates specified in Section 2.3 of the Credit Agreement. The [US][Canadian]
Borrower further agrees to pay interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates specified in Section 2.16 of the
Credit Agreement.



     The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of the Term Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each conversion of all or a portion
thereof to another Type, each continuation of all or a portion thereof as the same Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in any such
endorsement shall not affect the obligations of the [US][Canadian] Borrower in respect of the Term
Loan.



     This Note (a) is one of the Term Notes referred to in the Credit Agreement, dated as of
October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”), among the [US Borrower, Waste Services (CA) Inc., an Ontario
corporation][the Canadian Borrower, Waste Services, Inc., a Delaware corporation], the Lender, the
other banks and financial institutions or entities from time to time party thereto, Barclays
Capital, the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC,
as joint lead arrangers and joint lead bookrunners, Bank of America, N.A., as syndication agent,
Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents, Barclays Bank
PLC, as administrative agent, and The Bank of Nova Scotia, as Canadian agent and Canadian
collateral agent, (b) is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan



G-1-1









 







Documents. Reference is hereby made to the Loan Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.



     Upon the occurrence of any one or more of the Events of Default, all principal and all accrued
interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due
and payable, all as provided in the Credit Agreement.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	[WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[WASTE SERVICES (CA), INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 



G-1-2









 






	 	 	 	 	 



Schedule A

to Term Note




LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount	 	 	 	Amount of Base Rate	 	 	 	 
	 	 	Amount of Base Rate	 	Converted to	 	Amount of Principal of	 	Loans Converted to	 	Unpaid Principal Balance	 	 
	Date	 	Loans	 	Base Rate Loans	 	Base Rate Loans Repaid	 	Eurodollar Loans	 	of Base Rate Loans	 	Notation Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 





G-1-3









 






Schedule B

to Term Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount Converted	 	Interest Period and	 	Amount of Principal	 	Amount of Eurodollar	 	Unpaid Principal	 	 
	 	 	Amount of	 	to Eurodollar	 	Eurodollar Rate with	 	of Eurodollar Loans	 	Loans Converted to	 	Balance of	 	Notation
	Date	 	Eurodollar Loans	 	Loans	 	Respect Thereto	 	Repaid	 	Base Rate Loans	 	Eurodollar Loans	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





G-1-4









 







EXHIBIT G-2




FORM OF REVOLVING CREDIT NOTE



THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.




			
	 	 	 
	$                    
	 	New York, New York
	 
	 	                    , 200_






     FOR VALUE RECEIVED, the undersigned, [Waste Services, Inc., a Delaware corporation] [Waste
Services (CA) Inc., an Ontario corporation] (the “[US][Canadian] Borrower”), hereby
unconditionally promises to pay to [                                        ] (the “Revolving Credit Lender”) or
its registered assigns at the Payment Office specified in the Credit Agreement (as hereinafter
defined) in lawful money of [the United States][Canada] and in immediately available funds, on the
US Revolving Credit Termination Date the principal amount of (a) [[                                        ] DOLLARS
($[                    ])] [[                                        ] CANADIAN DOLLARS (Cdn.$[                    ])], or, if less, (b) the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Revolving Credit Lender to the
[US][Canadian] Borrower pursuant to Section 2.4 of the Credit Agreement. The [US][Canadian]
Borrower further agrees to pay interest in like money at such Payment Office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the dates specified in
Section 2.16 of the Credit Agreement.



     The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the
date, Type and amount of each Revolving Credit Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal thereof each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto. Each such endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed. The failure to make any such
endorsement or any error in any such endorsement shall not affect the obligations of the
[US][Canadian] Borrower in respect of any Revolving Credit Loan.



     This Note (a) is one of the Revolving Credit Notes referred to in the Credit Agreement, dated
as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time
to time, the “Credit Agreement”), among the [US Borrower, Waste Services (CA) Inc., an
Ontario corporation][the Canadian Borrower, Waste Services, Inc., a Delaware corporation], the
Lender, the other banks and financial institutions or entities from time to time party thereto,
Barclays Capital, the investment banking division of Barclays Bank PLC, and Banc of America
Securities LLC, as joint lead arrangers and joint lead bookrunners, Bank of America, N.A., as
syndication agent, Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation
agents, Barclays Bank PLC, as administrative agent, and The Bank of Nova Scotia, as Canadian agent
and Canadian collateral agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part
as



G-2-1









 







provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan
Documents. Reference is hereby made to the Loan Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.



     Upon the occurrence of any one or more of the Events of Default, all principal and all accrued
interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due
and payable, all as provided in the Credit Agreement.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	[WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[WASTE SERVICES (CA), INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 



G-2-2









 






	 	 	 	 	 



Schedule A

to Revolving Credit Note




LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount	 	 	 	Amount of Base Rate	 	 	 	 
	 	 	Amount of Base Rate	 	Converted to	 	Amount of Principal of	 	Loans Converted to	 	Unpaid Principal Balance	 	 
	Date	 	Loans	 	Base Rate Loans	 	Base Rate Loans Repaid	 	Eurodollar Loans	 	of Base Rate Loans	 	Notation Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 





G-2-3









 






Schedule B

to Revolving Credit Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount Converted	 	Interest Period and	 	Amount of Principal	 	Amount of Eurodollar	 	Unpaid Principal	 	 
	 	 	Amount of	 	to Eurodollar	 	Eurodollar Rate with	 	of Eurodollar Loans	 	Loans Converted to	 	Balance of	 	Notation
	Date	 	Eurodollar Loans	 	Loans	 	Respect Thereto	 	Repaid	 	Base Rate Loans	 	Eurodollar Loans	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





G-2-4









 






[Schedule C

to Canadian Revolving Credit Note




LOANS, CONVERSIONS AND REPAYMENTS OF BANKERS’ ACCEPTANCES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of Bankers’	 	 	 	 
	 	 	 	 	 	 	Interest Period and	 	Amount of Principal	 	Acceptances	 	Unpaid Principal	 	 
	 	 	 	 	Amount	 	Canadian Prime Rate	 	of	 	Converted to	 	Balance	 	 
	 	 	Amount of Bankers’	 	Converted to	 	with	 	Bankers’	 	Canadian Prime Rate	 	of Bankers’	 	Notation Made
	Date	 	Acceptances	 	Bankers’ Acceptances	 	Respect Thereto	 	Acceptances Repaid	 	Loans	 	Acceptances	 	By
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 ]




G-2-5









 








[Schedule D

to Canadian Revolving Credit Note




LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF CANADIAN PRIME RATE LOANS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Amount of Principal	 	 	 	 	 	 
	 	 	 	 	Amount Converted	 	of Canadian Prime	 	Amount of Canadian	 	Unpaid Principal	 	 
	 	 	Amount of	 	to Canadian Prime	 	Loans	 	Prime Rate	 	Balance of	 	 
	 	 	Canadian Prime Rate	 	Rate	 	Rate	 	Loans Converted to	 	Canadian Prime Rate	 	Notation
	Date	 	Loans	 	Loans	 	Repaid	 	Bankers’ Acceptance	 	Loans	 	Made By
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 




 ]




G-2-6









 








EXHIBIT G-3




FORM OF SWING LINE NOTE



THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE
OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.




			
	 	 	 
	$                    
	 	New York, New York
	 
	 	                    , 200_






     FOR VALUE RECEIVED, the undersigned, [Waste Services, Inc., a Delaware corporation] [Waste
Services (CA) Inc., an Ontario corporation] (the “[US][Canadian] Borrower”), hereby
unconditionally promises to pay [                                        ] (the “US Swing Line Lender”) or its
registered assigns at the US Payment Office specified in the Credit Agreement (as herein defined)
in lawful money of [the United States][Canada] and in immediately available funds, on the Revolving
Credit Termination Date the principal amount of (a) [[                                        ] DOLLARS ($[                    ])]
[[                                        ] CANADIAN DOLLARS (Cdn.$[                    ])], or, if less, (b) the aggregate unpaid principal
amount of all Swing Line Loans made by the Swing Line Lender to the [US][Canadian] Borrower
pursuant to Section 2.6 of the Credit Agreement. The [US][Canadian] Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.16 of such Credit Agreement.



     The holder of this Note is authorized to endorse on the schedules annexed hereto and made a
part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the
date and amount of each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof. Each such endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed. The failure to
make any such endorsement or any error in any such endorsement shall not affect the obligations of
the [US][Canadian] Borrower in respect of any Swing Line Loan.



     This Note (a) is the Swing Line Note referred to in the Credit Agreement, dated as of October
8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to time, the
“Credit Agreement”), among the [US Borrower, Waste Services (CA) Inc., an Ontario
corporation][the Canadian Borrower, Waste Services, Inc., a Delaware corporation], the Lender, the
other banks and financial institutions or entities from time to time party thereto, Barclays
Capital, the investment banking division of Barclays Bank PLC, and Banc of America Securities LLC,
as joint lead arrangers and joint lead bookrunners, Bank of America, N.A., as syndication agent,
Bosic Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents, Barclays Bank
PLC, as administrative agent, and The Bank of Nova Scotia, as Canadian agent and Canadian
collateral agent, (b) is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This
Note is secured and guaranteed as provided in the Loan
Documents. Reference is hereby made to the Loan Documents for a description of the properties



G-3-1









 







and assets in which a security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.



     Upon the occurrence of any one or more of the Events of Default, all principal and all accrued
interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due
and payable, all as provided in the Credit Agreement.



     All parties now and hereafter liable with respect to this Note, whether maker, principal,
surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.



     Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



     NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER
PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.



     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.



	 	 	 	 	 
	 	[WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 
	 
	 	[WASTE SERVICES (CA), INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:]  	 	 



G-3-2









 






	 	 	 	 	 



Schedule A

to Swing Line Note




LOANS AND REPAYMENTS OF SWING LINE LOANS




	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Amount of Principal of Swing Line	 	Unpaid Principal Balance of Swing	 	 
	Date	 	Swing Line Loans	 	Loans Repaid	 	Line Loans	 	Notation Made By
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 





G-3-3









 






EXHIBIT G-4




FORM OF DISCOUNT NOTE




Cdn$ [                    ] Date:



          FOR VALUE RECEIVED, the undersigned unconditionally promises to pay on [                    ],
[                    ], to or to the order of [                                        ] (the “Holder”), the sum of Cdn$
[                    ] with no interest thereon.




          The undersigned hereby waives presentment, protest and notice of every kind and waives any
defences based upon indulgences which may be granted by the Holder to any party liable hereon and
any days of grace.




          This promissory note evidences a BA Equivalent Loan, as defined in the Credit Agreement, dated
as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time
to time, the “Credit Agreement”), among Waste Services, Inc., a Delaware corporation (the
“US Borrower”), Waste Services (CA) Inc., an Ontario corporation (the “Canadian
Borrower”), the several banks and financial institutions or entities from time to time party
thereto (the “Lenders”), Barclays Capital, the investment banking division of Barclays Bank
PLC, and Banc of America Securities LLC, as joint lead arrangers and joint lead bookrunners
(collectively, in such capacities, the “Arrangers”), Bank of America, N.A., as syndication
agent (in such capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank and The Bank
of Nova Scotia, as co-documentation agents (collectively, in such capacities, the
“Co-Documentation Agents”), Barclays Bank PLC, as administrative agent (in such capacity,
together with its permitted successors and assigns in such capacity, the “Administrative
Agent”), and The Bank of Nova Scotia, as Canadian agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Canadian Agent”) and Canadian
collateral agent (in such capacity, together with its permitted successors and assigns in such
capacity, the “Canadian Collateral Agent”), and constitutes indebtedness to the Holder
arising under the BA Equivalent Loan. Payment of this note shall be made at the offices of
[                    ] at [                    ], Toronto, Ontario. Capitalized terms used and not defined
herein have the meaning given to them in the Credit Agreement.




	 	 	 	 	 	 	 
	 	 	WASTE SERVICES (CA) INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 






G-4-1









 






EXHIBIT H




FORM OF EXEMPTION CERTIFICATE




     Reference is made to the Credit Agreement, dated as of October 8, 2008 (as amended, restated,
supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”),
among Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”), Waste
Services, Inc., a Delaware corporation (the “US Borrower” and together with the Canadian
Borrower, the “Borrowers”), the several banks and other financial institutions or entities
from time to time party thereto (the “Lenders”), Barclays Capital, the investment banking
division of Barclays Bank PLC, and Banc of America Securities LLC, as joint lead arrangers and
joint lead bookrunners (collectively, in such capacities, the “Arrangers”), Bank of
America, N.A., as syndication agent (in such capacity, the “Syndication Agent”), Bosic
Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents (collectively, in such
capacities, the “Co-Documentation Agents”), Barclays Bank PLC, as administrative agent (in
such capacity, together with its permitted successors and assigns in such capacity, the
“Administrative Agent”), and The Bank of Nova Scotia, as Canadian agent (in such capacity,
together with its permitted successors and assigns in such capacity, the “Canadian Agent”)
and Canadian collateral agent (in such capacity, together with its permitted successors and assigns
in such capacity, the “Canadian Collateral Agent”). Capitalized terms used herein that are
not defined herein shall have the meanings ascribed to them in the Credit Agreement.
[                                        ] (the “Non-U.S. Lender”) is providing this certificate pursuant to
Section 2.21(f) of the Credit Agreement. The Non-U.S. Lender hereby represents and warrants that:



     1. The Non-U.S. Lender is the sole record and beneficial owner of the Loans or the obligations
evidenced by Note(s) in respect of which it is providing this certificate.



     2. The Non-U.S. Lender is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”). In this regard, the Non-U.S. Lender further
represents and warrants that:



          (a) the Non-U.S. Lender is not subject to regulatory or other legal requirements as a bank in
any jurisdiction; and




          (b) the Non-U.S. Lender has not been treated as a bank for purposes of any tax, securities law
or other filing or submission made to any Governmental Authority, any application made to a rating
agency or qualification for any exemption from tax, securities law or other legal requirements;




     3. The Non-U.S. Lender is not a 10-percent shareholder of the US Borrower within the meaning
of Section 881(c)(3)(B) of the Code; and



     4. The Non-U.S. Lender is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code.



     We have furnished you with a certificate of our non-U.S. person status on Internal Revenue
Service Form W-8BEN. By executing this Exemption Certificate, the undersigned agrees that (a) if
the information provided on this certificate changes, the undersigned shall so inform the US
Borrower in writing within thirty days of such change and (b) the undersigned
shall furnish the US Borrower a properly completed and currently effective certificate in
either



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the calendar year in which payment is to be made by the US Borrower to the undersigned, or
in either of the three calendar years preceding such payment.



     IN WITNESS WHEREOF, the undersigned has duly executed this certificate.



	 	 	 	 	 
	 	[NAME OF NON-U.S. LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Date:




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EXHIBIT I




FORM OF LENDER ADDENDUM





     Reference is made to the Credit Agreement, dated as of October 8, 2008 (as amended, restated,
supplemented, replaced or otherwise modified from time to time, the “Credit Agreement”),
among Waste Services (CA) Inc., an Ontario corporation (the “Canadian Borrower”), Waste
Services, Inc., a Delaware corporation (the “US Borrower” and together with the Canadian
Borrower, the “Borrowers”), the several banks and other financial institutions or entities
from time to time party thereto (the “Lenders”), Barclays Capital, the investment banking
division of Barclays Bank PLC, and Banc of America Securities LLC, as joint lead arrangers and
joint lead bookrunners (collectively, in such capacities, the “Arrangers”), Bank of
America, N.A., as syndication agent (in such capacity, the “Syndication Agent”), Bosic
Inc., SunTrust Bank and The Bank of Nova Scotia, as co-documentation agents (collectively, in such
capacities, the “Co-Documentation Agents”), Barclays Bank PLC, as administrative agent (in
such capacity, together with its permitted successors and assigns in such capacity, the
“Administrative Agent”), and The Bank of Nova Scotia, as Canadian agent (in such capacity,
together with its permitted successors and assigns in such capacity, the “Canadian Agent”)
and Canadian collateral agent (in such capacity, together with its permitted successors and assigns
in such capacity, the “Canadian Collateral Agent”). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.



     Upon execution and delivery of this Lender Addendum by the parties hereto as provided in
Section 10.17 of the Credit Agreement, the undersigned hereby becomes a Lender thereunder having
the Commitments set forth in Schedule 1 hereto, effective as of the Closing Date.



     THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.



     This Lender Addendum may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.



[Signature page to follow]




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     IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum to be duly executed
and delivered by their proper and duly authorized officers as of this 8th day of
October, 2008.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Name of Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 
	Accepted and agreed:	 	 
	 
	 	 	 	 
	WASTE SERVICES, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	WASTE SERVICES (CA), INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	BARCLAYS BANK PLC, as	 	 
	Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






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COMMITMENTS AND NOTICE ADDRESS




	 	 	 	 	 	 	 
	1.

	 	Name of Lender:	 	 	 	 
	 

	 	Notice Address:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	Attention:
	 	 

	 	 
	 

	 	Telephone:
	 	 

	 	 
	 

	 	Facsimile:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.	 	Revolving Credit US/CA Commitment:	 	 
	 
	 	 	 	 	 	 
	3.	 	Revolving Credit CA Commitment:	 	 
	 
	 	 	 	 	 	 
	4.	 	US Term Loan Commitment:	 	 
	 
	 	 	 	 	 	 
	5.	 	Canadian Term Loan Commitment:	 	 
	 
	 	 	 	 	 	 
	6.	 	Swing Line Commitment:	 	 






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EXHIBIT J




FORM OF BORROWING NOTICE




[Date]




[Barclays Bank PLC,

     as Administrative Agent

745 Seventh Avenue

New York, New York 10019

Attention: [                    ]]




[The Bank of Nova Scotia,

as Canadian Agent

[                    ]

[                    ]

Attention: [                    ]]




[Waste Services, Inc.]

[Waste Services (CA) Inc.]



Ladies and Gentlemen:




          Pursuant to Section [2.2(a)] [2.5(a)][2.7(a)] of that certain Credit Agreement, dated as of
October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time to
time, the “Credit Agreement”; capitalized terms used but not defined herein having the
meanings given such terms in the Credit Agreement), among Waste Services (CA) Inc., an Ontario
corporation (the “Canadian Borrower”), Waste Services, Inc., a Delaware corporation (the
“US Borrower” and together with the Canadian Borrower, the “Borrowers”), the
several banks and other financial institutions or entities from time to time party thereto (the
“Lenders”), Barclays Capital, the investment banking division of Barclays Bank PLC, and
Banc of America Securities LLC, as joint lead arrangers and joint lead bookrunners (collectively,
in such capacities, the “Arrangers”), Bank of America, N.A., as syndication agent (in such
capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank and The Bank of Nova Scotia,
as co-documentation agents (collectively, in such capacities, the “Co-Documentation
Agents”), Barclays Bank PLC, as administrative agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Administrative Agent”), and The
Bank of Nova Scotia, as Canadian agent (in such capacity, together with its permitted successors
and assigns in such capacity, the “Canadian Agent”) and Canadian collateral agent (in such
capacity, together with its permitted successors and assigns in such capacity, the “Canadian
Collateral Agent”), the [US][Canadian] Borrower hereby gives the Administrative Agent [and the
Canadian Agent] irrevocable notice that the [US][Canadian] Borrower hereby requests a
[US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] under the Credit
Agreement, and in that connection sets forth below the information relating to such
[US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan]:





	 	1.	 	The Business Day of the proposed [US][Canadian][Term Loan] [Revolving Credit
[US/CA][CA] Loan] [Swing Line Loan] is [                     ___, ___].




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	 	2.	 	The Type of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan]
[Swing Line Loan] is a [Base Rate Loan] [Canadian Prime Rate Loan] [Eurodollar Loan]
[Bankers’ Acceptance].
	 
	 	3.	 	The aggregate amount of the proposed [US][Canadian][Term Loan] [Revolving Credit
[US/CA][CA] Loan] [Swing Line Loan] is $[                    ].
	 
	 	4.	 	[The initial Interest Period for each [Eurodollar Loan] [Bankers’ Acceptance] made as
part of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing
Line Loan] is  [___] month[s].]





          The [US][Canadian] Borrower hereby certifies that the following statements are true and
correct on the date hereof, and will be true and correct on the date of the proposed
[US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan]:




          (a) Each of the representations and warranties made by any Loan Party in or pursuant to the
Loan Documents is true and correct in all material respects (without duplication of any materiality
qualifier contained therein) on and as of the date hereof as if made on and as of the date hereof,
except for representations and warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties were true and correct in all material respects
(without duplication of any materiality qualifier contained therein) as of such earlier date.




          (b) No Default or Event of Default has occurred and is continuing on the date hereof, or would
result from the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line
Loan] or the application of the proceeds thereof.




          (c) The incurrence of Indebtedness represented by the proposed borrowing by the [US][Canadian]
Borrower is permitted under the Senior Subordinated Notes.




          The US Borrower [and the Canadian Borrower] agrees that, if prior to the time of the proposed
[US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] any of the
foregoing certifications shall cease to be true and correct, the US Borrower [and the Canadian
Borrower] shall forthwith notify the Administrative Agent [and the Canadian Agent] thereof in
writing (any such notice, a “Non-Compliance Notice”). Except to the extent, if any, that
prior to the time of the proposed [US][Canadian][Term Loan] [Revolving Credit [US/CA][CA] Loan]
[Swing Line Loan], the US Borrower [and the Canadian Borrower] shall deliver a Non-Compliance
Notice to the Administrative Agent [and the Canadian Agent], each of the foregoing certifications
shall be deemed to be made additionally on the date of the proposed [US][Canadian][Term Loan]
[Revolving Credit [US/CA][CA] Loan] [Swing Line Loan] as if made on such date.




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	 	Very truly yours,





WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



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EXHIBIT K




FORM OF SOLVENCY CERTIFICATE





     I, [                    ], the Chief Financial Officer of Waste Services, Inc., a Delaware corporation
(the “US Borrower”), and Waste Services (CA) Inc., an Ontario corporation (the
“Canadian Borrower” and, together with the US Borrower, the “Borrowers”), hereby
certify that I am the Chief Financial Officer of each Borrower, the direct or indirect parent of
each other Loan Party, and that I am familiar with the properties, businesses, assets, finances and
operations of each Borrower and each other Loan Party and I am duly authorized to execute this
certificate on behalf of the Loan Parties pursuant to Section 5.1(s) of the Credit Agreement, dated
as of October 8, 2008 (as amended, restated, supplemented, replaced or otherwise modified from time
to time, the “Credit Agreement”; capitalized terms used but not defined herein having the
meanings given such terms in the Credit Agreement), among the Borrowers, the Lenders from time to
time party thereto, Barclays Capital, the investment banking division of Barclays Bank PLC, and
Banc of America Securities LLC, as joint lead arrangers and joint lead bookrunners (collectively,
in such capacities, the “Arrangers”), Bank of America, N.A., as syndication agent (in such
capacity, the “Syndication Agent”), Bosic Inc., SunTrust Bank and The Bank of Nova Scotia,
as co-documentation agents (collectively, in such capacities, the “Co-Documentation
Agents”), Barclays Bank PLC, as administrative agent (in such capacity, together with its
permitted successors and assigns in such capacity, the “Administrative Agent”), and The
Bank of Nova Scotia, as Canadian agent (in such capacity, together with its permitted successors
and assigns in such capacity, the “Canadian Agent”) and Canadian collateral agent (in such
capacity, together with its permitted successors and assigns in such capacity, the “Canadian
Collateral Agent”).



     I further certify that I am generally familiar with the properties, business and assets of the
Loan Parties and have carefully reviewed the Loan Documents and the contents of this Certificate
and, in connection herewith, have reviewed such other documentation and information and have made
such investigation and inquiries as I have deemed necessary and prudent therefor.



     I understand that the Agents and the Lenders are relying on the truth and accuracy of this
Certificate in connection with the transactions contemplated by the Loan Documents.



     I do hereby further certify that:



     1. On the date hereof, before and after giving effect to the transactions contemplated by the
Credit Agreement and the other Loan Documents, the fair value of the property of each Loan Party is
greater than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Loan Party;



     2. On the date hereof, before and after giving effect to the transactions contemplated by the
Credit Agreement and the other Loan Documents, the present fair saleable value of the assets of
each Loan Party is not less than the amount that will be required to pay the probable liability of
such Loan Party on its debts as they become absolute and matured; and



     3. The Loan Parties do not intend to and do not believe that they will incur debts or
liabilities that will be beyond their ability to pay such debts and liabilities as they mature



1









 





     4. On the date hereof, before and after giving effect to the transactions contemplated by the
Credit Agreement and the other Loan Documents, the Loan Parties are not engaged in business or a
transaction, and are not about to engage in business or a transaction, for which its property would
constitute unreasonably small capital;



     provided, that, for the purposes of clauses 1, 2 and 3 above, liabilities shall not include
long-term intercompany debt. The amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing at such time, represents
the amount that can be reasonably be expected to become an actual or matured liability.



[The remainder of this page intentionally left blank.]





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     IN WITNESS WHEREOF, the undersigned has duly executed this Solvency Certificate as of the date
first written above.



	 	 	 	 	 
	 	WASTE SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WASTE SERVICES (CA) INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




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