Exhibit 10.1


 


SECOND AMENDED AND RESTATED REVOLVING CREDIT

AND TERM LOAN AGREEMENT
dated as of January 24, 2003


 


 


by and among


 


CASELLA WASTE SYSTEMS, INC.


 


and its Subsidiaries (other than Excluded
Subsidiaries),

as Borrowers


 


 


THE LENDING INSTITUTIONS PARTY HERETO


 


and


 


 


FLEET NATIONAL BANK,

as Administrative Agent


 


and


 


BANK OF AMERICA, N.A.,

as Syndication Agent


 


with


 


FLEET SECURITIES, INC.


 


and


 


BANC OF AMERICA SECURITIES LLC


 


acting as Co-Arrangers


 

















 


TABLE OF CONTENTS


 


	
  §1. 
  DEFINITIONS AND RULES OF INTERPRETATION.

  
	
  §1.1.  Definitions.

  
	
  §1.2.  Rules of Interpretation.

  
	
   

  
	
  §2.  THE REVOLVING CREDIT
  LOANS.

  
	
  §2.1. 
  Commitment to Lend.

  
	
  §2.2.  Reduction of Total
  Commitment.

  
	
  §2.3.  The Revolving Credit
  Notes.

  
	
  §2.4. 
  Interest on Revolving Credit Loans; Maturity of the Revolving Credit Loans.

  
	
  §2.5. 
  Mandatory Repayments of the Revolving Credit Loans.

  
	
  §2.6. 
  Requests for Revolving Credit Loans.

  
	
  §2.7. 
  Funds for Revolving Credit Loans.

  
	
  §2.8.  Swing Line Loans;
  Settlements.

  
	
  §2.9. 
  Optional Prepayments or Repayments of Revolving Credit Loans.

  
	
   

  
	
  §3. 
  LETTERS OF CREDIT.

  
	
  §3.1.  Letter of Credit
  Commitments.

  
	
  §3.2. 
  Reimbursement Obligations of the Borrowers.

  
	
  §3.3. 
  Letter of Credit Payments.

  
	
  §3.4. 
  Obligations Absolute.

  
	
  §3.5.  Reliance by Issuing
  Lender.

  
	
   

  
	
  §4.  THE TERM LOAN.

  
	
  §4.1. 
  Commitment to Lend.

  
	
  §4.2. 
  The Term Notes.

  
	
  §4.3. 
  Scheduled Installment Payments of Principal of Term Loan.

  
	
  §4.4. 
  Mandatory Prepayments of Term Loan.

  
	
  §4.4.1. 
  Mandatory Prepayments.

  
	
  §4.4.2. 
  Application of Payments.

  
	
  §4.5. 
  Optional Prepayment of Term Loan.

  
	
  §4.6. 
  Interest on Term Loan.

  
	
  §4.6.1. 
  Interest Rates.

  
	
  §4.6.2.  Notification by
  Borrowers.

  
	
  §4.6.3.  Amounts, etc.

  
	
   

  
	
  §5.  FEES; PAYMENTS;
  COMPUTATIONS; JOINT AND SEVERAL LIABILITY; CERTAIN GENERAL PROVISIONS.

  
	
  §5.1.  Fees.

  
	
  §5.2.  Payments.

  
	
  §5.3. 
  Computations.

  
	
  §5.4. 
  Capital Adequacy.

  
	
  §5.5.  Certificate.

  
	
  §5.6. 
  Interest After Default.

  
	
  §5.7. 
  Interest Limitation.

  
	
  §5.8. 
  Additional Costs, Etc.

  
	
  §5.9.  Concerning Joint and
  Several Liability of the Borrowers.

  



 

















 


	
  §5.10. 
  Currency of Account.  All of
  the Loans and Letters of Credit hereunder shall be denominated and payable in
  Dollars.

  
	
  §5.11. 
  Election of Eurodollar Rate; Notice of Election; Interest Periods;
  Minimum Amounts.

  
	
  §5.12. 
  Eurodollar Indemnity.

  
	
  §5.13. 
  Illegality; Inability to Determine Eurodollar Rate.

  
	
   

  
	
  §6.  REPRESENTATIONS AND
  WARRANTIES.

  
	
  §6.1. 
  Corporate Authority.

  
	
  §6.2. 
  Governmental Approvals.

  
	
  §6.3.  Title to Properties;
  Leases.

  
	
  §6.4.  Financial Statements;
  Solvency.

  
	
  §6.5.  No Material Changes, Etc.

  
	
  §6.6.  Permits, Franchises,
  Patents, Copyrights, Etc.

  
	
  §6.7.  Litigation.

  
	
  §6.8. 
  No Materially Adverse Contracts, Etc.

  
	
  §6.9. 
  Compliance With Other Instruments, Laws, Etc.

  
	
  §6.10.  Tax Status.

  
	
  §6.11. 
  No Event of Default.

  
	
  §6.12. 
  Holding Company and Investment Company Acts.

  
	
  §6.13.  Absence of Financing
  Statements, Etc.

  
	
  §6.14. 
  Employee Benefit Plans.

  
	
  §6.15. 
  Use of Proceeds.

  
	
  §6.16. 
  Environmental Compliance.

  
	
  §6.17. 
  Perfection of Security Interests.

  
	
  §6.18.  Certain Transactions.

  
	
  §6.19. 
  Subsidiaries.

  
	
  §6.20. 
  Capitalization.

  
	
  §6.21. 
  True Copies of Charter and Other Documents.

  
	
  §6.22.  Disclosure.

  
	
  §6.23. 
  Guarantees of Excluded Subsidiaries.

  
	
  §6.24.

  
	
   

  
	
  §7.  AFFIRMATIVE COVENANTS OF THE BORROWERS.

  
	
  §7.1. 
  Punctual Payment.

  
	
  §7.2. 
  Maintenance of Office.

  
	
  §7.3. 
  Records and Accounts.

  
	
  §7.4. 
  Financial Statements, Certificates and Information.

  
	
  §7.5. 
  Legal Existence and Conduct of Business.

  
	
  §7.6. 
  Maintenance of Properties.

  
	
  §7.7. 
  Insurance.

  
	
  §7.8.  Taxes.

  
	
  §7.9. 
  Inspection of Properties, Books, and Contracts.

  
	
  §7.10. 
  Compliance with Laws, Contracts, Licenses and Permits; Maintenance of
  Material Licenses and Permits.

  
	
  §7.11.  Environmental
  Indemnification.

  
	
  §7.12. 
  Further Assurances.

  
	
  §7.13. 
  Notice of Potential Claims or Litigation.

  
	
  §7.14. 
  Notice of Certain Events Concerning Insurance and Environmental
  Claims.

  



 


ii

















 


	
  §7.15. 
  Notice of Default.

  
	
  §7.16. 
  Closure and Post Closure Liabilities.

  
	
  §7.17.  Subsidiaries.

  
	
  §7.18. 
  Interest Rate Protection.

  
	
  §7.19. 
  Additional Borrowers.

  
	
   

  
	
  §8.  CERTAIN NEGATIVE
  COVENANTS OF THE BORROWERS.

  
	
  §8.1. 
  Restrictions on Indebtedness.

  
	
  §8.2. 
  Restrictions on Liens.

  
	
  §8.3.  Restrictions on
  Investments.

  
	
  §8.4.  Mergers,
  Consolidations, Sales.

  
	
  §8.4.1. 
  Mergers and Acquisitions.

  
	
  §8.4.2. 
  Dispositions of Assets.

  
	
  §8.5. 
  Sale and Leaseback.

  
	
  §8.6. 
  Restricted Payments.

  
	
  §8.7.  Employee Benefit Plans.

  
	
  §8.8. 
  Prepayments of Certain Obligations; Modifications of Subordinated
  Debt.

  
	
  §8.9. 
  Negative Pledges and Upstream Limitations.

  
	
  §8.10. 
  Transactions with Affiliates.

  
	
  §8.11. 
  Business Activities.

  
	
  §8.12. 
  No Other Senior Debt.

  
	
  §8.13. 
  Actions Otherwise Prohibited by Subordinated Debt.

  
	
   

  
	
  §9.  FINANCIAL COVENANTS.

  
	
  §9.1. 
  Interest Coverage Ratio.

  
	
  §9.2. 
  Profitable Operations.

  
	
  §9.3. 
  Consolidated Total Funded Debt to Consolidated EBITDA.

  
	
  §9.4. 
  Consolidated Senior Funded Debt to Consolidated EBITDA.

  
	
  §9.5. 
  Consolidated Net Worth.

  
	
  §9.6. 
  Capital Expenditures.

  
	
   

  
	
  §10. 
  CLOSING CONDITIONS.

  
	
  §10.1. 
  Corporate Action.

  
	
  §10.2. 
  Loan Documents; Senior Subordinated Debt Documents.

  
	
  §10.3. 
  Officer’s Certificate; Certified Copies of Charter Documents.

  
	
  §10.4.  Incumbency
  Certificate.

  
	
  §10.5.  Validity of Liens.

  
	
  §10.6. 
  Certificates of Insurance.

  
	
  §10.7.  Opinion of Counsel.

  
	
  §10.8.  Payment of Fees.

  
	
  §10.9.  Payoff.

  
	
  §10.10. 
  Financial Statements.

  
	
  §10.11. 
  Financial Condition.

  
	
  §10.12. 
  Perfection Certificates and UCC Search Results.

  
	
  §10.13. 
  Issuance of Senior Subordinated Debt.

  
	
   

  
	
  §11. 
  CONDITIONS OF ALL LOANS.

  
	
  §11.1. 
  Representations True; No Event of Default.

  
	
  §11.2.  Performance; No Event
  of Default.

  



 


iii

















 


	
  §11.3. 
  No Legal Impediment.

  	
   

  
	
  §11.4.  Proceedings and
  Documents.

  
	
   

  
	
  §12. 
  COLLATERAL SECURITY.

  
	
   

  
	
  §13. 
  EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.

  
	
  §13.1. 
  Events of Default and Acceleration.

  
	
  §13.2.  Termination of
  Commitments.

  
	
  §13.3.  Remedies.

  
	
  §13.4. 
  Distribution of Collateral Proceeds.

  
	
   

  
	
  §14.  SETOFF.

  
	
   

  
	
  §15.  THE AGENTS.

  
	
  §15.1.  Appointment, Powers and
  Immunities.

  
	
  §15.2. 
  Actions By Agents.

  
	
  §15.3.  Indemnification of
  Agents.

  
	
  §15.4. 
  Reimbursement for Advances Made by Administrative Agent.

  
	
  §15.5. 
  Closing Documentation, etc.

  
	
  §15.6. 
  Non-Reliance on Agents and Other Lenders.

  
	
  §15.7.  Resignation.

  
	
  §15.8. 
  Action by the Lenders, Consents, Amendments, Waivers, Etc.

  
	
   

  
	
  §16.  EXPENSES.

  
	
   

  
	
  §17. 
  INDEMNIFICATION.

  
	
   

  
	
  §18. 
  SURVIVAL OF COVENANTS, ETC.

  
	
   

  
	
  §19. 
  ASSIGNMENTS AND PARTICIPATION.

  
	
   

  
	
  §20. 
  PARTIES IN INTEREST.

  
	
   

  
	
  §21.  NOTICES, ETC.

  
	
   

  
	
  §22.  MISCELLANEOUS.

  
	
   

  
	
  §23. 
  ENTIRE AGREEMENT, ETC.

  
	
   

  
	
  §24. 
  WAIVER OF JURY TRIAL.

  
	
   

  
	
  §25.  GOVERNING LAW.

  
	
   

  
	
  §26.  SEVERABILITY.

  
	
   

  
	
  §27.  PARI PASSU TREATMENT.

  
	
   

  
	
  §28.  EXISTING CREDIT
  AGREEMENT SUPERSEDED.

  
	
   

  
	
  §29. 
  TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.

  



 


iv

















 


	
  §29.1. 
  Confidentiality.

  
	
  §29.2. 
  Prior Notification.

  
	
  §29.3.  Other.

  



 


v

















 


Exhibits


 


	
  Exhibit A-1

  	
  —

  	
  Form of Revolving Credit Note

  
	
  Exhibit A-2

  	
  —

  	
  Form of Swing Line Note

  
	
  Exhibit A-3

  	
  —

  	
  Form of Term Note

  
	
  Exhibit B

  	
  —

  	
  Form of Loan and Letter of Credit Request

  
	
  Exhibit C

  	
  —

  	
  Form of Compliance Certificate

  
	
  Exhibit D

  	
  —

  	
  Form of Environmental Compliance Certificate

  
	
  Exhibit E

  	
  —

  	
  Form of Subordination Agreement

  
	
  Exhibit F

  	
  —

  	
  Form of Joinder Agreement

  
	
  Exhibit G

  	
  —

  	
  Form of Assignment and Acceptance

  
	
  Exhibit H

  	
  —

  	
  Form of Instrument of Accession

  



 


Schedules


 


	
  Schedule 1 -

  	
   

  	
  Subsidiaries of the Parent

  
	
  Schedule 2 -

  	
   

  	
  Lenders; Commitment Percentages

  
	
  Schedule 6.7 -

  	
   

  	
  Litigation

  
	
  Schedule 6.16 -

  	
   

  	
  Environmental Compliance

  
	
  Schedule 6.18 -

  	
   

  	
  Certain Transactions

  
	
  Schedule 6.20(a) -

  	
   

  	
  Series A Holders

  
	
  Schedule 6.20(b) -

  	
   

  	
  Options, Etc.

  
	
  Schedule 8.1(c) -

  	
   

  	
  Existing Indebtedness

  
	
  Schedule 8.2(f) -

  	
   

  	
  Existing Liens

  
	
  Schedule 8.3(f) -

  	
   

  	
  Existing Investments

  



 

















 


SECOND AMENDED AND RESTATED REVOLVING CREDIT


AND TERM LOAN AGREEMENT


 


This SECOND
AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this
“Credit  Agreement”) is made as of the 24th day of
January, 2003 by and among (a) CASELLA WASTE SYSTEMS, INC., a Delaware
corporation (the “Parent”), its Subsidiaries (other than the Excluded
Subsidiaries) listed on Schedule  1 hereto (the Parent and such
Subsidiaries herein collectively referred to as the “Borrowers”), (b) FLEET
NATIONAL BANK, (“Fleet”), individually and as administrative
agent (in such capacity, the “Administrative  Agent”), (c) BANK OF
AMERICA, N.A. (“BOA”),
individually and as syndication agent (in such capacity, the “Syndication
Agent” and, together with the Administrative Agent, collectively
referred to herein from time to time as the “Agents”) and (d) the
lending institutions from time to time parties hereto (the “Lenders”).


 


WHEREAS,
the Borrowers, the Agents and certain lending institutions (the “Existing
Lenders”) are parties to that certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of December 14, 1999 (the “Existing
Credit  Agreement”), pursuant to which the Existing Lenders have
made loans and other extensions of credit (the “Existing  Loans”)
to the Borrowers;


 


WHEREAS,
the Lenders that are not Existing Lenders (the “New  Lenders”)
wish to become parties to this Credit Agreement;


 


WHEREAS,
the Existing Lenders are willing to amend and restate the Original Credit
Agreement, the New Lenders are willing to become parties to this Credit Agreement
and the Lenders are willing to make loans and other extensions of credit to the
Borrowers only on the terms and conditions set forth herein;


 


NOW,
THEREFORE,
in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged
(these recitals being an integral part of this Credit Agreement), the
Borrowers, Agents and the Lenders hereby agree that, as of the Effective Date
(as defined below), the Existing Credit Agreement shall be amended and restated
in its entirety and shall remain in full force and effect only as set forth
herein:


 


§1.  DEFINITIONS AND RULES OF
INTERPRETATION.


 


§1.1.  Definitions. 
The following terms shall have the meanings set forth in this §1 or
elsewhere in the provisions of this Credit Agreement referred to below:


 


Acceding  Lender.  See §19(g).


 


Accountants.  See §6.4(a).


 


Acquired  Business.  A business acquired by any Borrower, whether
through asset or stock purchases, merger, consolidation or otherwise, during
the period reported in the most recent financial statements delivered to the
Lenders pursuant to §7.4.


 


Administrative  Agent.  Fleet acting as administrative agent for the
Lenders.


 

















 


Administrative  Agent’s
Office.  The Administrative
Agent’s office located at 100 Federal Street, Boston, Massachusetts 02110, or
at such other location as the Administrative Agent may designate from time to
time.


 


Affiliate.  Any Person which, directly or
indirectly, controls, is controlled by or is under common control with a
Borrower.  “Control” of a Borrower means
the power, directly or indirectly, (a) to vote ten percent (10%) or more of the
capital stock or other equity interests (on a fully diluted basis) of a
Borrower having ordinary voting power for the election of directors, managing
members or general partners (as applicable); or (b) to direct or cause the
direction of the management and policies of a Borrower (whether by contract or
otherwise).


 


Applicable  Canadian
Pension  Legislation.  At
any time, any pension or retirement benefits legislation (be it federal,
provincial, territorial, or otherwise) then applicable to any of the Borrowers
or Excluded Subsidiaries, including the Pension Benefits Act (Ontario), the
Income Tax Act (Canada), and all regulations thereunder.


 


Applicable  Laws.  See §7.10.


 


Applicable  Rate.  The applicable rate per annum set forth in
the following table:


 


	
   

  	
   

  	
   

  	
   

  	
  Revolving
  Credit Loans:

  	
   

  	
  Term
  Loans:

  	
   

  	
   

  	
   

  
	
  Level

  	
   

  	
  Pricing

  Ratio

  	
   

  	
  Applicable

  Rate for Base

  Rate Loans

  	
   

  	
  Applicable

  Rate for

  Eurodollar

  Rate Loans

  	
   

  	
  Applicable

  Rate for

  Base Rate

  Loans

  	
   

  	
  Applicable

  Rate for

  Eurodollar

  Rate Loans

  	
   

  	
  Commitment

  Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  less than 2.75:1.0

  	
   

  	
  Base Rate plus 0.25% per annum

  	
   

  	
  Eurodollar Rate plus 2.25% per annum

  	
   

  	
  Base Rate plus 1.00% per annum

  	
   

  	
  Eurodollar Rate plus 3.00% per annum

  	
   

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  greater than or equal to 2.75:1.0and less
  than 3.25:1.0

  	
   

  	
  Base Rate plus 0.50% per annum

  	
   

  	
  Eurodollar Rate plus 2.50% per annum

  	
   

  	
  Base Rate plus 1.00% per annum

  	
   

  	
  Eurodollar Rate plus 3.00% per annum

  	
   

  	
  0.500

  	
  %

  



 


2

















 


	
  III

  	
   

  	
  greater than or equal to 3.25:1.0 and less
  than 3.75:1.0

  	
   

  	
  Base Rate plus 0.75% per annum

  	
   

  	
  Eurodollar Rate plus 2.75% per annum

  	
   

  	
  Base Rate plus 1.25% per annum

  	
   

  	
  Eurodollar Rate plus 3.25% per annum

  	
   

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  greater than or equal to 3.75:1.0 and less
  than 4.25:1.0

  	
   

  	
  Base Rate plus 1.00% per annum

  	
   

  	
  Eurodollar Rate plus 3.00% per annum

  	
   

  	
  Base Rate plus 1.25% per annum

  	
   

  	
  Eurodollar Rate plus 3.25% per annum

  	
   

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  V

  	
   

  	
  greater than or equal to 4.25:1.0

  	
   

  	
  Base Rate plus 1.25% per annum

  	
   

  	
  Eurodollar Rate plus 3.25% per annum

  	
   

  	
  Base Rate plus 1.25% per annum

  	
   

  	
  Eurodollar Rate plus 3.25% per annum

  	
   

  	
  0.500

  	
  %

  



 


Each Applicable Rate shall become effective on the first day after
receipt by the Lenders of financial statements delivered pursuant to §§7.4(a)
or (b) hereof which indicate a change in the Pricing Ratio and in the
Applicable Rate in accordance with the above table; provided that, for
the period commencing on the Effective Date and ending on the date that the
Compliance Certificate is delivered with respect to the second full fiscal
quarter of the Borrowers ending after the Effective Date, the Applicable Rate
shall be no lower than the rate set forth for Level IV.  If at any time the financial statements
required to be delivered pursuant to §§7.4(a) or (b) hereof are not delivered
within ten (10) days after the time periods specified in such subsections, the
Applicable Rate shall be the rate set forth for Level V, subject to prospective
adjustment upon actual receipt of such financial statements.


 


Approved  Fund.  Any Fund that is administered or managed by
(a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of
an entity that administers or manages a Lender.


 


Assignment  and
Acceptance.  See §19.


 


Auto-Renewal
Letter  of  Credit. See §3.1(f).


 


Balance  Sheet
Date.  April 30, 2002.


 


3

















 


Base  Rate.  The higher of (a) the variable annual rate
of interest so designated from time to time by Fleet as its “prime rate”, such
rate being a reference rate and not necessarily representing the lowest or best
rate being charged to any customer, and (b) one-half of one percent (0.50%)
above the Federal Funds Effective Rate. 
For the purposes of this definition, “Federal  Funds  Effective
Rate” shall mean for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three funds brokers of recognized standing selected by the Administrative
Agent.  Changes in the Base Rate
resulting from any changes in Fleet’s “prime  rate” shall take place
immediately without notice or demand of any kind.


 


Base  Rate  Loans.
Loans bearing interest calculated by reference to the Base Rate.


 


Benefit  Amount.  See §5.9(f).


 


BOA.  See preamble.


 


Borrowers.  The Parent and each of its Subsidiaries
(other than Excluded Subsidiaries) listed on Schedule  1 hereto as
“Borrowers”, which conduct all or substantially all of their business in the
United States or Canada or which are incorporated or otherwise formed under the
laws of the United States or a jurisdiction thereof or Canada and which have
executed this Credit Agreement as of the Effective Date or have become a party
hereto thereafter by executing a Joinder Agreement.


 


Business  Day.  Any day on which banking institutions in
Boston, Massachusetts are open for the transaction of banking business, and, in
the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business
Day,


 


Capital  Assets.  Fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such as patents,
copyrights, trademarks, franchises and goodwill); provided that Capital
Assets shall not include any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less in accordance with
GAAP.


 


Capital  Expenditures.  Amounts paid or Indebtedness incurred by any
Person in connection with (a) the purchase or lease by such Person of Capital
Assets that would be required to be capitalized and shown on the balance sheet
of such Person in accordance with GAAP or (b) the lease of any assets by such
Person as lessee under any Synthetic Lease to the extent that such assets would
have been Capital Assets had the Synthetic Lease been treated for accounting
purposes as a Capitalized Lease.


 


Capitalized  Leases.  Leases under which any Borrower is the
lessee or obligor, the discounted future rental payment obligations under which
are required to be capitalized on the balance sheet of the lessee or obligor 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


 


4

















 


Person (other than a
corporation) and any and all warrants, rights or options to purchase any of the
foregoing.


 


Cellulose  Joint
Venture.  The joint venture
between U.S. Fiber and Greenstone Industries, Inc. with respect to the
cellulose fibers business, including the manufacturing, marketing and selling
of insulation and other cellulose-based products.


 


Certified.  With respect to the financial statements of
any Person, such statements as audited by a firm of independent auditors, whose
report expresses the opinion, without qualification (including, without limitation,
as to the scope of such auditors’ review or any going concern qualification),
that such financial statements present fairly the financial position of such
Person in accordance with GAAP.


 


CFO.  See §7.4(b).


 


Co-Arrangers.  Fleet Securities, Inc. and Banc of America
Securities LLC, acting as Co-Arrangers.


 


Code.  The Internal Revenue Code of 1986, as
amended and in effect from time to time.


 


Collateral.  All of the property, rights and interests of
the Borrowers that are or are intended to be subject to the security interests
and mortgages created by the Security Documents.


 


Commitment.  With respect to each Revolving Credit
Lender, the amount determined by multiplying such Lender’s Commitment
Percentage by the Total Commitment, as the same may be increased pursuant to
§19(g) or reduced or reallocated from time to time pursuant to the provisions
hereof, or if such commitment is terminated pursuant to the provisions hereof,
zero.


 


Commitment  Fee.  See §5.1(a).


 


Commitment  Percentage.  With respect to each Revolving Credit
Lender, the percentage set forth beside its name on Schedule  2
hereto as the amount of such Revolving Credit Lender’s percentage of the Total
Commitment (subject to adjustment upon any assignment or accession pursuant to
§19).


 


Compliance  Certificate.  See §7.4(c).


 


Consolidated or consolidated.  With reference to any term defined herein,
shall mean that term as applied to the accounts of the Parent and its
Subsidiaries consolidated in accordance with GAAP.


 


Consolidated  Adjusted
Net  Income.  For any
period, the Consolidated Net Income (or Loss) of the Parent and its
Subsidiaries determined in accordance with GAAP, plus, to the extent
deducted and without duplication, (a) adjustments for non-cash write-offs
attributable to the use of a fair value methodology for recognition and
measurement of impairment of goodwill not identified with impaired assets in
accordance with Financial Accounting Standards Board Statement No. 142 up to an
aggregate amount of $62,825,000, (b) charges incurred by the Borrowers in
connection with the early termination of interest rate hedging contracts up to
an aggregate amount of $4,000,000, (c) adjustments for non-cash, non-recurring
charges related to losses from asset impairment charges resulting from the sale
of the Specified Entities or their


 


5

















 


assets up to an aggregate
amount of $15,000,000, and (d) the non-recurring, non-cash write-off of debt
issuance expenses related to the refinancing of Indebtedness under the Existing
Credit Agreement, such write-off not to exceed $4,000,000.


 


Consolidated  EBITDA.  For any period, the Consolidated Adjusted
Net Income of the Parent and its Subsidiaries determined in accordance with
GAAP, plus, to the extent that such charge was deducted in determining
Consolidated Adjusted Net Income in the relevant period and without
duplication, (a) interest expense for such period; (b) income taxes for such
period; (c) amortization expense for such period; (d) depreciation expense for
such period; and, solely for the purpose of determining the Pricing Ratio and
calculating the financial covenants set forth in §§9.3 and 9.4, (e) EBITDA of
each Acquired Business and New Subsidiary, which in each case shall be included
in the calculation of Consolidated EBITDA of the Parent and its Subsidiaries as
if such Acquired Business or New Subsidiary was a Subsidiary as of the first
day of such period only if (i)(A) the financial statements of such Acquired
Business or such New Subsidiary, as the case may be, have been audited for the
most recent fiscal year ended of such Acquired Business or such New Subsidiary,
a portion of which fiscal year is sought to be included in the calculation of
Consolidated EBITDA of the Borrowers, or, (B) if audited financial statements
are not available, the Administrative Agent consents to such inclusion after
being furnished with other acceptable financial statements, and (ii) a
Compliance Certificate and other reasonably appropriate documentation, in form
and substance reasonably satisfactory to the Administrative Agent, with respect
to the historical operating results, adjustments and balance sheet of such
Acquired Business or such New Subsidiary, as the case may be, (which
information to the knowledge of the CFO is correct in all material respects)
are provided to the Administrative Agent; and (f) non-recurring
acquisition-related expenses of an Acquired Business (including compensation
payable to former owner(s) of such Acquired Business) in such amounts as are
approved by the Administrative Agent.


 


Consolidated  Net
Income  (or  Loss). 
The consolidated net income (or loss) of the Parent and its Subsidiaries
after deduction of all expenses, taxes, and other proper charges determined in
accordance with GAAP, less, to the extent included therein, (i) gains
from extraordinary items, (ii) any income from discontinued operations, and
(iii) income attributable to any minority equity or other Investment in any
non-Borrower; provided, however, that consolidated net income
shall not be reduced pursuant to this clause (iii) by the aggregate amount of
actual cash received by the Borrowers with respect to the Cellulose Joint
Venture  and
the New Heights Investment  in the form of cash dividends or cash
partnership or limited liability company distributions during the applicable
period to the extent that such amount exceeds the aggregate amount of
Investments made by the Borrowers in the Cellulose Joint Venture and the New
Heights Investment during such period.


 


Consolidated  Net
Worth.  The excess of
Consolidated Total Assets over Consolidated Total Liabilities plus,
without duplication, the Liquidation Value (as defined in the Series A
Certificate) of the issued and outstanding Series A Preferred Stock less,
to the extent otherwise includable in the computations of Consolidated Net
Worth, any subscriptions receivable.


 


Consolidated  Senior
Funded  Debt.  At any time
of determination, (a) Consolidated Total Funded Debt minus (b)
Subordinated Debt outstanding as of such date plus (c) any and all scheduled
principal payments in respect of Seller Subordinated Debt that will become due
and payable during the next successive period of four fiscal quarters.


 


6

















 


Consolidated  Total
Assets.  The sum of all assets (“consolidated
balance  sheet  assets”) of the Parent and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.


 


Consolidated  Total
Funded  Debt.  At any time
of determination with respect to the Parent and its Subsidiaries, collectively,
without duplication, whether classified as Indebtedness or otherwise on the
consolidated balance sheet of the Parent and its Subsidiaries, (a) the
aggregate amount of Indebtedness for (i) borrowed money or credit obtained or
other similar monetary obligations, direct or indirect, (including any unpaid
reimbursement obligations with respect to letters of credit, but excluding any
contingent obligations with respect to letters of credit outstanding), (ii) all
obligations evidenced by notes, bonds, debentures or other similar debt
instruments (other than Performance Bonds), (iii) the deferred purchase price
of assets (other than trade payables incurred in the ordinary course of
business), and (iv) all obligations, liabilities and Indebtedness under Capitalized
Leases and Synthetic Leases which correspond to principal, plus (b)
Indebtedness of the type referred to in clause (a) of another Person guaranteed
by the Parent or any of its Subsidiaries.


 


Consolidated  Total
Interest  Expense.  For any
period, the aggregate amount of interest expense required to be paid or accrued
by the Parent and its Subsidiaries during such period on all Indebtedness of
the Parent and its Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be reflected as an item of
expense or capitalized, including payments consisting of interest in respect of
any Capitalized Lease or any Synthetic Lease, and including commitment fees,
agency fees, balance deficiency fees and similar fees or expenses for such
period in connection with the borrowing of money, but excluding therefrom the
non-cash amortization of debt issuance costs.


 


Consolidated  Total
Liabilities.  All liabilities of
the Parent and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.


 


Consulting  Engineer.  An environmental consulting firm acceptable
to the Administrative Agent.


 


Conversion  Request.  A notice given by the Parent on behalf of
the Borrowers to the Administrative Agent of such Borrowers’ election to
convert or continue a Loan in accordance with §5.11.


 


Credit  Agreement.  This Second Amended and Restated Revolving
Credit and Term Loan Agreement, including the Schedules and Exhibits hereto.


 


Default.  See §13.


 


Delinquent Lender.  Any Lender that fails (a) to make available
to the Administrative Agent its pro  rata share of any Loan or to
purchase any Letter of Credit participation or (b) to comply with the
provisions of §14 with respect to making dispositions and arrangements with the
other Lenders, where such Lender’s share of any payment received, whether by
setoff or otherwise, is in excess of its pro  rata share of such
payments due and payable to all of the Lenders, in each case as, when and to
the full extent required by the provisions of this Credit Agreement, shall be
deemed a Delinquent Lender until such time as such delinquency is satisfied.


 


De  Minimis  Subsidiaries.  Any Subsidiary of the Parent whose assets,
liabilities and annual gross revenues do not, in each case, exceed $1,000,000; provided
that the aggregate assets,


 


7

















 


liabilities and annual gross
revenues of all such Subsidiaries taken as a whole shall not exceed $2,000,000.


 


Disposal/Disposed.  See the definition of “Release”.


 


Distribution.  The declaration or payment of any dividend
on or in respect of any shares of any class of Capital Stock of any Person,
other than dividends payable solely in shares of common stock of such Person;
the purchase, redemption, defeasance, retirement or other acquisition of any
shares of any class of Capital Stock of such Person, directly or indirectly
through a Subsidiary of such Person or otherwise and whether in the form of
increases in the liquidation value of such shares or otherwise (including the
setting apart of assets for a sinking or other analogous fund to be used for
such purpose); the return of capital by any Person to its shareholders as such;
or any other distribution on or in respect of any shares of any class of
Capital Stock of such Person.


 


Dollars  or  $.  Dollars in lawful currency of the United
States of America.


 


Domestic  Subsidiary.  All Subsidiaries of the Parent which are
incorporated or otherwise formed under the laws of the United States or a
jurisdiction thereof.


 


Drawdown  Date.  The date on which any Loan is made or is to
be made, and the date on which any Loan is converted or continued in accordance
with §5.11, or the date that any draft or other form of demand for payment is
honored with respect to a Letter of Credit.


 


Effective Date.  The first date on which all of the
conditions precedent set forth in §10 are satisfied.


 


Employee  Benefit
Plan.  Any employee benefit plan
within the meaning of §3(3) of ERISA maintained or contributed to by any
Borrower or any ERISA Affiliate, other than a Guaranteed Pension Plan or a
Multiemployer Plan.


 


Environmental  Laws.  See §6.16(a).


 


Equity  Offering.  The sale or issuance by the Parent of any of
its Capital Stock.


 


ERISA.  The Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.


 


ERISA  Affiliate.  Any Person which is treated as a single
employer with any Borrower under §414 of the Code.


 


ERISA  Reportable
Event.  A reportable event with
respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and
the regulations promulgated thereunder as to which the requirement of notice
has not been waived.


 


Eurocurrency  Reserve
Rate.  For any day with respect
to a Eurodollar Rate Loan, the maximum rate (expressed as a decimal) at which
any bank subject thereto would be required to maintain reserves under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
“Eurocurrency Liabilities” (as that term is used in Regulation D), if such
liabilities were


 


8

















 


outstanding.  The Eurocurrency Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in the
Eurocurrency Reserve Rate.


 


Eurodollar  Business
Day.  Any day on which commercial
banks are open for international business (including dealings in Dollar
deposits) in London or such other eurodollar interbank market as may be
selected by the Administrative Agent in its sole discretion acting in good
faith.


 


Eurodollar  Rate.  For any Interest Period with respect to a
Eurodollar Rate Loan, the rate of interest equal to (a) the arithmetic rate per
annum (rounded upwards to the nearest 1/16 of one percent) at which Dollar
deposits are offered to the Administrative Agent by prime banks in whatever
eurodollar market may be selected by the Administrative Agent in its sole
discretion, acting in good faith at or about 10:00 a.m. local time in such
interbank market two (2) Eurodollar Business Days prior to the beginning of
such Interest Period, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurodollar Rate Loan to which such Interest Period applies, divided
by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.


 


Eurodollar  Rate
Loans. Loans bearing interest calculated by reference to the Eurodollar
Rate.


 


Event  of  Default.  See §13.


 


Excess  Operating
Cash  Flow.  For any
period, an amount equal to (a) Consolidated EBITDA for such period plus
any increases, or minus any decreases, as the case may be, resulting
from Net Working Capital Changes for such period, minus extraordinary
cash items of income during such period and plus extraordinary cash
items of loss during such period, minus (b) the sum of (i) Capital
Expenditures paid in cash to the extent not already deducted in the
determination of Consolidated EBITDA, plus (ii) interest expense paid in
cash for such period, plus (iii) taxes paid in cash during such period, plus
(iv) scheduled principal payments of Indebtedness made during such period, plus
(v) cash consideration paid during such period for Permitted Acquisitions.  For the purposes of this definition, Excess
Operating Cash Flow with respect to the fiscal year ending April 30, 2003,
shall be measured from the February 1, 2003 through April 30, 2003,
and for each fiscal year thereafter, shall be measured for such fiscal year.


 


Excluded  Subsidiaries.  The Insurance Subsidiary and each of the De
Minimis Subsidiaries listed on Schedule 1 hereto under the
heading “Excluded Subsidiaries”.


 


FCR.  FCR, Inc., a Delaware corporation and a
wholly-owned Subsidiary of KTI.


 


Financial  Affiliate.  A Subsidiary of the bank holding company
controlling any Lender, which Subsidiary is engaging in any of the activities
permitted by §4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. §1843).


 


Financial  L/C(s).  Letter(s) of Credit where the event which
triggers payment is financial, such as the failure to pay money, and not
performance related, such as failure to ship a product or provide a service, as
set forth in greater detail in the letter dated March 30, 1995 from the
Board of Governors of the Federal Reserve System or in any applicable directive
or letter ruling of the Board of Governors of the Federal Reserve System issued
subsequent thereto.


 


9

















 


Financial  L/C
Fee.  See §5.1(b).


 


Fleet.  See preamble.


 


Foreign  Subsidiary.  Each Subsidiary of any Borrower (whether
direct or indirect, existing on the date hereof or acquired or formed hereafter
in accordance with the provisions hereof) which is incorporated under the laws
of a jurisdiction other than a State or other jurisdiction of the United States
of America.


 


Fuel  Derivatives
Obligations.  See §8.1(g).


 


Fund.  Any Person (other than a natural person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business.


 


Generally  Accepted
Accounting  Principles  or  GAAP.  When used in general, Generally Accepted
Accounting Principles means principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, as
shall be concurred in by independent certified public accountants of recognized
standing whose report expresses an unqualified opinion (other than a
qualification regarding changes in Generally Accepted Accounting Principles) as
to financial statements in which such principles have been applied; and when
used with reference to the Borrowers, such principles shall include (to the
extent consistent with such principles) the accounting practices reflected in
the consolidated financial statements for the year ended on the Balance Sheet
Date.


 


Greenfiber.  U.S. GreenFiber LLC, a Delaware limited
liability company in which U.S. Fiber owns a 50% equity interest and through
which the Cellulose Joint Venture is conducted.


 


Guaranteed  Pension
Plan.  Any employee pension
benefit plan within the meaning of §3(2) of ERISA maintained or contributed to
by any Borrower or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.


 


Hazardous  Substances.  Any hazardous waste, as defined by 42 U.S.C.
§6903(5), any hazardous substances as defined by 42 U.S.C. §9601(14), any
pollutant or contaminant as defined by 42 U.S.C. §9601(33) and any waste,
hazardous waste, dangerous goods, contaminants, pollutants, toxic substance,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws.


 


Indebtedness.  As to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the
assets of such Person and whether or not contingent, but without duplication:


 


(a)                                  every
obligation of such Person for money borrowed,


 


(b)                                 every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses,


 


10

















 


(c)                                  every reimbursement
obligation of such Person with respect to letters of credit, bankers’
acceptances or similar facilities issued for the account of such Person,


 


(d)                                 every obligation of
such Person issued or assumed as the deferred purchase price of property or
services (including securities repurchase agreements but excluding (x) trade
accounts payable or accrued liabilities arising in the ordinary course of
business which are not overdue in accordance with their terms or the Borrowers’
normal or ordinary business practices or which are being contested in good
faith and (y) contingent royalty payments made in connection with the purchase
or operation of landfills and other types of disposal facilities),


 


(e)                                  every obligation of such
Person under any Capitalized Lease,


 


(f)                                    every obligation of
such Person under any Synthetic Lease,


 


(g)                                 all sales by such
Person of (i) accounts or general intangibles for money due or to become due,
(ii) chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables (collectively “receivables”),
whether pursuant to a purchase facility or otherwise, other than in connection
with the disposition of the business operations of such Person relating thereto
or a disposition of defaulted receivables for collection and not as a financing
arrangement, and together with any obligation of such Person to pay any
discount, interest, fees, indemnities, penalties, recourse, expenses or other
amounts in connection therewith,


 


(h)                                 every obligation of
such Person (an “equity  related  purchase  obligation”)
to purchase, redeem, retire or otherwise acquire for value any shares of
capital stock of any class issued by such Person, any warrants, options or
other rights to acquire any such shares, or any rights measured by the value of
such shares, warrants, options or other rights,


 


(i)                                     every obligation
of such Person under any forward contract, futures contract, swap, option or
other financing agreement or arrangement (including, without limitation, caps,
floors, collars and similar agreements), the value of which is dependent upon
interest rates, currency exchange rates, commodities or other indices (a “derivative
contract”),


 


(j)                                     every obligation
in respect of Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent that such Person is
liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and such terms are
enforceable under applicable law,


 


(k)                                  every obligation,
contingent or otherwise, of such Person guaranteeing, or having the economic
effect of guarantying or otherwise acting as surety for, any obligation of a
type described in any of clauses (a) through (j) (the “primary obligation”) of
another Person (the “primary  obligor”), in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
of) any security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the payment of such
primary obligation, or (iii) to maintain working capital,


 


11

















 


equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such primary
obligation.


 


The “amount” or “principal amount” of any Indebtedness at any time of
determination represented by (t) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (u) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (v) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrower or any of its wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (w) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (x) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, (y) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof that is payable upon a
mandatory redemption or purchase of such equity inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price and (z)
any guaranty or other contingent liability referred to in clause (k) shall be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such guaranty or other contingent obligation is made or, if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith based upon the principles set forth in
this paragraph.


 


Indenture.  The Indenture dated as of January 24,
2003 among the Parent, certain of its Subsidiaries as guarantors and U.S. Bank
National Association as trustee, with respect to the Senior Subordinated Notes.


 


Insurance  Subsidiary.  Casella Insurance Company, a Vermont corporation
and a wholly-owned Subsidiary of the Parent.


 


Interest  Payment
Date.  (a) As to any Base Rate
Loan, the last Business Day of each calendar quarter with respect to interest
accrued during such calendar quarter, including, without limitation, the calendar
quarter which includes the Drawdown Date of such Base Rate Loan; and (b) as to
any Eurodollar Rate Loan in respect of which the Interest Period is (i) 3
months or less, the last day of such Interest Period and (ii) more than 3
months, the date that is 3 months from the first day of such Interest Period
and, in addition, the last day of such Interest Period.


 


Interest  Period.  With respect to each Revolving Credit Loan
or all or any relevant portion of the Term Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrowers in a Loan and
Letter of Credit Request or as otherwise required by the terms of this Credit
Agreement (i) for any Base Rate Loan, the last day of the calendar quarter; and
(ii) for any Eurodollar Rate Loan, 1, 2, 3, or 6 months; and (b) thereafter,
each period commencing on the last day of the next preceding applicable
Interest Period, and ending on the last day of one of the periods set forth
above in clause (i) or (ii), as selected by the Borrowers in a Conversion
Request or as otherwise required pursuant to the provisions of this Credit
Agreement; provided that the foregoing provisions relating to Interest
Periods are subject to the following:


 


12

















 


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


 


(B)                                if the Borrowers shall
fail to give notice as provided in §5.11, the Borrowers shall be deemed to have
requested a conversion of the affected Eurodollar Rate Loan to a Base Rate Loan
and the continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;


 


(C)                                any Interest Period
relating to any Eurodollar Rate Loan that begins on the last Eurodollar
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 Eurodollar Business Day of a calendar month; and


 


(D)                               any Interest Period that
would otherwise extend beyond the Revolving Credit Maturity Date (if comprising
a Revolving Credit Loan) or the Term Loan Maturity Date (if comprising the Term
Loan or a portion thereof) shall end on the Revolving Credit Maturity Date or
(as the case may be) the Term Loan Maturity Date.


 


Investments.  All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or the amount of loans, advances, capital contributions or
transfers of property to, or in respect of any guarantees (or other commitments
as described under Indebtedness), or obligations of, any Person.  In determining the aggregate amount of
Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount received
as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings
on such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted or (as the case may be)
added from the aggregate amount of Investments any decrease or increase in the
value thereof.


 


Issuance  Fee.  See §5.1(b).


 


Issuing  Lender.  Fleet.


 


Joinder  Agreement.  See §7.19.


 


KTI.  KTI, Inc., a New Jersey corporation and a
wholly-owned Subsidiary of the Parent.


 


Lender Affiliate.  With respect to any Lender, (a) an affiliate
of such Lender or (b) any Approved Fund.


 


13

















 


Lenders.  The lending institutions listed on Schedule 2
hereto and any other Person who becomes an assignee of any rights and obligations
of a Lender or becomes a Lender pursuant to §19.


 


Letters  of  Credit.  See §3.1(a).


 


Letter  of  Credit
Applications.  Letter of Credit
Applications in such form as may be agreed upon by any Borrower and the Issuing
Lender from time to time which are entered into pursuant to §3 hereof as such
Letter of Credit Applications are amended, varied or supplemented from time to
time.


 


Letter  of  Credit
Participation.  See §3.1(b).


 


Letter  of  Credit
Percentage.  The percentage per
annum equal to the margin above the Eurodollar Rate charged on Revolving Credit
Loans that are Eurodollar Rate Loans, as in effect from time to time, as set
forth in the column “Applicable Rate for Eurodollar Rate Loans” in the table
set forth in the definition of “Applicable Rate” above.


 


Loan  and  Letter
of  Credit  Request. 
See §2.6.


 


Loan  Documents.  This Credit Agreement, the Notes, the Letter
of Credit Applications, the Letters of Credit, the Security Documents, the
Subordination Agreements, and any documents, instruments or agreements executed
in connection with any of the foregoing, each as amended, modified,
supplemented, or replaced from time to time.


 


Loans.  The Revolving Credit Loans, the Swing Line
Loans and the Term Loan.


 


Loan  Percentage.  With respect to each Lender as of a particular
date, such Lender’s portion of, and participating interests in, (calculated as
a percentage) the sum of (a) the outstanding principal amount of the Revolving
Credit Loans on such date, (b) the outstanding principal amount of the Term
Loan on such date, (c) the outstanding principal amount of the Swing Line Loans
on such date, (d) the Maximum Drawing Amount of Letters of Credit and any
Unpaid Reimbursement Obligations outstanding on such date and, (e) with respect
to the definition of Required Lenders and §15.3 only, the unused Commitments on
such date.


 


Material  Acquisition.  See §8.4.1(f).


 


Maximum  Drawing
Amount.  The maximum aggregate
amount that beneficiaries may at any time draw under outstanding Letters of
Credit, as such aggregate amount may be reduced from time to time pursuant to
the terms of such Letters of Credit.


 


Moody’s.  Moody’s Investors Services, Inc.


 


Multiemployer  Plan.  Any multiemployer plan within the meaning of
§3(37) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate.


 


Net Cash Proceeds.  With respect to (a) any sale of any assets
of the Borrowers or the Excluded Subsidiaries, the gross consideration received
by any of the Borrowers or any of the Excluded Subsidiaries (in cash) from such
sale, net of commissions, direct sales costs, normal closing adjustments, the
amount used to repay any Indebtedness secured by such assets, income taxes
attributable to such sale and professional fees and expenses incurred directly
in connection


 


14

















 


therewith, to the extent the
foregoing are actually paid in connection with such sale and (b) any permitted
debt offering of the Borrowers or the Excluded Subsidiaries, the gross
consideration received by any of the Borrowers or any of the Excluded
Subsidiaries (in cash) from such debt offering, net of reasonable and customary
transaction expenses and fees actually incurred in connection with such debt
offering.


 


Net  Equity  Proceeds.  With respect to any Equity Offering, the excess
of the gross cash proceeds received by such Person from such Equity Offering
after deduction of reasonable and customary transaction expenses (including
without limitation, underwriting discounts and commissions and reasonable legal
fees) actually incurred in connection with such Equity Offering.


 


Net Working Capital Changes.  With respect to the Parent and its
Subsidiaries, for any fiscal period and without duplication, the difference
(expressed as a positive or a negative number) of (a) the sum of (i) billed
accounts receivable, plus (ii) inventory and other current assets
considered part of working capital in accordance with GAAP, minus (iii)
current accounts payable, minus (iv) current accruals and accretions
(exclusive of interest accruals and accretions), in each case, as of the last
day of such fiscal period, minus (b) the sum of (i) billed accounts
receivable, plus, (ii) inventory and other current assets considered
part of working capital in accordance with GAAP, minus (iii) current
accounts payable, minus (iv) current accruals and accretions (exclusive
of interest accruals and accretions), in each case, as of the last day of
immediately preceding fiscal period.


 


New  Heights.  New Heights Investor Co., LLC, a Delaware
limited liability company in which Casella NH Power Co., LLC owns 100% of the
Class B common stock and Casella NH Investors Co., LLC owns 19.9% of the Class
A common stock, and each of its direct and indirect Subsidiaries.


 


New  Heights  Investment.  The Investments made by the Borrowers in New
Heights.


 


New  Subsidiary.  A Subsidiary acquired or formed by any
Borrower or any of its Subsidiaries during the period reported in the most
recent financial statements delivered to the Lenders pursuant to §7.4.


 


Nonrenewal
Notice  Date.  See §3.1(f).


 


Non-U.S.  Lender.  See §5.2(c).


 


Notes.  Collectively, the Revolving Credit Notes,
the Term Notes, and the Swing Line Note.


 


Obligations.  All Indebtedness, obligations and
liabilities of the Borrowers to any of the Lenders, the Agents, and the Issuing
Lender, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, in each case
arising or incurred under this Credit Agreement or any of the other Loan
Documents or in respect of any of the Loans made or Reimbursement Obligations
incurred or the Letters of Credit, the Notes, Swap Contracts, Fuel Derivatives
Obligations and similar agreements or arrangements provided by any of the
Lenders or any other instrument at any time evidencing any thereof.


 


15

















 


Parent.  See Preamble.


 


Participant.  See §19(b).


 


PBGC.  The Pension Benefit Guaranty Corporation
created by §4002 of ERISA and any successor entity or entities having similar
responsibilities.


 


Performance  Bonds.
See §8.1(d).


 


Performance  L/C.  A Letter of Credit which is not a Financial L/C.


 


Performance  L/C
Fee.  See §5.1(b).


 


Permitted  Acquisition.  See §8.4.1.


 


Permitted  Liens.  See §8.2.


 


Person.  Any individual, corporation, limited
liability company, partnership, limited liability partnership, trust,
unincorporated association, business, or other legal entity, and any government
or any governmental agency or political subdivision thereof.


 


Pledge  Agreement.  The Pledge Agreement, dated as of the
Effective Date, among certain of the Borrowers and the Administrative Agent.


 


Post-Closing  Increase.  See §19(g).


 


Pricing  Ratio.  At the end of any fiscal quarter of the
Borrowers, the ratio of (a) Consolidated Total Funded Debt as of the end of
such fiscal quarter to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters then ended, as properly calculated on the
Compliance Certificate delivered by the Borrowers pursuant to §7.4(c).


 


Real  Property.  All real property heretofore, now, or
hereafter owned or leased by the Borrowers.


 


Recovery  Technology
Group.  RTG Holdings Corporation,
a corporation, in which Casella RTG Investors Co., LLC owns a 19.9% equity
interest, and each of its direct and indirect Subsidiaries.


 


Reimbursement  Obligations.  The Borrowers’ joint and several obligations
to reimburse the Issuing Lender and the Revolving Credit Lenders on account of
any drawing under any Letter of Credit as provided in §3.2.


 


Release.  Shall mean the broader of (i) the meaning
specified for the term “Release” (or “Released”) in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
§§9601 et  seq. (“CERCLA”) and (ii) the meaning specified for the
term “Disposal” (or “Disposed”) in the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. §§6901 et  seq. (“RCRA”) and
regulations promulgated thereunder; provided, that in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined thereby,
such broader meaning shall apply as of the effective date of such amendment and
provided further, to the extent that the laws of a state or province (or the
federal laws of Canada applicable therein) wherein the property lies
establishes a meaning for “Release” or “Disposal” or any


 


16

















 


analogous term which is broader
than specified in either CERCLA or RCRA, such broader meaning shall apply.


 


Required  Lenders.  As of any date, the Lenders whose aggregate
percentages constitute at least fifty-one percent (51%) of the Loan
Percentages, provided that for purposes of this definition “Lender”
shall not include any Delinquent Lender.


 


Restricted  Payment.  In relation to the Borrowers and the
Excluded Subsidiaries, any (a) Distribution, (b) payment or prepayment by any
Borrower or any Subsidiary to (i) such Borrowers’ or such Subsidiaries
shareholders (or other equity holders), in each case, other than to another
Borrower, or (ii) to any Affiliate of such Borrower or such Subsidiary or any
Affiliate of such Borrower’s or such Subsidiary’s shareholders (or other equity
holders), in each case, other than to another Borrower or (c) derivatives or
other transactions with any financial institution, commodities or stock
exchange or clearinghouse (a “Derivatives  Counterparty”)
obligating such Borrower or such Subsidiary to make payments to such
Derivatives Counterparty as a result of any change in market value of any
capital stock of such Borrower or such Subsidiary.


 


Revolving  Credit
Lenders.  The Lenders set forth
on Schedule 2 as Revolving Credit Lenders, acting in their
role as makers of Revolving Credit Loans or as participants with respect to
Letters of Credit.


 


Revolving  Credit
Loans.  Revolving Credit Loans
made or to be made by the Revolving Credit Lenders to the Borrowers pursuant to
§2.


 


Revolving  Credit
Maturity  Date. 
January 24, 2008; provided that, if, on or before
May 1, 2007, the Parent has not either (i) converted a portion of the
shares of Series A Preferred Stock into shares of common stock of the Parent so
that no more than $20,000,000 in principal amount of Series A Preferred Stock
remains outstanding or (ii) duly effected an amendment, in form and substance
satisfactory to the Administrative Agent, to the Series A Certificate,
extending the mandatory redemption date of the Series A Preferred Stock to
April 24, 2010 or later (with all other terms of the Series A Preferred
Stock remaining substantially the same), in either case of clause (i) or clause
(ii), as evidenced in a written statement certified by an authorized financial
officer of the Parent and delivered to the Agents and the Lenders, then the
Revolving Credit Maturity Date shall be May 11, 2007.


 


Security  Agreement.  The Second Amended and Restated Security
Agreement, dated as of the Effective Date, among the Borrowers and the
Administrative Agent.


 


Security  Documents.  The Security Agreement, the Pledge Agreement  each
as amended and in effect from time to time, and any additional documents
evidencing or perfecting the Administrative Agent’s lien on the assets of the
applicable Borrowers for the benefit of the applicable Lenders (including
Uniform Commercial Code financing statements).


 


Seller  Subordinated
Debt.  Indebtedness of the
Borrowers (other than the Senior Subordinated Debt) which has been subordinated
and made junior to the payment and performance in full in cash of the
Obligations, and evidenced as such by a subordination agreement containing
subordination provisions substantially in the form of Exhibit  E
(the “Subordination  Agreement”) hereto; provided that (a)
at the time such Seller Subordinated Debt is incurred, no Default or Event of
Default has occurred or would occur as a result of such incurrence, and (b) the
documentation evidencing such Seller Subordinated Debt shall have been


 


17

















 


delivered to the Administrative
Agent and shall contain all of the following characteristics:  (i) it shall be unsecured, (ii) it shall
bear interest at a rate not to exceed the market rate, (iii) it shall have a
final maturity of at least three (3) years, (iv) it shall not require
unscheduled principal repayments thereof prior to the maturity date of such
debt, (v) if it has any covenants, such covenants (including covenants relating
to incurrence of indebtedness) shall be meaningfully less restrictive than
those set forth herein, (vi) it shall have no restrictions on the Borrower’s
ability to grant liens securing indebtedness ranking senior to such Seller
Subordinated Debt, (vii) it shall permit the incurrence of senior indebtedness
under this Credit Agreement, (viii) it may be cross-accelerated with the
Obligations and other senior indebtedness of the Borrowers (but shall not be
cross-defaulted except for payment defaults which the senior lenders have not
waived) and may be accelerated upon bankruptcy, (ix) it shall provide for the
complete, automatic and unconditional release of any and all guarantees of such
Seller Subordinated Debt granted by any Borrower in the event of the sale by
any Person of such Borrower or the sale by any Person of all or substantially
all of such Borrower’s assets (including in the case of a foreclosure), (x) it
shall provide that (A) upon any payment or distribution of the assets of the
Borrowers (including after the commencement of a bankruptcy proceeding) of any
kind or character, all of the Obligations (including interest accruing after
the commencement of any bankruptcy proceeding at the rate specified for the
applicable Obligation, whether or not such interest is an allowable claim in
any such proceeding) shall be paid in full in cash prior to any payment being
received by the holders of the Seller Subordinated Debt and (B) until all of
the Obligations (including the interest described in subclause (A) above) are
paid in full in cash, any payment or distribution to which the holders of the
Seller Subordinated Debt would be entitled but for the subordination provisions
of the type described in clauses (xi) and (xii) hereof shall be made to the
holders of the Obligations, (xi) it shall provide that in the event of a
payment default under §13.1(a) or (b) hereof, the Borrowers shall not be
required to pay the principal of, or any interest, fees and all other amounts
payable with respect to the Seller Subordinated Debt until the Obligations have
been paid in full in cash, (xii) it shall provide that in the event of any
other Event of Default, the Lenders shall be permitted to block with respect to
the Seller Subordinated Debt for a period of 180 days (A) payments of
principal, interest, fees and all other amounts payable, and (B) enforcement of
remedies for Seller Subordinated Debt in excess of $1,000,000, and (xiii) it
shall acknowledge that none of the provisions outlined in part (b) of this
definition can be amended, modified or otherwise altered without the prior
written consent of the Required Lenders.


 


Senior  Subordinated
Debt.  The senior subordinated
Indebtedness of the Borrowers evidenced by the Senior Subordinated Debt
Documents in the original principal amount of at least $150,000,000.


 


Senior  Subordinated
Debt  Documents.  The
Indenture, the Senior Subordinated Notes and all other documents, instruments
and agreements entered into or executed in connection therewith, in each case,
subject to terms and conditions satisfactory to the Administrative Agent.


 


Senior  Subordinated
Notes.  The 9.75% Senior
Subordinated Notes due 2013 issued by the Parent pursuant to the Indenture.


 


Series  A  Certificate.  That certain Certificate of Designation of
Series A Convertible Preferred Stock, dated as of August 8, 2000, which
sets forth the rights and obligations of the Series A Holders and the Parent
with respect to the Series A Preferred Stock.


 


Series  A  Holders.  The holders of the Series A Preferred Stock
listed on Schedule 6.20(a) hereto.


 


18

















 


Series  A  Preferred
Stock.  The Series A Preferred
Stock issued by the Parent to the Series A Holders  pursuant to the Series A
Certificate in an aggregate principal  amount not to exceed $55,750,000 plus
dividends as provided for in the Series A Certificate.


 


Settlement.  With respect to Swing Line Loans, the making
or receiving of payments, in immediately available funds, by the Revolving
Credit Lenders to or from the Administrative Agent in accordance with §2.8
hereof to the extent necessary to cause each such Lender’s actual share of the
outstanding amount of the Revolving Credit Loans to be equal to such Lender’s
Commitment Percentage of the outstanding amount of such Revolving Credit Loans,
in any case when, prior to such action, the actual share is not so equal.


 


Settlement  Amount.  See §2.8(b).


 


Settlement Date.  See §2.8(b).


 


Settling  Lender.  See §2.8(b).


 


S&P.  Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor thereto.


 


Specified Entities.
(a) K-C International, Ltd., (b) the brokerage business of KTI Recycling of New
England, Inc., (c) the brokerage business of Pine Tree Waste, Inc., (d)
Greenfiber, (e) KTI New Jersey Fibers, Inc., (f) Atlantic Coast Fibers, Inc.,
(g) Casella NH Investors Co., LLC, (h) Casella NH Power Co., LLC, (i) Casella
RTG Investors Co., LLC and the Recovery Technology Group and (j) the companies
and assets comprising the FCR operating segment, or the successors of any of
the foregoing only with respect to the businesses conducted by the foregoing on
the Effective Date.


 


Spot  Rate.  With respect to any “first currency” (as
defined in §5.10), at any date of determination thereof, the spot rate of
exchange in London that appears on the display page applicable to such first
currency on the Reuters System (or such other page as may replace such page on
such service for the purpose of displaying the spot rate of exchange in London)
for the conversion of such first currency into the “second currency” (as
defined in §5.10); provided, however, that if there shall at any
time no longer exist such a page on such service, the Spot Rate shall be
determined by reference to another similar rate publishing service selected by
the Administrative Agent.


 


Subsidiary.  Any corporation, limited liability company,
partnership, association, trust, or other business entity of which the
designated parent shall at any time own directly or indirectly through a
Subsidiary or Subsidiaries at least a majority of the outstanding Capital Stock
or other interest entitled to vote generally.


 


Subordinated  Debt.  Collectively, the Senior Subordinated Debt
and the Seller Subordinated Debt.


 


Subordination  Agreements.  See definition of “Seller  Subordinated
Debt”.


 


Swap  Contracts.  Any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or


 


19

















 


equity index swap or option,
bond option, interest rate option, forward foreign exchange agreement, rate
cap, collar or floor agreement, currency swap agreement, cross-currency rate
swap agreement, swaption, currency option or other similar agreement (including
any option to enter into any of the foregoing).


 


Swing  Line  Loans.  See §2.8(a).


 


Swing  Line  Note.  See §2.8(a).


 


Synthetic Lease.  Any lease of goods or other property,
whether real or personal, which is treated as an operating lease under GAAP and
as a loan or financing for U.S. income tax purposes.


 


Term Loan.  The term loan made or to be made by the Term
Loan Lenders to the Borrowers pursuant to §4 in the original principal amount
of $150,000,000, as the same may be increased pursuant to §19(g) or reduced or
reallocated from time to time pursuant to the provisions hereof.


 


Term  Loan  Lenders.  The Lenders holding a portion of the Term
Loan as set forth on Schedule 2 hereto together with any
other Person who becomes an assignee of any rights and obligations of a Term
Loan Lender pursuant to §19.


 


Term Loan Maturity  Date.
January 24, 2010; provided that, if, on or before May 1, 2007,
the Parent has not either (i) converted a portion of the shares of Series A
Preferred Stock into shares of common stock of the Parent so that no more than
$20,000,000 in principal amount of Series A Preferred Stock remains outstanding
or (ii) duly effected an amendment, in form and substance satisfactory to the
Administrative Agent, to the Series A Certificate, extending the mandatory redemption
date of the Series A Preferred Stock to April 24, 2010 or later (with all
other terms of the Series A Preferred Stock remaining substantially the same),
in either case of clause (i) or clause (ii), as evidenced in a written
statement certified by an authorized financial officer of the Parent and
delivered to the Agents and the Lenders, then the Term Loan Maturity Date shall
be May 11, 2007.


 


Term  Loan  Percentage.  With respect to each Term Loan Lender, the
percentage set forth on Schedule 2 (subject to adjustment in
accordance with §19 hereof) as such Lender’s percentage of the Term Loan.


 


Term Notes.  See §4.2.


 


Term Note Record.  A record with respect to a Term Note.


 


Total  Commitment.  The sum of the Commitments of the Lenders,
as in effect from time to time, which amount shall initially equal
$175,000,000, as such amount may be reduced or increased pursuant to the terms
hereof.


 


Type.  As to any Loan, its nature as a Base Rate
Loan or a Eurodollar Rate Loan.


 


Unpaid Reimbursement Obligation.  Any Reimbursement Obligation for which the
Borrowers have not reimbursed the Issuing Lender and the Lenders on the date
specified in, and


 


20

















 


in accordance with, §3.2, which
has not been automatically converted into a Revolving Credit Loan pursuant to
such section.


 


U.S.  Fiber.  U.S. Fiber, Inc., a North Carolina
corporation.


 


§1.2.  Rules  of  Interpretation.


 


(a)                                  A reference to any
document or agreement shall include such document or agreement as amended, modified
or supplemented from time to time in accordance with its terms and the terms of
this Credit Agreement.


 


(b)                                 The singular includes
the plural and the plural includes the singular.


 


(c)                                  A reference to any
law includes any amendment or modification to such law.


 


(d)                                 A reference to any
Person includes its permitted successors and permitted assigns.


 


(e)                                  Accounting terms not
otherwise defined herein have the meanings assigned to them by GAAP applied on
a consistent basis by the accounting entity to which they refer.


 


(f)                                    The words
“include”, “includes” and “including” are not limiting.


 


(g)                                 All terms not
specifically defined herein or by GAAP, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts have the meanings
assigned to them therein, with the term “instrument” being that defined
under Article 9 of the Uniform Commercial Code.


 


(h)                                 Reference to a
particular “§” refers to that section of this Credit Agreement unless
otherwise indicated.


 


(i)                                     The words “herein”,
“hereof”, “hereunder” and words of like import shall refer to this Credit
Agreement as a whole and not to any particular section or subdivision of
this Credit Agreement.


 


(j)                                     Unless otherwise
expressly indicated, in the computation of periods of time from a specified
date to a later specified date, the word “from” means “from and including,” the
words “to” and “until” each mean “to but excluding,” and the word “through”
means “to and including.”


 


(k)                                  This Credit Agreement
and the other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters.  All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.


 


(l)                                     This Credit Agreement
and the other Loan Documents are the result of negotiation among, and have been
reviewed by counsel to, among others, the Agents and the Borrower and are the
product of discussions and negotiations among all parties.  Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be


 


21

















 


construed against the Agents or any of the Lenders merely on account of
either Agent’s or any Lender’s involvement in the preparation of such documents.


 


§2.  THE REVOLVING CREDIT LOANS.


 


§2.1.  Commitment  to  Lend.  Subject to the terms and conditions set
forth in this Credit Agreement, each of the Revolving Credit Lenders severally
agrees to lend to the Borrowers, and the Borrowers may borrow, repay, and
reborrow from time to time between the Effective Date and the Revolving Credit
Maturity Date, upon notice to the Administrative Agent given in accordance with
§2.6, such Lender’s Commitment Percentage of such sums as are requested by the
Borrowers in the minimum aggregate amount of $500,000 or an integral multiple
thereof; provided that, except as otherwise provided herein, the sum of
the outstanding amount of Revolving Credit Loans (including the Swing Line
Loans and after giving effect to all amounts requested) plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Commitment.  Revolving
Credit Loans made hereunder shall be made pro rata in accordance with each Revolving
Credit Lender’s Commitment Percentage. 
Each request for a Loan or Letter of Credit hereunder shall constitute a
representation and warranty by the Borrowers that the conditions set forth in
§10 and §11, as the case may be, have been satisfied on the date of such
request.


 


§2.2.  Reduction  of  Total
Commitment. 
The Borrowers shall have the right at any time and from time to time
upon five (5) Business Days’ prior written notice to the Administrative Agent
to reduce by $5,000,000 or an integral multiple of $1,000,000 in excess thereof
or terminate entirely the Total Commitment, whereupon the Commitments of the
Revolving Credit Lenders shall be reduced pro rata in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated; provided that at no time may the Total
Commitment be reduced to an amount less than the sum of (a) the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations plus (b) all Revolving
Credit Loans (including Swing Line Loans) then outstanding.  No reduction or termination of the Total
Commitment once made may be revoked; the portion of the Total Commitment
reduced or terminated may not be reinstated; and amounts in respect of such
reduced or terminated portion may not be reborrowed.  The Administrative Agent will notify the Revolving Credit Lenders
promptly after receiving any notice of the Borrowers delivered pursuant to this
§2.2. and will distribute to each such Lender a revised schedule of Commitments
and Commitment Percentages.


 


§2.3. The  Revolving  Credit
Notes. 
The Revolving Credit Loans shall be evidenced by promissory notes of the
Borrowers in substantially the form of Exhibit  A-1 hereto (each a
“Revolving  Credit  Note”), dated as of the Effective Date
(or such later date as a Revolving Credit Lender becomes a party hereto
pursuant to §19) and completed with appropriate insertions.  One Revolving Credit Note shall be payable
to the order of each Revolving Credit Lender in a principal amount equal to
such Revolving Credit Lender’s Commitment or, if less, the outstanding amount
of all Revolving Credit Loans made by such Revolving Credit Lender, plus
interest accrued thereon, as set forth below. 
The Borrowers irrevocably authorize the Revolving Credit Lenders to
make, or cause to be made, in connection with a Drawdown Date of any Revolving
Credit Loan at the time of receipt of any payment of principal on any such
Revolving Credit Note, an appropriate notation on such Lender’s records or on
the schedule attached to such


 


22

















 


Lender’s
Revolving Credit Note or a continuation of such schedule attached thereto
reflecting the making of such Loan, or the receipt of such payment (as the case
may be) and may, prior to any transfer of its Revolving Credit Note, endorse on
the reverse side thereof the outstanding principal amount of such Revolving
Credit Loans evidenced thereby.  The
outstanding amount of the Revolving Credit Loans set forth on such Lender’s record
shall be prima  facie evidence of the principal amount thereof
owing and unpaid to such Lender, but the failure to record, or any error in so
recording, any such amount shall not limit or otherwise affect the obligations
of the applicable Borrowers hereunder or under such Revolving Credit Notes to
make payments of principal of or interest on any such Revolving Credit Notes
when due.


 


§2.4.  Interest  on  Revolving
Credit  Loans;  Maturity  of
the  Revolving  Credit  Loans.


 


(a)                                  The
Borrowers jointly and severally promise to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect thereto at
the following rates, except as otherwise provided in §5.6:


 


(i)                                     Each
Revolving Credit Loan which is a Base Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the Applicable Rate for Revolving
Credit Loans that are Base Rate Loans as in effect from time to time.


 


(ii)                                  Each
Revolving Credit Loan which is a Eurodollar Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof and ending on the last day
of the Interest Period with respect thereto at the Applicable Rate for
Revolving Credit Loans that are Eurodollar Rate Loans as in effect from time to
time.


 


(b)                                 The
Borrowers jointly and severally promise to pay on the Revolving Credit Maturity
Date all Revolving Credit Loans outstanding, Unpaid Reimbursement Obligations
with respect to Letters of Credit and any and all unpaid interest accrued thereon.  The Revolving Credit Loans shall become
absolutely due and payable on the Revolving Credit Maturity Date, as set forth
above.


 


§2.5.  Mandatory  Repayments  of
the  Revolving  Credit  Loans. 
If at any time the sum of the outstanding amount of the Revolving Credit
Loans (including Swing Line Loans) plus the Maximum Drawing Amount and
any Unpaid Reimbursement Obligations exceeds the Total Commitment, whether by
reduction of the Total Commitment or otherwise, then the Borrowers, jointly and
severally, shall immediately pay the amount of such excess to the
Administrative Agent for application: first, to any Unpaid Reimbursement
Obligations; second, to the Revolving Credit Loans; and third, to
provide to the Administrative Agent cash collateral for Reimbursement
Obligations as contemplated by §3.2(b) and (c); provided, however,
that if the amount of cash collateral held by the Administrative Agent pursuant
to this §2.5 exceeds the amount required to be cash collateralized from time to
time, the Administrative Agent shall return such excess to the Borrowers.  Each payment of Unpaid Reimbursement
Obligations or prepayment of Revolving Credit Loans shall be allocated among
the Lenders, in proportion, as nearly as practicable, to each Unpaid
Reimbursement Obligation or (as the case may be) the


 


23

















 


respective
unpaid principal amount of each Lender’s Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.


 


§2.6.  Requests  for  Revolving
Credit  Loans.  The Borrowers shall give to the Administrative Agent written
notice in the form of Exhibit  B hereto (or telephonic notice
confirmed by telecopy on the same Business Day in the form of Exhibit  B
hereto) of each Revolving Credit Loan requested hereunder (a “Loan  and
Letter  of  Credit  Request”) not later than 11:00
a.m. Boston time (a) no less than one (1) Business Day prior to the proposed
Drawdown Date of any Base Rate Loan and (b) no less than three (3) Eurodollar
Business Days prior to the proposed Drawdown Date of any Eurodollar Rate
Loan.  Each such notice shall specify
(i) the amount of such Revolving Credit Loan, (ii) the proposed Drawdown Date
of such Revolving Credit Loan, (iii) the Type of such Revolving Credit Loan,
(iv) the Interest Period for such Revolving Credit Loan (if a Eurodollar Rate
Loan), and (v) the aggregate outstanding amount of all Revolving Credit Loans
(including Swing Line Loans) after giving affect to all amounts requested and
the aggregate Maximum Drawing Amount of all outstanding Letters of Credit.  Each Revolving Credit Loan requested shall
be in a minimum amount of $5,000,000, or in $1,000,000 additional increments
thereof.  Revolving Credit Loan requests
made hereunder shall be irrevocable and binding on the Borrowers, and shall
obligate the Borrowers to accept the Revolving Credit Loan requested from the
Revolving Credit Lenders on the proposed Drawdown Date.


 


§2.7.  Funds  for  Revolving
Credit  Loans.


 


(a)                                  Not later than 2:00
p.m. (Boston time) on the proposed Drawdown Date of any Revolving Credit Loan,
each of the Revolving Credit Lenders will make available to the Administrative
Agent, at the Administrative Agent’s Office, in immediately available funds,
the amount of such Lender’s Commitment Percentage of the amount of the
requested Revolving Credit Loans.  Upon
receipt from each Lender of such amount, and upon receipt of the documents
required by §§10 and 11 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative Agent will make available
to the Borrowers in immediately available funds the aggregate amount of such
Revolving Credit Loans made available to the Administrative Agent by the
Revolving Credit Lenders.  The failure
or refusal of any Revolving Credit Lender to make available to the
Administrative Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Revolving Credit Loans
shall not relieve any other Revolving Credit Lender from its several obligation
hereunder to make available to the Administrative Agent the amount of such
other Revolving Credit Lender’s Commitment Percentage of any requested
Revolving Credit Loan.


 


(b)                                 The Administrative
Agent may, unless notified to the contrary by any Revolving Credit Lender prior
to a Drawdown Date, assume that such Lender has made available to the
Administrative Agent on such Drawdown Date the amount of such Lender’s
Commitment Percentage of the Revolving Credit Loans to be made on such Drawdown
Date, and the Administrative Agent may (but shall not be required to), in
reliance upon such assumption, make available to the Borrowers a corresponding
amount.  If any Revolving Credit Lender
makes available to the Administrative Agent such amount on a date after such
Drawdown Date, such Lender shall pay to the Administrative


 


24

















 


Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Administrative Agent for federal funds
acquired by the Administrative Agent during each day included in such period, times
(ii) the amount of such Lender’s Commitment Percentage of such Loans, times
(iii) a fraction, the numerator of which is the number of days that elapse from
and including such Drawdown Date until the date on which the amount of such
Lender’s Commitment Percentage of such Loans shall become immediately available
to the Administrative Agent and the denominator of which is 365.  A statement of the Administrative Agent
submitted to such Lender with respect to any amounts owing under this paragraph
shall be prima  facie evidence, absent manifest error, of the
amount due and owing to the Administrative Agent by such Lender.  If the amount of such Lender’s Commitment
Percentage of such Loans is not made available to the Administrative Agent by
such Lender within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrowers on demand, with interest thereon at the Applicable Rate for Revolving
Credit Loans of the Type made on such Drawdown Date.


 


§2.8.  Swing  Line  Loans;
Settlements.


 


(a)                                  Solely for ease of
administration of the Revolving Credit Loans, Fleet may, upon receipt of a Loan
and Letter of Credit Request requesting a Swing Line Loan no later than 2:30
p.m. (Boston time) on the proposed date of funding, but shall not be required
to, fund Base Rate Loans made in accordance with the provisions of this Credit
Agreement (including, without limitation, satisfaction of the conditions set
forth in §§10 and 11) for periods not to exceed seven (7) days in any one case,
bearing interest at the rate set forth in §2.4(a)(i) for Revolving Credit Loans
that are Base Rate Loans (“Swing  Line  Loans”).  The Swing Line Loans shall be evidenced by a
promissory note of the Borrowers in substantially the form of Exhibit  A-2
hereto (the “Swing  Line  Note”) dated as of the Effective
Date, and shall each be in a minimum amount of $100,000 or greater, provided
that the outstanding amount of Swing Line Loans advanced by Fleet
hereunder shall not exceed $10,000,000 at any time.  Each Revolving Credit Lender shall remain severally and
unconditionally liable to fund its pro rata share (based upon such Lender’s
Commitment Percentage) of such Swing Line Loans on each Settlement Date and, in
the event Fleet chooses not to fund all Swing Line Rate Loans requested on any
date, to fund its Commitment Percentage of the Swing Line Loans requested,
subject to satisfaction of the provisions hereof (including, without
limitation, satisfaction of the conditions set forth in §§10 and 11) relating
to the making of Swing Line Loans.  Prior
to each Settlement, all payments or repayments of the principal of, and
interest on, Swing Line Loans shall be credited to the account of Fleet.


 


(b)                                 The Revolving Credit
Lenders shall effect Settlements on (i) the Business Day immediately following
any day which Fleet gives written notice to the Administrative Agent to effect
a Settlement, (ii) the Business Day immediately following the Administrative
Agent’s becoming aware of the existence of any Default or Event of Default,
(iii) the Revolving Credit Maturity Date, (iv) any date on which the Borrowers
wish to convert a Swing Line Loan into a Eurodollar Rate Loan, and (v) in any
event, the seventh day on which any Swing Line Loan remains outstanding (each
such date, a “Settlement  Date”). 
One (1) Business Day prior to each such Settlement Date, the
Administrative Agent shall give telephonic notice to the Revolving Credit
Lenders of (A) the respective outstanding amount of Revolving Credit Loans made
by each Revolving


 


25

















 


Credit Lender as at the close of business on the prior day, and (B) the
amount that any Revolving Credit Lender, as applicable (a “Settling  Lender”),
shall pay to effect a Settlement (a “Settlement  Amount”).  A statement of the Administrative Agent
submitted to the Revolving Credit Lenders with respect to any amounts owing
hereunder shall be prima  facie evidence of the amount due and
owing.  Each Settling Lender shall, not
later than 1:00 p.m. (Boston time) on each Settlement Date, effect a wire
transfer of immediately available funds to the Administrative Agent at the
Administrative Agent’s Office in the amount of such Lender’s Settlement
Amount.  All funds advanced by any
Revolving Credit Lender as a Settling Lender pursuant to this §2.8 shall for
all purposes be treated as a Base Rate Loan to the Borrowers.


 


(c)                                  The Administrative
Agent may (unless notified to the contrary by any Settling Lender by 12:00 noon
(Boston time) one (1) Business Day prior to the Settlement Date) assume that
each Settling Lender has made available (or will make available by the time
specified in §2.8(b)) to the Administrative Agent its Settlement Amount, and
the Administrative Agent may (but shall not be required to), in reliance upon
such assumption, effect Settlements.  If
the Settlement Amount of such Settling Lender is made available to the
Administrative Agent on a date after such Settlement Date, such Settling Lender
shall pay the Administrative Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average annual interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day included in
such period times (ii) such Settlement Amount times (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Settlement Date to but not including the date on which such
Settlement Amount shall become immediately available to the Administrative Agent,
and the denominator of which is 365. 
Upon payment of such amount such Settling Lender shall be deemed to have
delivered its Settlement Amount on the Settlement Date and shall become
entitled to interest payable by the Borrowers with respect to such Settling
Lender’s Settlement Amount as if such share were delivered on the Settlement
Date.  If such Settlement Amount is not
in fact made available to the Administrative Agent by such Settling Lender
within five (5) Business Days of such Settlement Date, the Administrative Agent
shall be entitled to recover such amount from the Borrowers, with interest
thereon at the Applicable Rate for Revolving Credit Loans that are Base Rate
Loans.


 


(d)                                 After any Settlement
Date, any payment by the Borrowers of Swing Line Loans hereunder shall be
allocated pro
rata among the Revolving Credit Lenders, in accordance with such
Lenders’ Commitment Percentages.


 


(e)                                  If, prior to the
making of a Revolving Credit Loan pursuant to paragraph (b) of this §2.8, a
Default or Event of Default has occurred and is continuing, each Revolving
Credit Lender will, on the date such Revolving Credit Loan was to have been
made, purchase an undivided participating interest in the outstanding Swing
Line Loans in an amount equal to its Commitment Percentage of such Swing Line
Loans.  Each Revolving Credit Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amount of its participation and upon receipt thereof the Administrative
Agent will deliver to such Revolving Credit Lender a Swing Line participation
certificate dated the date of receipt of such funds and in such amount.


 


26

















 


(f)                                    Whenever, at any
time after the Administrative Agent has received from any Revolving Credit
Lender such Lender’s participating interest in the Swing Line Loans pursuant to
clause (e) above, the Administrative Agent receives any payment on account
thereof, the Administrative Agent will distribute to such Lender its
participating interest in such 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) in like funds as received; provided,
however, that in the event that such payment received by the
Administrative Agent is required to be returned, such Lender will return to the
Administrative Agent any portion thereof previously distributed by the
Administrative Agent to it in like funds as such payment is required to be
returned by the Administrative Agent.


 


(g)                                 Each Revolving Credit
Lender’s obligation to purchase participating interests pursuant to clause (e)
above shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Administrative Agent, the Borrowers or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the Borrowers or any other Person; (iv) any breach of this Credit Agreement by
the Borrowers or any other Lender or the Administrative Agent; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.


 


§2.9.  Optional  Prepayments  or
Repayments  of  Revolving
Credit  Loans.  The Borrowers
shall have the right, at their election, to repay or prepay the outstanding
amount of the Revolving Credit Loans, as a whole or in part, at any time
without penalty or premium; provided (a) each partial prepayment shall
be in the principal amount of $250,000 or an integral multiple thereof, and (b)
that the full or partial prepayment of the outstanding amount of any Eurodollar
Rate Loans pursuant to this §2.9, if made on a day other than the last day of
the Interest Period relating thereto, shall be subject to the provisions of
§5.12.  The Borrowers shall give the
Administrative Agent, no later than 11:00 a.m. (Boston time) (i) at least one
(1) Business Days’ prior written notice (or telephonic notice confirmed in
writing) of such proposed prepayment or repayment pursuant to this §2.9 of Base
Rate Loans and (ii) at least three (3) Eurodollar Business Days’ prior written
notice (or telephonic notice confirmed in writing) of any proposed prepayment
or repayment pursuant to this §2.9 of Eurodollar Rate Loans, in each case,
specifying the proposed date of prepayment or repayment of Revolving Credit
Loans and the principal amount to be paid. 
Each such partial prepayment shall be applied, in the absence of
instruction by the Borrowers, first to the principal of Base Rate Loans and
then to the principal of Eurodollar Rate Loans.  Payments received from the Borrowers shall be applied pro rata to
each Revolving Credit Lender in respect of its outstanding Commitment.


 


§3.  LETTERS OF CREDIT.


 


§3.1.  Letter  of  Credit
Commitments.


 


(a)                                  Subject to the terms
and conditions hereof and the execution and receipt of a Loan and Letter of
Credit Request reflecting the Maximum Drawing Amount of all Letters of Credit
(including the requested Letter of Credit) and a Letter of Credit


 


27

















 


Application, the Issuing Lender, on behalf of the Revolving Credit
Lenders and in reliance upon the agreement of such Lenders set forth in §3.1(c)
and upon the representations and warranties of the Borrowers contained herein,
agrees to issue one or more standby letters of credit (individually, a “Letter
of  Credit”), in such form as may be requested from time to time
by the Borrowers and agreed to by the Issuing Lender; provided, however,
that, after giving effect to such request, (i) the aggregate Maximum Drawing
Amount of all Letters of Credit issued at any time under this §3.1(a) shall not
exceed $80,000,000 and (ii) the aggregate Maximum Drawing Amount of all Letters
of Credit and all Unpaid Reimbursement Obligations plus the aggregate
outstanding amount of Revolving Credit Loans plus the aggregate
outstanding amount of Swing Line Loans shall not exceed the Total Commitment;
and provided  further that no Letter of Credit shall have an
expiration date later than the earlier of (A) one year after the date of
issuance of such Letter of Credit (subject to periodic extensions for periods
not to exceed one year), or (B) thirty (30) days prior to the Revolving Credit
Maturity Date.


 


(b)                                 Each Revolving Credit
Lender severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Lender’s Commitment Percentage
thereof, to reimburse the Issuing Lender on demand for the amount of each draft
paid by the Issuing Lender under each applicable Letter of Credit to the extent
that such amount is not reimbursed by the Borrowers pursuant to §3.2 (such
agreement for a Lender being called herein the “Letter  of  Credit
Participation” of such Lender). 
The Issuing Lender shall not issue any Letter of Credit unless all of
the conditions precedent under §11 hereof have been satisfied.


 


(c)                                  Each such payment
made by a Lender shall be treated as the purchase by such Lender of a
participating interest in the Borrowers’ Reimbursement Obligation under §3.2 in
an amount equal to such payment.  Each
Lender shall share in accordance with its participating interest in any
interest which accrues pursuant to §3.2.


 


(d)                                 All “Letters of
Credit” (as defined in the Existing Credit Agreement) outstanding under the
Existing Credit Agreement on the Effective Date shall become Letters of Credit
hereunder.  The Revolving Credit
Lenders’ participations in such Letters of Credit will be reallocated on the
Effective Date in accordance with each such Lender’s applicable Commitment
Percentage hereunder.


 


(e)                                  Each Letter of Credit
so issued, extended or renewed shall be subject to either the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Lender in the ordinary course of its business as a letter of credit
issuer and in effect at the time of issuance of such Letter of Credit or the
International Standby Practices (ISP98), International Chamber of Commerce Publication
No. 590, or any successor code of standby letter of credit practices among
banks adopted by the Issuing Lender in the ordinary course of its business as a
standby letter of credit issuer and in effect at the time of issuance of such
Letter of Credit.


 


(f)                                    If any Borrower so
requests in an application for a Letter of Credit, the Issuing Lender may, in
its sole and absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an “Auto-Renewal  Letter  of
Credit”); provided that any such Auto-Renewal Letter of Credit
must permit the Issuing Lender to


 


28

















 


prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than ten (10) days prior to the
renewal date (the “Nonrenewal  Notice  Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued.  Unless otherwise directed by
the Issuing Lender, the Borrowers shall not be required to make a specific
request to the Issuing Lender for any such renewal.  Once an Auto-Renewal Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the Issuing Lender to
permit the renewal of such Letter of Credit at any time to an expiry date not
later than thirty (30) days prior to the Revolving Credit Maturity Date; provided,
however, that the Issuing Lender shall not permit any such renewal if (A) the
Issuing Lender has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof, or (B)
it has received notice (which may be by telephone or in writing) on or before
the day that is two (2) Business Days before the Nonrenewal Notice Date (1)
from the Administrative Agent that the Required Lenders have elected not to
permit such renewal or (2) from the Administrative Agent, any Lender or the
Borrowers that one or more of the applicable conditions specified in §11 is not
then satisfied.


 


§3.2.  Reimbursement
Obligations  of  the
Borrowers. 
In order to induce the Issuing Lender to issue, extend and renew Letters
of Credit and the Lenders to participate therein, the Borrowers hereby jointly
and severally agree to reimburse or pay to the Issuing Lender with respect to
each Letter of Credit issued, extended or renewed by the Issuing Lender
hereunder as follows:


 


(a)                                  if any draft
presented under any Letter of Credit is honored by the Issuing Lender or the
Issuing Lender otherwise makes payment with respect thereto, the sum of (i) the
amount paid by the Issuing Lender under or with respect to such Letter of
Credit plus (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by the Issuing Lender in connection with any
payment made by the Issuing Lender under, or with respect to, such Letter of
Credit, provided  however, if the Borrowers do not reimburse the
Issuing Lender on the Drawdown Date, such amount shall, so long as no Event of
Default under §§13.1(g) or 13.1(h) has occurred, become automatically a
Revolving Credit Loan which is a Base Rate Loan advanced hereunder in an amount
equal to such sum;


 


(b)                                 upon
the reduction (but not termination) of the Total Commitment to an amount less
than the Maximum Drawing Amount, an amount equal to such difference, which
amount shall be held by the Administrative Agent for the benefit of the Lenders
and the Administrative Agent as cash collateral for all Reimbursement
Obligations of the Borrowers;


 


(c)                                  upon the Revolving
Credit Maturity Date, the termination of the Total Commitment or the
acceleration of the Reimbursement Obligations with respect to all Letters of
Credit in accordance with §13, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit shall be paid by the Borrowers to the
Administrative Agent to be held as cash collateral for the Reimbursement
Obligations of the Borrowers; and


 


(d)                                 the Borrowers promise
to pay on the Revolving Credit Maturity Date all Unpaid Reimbursement
Obligations on such date relating to Letters of Credit.  All such


 


29

















 


payments shall be made together with any and all accrued and unpaid
interest thereon and any fees and other amounts owing hereunder.


 


Each such payment shall be made to the
Administrative Agent at the Administrative Agent’s Office in immediately
available funds.  Interest on any and
all amounts remaining unpaid by the Borrowers under this §3.2 at any time from
the date such amounts become due and payable (whether as stated in this §3.2,
by acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Administrative Agent on demand at the rate of
interest specified in §5.6 for overdue amounts.


 


§3.3.  Letter  of  Credit
Payments. 
If any draft shall be presented or other demand for payment shall be
made under any Letter of Credit, the Issuing Lender shall notify the Borrowers
of the date and amount of the draft presented or demand for payment and of the
date and time when it expects to pay such draft or honor such demand for
payment.  On the date that such draft is
paid or other payment is made by the Issuing Lender, the Issuing Lender shall
promptly notify the Lenders of the amount of any Unpaid Reimbursement
Obligation.  All such Unpaid
Reimbursement Obligations with respect to Letters of Credit shall, provided
that no Event of Default under §13(g) or §13(h) has occurred, become
automatically a Revolving Credit Loan which is a Base Rate Loan.  No later than 3:00 p.m. (Boston time) on the
Business Day next following the receipt of such notice, each Lender shall make
available to the Issuing Lender, at the Administrative Agent’s Office, in
immediately available funds, such Lender’s Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (a)
the average, computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Issuing Lender for federal funds
acquired by the Issuing Lender during each day included in such period, times
(b) the amount equal to such Lender’s Commitment Percentage of such Unpaid
Reimbursement Obligation, times (c) a fraction, the numerator of which
is the number of days that have elapsed from and including the date the Issuing
Lender paid the draft presented for honor or otherwise made payment until the
date on which such Lender’s Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to the Issuing Lender, and the
denominator of which is 365.  The
responsibility of the Issuing Lender to the Borrowers and the Lenders shall be
only to determine that the documents (including each draft) delivered under
each Letter of Credit in connection with such presentment shall be in
conformity in all material respects with such Letter of Credit.


 


§3.4.  Obligations  Absolute. 
The Borrowers’ respective obligations under this §3 shall be absolute
and unconditional under any and all circumstances and irrespective of the
occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which the
Borrowers may have or have had against the Issuing Lender, any Lender or any
beneficiary of a Letter of Credit.  The
Borrowers further agree with the Issuing Lender and the Revolving Credit
Lenders that the Issuing Lender and the Revolving Credit Lenders shall not be responsible
for, and the Borrowers’ Reimbursement Obligations under §3.2 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other


 


30

















party to which any Letter
of Credit may be transferred or any claims or defenses whatsoever of the
Borrowers against the beneficiary of any Letter of Credit or any such
transferee.  The Issuing Lender and the
Revolving Credit Lenders shall not 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.  The Borrowers agree that any action taken or
omitted by the Issuing Lender or any Revolving Credit Lender under or in connection
with each Letter of Credit and the related drafts and documents, if done in
good faith, shall be binding upon the Borrowers and shall not result in any
liability on the part of the Issuing Lender or any Revolving Credit Lender to
the Borrowers.


 


§3.5.  Reliance  by  Issuing  Lender.  To the extent
not inconsistent with §3.3, the Issuing Lender shall be entitled to rely, and
shall be fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document 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, independent accountants and other experts selected by the Issuing
Lender.


 


§4.  THE TERM LOAN.


 


§4.1.  Commitment  to  Lend.  Subject
to the terms and conditions set forth in this Credit Agreement, on the
Effective Date, each Term Loan Lender agrees to lend to the Borrowers its Term
Loan Percentage of the principal amount of $150,000,000.


 


§4.2.  The  Term  Notes.  The
Term Loan shall be evidenced by separate promissory notes of the Borrowers in
substantially the form of Exhibit A-3 hereto (each a “Term
Note”), dated the Effective Date (or such other date on which a Term
Loan Lender may become a party hereto in accordance with §19 hereof) and
completed with appropriate insertions. 
One Term Note shall be payable to the order of each Term Loan Lender in
a principal amount equal to such Lender’s Term Loan Percentage of the Term Loan
and representing the obligation of the Borrowers to pay to such Lender such
principal amount or, if less, the outstanding amount of such Lender’s Term Loan
Percentage of the Term Loan, plus interest accrued thereon, as set forth
below.  The Borrowers irrevocably
authorize each Term Loan Lender to make or cause to be made a notation on such
Lender’s Term Note Record reflecting the original principal amount of such
Lender’s Term Loan Percentage of the Term Loan and, at or about the time of
such Lender’s receipt of any principal payment on such Lender’s Term Note, an
appropriate notation on such Lender’s Term Note Record reflecting such
payment.  The aggregate unpaid amount
set forth on such Lender’s Term Note Record shall be prima  facie
evidence of the principal amount thereof owing and unpaid to such Lender, but
the failure to record, or any error in so recording, any such amount on such
Lender’s Term Note Record shall not affect the obligations of the Borrowers
hereunder or under any Term Note to make payments of principal of and interest
on any Term Note when due.


 


§4.3.  Scheduled  Installment  Payments
of  Principal  of  Term  Loan.  The
Borrowers jointly and severally promise to pay to the Administrative Agent for
the account of the Term Loan Lenders, in accordance with their respective Term
Loan Percentages, the principal amount of the Term Loan in (a) six (6)
consecutive annual installment payments or (b) in the event that the Term Loan
Maturity Date is changed in 


 


31

















 


accordance
with the definition thereof, four (4) consecutive annual installment payments,
in each case, each such payment equal to one percent (1%) of the notional
amount of the Term Loan, and due and payable on each anniversary of the
Effective Date, commencing on the first anniversary of the Effective Date, with
a final additional payment on the Term Loan Maturity Date in an amount equal to
the unpaid balance of the Term Loan.


 


§4.4.  Mandatory  Prepayments  of
Term  Loan.


 


§4.4.1.  Mandatory  Prepayments.


 


(a)                                  In the event that Net
Cash Proceeds received by the Borrowers and the Excluded Subsidiaries from
asset sales exceed $5,000,000 per annum (other than asset sales in the ordinary
course of business and sales permitted under §8.4.2(b)), the Borrowers will use
any such excess Net Cash Proceeds to pay down the Term Loan in the manner set
forth in §4.4.2.


 


(b)                                 In the event that,
after the Effective Date, any Borrower or any Excluded Subsidiary receives Net
Cash Proceeds from a permitted debt offering in excess of $100,000,000 in the
aggregate, the Borrowers shall use one-hundred percent (100%) of such excess
Net Cash Proceeds to pay down the Term Loan in the manner set forth in §4.4.2.


 


(c)                                  In the event that,
after the Effective Date, the Borrowers receive Net Equity Proceeds from Equity
Offerings in excess of $125,000,000 in the aggregate (other than from Capital
Stock issued as payment for Permitted Acquisitions and Capital Stock consisting
of options or other forms of equity-based compensation issued to employees,
consultants and directors in accordance with a bona fide compensation plan
approved by the Board of Directors of the Parent) the Borrowers shall use
fifty-percent (50%) of such excess Net Equity Proceeds to pay down the Term
Loan in the manner set forth in §4.4.2.


 


(d)                                 The Borrowers shall
use a percentage of Excess Operating Cash Flow in each fiscal year to pay down
the Term Loan in the manner set forth in §4.4.2, which shall be payable within
three (3) days of delivery of the year-end financial statements to the
Administrative Agent.  The applicable
percentage of Excess Operating Cash Flow is set forth in the table below
opposite the applicable ratio of Consolidated Total Funded Debt to Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on the last
day of the Borrowers’ fiscal year:


 


	
  Ratio of Consolidated Total
  Funded

  Debt to Consolidated EBITDA

  	
   

  	
  Percentage
  of Excess Operating Cash

  Flow

  	
   

  
	
  less than 3.00:1.00

  	
   

  	
  0

  	
  %

  
	
  greater than or equal to 3.00:1.00 and

  less than 3.50:1.00

  	
   

  	
  25

  	
  %

  
	
  greater than or equal to 3.50:1.00

  	
   

  	
  50

  	
  %

  



 


§4.4.2.  Application  of  Payments.  Each
prepayment of the Term Loan required by §4.4.1 shall be allocated among the
Term Loan Lenders in accordance with each such Lender’s Term Loan
Percentage.  Any prepayment of principal
of the Term 


 


32

















 


Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity.  No amount
prepaid or repaid with respect to the Term Loan may be reborrowed.  Any Term Loan Lender may decline to accept
any payments due to such Term Loan Lender pursuant to this §4.4 in which case
such declined payments shall be used to repay the Revolving Credit Loans (but
not reduce the Total Commitment) on a pro rata basis in accordance with each
Lender’s Commitment Percentage.


 


§4.5.  Optional  Prepayment  of
Term  Loan.  The Borrowers shall have the right
at any time to prepay the Term Notes on or before the Term Loan Maturity Date,
in whole, or in part, upon not less than three (3) Business Days’ prior written
notice to the Administrative Agent, without premium or penalty (other than the
obligation to reimburse the Term Loan Lenders and the Administrative Agent
pursuant to §5.12 hereof, or as otherwise stated herein), provided that
(a) each partial prepayment shall be in the principal amount of $1,000,000 or
an integral multiple of $500,000 thereof, and (b) each partial prepayment shall
be allocated among the Term Loan Lenders in accordance with such Lender’s Term
Loan Percentage.  Any prepayment of
principal of the Term Loan shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled installments of principal
due on the Term Loan in the inverse order of maturity.  No amount prepaid or repaid with respect to
the Term Loan may be reborrowed.


 


§4.6.  Interest  on  Term  Loan.  


 


§4.6.1.  Interest Rates.  Except
as otherwise provided in §5.6, the Term Loan shall bear interest during each
Interest Period relating to all or any portion of the Term Loan at the
following rates:


 


(a)                                  To the extent that
all or any portion of the Term Loan bears interest during such Interest Period
at the Base Rate, the Term Loan or such portion thereof shall bear interest
during such Interest Period at the Applicable Rate for Term Loans that are Base
Rate Loans as in effect from time to time.


 


(b)                                 To the extent that all
or any portion of the Term Loan bears interest during such Interest Period at
the Eurodollar Rate, the Term Loan or such portion thereof shall bear interest
during such Interest Period at the rate per annum equal to the Applicable Rate
for Term Loans that are Eurodollar Rate Loans as in effect from time to time.


 


The Borrowers jointly and severally promise
to pay interest on the Term Loan or any portion thereof outstanding during each
Interest Period in arrears on each Interest Payment Date applicable to such
Interest Period and on the Term Loan Maturity Date.  Any change in the interest rate resulting from a change in the
Base Rate is to be effective at the beginning of the day of such change in the
Base Rate.


 


§4.6.2.  Notification  by  Borrowers.  The
Borrowers shall notify the Administrative Agent, such notice to be irrevocable,
at least three (3) Eurodollar Business Days prior to the Drawdown Date of the
Term Loan (or any portion thereof)  if all or any portion of the Term Loan is
to bear interest at the Eurodollar Rate. 
The provisions of §5.11 and §5.12 shall apply mutatis  mutandis
with respect to all or any portion of the 


 


33

















 


Term Loan so
that the Borrowers may have the same interest rate options with respect to all
or any portion of the Term Loan as they would be entitled to with respect to
Revolving Credit Loans, provided, however, the Borrowers will
have no more than ten (10) different maturities of Eurodollar Rate Loans
(whether a portion of the Term Loan or Revolving Credit Loans) outstanding at
any time. In the event that the Borrowers fail to give the Administrative Agent
notice with respect to the continuation of any Eurodollar Rate Loan hereunder
within three (3) days prior to the expiration of the Interest Period relating
thereto, then such Eurodollar Rate Loan shall be converted to a Base Rate Loan.


 


§4.6.3.  Amounts,
etc.  Any
portion of the Term Loan bearing interest at the Eurodollar Rate relating to
any Interest Period shall be in the amount of $1,000,000 or an integral
thereof.  No Interest Period relating to
the Term Loan or any portion thereof bearing interest at the Eurodollar Rate
shall extend beyond the date on which any regularly scheduled installment
payment of the principal of the Term Loan is to be made unless a portion of the
Term Loan at least equal to such installment payment has an Interest Period
ending on such date  or is then bearing interest at the Base
Rate.


 


§5.  FEES; PAYMENTS; COMPUTATIONS; JOINT AND
SEVERAL LIABILITY; CERTAIN GENERAL PROVISIONS.


 


§5.1.  Fees.


 


(a)                                  Commitment
Fee.  The Borrowers jointly and severally in accordance with §5.9
agree (to the fullest extent permitted by law) to pay to the Administrative
Agent for the benefit of the Revolving Credit Lenders in accordance with their
respective Commitment Percentages a commitment fee (the “Commitment  Fee”)
calculated at the rate per annum equal to the Applicable Rate with respect to
the Commitment Fee as in effect from time to time on the average daily amount
during each calendar quarter or portion thereof from the Effective Date to the
Revolving Credit Maturity Date by which the Total Commitment minus the
sum of the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the outstanding amount of Revolving Credit Loans (including Swing Line
Loans) during such calendar quarter. 
The Commitment Fee shall be payable quarterly in arrears on the first
day of each calendar quarter for the immediately preceding calendar quarter commencing
on the first such date following the date hereof, with a final payment on the
Revolving Credit Maturity Date or any earlier date on which the Commitments
shall terminate.


 


(b)                                 Letter of Credit Fees.


 


(i) 
The Borrowers jointly and severally in the case of Letters of Credit
which are Financial L/Cs agree to pay, at the times specified in paragraph
(iii) hereof, a fee (a “Financial  L/C  Fee”) to the
Administrative Agent for the benefit of the Revolving Credit Lenders, equal to
the product of (A) the Letter of Credit Percentage multiplied  by (B)
the Maximum Drawing Amount of each Financial L/C on the date of calculation, to
be shared pro
rata by each of such Lenders in accordance with their respective
Commitment Percentages.


 


(ii) 
The Borrowers jointly and severally in the case of Performance L/Cs
agree to pay, at the times specified in paragraph (iii) hereof, a fee (a “Performance
L/C  Fee”) to the Administrative Agent for the benefit of the
Revolving Credit Lenders, equal to fifty 


 


34

















 


percent (50%) of the product of (A) the Letter of Credit Percentage multiplied
by (B) the Maximum Drawing Amount of each such Letter of Credit on the
date of calculation, to be shared pro rata by each of such Lenders in
accordance with their respective Commitment Percentages.


 


(iii) 
The Financial L/C Fee and Performance L/C Fee and the Issuance Fee (as
defined below) shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter and on the
Revolving Credit Maturity Date with respect to the average daily Maximum
Drawing Amount of Letters of Credit outstanding during such calendar quarter or
portion thereof.  In addition, the
Borrowers jointly and severally agree to pay an issuing fee to the Issuing Lender
for its account in an amount equal to one eighth of one percent (0.125%) per
annum of the Maximum Drawing Amount of each Letter of Credit issued by the
Issuing Lender, plus any customary issuance, amendment, negotiation or
document examination and other administrative fees of such Issuing Lender in
effect from time to time (the “Issuance  Fee”).


 


(c)                                  The Borrowers shall
also pay to the Administrative Agent for its own account and/or for the account
of the Syndication Agent, the Co-Arrangers and the Lenders, such other fees as
have been agreed to in writing from time to time by the Borrowers and the
Agents, each as set forth in separate letter agreements between the Borrowers
and the Agents.


 


§5.2.  Payments.


 


(a)                                  Payments  to  Administrative  Agent.  All payments of principal, interest,
Reimbursement Obligations, fees and any other amounts due hereunder or under
any of the other Loan Documents shall be made to the Administrative Agent, for
the respective accounts of the applicable Lenders ratably in accordance with
their respective Loan Percentages, the Issuing Lender and the Administrative
Agent, to be received at such Administrative Agent’s Office in immediately
available funds by 1:00 p.m. (Boston time) on any due date.  The Administrative Agent shall promptly
distribute such amounts to the applicable Lenders.


 


(b)                                 No  Offset,  etc.  All payments by the Borrowers hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter imposed or levied by
any jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrowers are compelled by law to make such
deduction or withholding.  Except as
otherwise provided in this §5.2, if any such obligation is imposed upon the
Borrowers with respect to any amount payable by them hereunder or under any of
the other Loan Documents, the Borrowers will pay to the Administrative Agent
for the account of the applicable Lenders or (as the case may be) the
Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the applicable Lenders or the Administrative
Agent to receive the same net amount which such Lenders or the Administrative
Agent would have received on such due date had no such obligation been imposed
upon the Borrowers. The Borrowers will deliver promptly to the Lender
certificates or other valid vouchers for all 


 


35

















 


taxes or other charges deducted from or paid with respect to payments
made by the Borrowers hereunder or under such other Loan Document.


 


(c)                                  Non-U.S.  Lenders.  Each Lender that is not a U.S. Person as
defined in Section 7701(a)(30) of the Code for federal income tax purposes
(a “Non-U.S.  Lender”) agrees that, if and to the extent it is
legally able to do so, it shall, prior to the first date on which any payment
is due to it hereunder, deliver to the Borrowers and the Administrative Agent
such certificates, documents or other evidence, as and when required by the
Code or Treasury Regulations issued pursuant thereto, including, (a) in the
case of a Non-U.S. Lender that is a “bank” for purposes of
Section 881(c)(3)(A) of the Code, two (2) duly completed copies of
Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as
the case may be, and any other certificate or statement of exemption required
by Treasury Regulations, establishing that, with respect to payments of
principal, interest or fees hereunder, such Non-U.S. Lender is (i) not subject
to United States federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Non-U.S. Lender of a trade or
business in the United States or (ii) totally exempt or partially exempt from
United States federal withholding tax under a provision of an applicable tax
treaty and (b) in the case of a Non-U.S. Lender that is not a “bank” for
purposes of Section 881(c)(3)(A) of the Code, a certificate in form and
substance reasonably satisfactory to the Administrative Agent and the Borrowers
and to the effect that (i) such Non-U.S. Lender is not a “bank” for purposes of
Section 881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and 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 any tax, securities law or other legal
requirements, (ii) is not a ten (10) percent shareholder for purposes of
Section 881(c)(3)(B) of the Code and (iii) is not a controlled
foreign corporation receiving interest from a related person for purposes of
Section 881(c)(3)(C) of the Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor
forms).  Each Lender agrees that it
shall, promptly upon a change of its lending office or the selection of any
additional lending office, to the extent the forms previously delivered by it
pursuant to this section are no longer effective, and promptly upon the
Borrowers’ or the Administrative Agent’s reasonable request after the
occurrence of any other event (including the passage of time) requiring the
delivery of a Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in
replacement of the forms previously delivered, deliver to the Borrowers and the
Administrative Agent, as applicable, if and to the extent it is properly
entitled to do so, a properly completed and executed Form W-8BEN, Form W-8ECI,
Form W-8 or W-9, as applicable (or any successor forms thereto).


 


(d)                                 The Borrowers shall
not be required to pay any additional amounts to any Non-U.S. Lender in respect
of United States federal withholding tax pursuant to §5.2(b) to the extent that
(i) the obligation to withhold such amounts existed on the date such Non-U.S.
Lender became a party to this Credit Agreement or, with respect to payments to
a different lending office designated by the Non-U.S. Lender as its applicable
lending office, the date such Non-U.S. Lender designated such new lending
office with respect to a Loan; or (ii) the obligation to pay such additional
amounts would not have arisen but for a failure by such Non-U.S. Lender to
comply with the provisions of paragraph (c) above.


 


36

















 


(e)                                  In the event that the
Borrowers are required to make such deduction or withholding as a result of the
fact that a Lender is a Non-U.S. Lender, such Lender shall use its reasonable
best efforts to transfer its Loans to an affiliate that is a U.S. Lender if
such transfer would have no adverse effect on such Lender or the Loans.


 


§5.3.  Computations.  Except as
otherwise expressly provided herein, all computations of interest, Commitment
Fees, Financial L/C Fees, Performance L/C Fees or other fees shall be based on
a 360-day year and paid for the actual number of days elapsed.  Computations of the interest on Base Rate
Loans shall be based on a 365/366- day year and paid for the actual number of
days elapsed.  Whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension.


 


§5.4.  Capital  Adequacy.  If
any Lender or the Administrative Agent shall have determined that, after the
date hereof, (a) the adoption of, or change in, any law, rule, regulation,
policy, guideline or directive (whether or not having the force of law)
regarding capital requirements for banks or bank holding companies or any
change in the interpretation or, application or administration thereof by any
governmental authority, central bank or comparable agency with appropriate
jurisdiction, or (b) compliance by such Lender or the Administrative Agent or
any corporation controlling such Lender or the Administrative Agent with any
law, governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) of any such entity regarding capital adequacy, in
either case, has or would have the effect of reducing the rate of return on
such Lender’s or the Administrative Agent’s commitment with respect to any
Loans to a level below that which such Lender or the Administrative Agent could
have achieved but for such adoption, change, or compliance (taking into
consideration such Lender’s or the Administrative Agent’s then existing
policies with respect to capital adequacy and assuming full utilization of such
entity’s capital) by any amount deemed by such Lender or (as the case may be)
the Administrative Agent to be material, then the Borrowers shall, within
thirty (30) days after being presented with a certificate in accordance with
§5.5, pay such Lender or (as the case may be) the Administrative Agent such
additional amount or amounts as will, in such Lender’s or (as the case may be)
the Administrative Agent’s reasonable determination, fairly compensate such
Lender or the Administrative Agent for such reduction in the return on capital.  Each Lender shall allocate such cost
increases among its customers in good faith and on an equitable basis.


 


§5.5.  Certificate.  A certificate
setting forth any additional amounts payable pursuant to §5.4 or §5.8 and a
reasonable explanation of such amounts which are due, submitted by any Lender
or the Administrative Agent to the Borrowers, shall be conclusive, absent
manifest error, that such amounts are due and owing.


 


§5.6.  Interest  After  Default.  Overdue
principal and (to the extent permitted by applicable law) interest on the Loans
and all other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand at a
rate per annum equal to two percent (2.00%) above the rate of interest
otherwise applicable to such Loans until such overdue amounts shall be paid in
full (after as well as before judgment).


 


37

















 


§5.7.  Interest  Limitation.  Notwithstanding
any other term of this Credit Agreement or the Notes, any other Loan Document
or any other document referred to herein or therein, the maximum amount of
interest which may be charged to or collected from any Person liable hereunder
or under the Notes by any Lender shall be absolutely limited to, and shall in
no event exceed, the maximum amount of interest which could lawfully be charged
or collected by such Lender under applicable laws (including, to the extent
applicable, the provisions of §5197 of the Revised Statutes of the United
States of America, as amended, 12 U.S.C. §85).


 


§5.8.  Additional  Costs,  Etc.  If
any present or future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and interpretations thereof
by any competent court or by any governmental or other regulatory body or
official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender, the Issuing Lender or
the Administrative Agent by any central bank or other fiscal, monetary or other
authority (whether or not having the force of law), shall:


 


(a)                                  impose on any Lender,
the Issuing Lender or the Administrative Agent any tax, levy, impost, duty,
charge, fees, deduction or withholdings of any nature or requirements with
respect to this Credit Agreement, the other Loan Documents, the Loans, such
Lender’s Commitment, the Letters of Credit or any class of loans or commitments
or letters of credit of which any of the Loans, the Commitment or the Letters
of Credit forms a part (other than taxes based upon or measured by the income
or profits of such Lender, the Issuing Lender or the Administrative Agent), or


 


(b)                                 materially change the
basis of taxation (except for changes in taxes on income or profits) of
payments to any Lender of the principal of or the interest on any Loans or any
other amounts payable to any Lender, the Issuing Lender or the Administrative
Agent under this Credit Agreement or any of the other Loan Documents, or


 


(c)                                  impose or increase or
render applicable (other than to the extent specifically provided for elsewhere
in this Credit Agreement) any special deposit, reserve, assessment, liquidity,
capital adequacy or other similar requirements (whether or not having the force
of law) against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any Lender
or the Issuing Lender, or


 


(d)                                 impose on any Lender,
the Issuing Lender or the Administrative Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan Documents,
any Letters of Credit, the Loans, such Lender’s Commitment, or any class of
loans, letters of credit or commitments of which any of the Loans or such
Lender’s Commitment forms a part, and the result of any of the foregoing is:


 


(e)                                  to increase the cost
to any Lender or the Issuing Lender of making, funding, issuing, renewing,
extending or maintaining the Loans, such Lender’s Commitment or any Letters of
Credit; or


 


38

















 


(f)                                    to reduce the
amount of principal, interest, Reimbursement Obligation, fees or other amount
payable to such Lender, the Issuing Lender or the Administrative Agent
hereunder on account of such Lender’s Commitment, the Loans, or drawings under
the Letters of Credit, or


 


(g)                                 to require such
Lender, the Issuing Lender or the Administrative Agent to make any payment or
to forego any interest or Reimbursement Obligation other sum payable hereunder,
the amount of which payment or foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross amount of any sum receivable
or deemed received by such Lender, the Issuing Lender or the Administrative
Agent from the Borrowers hereunder,


 


then, and in each such case, the Borrowers
will, upon demand made by such Lender, the Issuing Lender or (as the case may
be) the Administrative Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Lender, the Issuing Lender or the
Administrative Agent such additional amounts as will be sufficient to
compensate such Lender, the Issuing Lender or the Administrative Agent for such
additional cost, reduction, payment or foregone interest or Reimbursement
Obligation or other sum (after such Lender, the Issuing Lender or (as the case
may be) the Administrative Agent shall have allocated the same fairly and
equitably among all customers of any class generally affected thereby).


 


§5.9.  Concerning  Joint  and  Several
Liability  of  the  Borrowers.


 


(a)                                  Each of the Borrowers
is accepting joint and several liability for all of the Obligations hereunder
and under the other Loan Documents in consideration of the financial
accommodations to be provided by the Agents, the Issuing Lender and the Lenders
under this Credit Agreement, for the mutual benefit, directly and indirectly,
of each of the Borrowers and in consideration of the undertakings of each other
Borrower to accept joint and several liability for the Obligations of the
Borrowers.


 


(b)                                 Each of the Borrowers,
jointly and severally, hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several liability with
the other Borrowers with respect to the payment and performance of all of the
Obligations of the Borrowers (including, without limitation, any Obligations
arising under this §5.9), it being the intention of the parties hereto that all
of the Obligations shall be the joint and several obligations of each of the
Borrowers without preferences or distinction among them.


 


(c)                                  If and to the extent
that any of the Borrowers shall fail to make any payment with respect to any of
the Obligations as and when due or to perform any of the Obligations in
accordance with the terms thereof, then in each such event the other Borrowers
will make such payment with respect to, or perform, such Obligation.


 


(d)                                 The Obligations of
each of the Borrowers under the provisions of this §5.9 constitute full
recourse obligations of each such Borrower enforceable against each such
Borrower to the full extent of its properties and assets, to the fullest extent
permitted by applicable law, irrespective of the validity, regularity or enforceability
of this Credit Agreement against any other Borrower or any other circumstance
whatsoever.


 


39

















 


(e)                                  Except as otherwise
expressly provided in this Credit Agreement, each of the Borrowers, to the fullest
extent permitted by applicable law, hereby waives notice of acceptance of its
joint and several liability, notice of any Loans made under this Credit
Agreement, notice of any action at any time taken or omitted by the Agents, the
Issuing Lender or the Lenders under or in respect of any of the Obligations,
and, generally, to the extent permitted by applicable law, all demands, notices
and other formalities of every kind in connection with this Credit
Agreement.  Each Borrower, to the
fullest extent permitted by applicable law, hereby waives all defenses which
may be available by virtue of any valuation, stay, moratorium law or other
similar law now or hereafter in effect, any right to require the marshaling of
assets of the Borrowers and any other entity or Person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally.  Each of the Borrowers, to
the fullest extent permitted by applicable law, hereby assents to, and waives
notice of, any extension or postponement of the time for the payment of any of
the Obligations, the acceptance of any payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Lenders, the Agents or the Issuing Lender at any time or
times in respect of any default by any of the Borrowers in the performance or
satisfaction of any term, covenant, condition or provision of this Credit
Agreement, any and all other indulgences whatsoever by the Lenders, the Agents
or the Issuing Lender in respect of any of the Obligations, and the taking,
addition, substitution or release, in whole or in part, at any time or times,
of any security for any of the Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers.  Without limiting the generality of the
foregoing, to the fullest extent permitted by law, each of the Borrowers
assents to any other action or delay in acting or failure to act on the part of
the Lenders, the Agents or the Issuing Lender with respect to the failure by
any of the Borrowers to comply with any of its respective Obligations
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the provisions of this §5.9,
afford grounds for terminating, discharging or relieving any of the Borrowers,
in whole or in part, from any of its Obligations under this §5.9, it being the
intention of each of the Borrowers that, so long as any of the Obligations
hereunder remain unsatisfied, the Obligations of such Borrowers under this §5.9
shall not be discharged except by performance and then only to the extent of
such performance.  The Obligations of
each of the Borrowers under this §5.9 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation,
re-construction or similar proceeding with respect to any of the Borrowers, the
Agents, the Issuing Lender or the Lenders. 
The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any of the Borrowers, the Agents, the
Issuing Lender or the Lenders.


 


(f)                                    To the extent any
Borrower makes a payment hereunder in excess of the aggregate amount of the
benefit received by such Borrower in respect of the extensions of credit under
the Credit Agreement (the “Benefit  Amount”), then such Borrower,
after the payment in full, in cash, of all of the Obligations, shall be
entitled to recover from each other Borrower such excess payment, pro  rata,
in accordance with the ratio of the Benefit Amount received by each such other
Borrower to the total Benefit Amount received by all Borrowers, and the right
to such recovery shall be deemed to be an asset and property of such Borrower
so funding; provided, that each of the Borrowers hereby agrees that it
will not enforce any of its rights of contribution or subrogation against the
other 


 


40

















 


Borrowers with respect to any liability incurred by it hereunder or
under any of the other Loan Documents, any payments made by it to any of the
Lenders or the Administrative Agent with respect to any of the Obligations or
any collateral security therefor until such time as all of the Obligations have
been irrevocably paid in full in cash. 
Any claim which any Borrower may have against any other Borrower with
respect to any payments to the Lenders or the Administrative Agent hereunder or
under any other Loan Document are hereby expressly made subordinate and junior
in right of payment, without limitation as to any increases in the Obligations
arising hereunder or thereunder, to the prior payment in full of the
Obligations and, in the event of any insolvency, bankruptcy, receivership,
liquidation, reorganization or other similar proceeding under the laws of any
jurisdiction relating to any Borrower, its debts or its assets, whether
voluntary or involuntary, all such Obligations shall be paid in full before any
payment or distribution of any character, whether in cash, securities or other
property, shall be made to any other Borrower therefor.


 


(g)                                 Each of the Borrowers
hereby agrees that it will not enforce any of its rights of contribution or
subrogation against the other Borrowers with respect to any liability incurred
by it hereunder or under any of the other Loan Documents, any payments made by
it to any of the Lenders, the Issuing Lender or either Agent with respect to
any of the Obligations or any collateral security therefor until such time as
all of the Obligations have been irrevocably paid in full in cash.  Any claim which any Borrower may have
against any other Borrower with respect to any payments to the Lenders, the
Issuing Lender or either Agent hereunder or under any other Loan Document are
hereby expressly made subordinate and junior in right of payment, without
limitation as to any increases in the Obligations arising hereunder or
thereunder, to the prior payment in full of the Obligations and, in the event
of any insolvency, bankruptcy, receivership, liquidation, reorganization or
other similar proceeding under the laws of any jurisdiction relating to any
Borrower, its debts or its assets, whether voluntary or involuntary, all such
Obligations shall be paid in full before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to any
other Borrower therefor.


 


(h)                                 Each of Borrowers
hereby agrees that the payment of any amounts due with respect to the
Indebtedness owing by any Borrower to any other Borrower is hereby subordinated
to the prior payment in full in cash of the Obligations.  Each Borrower hereby agrees that after the
occurrences and during the continuance of any Default or Event of Default, such
Borrower will not demand, sue for or otherwise attempt to collect any
Indebtedness of any other Borrower owing to such Borrower until the Obligations
shall have been paid in full in cash. 
If, notwithstanding the foregoing sentence, such Borrower shall collect,
enforce or receive any amounts in respect of such Indebtedness before payment
in full in cash of the Obligations, such amounts shall be collected, enforced,
received by such Borrower as trustee for the Administrative Agent and be paid
over to the Administrative Agent for the pro rata accounts of the relevant Lenders
(in accordance with each such Lender’s Loan Percentage) to be applied to repay
(or be held as security for the repayment of) the Obligations.


 


(i)                                     The provisions of
this §5.9 are made for the benefit of the Agents, the Issuing Lender and the
Lenders and their successors and assigns, and may be enforced in good faith by
them from time to time against any or all of the Borrowers as often as the
occasion therefor may arise and without requirement on the part of the Agents,
the 


 


41

















 


Issuing Lender or the Lenders first to marshal any of their claims or
to exercise any of their rights against any other Borrower or to exhaust any
remedies available to them against any other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations hereunder or to
elect any other remedy.  The provisions
of this §5.9 shall remain in effect until all of the Obligations shall have
been paid in full or otherwise fully satisfied.  If at any time, any payment, or any part thereof, made in respect
of any of the Obligations, is rescinded or must otherwise be restored or
returned by the Agents, the Issuing Lender or the Lenders upon the insolvency,
bankruptcy or reorganization of any of the Borrowers or is repaid in good faith
settlement of a pending or threatened avoidance claim, or otherwise, the
provisions of this §5.9 will forthwith be reinstated in effect, as though such
payment had not been made.


 


(j)                                     Each of the
Borrowers hereby appoints the Parent, and the Parent hereby agrees, to act as
its representative and authorized signor with respect to any notices, demands,
communications or requests under this Credit Agreement or the other Loan
Documents, including, without limitation, with respect to Loan and Letter of
Credit Requests and Compliance Certificates and pursuant to §21 of this Credit
Agreement.


 


(k)                                  It is the intention
and agreement of the Borrowers and the Lenders that the obligations of the
Borrowers under this Credit Agreement shall be valid and enforceable against
the Borrower to the maximum extent permitted by applicable law.  Accordingly, if any provision of this Credit
Agreement creating any obligation of the Borrowers in favor of the Lenders
shall be declared to be invalid or unenforceable in any respect or to any extent,
it is the stated intention and agreement of the Borrowers and the Lenders that
any balance of the obligation created by such provision and all other
obligations of the Borrowers to the Lenders created by other provisions of this
Credit Agreement shall remain valid and enforceable.  Likewise, if by final order a court of competent jurisdiction
shall declare any sums which the Lenders may be otherwise entitled to collect
from the Borrowers under this Credit Agreement to be in excess of those
permitted under any law (including any federal or state fraudulent conveyance
or like statute or rule of law) applicable to the Borrower’s obligations under
this Credit Agreement, it is the stated intention and agreement of the
Borrowers and the Lenders that all sums not in excess of those permitted under
such applicable law shall remain fully collectible by the Lenders from the
Borrowers.


 


§5.10.  Currency  of  Account.  All
of  the  Loans  and  Letters  of  Credit
hereunder  shall  be  denominated  and  payable
in  Dollars.  If, for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
currency (the “first  currency”) into any other currency (the “second
currency”) the conversion shall be made at the Spot Rate of exchange of
the Administrative Agent (as conclusively determined by such Administrative
Agent absent manifest error) on the Business Day preceding the day on which the
final judgment is given.  If, however,
on the Business Day following receipt by the Administrative Agent in the second
currency of any sum adjudged to be due hereunder (or any proportion thereof)
the Administrative Agent purchases the first currency with the amount of the
second currency so received and the first currency so purchased falls short of
the sum originally due hereunder in the first currency (or the same proportion
thereof) the Borrowers, shall, as a separate obligation and notwithstanding any
judgment, pay to the Administrative Agent in the first currency an amount equal
to such shortfall.


 


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§5.11.  Election  of  Eurodollar  Rate;
Notice  of  Election;  Interest  Periods;
Minimum  Amounts.  


 


(a)                                  At the Borrowers’
option, so long as no Default or Event of Default has occurred and is then
continuing, the Borrowers may (i) elect to convert any Base Rate Loan or a
portion thereof to a Eurodollar Rate Loan, (ii) at the time of any Loan and
Letter of Credit Request, specify that such requested Loan shall be a
Eurodollar Rate Loan, or (iii) upon expiration of the applicable Interest
Period, elect to maintain an existing Eurodollar Rate Loan as such, provided
that the Borrowers give notice to the Administrative Agent pursuant to §5.11(b)
hereof.  Upon determining any Eurodollar
Rate, the Administrative Agent shall forthwith provide notice thereof to the
Borrowers and each Lender, and each such notice to the Borrowers shall be
considered prima  facie correct and binding, absent manifest
error.


 


(b)                                 Three (3) Eurodollar
Business Days prior to the making of any Eurodollar Rate Loan or the conversion
of any Base Rate Loan to a Eurodollar Rate Loan, or, in the case of an
outstanding Eurodollar Rate Loan, the expiration date of the applicable
Interest Period, the Borrowers shall give written, telex or telecopy notice
received by the Administrative Agent not later than 11:00 a.m. (Boston time) of
their election pursuant to §5.11(a). 
Each such notice delivered to the Administrative Agent shall specify the
aggregate principal amount of the Loans to be borrowed or maintained as or
converted to Eurodollar Rate Loans and the requested duration of the Interest
Period that will be applicable to such Eurodollar Rate Loan, and such notice
shall be irrevocable and binding upon the Borrowers.  If the Borrowers shall fail to give the Administrative Agent
notice of their election hereunder together with all of the other information
required by this §5.11(b) with respect to any Loan, whether at the end of an
Interest Period or otherwise, such Loan shall be deemed a Base Rate Loan, and,
if such Loan is an existing Eurodollar Rate Loan, shall be automatically
converted to a Base Rate Loan on the last day of the Interest Period relating
thereto.  No Eurodollar Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the Interest Period relating thereto.  The Administrative Agent shall promptly notify the Lenders in
writing (or by telephone confirmed in writing or by telecopy) of such election
by the Borrowers hereunder.


 


(c)                                  Notwithstanding
anything herein to the contrary, the Borrowers may not specify an Interest
Period that would extend beyond the Revolving Credit Maturity Date, in the case
of Revolving Credit Loans, or the Term Loan Maturity Date, in the case of Term
Loans.


 


(d)                                 In no event shall the
Borrowers have more than ten (10) different maturities of borrowings of
Eurodollar Rate Loans outstanding at any time.


 


§5.12.  Eurodollar  Indemnity.  The
Borrowers agree to indemnify the Lenders and the Administrative Agent and to
hold them harmless from and against any reasonable loss, cost or expense
(including loss of anticipated profits) that the Lenders and the Administrative
Agent may sustain or incur as a consequence of (a) default by the Borrowers in
payment of the principal amount of or any interest on any Eurodollar Rate Loans
as and when due and payable, including any such loss or expense arising from
interest or fees payable by any Lender or the Administrative Agent to lenders
of funds 


 


43

















 


obtained by it
in order to maintain its Eurodollar Rate Loans, (b) default by the Borrowers in
making a borrowing or conversion after the Borrowers have given (or are deemed
to have given) notice pursuant to §2.6 or §5.11 and (c) the making of any
payment of a Eurodollar Rate Loan or the making of any conversion of any such
Eurodollar Rate Loan to a Base Rate Loan on a day that is not the last day of
the applicable Interest Period with respect thereto, including interest or fees
payable by such Lender to lenders of funds obtained by it in order to maintain
any such Loans or upon a transfer of interest in Eurodollar Rate Loans to an
Acceding Lender pursuant to §19(g).


 


§5.13.  Illegality;  Inability  to  Determine
Eurodollar  Rate.  Notwithstanding any other
provision of this Credit Agreement if (a) any present or future law,
regulation, treaty or directive or the interpretation or application thereof
shall make it unlawful for any Lender to make or maintain Eurodollar Rate
Loans, or (b) if any Lender or the Administrative Agent, as applicable shall
reasonably determine with respect to Eurodollar Rate Loans that (i) by reason
of circumstances affecting any Eurodollar interbank market, adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate which
would otherwise be applicable during any Interest Period, or (ii) deposits of
Dollars in the relevant amount for the relevant Interest Period are not
available to such Lender or the Administrative Agent in any Eurodollar
interbank market, or (iii) the Eurodollar Rate does not or will not accurately
reflect the cost to such Lender or the Administrative Agent of obtaining or
maintaining the applicable Eurodollar Rate Loans during any Interest Period,
then such Lender or the Administrative Agent shall promptly give telephonic,
telex or cable notice of such determination to the Borrowers (which notice
shall be conclusive and binding upon the Borrowers).  Upon such notification by such Lender or the Administrative
Agent, the obligation of the Lenders and the Administrative Agent to make
Eurodollar Rate Loans shall be suspended until the Lenders or the
Administrative Agent, as the case may be, determine that such circumstances no
longer exist, and to the extent permitted by law the outstanding Eurodollar
Rate Loans shall continue to bear interest at the applicable rate based on the
Eurodollar Rate until the end of the applicable Interest Period, and thereafter
shall be deemed converted to Base Rate Loans in equal principal amounts of such
former Eurodollar Rate Loans.  The
Borrowers hereby agree promptly to pay to the Administrative Agent, for the
account of the applicable Lenders or (as the case may be) the Administrative
Agent, upon demand by such Lenders or the Administrative Agent, any additional
amounts necessary to compensate such Lenders for any costs incurred in making
any conversion in accordance with this §5.13, including any interest or fees
payable by such Lenders or the Administrative Agent to lenders of funds
obtained in order to make or maintain its Eurodollar Rate Loans hereunder.


 


§6.  REPRESENTATIONS AND WARRANTIES.  The
Borrowers jointly and severally represent and warrant to the Lenders, the
Issuing Lender and the Agents that, on and as of the date of this Credit
Agreement (any disclosure on a schedule pursuant to this §6 shall be deemed to
apply to all relevant representations and warranties, regardless of whether
such schedule is referenced in each relevant representation):


 


§6.1.  Corporate  Authority.


 


(a)                                  Incorporation;  Good  Standing.  Each of the Borrowers (i) is a corporation
(or similar business entity) duly organized, validly existing and in good
standing or in current status under the laws of its respective jurisdiction of
organization, 


 


44

















 


(ii) has all requisite corporate (or the equivalent company or
partnership) power to own its property and conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing as a
foreign corporation (or similar business entity) and is duly authorized to do
business in each jurisdiction in which its property or business as presently
conducted or contemplated makes such qualification necessary except where a
failure to be so qualified would not have a material adverse effect on the
business, assets or financial condition of such Borrower.


 


(b)                                 Authorization.  The execution, delivery and performance of
the Loan Documents and the transactions contemplated hereby and thereby (i) are
within the corporate (or the equivalent company or partnership) authority of
each of the Borrowers, (ii) have been duly authorized by all necessary
corporate (or other) proceedings, (iii) do not conflict with or result in any material
breach or contravention of any provision of law, statute, rule or regulation to
which any of the Borrowers is subject or any judgment, order, writ, injunction,
license or permit applicable to any of the Borrowers so as to materially
adversely affect the assets, business or any activity of the Borrowers, and
(iv) do not conflict with any provision of the corporate charter, articles or
bylaws (or equivalent other company or partnership documents) of the Borrowers
or any agreement or other instrument binding upon the Borrowers, including,
without limitation, the Indenture.


 


(c)                                  Enforceability.  The execution, delivery and performance of
the Loan Documents will result in valid and legally binding obligations of the
Borrowers enforceable against each in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors’ rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief or other equitable remedy is subject to the discretion of the court
before which any proceeding therefor may be brought.


 


§6.2.  Governmental  Approvals.  The
execution, delivery and performance by the Borrowers of the Loan Documents and
the transactions contemplated hereby and thereby do not require any approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained.


 


§6.3.  Title  to  Properties;  Leases.  The
Borrowers own all of the assets reflected in the consolidated balance sheets as
at the Balance Sheet Date or acquired since that date (except property and
assets sold or otherwise disposed of in the ordinary course of business since
that date), subject to no mortgages, Capitalized Leases, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.


 


§6.4.  Financial  Statements;  Solvency.


 


(a)                                  Financial  Statements.  There
has been furnished to the Lenders (i) consolidated balance sheets of the Parent
and its Subsidiaries dated the Balance Sheet Date and consolidated statements
of operations for the fiscal year then ended, certified by Pricewaterhouse
Coopers LLP or an independent accounting firm of national standing acceptable
to the Lenders (the “Accountants”). 
Said balance sheets and statements of operations have been prepared in
accordance with GAAP, fairly present in all material 


 


45

















 


respects the financial condition of the Parent and its Subsidiaries, on
a consolidated basis as at the close of business on the date thereof and the
results of operations for the period then ended.  There are no contingent liabilities of the Borrowers as of such
dates involving material amounts, known to the officers of the Borrowers which
have not been disclosed in said balance sheets and the related notes thereto,
as the case may be.


 


(b)                                 Solvency.  The Borrowers (both before and
after giving effect to the transactions contemplated by this Credit Agreement,
including the issuance of the Senior Subordinated Debt) are and will be solvent
(i.e., they have assets having a fair value in excess of the amount required to
pay their probable liabilities on their existing debts as they become absolute
and matured) and have, and expect to have, the ability to pay their debts from
time to time incurred in connection therewith as such debts mature.


 


§6.5.  No  Material  Changes,  Etc.  Since
the Balance Sheet Date there have occurred no material adverse changes in the
financial condition or business of the Borrowers as shown on or reflected in
the consolidated balance sheet of the Borrowers as at the Balance Sheet Date or
the consolidated statements of income for the periods then ended other than
changes in the ordinary course of business which have not had a material
adverse effect either individually or in the aggregate on the business or
financial condition of the Borrowers. 
Since the Balance Sheet Date there has not been any Restricted Payment.


 


§6.6.  Permits,  Franchises,  Patents,  Copyrights,
Etc.  Each of the Borrowers possesses all material
franchises, patents, copyrights, trademarks, trade names, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of its
business substantially as now conducted without known conflict with any rights
of others.


 


§6.7.  Litigation.  Except as shown on Schedules
6.7 and 6.16 hereto, there are no actions, suits, proceedings or
investigations of any kind pending or, to the knowledge of the Borrowers,
threatened against any Borrower before any court, tribunal or administrative
agency or board which, if adversely determined, might, either in any case or in
the aggregate materially adversely affect the properties, assets, financial
condition or business of the Borrowers, considered as a whole, or materially
impair the right of the Borrowers, considered as a whole, to carry on business
substantially as now conducted, or result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet or which question the validity of
any of the Loan Documents, or any action taken or to be taken pursuant hereto
or thereto and none of the scheduled matters individually or in the aggregate
could reasonably be expected to have a material adverse effect on the
properties, assets, financial condition or business of the Borrowers as a
whole.


 


§6.8.  No  Materially  Adverse  Contracts,
Etc.  None of the Borrowers is subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Borrowers’ officers has or is expected
in the future to have a materially adverse effect on the business, assets or
financial condition of the Borrowers as a whole.  None of the Borrowers is a party to any contract or agreement
which in the judgment of the Borrowers’ officers has or is expected to have any
materially adverse effect on the business of the Borrowers as a whole, except
as otherwise reflected in adequate reserves.


 


46

















 


§6.9.  Compliance  With  Other  Instruments,
Laws,  Etc.  None of the Borrowers is violating any
provision of its charter documents or by-laws (or equivalent company documents)
or any agreement or instrument by which any of them may be subject or by which
any of them or any of their properties may be bound or any decree, order,
judgment, or any statute, license, rule or regulation, in a manner which could
result in the imposition of substantial penalties or materially and adversely
affect the financial condition, properties or business of any of the Borrowers.


 


§6.10.  Tax  Status.  The
Borrowers have made or filed all United States federal and state income and all
Canadian federal and provincial or territorial income, as applicable, and all
other tax returns, reports and declarations required by any jurisdiction to
which any of them are subject (unless and only to the extent that any Borrower
has set aside on its books provisions reasonably adequate for the payment of
all unpaid and unreported taxes); and have paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply to the extent
required in accordance with GAAP.  All
tax returns, report and declarations required by any jurisdiction accurately
disclose (except for discrepancies which are not material) the amount of tax
payable by the Borrowers in the relevant jurisdiction except for the amounts
being contested in good faith by the Borrowers.  There are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the
Borrowers know of no basis for any such claim.


 


§6.11.  No  Event  of  Default.  No
Default or Event of Default has occurred and is continuing.


 


§6.12.  Holding  Company  and
Investment  Company  Acts.  None of the
Borrowers is a “holding company”, or a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company”, as such terms are defined
in the Public Utility Holding Company Act of 1935; nor is any of them an
“investment company”, or an “affiliated company” or a “principal underwriter”
of an “investment company”, as such terms are defined in the Investment Company
Act of 1940, as amended.


 


§6.13.  Absence  of  Financing  Statements,
Etc.  Except with respect to Permitted Liens and as set
forth on Schedule  8.2(f) hereto, there is no effective financing
statement, security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records, registry, or other public
office, which covers, affects or gives notice of any present or possible future
lien on, or security interest in, any assets or property of any of the
Borrowers or rights thereunder.


 


§6.14.  Employee  Benefit  Plans.


 


(a)                                  In General.  Each
Employee Benefit Plan and each Guaranteed Pension Plan has been maintained and
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the bonding of
fiduciaries and other Persons handling plan funds as required by §412 of
ERISA.  Each 


 


47

















 


Borrower has heretofore delivered to the Administrative Agent the most
recently completed annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under §103(d) of ERISA, with
respect to each Guaranteed Pension Plan.


 


(b)                                 Terminability  of  Welfare
Plans.  No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of §3(1) or
§3(2)(B) of ERISA, provides benefit coverage subsequent to termination of
employment, except as required by Title I, Part 6 of ERISA or the
applicable state insurance laws.  A
Borrower may terminate each such Plan at any time (or at any time subsequent to
the expiration of any applicable bargaining agreement) in the discretion of
such Borrower without liability to any Person other than for claims arising
prior to termination.


 


(c)                                  Guaranteed  Pension  Plans.  Each contribution required to be made to a
Guaranteed Pension Plan, whether required to be made to avoid the incurrence of
an accumulated funding deficiency, the notice or lien provisions of §302(f) of
ERISA, or otherwise, has been timely made. 
No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed Pension
Plan, and no Borrower nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan pursuant
to §307 of ERISA or §401(a)(29) of the Code. 
No liability to the PBGC (other than required insurance premiums, all of
which have been paid) has been incurred by any Borrower or any ERISA Affiliate
with respect to any Guaranteed Pension Plan and there has not been any ERISA
Reportable Event (other than an ERISA Reportable Event as to which the
requirement of 30 days notice has been waived), or any other event or condition
which presents a material risk of termination of any Guaranteed Pension Plan by
the PBGC.  Based on the latest valuation
of each Guaranteed Pension Plan (which in each case occurred within twelve
months of the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities of
all such Guaranteed Pension Plans within the meaning of §4001 of ERISA did not
exceed the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.


 


(d)                                 Multiemployer  Plans. 
No Borrower nor any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under §4201 of
ERISA or as a result of a sale of assets described in §4204 of ERISA.  No Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent under
and within the meaning of §4241 or §4245 of ERISA or is at risk of entering reorganization
or becoming insolvent, or that any Multiemployer Plan intends to terminate or
has been terminated under §4041A of ERISA.


 


§6.15.  Use  of  Proceeds.  The
proceeds of the Loans shall be used (a) to refinance the existing Indebtedness
of the Borrowers under the Existing Credit Agreement, (b) to fund Permitted
Acquisitions, (c) for Capital Expenditures and (d) for working capital and
other general corporate purposes.  No
proceeds of the Loans are to be used, and no portion of any Letter of Credit is
to be obtained, in any way that will violate Regulations U or X of the Board of
Governors of the Federal Reserve System. 
The Borrowers will obtain Letters of Credit solely for general corporate
purposes.


 


48

















 


§6.16.  Environmental  Compliance.  The
Borrowers have taken all necessary steps to investigate the past and present
condition and usage of the Real Properties and the operations conducted thereon
and, based upon such diligent investigation, have determined that, except as
shown on Schedule 6.16:


 


(a)                                  none of the Borrowers
or Excluded Subsidiaries, nor any operator of their properties, is in
violation, or alleged violation, of any judgment, decree, order, law, permit,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under RCRA, CERCLA, the Superfund Amendments
and Reauthorization Act of 1986 (“SARA”), the Federal Clean Water Act,
the Federal Clean Air Act, the Toxic Substances Control Act, or any state or
local or Canadian federal or provincial statute, regulation, ordinance, order
or decree relating to health, safety or the environment (the “Environmental
Laws”), which violation would have a material adverse effect on the
business, assets or financial condition of the Parent and its Subsidiaries on a
consolidated basis; and


 


(b)                                 (i) except where it
would not have a material adverse effect on the business, assets or financial
condition of the Borrowers on a consolidated basis, no portion of the Real
Property has been used for the handling, processing, storage or disposal of
Hazardous Substances and no underground tank or other underground storage
receptacle for Hazardous Substances is located on such properties; (ii) in the
course of any activities conducted by the Borrowers, or, to the Borrowers’
knowledge by any other operators of the Real Property, no Hazardous Substances
have been generated or are being used on such properties; and (iii) to the
Borrowers’ knowledge, there have been no unpermitted Releases or threatened
Releases of Hazardous Substances on, upon, into or from the Real Property.


 


§6.17.  Perfection  of  Security  Interests.  All
filings, assignments, pledges and deposits of documents or instruments have
been made or will be made and all other actions have been taken or will be
taken that are necessary under applicable law, or reasonably requested by the
Administrative Agent or any of the Lenders, to establish and perfect the
Administrative Agent’s security interests (as collateral agent for the Lenders
and the Agents) in the Collateral to the extent required pursuant to §12.  The Collateral and the Administrative
Agent’s rights (as collateral agent for the Lenders and the Agents) with
respect to the Collateral are not subject to any setoff, claims, withholdings
or other defenses, except for Permitted Liens. 
The Borrowers are the owners of the Collateral free from any lien,
security interest, encumbrance and any other claim or demand, except for Permitted
Liens.


 


§6.18.  Certain  Transactions.  Except as
set forth on Schedule 6.18 or as permitted in §8.3, and
except for arm’s length transactions pursuant to which the Borrowers make
payments in the ordinary course of business upon terms no less favorable than
the Borrowers could obtain from third parties, none of the officers, directors,
or employees of the Borrowers are presently a party to any transaction with the
Borrowers (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrowers, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee 


 


49

















 


or partner,
the value of such transaction, when aggregated with all other such transactions
occurring during the term of this Credit Agreement, exceeds $5,000,000.


 


§6.19.  Subsidiaries.  Schedule  1 (as updated from time to time pursuant to §7.19) sets
forth a complete and accurate list of the Parent’s Subsidiaries, including the
name of each Subsidiary and its jurisdiction of incorporation, together with
the number of authorized and outstanding shares of Capital Stock of each
Subsidiary.  Each Subsidiary is directly
or indirectly wholly-owned by the Parent.  The Parent or a Subsidiary of the Parent has good and marketable
title to all of the shares it purports to own of the Capital Stock of each
Subsidiary, free and clear in each case of any lien.  All such shares of Capital Stock have been duly issued and are
fully paid and non-assessable.  Each
Subsidiary of the Parent, other than the Excluded Subsidiaries, is a Borrower
hereunder.


 


§6.20.  Capitalization.


 


(a)                                  Capital  Stock.  As of January 21, 2003, the authorized
Capital Stock of the Parent consists of (i) 100,000,000 shares of Class A
common stock (par value $.01 per share) authorized of which 22,739,148 shares
are outstanding, (ii) 1,000,000 shares of Class B common stock (par value $.01
per share) authorized of which 988,200 shares are outstanding, and (iii)
1,000,000 shares of preferred stock (par value $.01 per share) authorized of
which 55,750 shares of Series A Preferred Stock are outstanding and held by the
Series A Holders.  All such outstanding
shares of Capital Stock have been duly issued and are fully paid and
non-assessable.


 


(b)                                 Options, Etc.  As of the Effective Date, except as set
forth on Schedule 6.20(b), no Person has outstanding any
rights (either pre-emptive or other) or options (except for the options for
common stock or other forms of equity-based compensation issued to employees,
consultants or directors in accordance with a bona fide compensation plan
approved by the Board of Directors of the Parent) to subscribe for or purchase
from the Parent, or any warrants or other agreements providing for or requiring
the issuance by the Parent of, any capital stock or any securities convertible
into or exchangeable for its capital stock.


 


§6.21.  True  Copies  of  Charter
and  Other  Documents.  The Borrowers have
furnished the Administrative Agent copies, in each case true and complete as of
the Effective Date, of (a) all charter and other incorporation or constituent
documents (together with any amendments thereto) and (b) by-laws (or equivalent
company documents) (together with any amendments thereto).


 


§6.22.  Disclosure.  No representation
or warranty made by the Borrowers in this Credit Agreement or in any agreement,
instrument, document, certificate, statement or letter furnished to the Lenders
or the Administrative Agent by or on behalf of or at the request of the
Borrowers in connection with any of the transactions contemplated by the Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein not misleading
in light of the circumstances in which they are made.


 


§6.23.  Guarantees  of  Excluded  Subsidiaries.  Except
as permitted under §8.1 or §8.3, no Borrower has executed a guarantee with
respect to debt incurred by an Excluded Subsidiary.


 


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§6.24.   Obligations Constitute “Senior Debt”.  The Obligations of the Borrowers hereunder
are and will continue to be “Senior Debt” and “Designated Senior Debt” under
and as defined in the Indenture.


 


§7.  AFFIRMATIVE COVENANTS OF THE BORROWERS.  The
Borrowers covenant and agree that, so long as any Obligation or any Letter of
Credit is outstanding or the Lenders have any obligation to make Loans or the
Issuing Lender has any obligation to issue, extend or renew any Letters of
Credit hereunder, or the Lenders have any obligations to reimburse the Issuing
Lender for drawings honored under any Letter of Credit hereunder:


 


§7.1.  Punctual  Payment.  Each
Borrower will duly and punctually pay or cause to be paid the principal and
interest on the Loans, all Reimbursement Obligations, fees and other amounts
provided for in this Credit Agreement and the other Loan Documents for which it
is liable, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.


 


§7.2.  Maintenance  of  Office.  The
Borrowers will maintain their chief executive offices at the locations set
forth on the Perfection Certificates delivered pursuant to §10.12, or at such
other place in the United States of America as each Borrower shall designate
upon thirty (30) days’ prior written notice to the Administrative Agent.


 


§7.3.  Records  and  Accounts.  Each
of the Borrowers will (a) keep true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP
and with the requirements of all regulatory authorities, (b) maintain adequate
accounts and reserves for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties, all other contingencies,
and all other proper reserves and (c) at all times engage Pricewaterhouse
Coopers LLP or other independent certified public accountants satisfactory to
the Administrative Agent as the independent certified public accountants of the
Parent and its Subsidiaries and will not permit more than thirty (30) days to
elapse between the cessation of such firm’s (or any successor firm’s)
engagement as the independent certified public accountants of the Parent and
its Subsidiaries and the appointment in such capacity of a successor firm as
shall be satisfactory to the Administrative Agent.


 


§7.4.  Financial  Statements,  Certificates
and  Information.  The Borrowers will deliver to the
Administrative Agent and each of the Lenders the following:


 


(a)                                  as soon as
practicable, but, in any event not later than ninety (90) days after the end of
each fiscal year of the Borrowers, the consolidated balance sheets of the
Borrowers and their Subsidiaries as at the end of such year, statements of cash
flows, and the related consolidated statements of operations, setting forth in
comparative form the figures for the previous fiscal year, all such
consolidated financial statements to be in reasonable detail, prepared, in
accordance with GAAP and Certified by the Accountants.  In addition, simultaneously therewith, the
Borrowers will use their best efforts to provide the Lenders with a written
statement from such Accountants to the effect that the Borrowers are in
compliance with the covenants set forth in §9 hereof, and that, in making the
examination necessary to said certification, nothing has come to the attention
of such Accountants that would indicate that any Default or Event of Default
exists, or, if 


 


51

















 


such accountants shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in such statement any such
Default or Event of Default; provided, that such Accountants shall not
be liable to the Lenders for failure to obtain knowledge of any Default or
Event of Default;


 


(b)                                 as soon as
practicable, but in any event not later than forty-five (45) days after the end
of each fiscal quarter of the Borrowers, copies of the consolidated balance
sheets and statement of operations of the Borrowers and their Subsidiaries as
at the end of such quarter, subject to year end adjustments, and the related
statement of cash flows, all in reasonable detail and prepared in accordance
with GAAP with a certification by the principal financial or accounting officer
of the Borrowers (the “CFO”) that such consolidated financial statements
were prepared in accordance with GAAP and fairly present the consolidated
financial condition of the Borrowers and their Subsidiaries as at the close of
business on the date thereof and the results of operations for the period then
ended;


 


(c)                                  simultaneously with
the delivery of the financial statements referred to in (a) and (b) above, (i)
a statement in the form of Exhibit  C hereto (the “Compliance
Certificate”) certified by the CFO that the Borrowers are in compliance
with the covenants contained in §7, §8 and §9 hereof as of the end of the
applicable period setting forth in reasonable detail computations evidencing
such compliance, provided that, if the Borrowers shall at the time of
issuance of such certificate or at any other time obtain knowledge of any
Default or Event of Default, the Borrowers will include in such Compliance
Certificate or otherwise deliver forthwith to the Lenders a certificate
specifying the nature and period of existence thereof and what action the
Borrowers propose to take with respect thereto and attaching, in the event such
Default or Event of Default relates to Environmental Matters, a certificate in
the form attached hereto as Exhibit  D (the “Environmental  Compliance
Certificate”);


 


(d)                                 contemporaneously
with, or promptly following, the filing or mailing thereof, copies of all
material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Parent or any of the Borrowers to
the extent the same are not available on EDGAR;


 


(e)                                  simultaneously with
the delivery of the financial statements referred to in (a) and (b) above,
copies of the Borrowers’ revenue, EBITDA and pre-tax reports, all in reasonable
detail and prepared in accordance with GAAP;


 


(f)                                    as soon as
practicable, but in any event not later than fifteen (15) days prior to the
commencement of each fiscal year of the Borrowers and the Excluded
Subsidiaries, a copy of the annual budget, projections and business plan for
the Borrowers and the Excluded Subsidiaries for such fiscal year; and


 


(g)                                 from time to time such
other financial data and other information (including accountants’ management
letters) as the Lenders may reasonably request.


 


The Borrowers hereby authorize the Lenders to
disclose any information obtained pursuant to this Credit Agreement to all
appropriate governmental regulatory authorities where required by law; provided,
however, that the Lenders shall, to the extent practicable and allowable
under law, notify the Borrowers within a reasonable period 


 


52

















 


prior to the time any such disclosure is made; and provided  further,
this authorization shall not be deemed to be a waiver of any rights to object
to the disclosure by the Lenders of any such information which any Borrower has
or may have under the federal Right to Financial Privacy Act of 1978, as in
effect from time to time.


 


§7.5.  Legal  Existence  and  Conduct
of  Business.  Except where the failure of a
Borrower to remain so qualified would not materially adversely impair the
financial condition of the Borrowers on a consolidated basis, each Borrower
will do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence, legal rights and franchises; effect and
maintain its foreign qualifications, licensing, domestication or authorization
except as terminated by its Board of Directors in the exercise of its
reasonable judgment; use its best efforts to comply with all applicable laws;
and shall not become obligated under any contract or binding arrangement which,
at the time it was entered into would materially adversely impair the financial
condition of the Borrowers, on a consolidated basis.  Each Borrower will continue to engage primarily in the businesses
now conducted by it and in related businesses.


 


§7.6.  Maintenance  of  Properties.  The
Borrowers will cause all material properties used or useful in the conduct of
their businesses to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrowers may be necessary
so that the businesses carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this section shall prevent any Borrower from discontinuing the
operation and maintenance of any of its properties if such discontinuance is,
in the judgment of such Borrower, desirable in the conduct of its or their
business and which does not in the aggregate materially adversely affect the
business of the Borrowers on a consolidated basis.


 


§7.7.  Insurance.  The Borrowers will
maintain with financially sound and reputable insurance companies, funds or
underwriters’ insurance, including self-insurance, of the kinds, covering the
risks and in the relative proportionate amounts usually carried by reasonable
and prudent companies conducting businesses similar to that of the
Borrowers.  In addition, the Borrowers
will furnish from time to time, upon the Administrative Agent’s request, a
summary of the insurance coverage of each of the Borrowers, which summary shall
be in form and substance satisfactory to the Administrative Agent and, if
requested by the Administrative Agent, will furnish to the Administrative Agent
copies of the applicable policies naming the Administrative Agent as a loss payee
thereunder.


 


§7.8.  Taxes.  The Borrowers will each duly
pay and discharge, or cause to be paid and discharged, before the same shall
become overdue, all taxes, assessments and other governmental charges (other
than taxes, assessments and other governmental charges imposed by jurisdictions
other than the United States or Canada or a political division thereof which in
the aggregate are not material to the business or assets of any Borrower on an
individual basis or of the Borrowers on a consolidated basis) imposed upon it
and its real properties, sales and activities, or any part thereof, or upon the
income or profits therefrom, as well as all claims for labor, materials, or
supplies, which if unpaid might by law become a lien or charge upon any of its
property; provided, however, that 


 


53

















 


any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings and
if such Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided, further, that such Borrower will
pay all such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien which may have attached as
security therefor.


 


§7.9.  Inspection  of  Properties,
Books,  and  Contracts.  The Borrowers shall
permit the Lenders, the Agents or any of their designated representatives, upon
reasonable notice, to visit and inspect any of the properties of the Borrowers,
to examine the books of account of the Borrowers (including the making of
periodic accounts receivable reviews), or contracts (and to make copies thereof
and extracts therefrom), and to discuss the affairs, finances and accounts of
the Borrowers with, and to be advised as to the same by, their officers, all at
such times and intervals as the Lenders or the Agents may reasonably request.


 


§7.10.  Compliance  with  Laws,  Contracts,
Licenses  and  Permits;  Maintenance  of  Material
Licenses  and  Permits.  Each Borrower will,
and will cause the Excluded Subsidiaries to, (a) comply with the provisions of
its charter documents, articles of incorporation, other constituent documents
and by-laws and all agreements and instruments by which it or any of its
properties may be bound; (b) comply with all applicable laws and regulations
(including Environmental Laws), decrees, orders, judgments, licenses and
permits, including, without limitation, all environmental permits hereto (“Applicable
Laws”), except where noncompliance with such Applicable Laws would not
have a material adverse effect in the aggregate on the consolidated financial
condition, properties or businesses of the Borrowers and the Excluded
Subsidiaries; (c) comply in all material respects with all agreements and
instruments by which it or any of its properties may be bound; (d) maintain all
material operating permits for all landfills now owned or hereafter acquired;
and (e) dispose of hazardous waste only at licensed disposal facilities
operating, to the best of such Borrower’s knowledge after reasonable inquiry,
in compliance with Environmental Laws. 
If at any time while the Notes, any Loan or Letter of Credit is
outstanding or any Lender, the Issuing Lender or any Agent has any obligation
to make Loans or issue Letters of Credit hereunder, any authorization, consent,
approval, permit or license from any officer, agency or instrumentality of any
government shall become necessary or required in order that any Borrower may fulfill
any of its obligations hereunder, such Borrower will immediately take or cause
to be taken all reasonable steps within the power of such Borrower to obtain
such authorization, consent, approval, permit or license and furnish the
Lenders with evidence thereof.


 


§7.11.  Environmental  Indemnification.  The
Borrowers covenant and agree that they will jointly and severally, in
accordance with §5.9, indemnify and hold the Agents, the Issuing Lender and the
Lenders, and their respective affiliates, agents, directors, officers and
shareholders, harmless from and against any and all claims, expense, damage,
loss or liability incurred by such indemnified parties (including all costs of
legal representation incurred by such indemnified parties) relating to (a) any
Release or threatened Release of Hazardous Substances on the Real Property; (b)
any violation of any Environmental Laws with respect to conditions at the Real
Property or the operations conducted thereon; or (c) the investigation or
remediation of offsite locations at which the Borrowers, or their predecessors
are alleged to have directly or 


 


54

















 


indirectly
Disposed of Hazardous Substances.  It is
expressly acknowledged by the Borrowers that this covenant of indemnification
shall survive any foreclosure or any modification, release or discharge of any
or all of the Security Documents or the payment of the Loans and shall inure to
the benefit of the Agents and the Lenders and their respective successors and assigns.


 


§7.12.  Further  Assurances.  The
Borrowers will cooperate with the Lenders and the Agents and execute such
further instruments and documents as the Lenders or the Agents shall reasonably
request to carry out to their satisfaction the transactions contemplated by
this Credit Agreement.


 


§7.13.  Notice  of  Potential  Claims
or  Litigation.  The Borrowers shall deliver to the
Lenders and the Agents, within thirty (30) days of receipt thereof, written
notice of the initiation of any action, claim, complaint, or any other notice
of dispute or potential litigation (including without limitation any alleged
violation of any Environmental Law), wherein the potential liability is in
excess of $2,500,000, or could otherwise reasonably be expected to have a material
adverse effect on the business of the Borrowers as a whole, together with a
copy of each such notice received by any Borrower or the Excluded Subsidiaries.


 


§7.14.  Notice  of  Certain  Events  Concerning
Insurance  and  Environmental  Claims.


 


(a)                                  The Borrowers will
provide the Lenders and the Agents with written notice as to any material
cancellation or material adverse change in any insurance of any of the
Borrowers within ten (10) Business Days after such Borrower’s receipt of any
notice (whether formal or informal) of such material cancellation or material
change by any of its insurers.


 


(b)                                 The Borrowers will
promptly notify the Lenders and the Agents in writing of any of the following
events:


 


(i)                                     upon any
Borrower’s obtaining knowledge of any violation of any Environmental Law which
violation could have a material adverse effect on the business, financial
condition, or assets of the Borrowers on a consolidated basis;


 


(ii)                                  upon any Borrower’s
obtaining knowledge of any potential or known Release, or threat of Release, of
any Hazardous Substance at, from, or into the Real Property which could
materially affect the business, financial condition, or assets of the Borrowers
on a consolidated basis;


 


(iii)                               upon any Borrower’s
receipt of any notice of any material violation of any Environmental Law or of
any Release or threatened Release of Hazardous Substances, including a notice
or claim of liability or potential responsibility from any third party
(including any federal, state, provincial, territorial or local governmental
officials) and including notice of any formal inquiry, proceeding, demand,
investigation or other action with regard to (A) any Borrower’s or any Person’s
operation of the Real Property, (B) the presence or Release of Hazardous
Substances on, 


 


55

















 


from, or into the Real Property, or (C) investigation or remediation of
offsite locations at which any Borrower or its predecessors are alleged to have
directly or indirectly Released Hazardous Substances, and with respect to which
the liability associated therewith could be reasonably expected to exceed
$2,500,000; or


 


(iv)                              upon any Borrower’s
obtaining knowledge that any expense or loss which individually or in the
aggregate exceeds $1,000,000 has been incurred by such governmental authority
in connection with the assessment, containment, removal or remediation of any
Hazardous Substances with respect to which any Borrower may be liable or for
which a lien may be imposed on the Real Property.


 


§7.15.  Notice  of  Default.  The
Borrowers will promptly notify the Lenders and the Agents in writing of the
occurrence of any Default or Event of Default. 
If any Person shall give any notice or take any other action in respect
of a claimed default (whether or not constituting an Event of Default) under
this Credit Agreement or any other note, evidence of Indebtedness, indenture or
other obligation evidencing Indebtedness in excess of $1,000,000 (including,
without limitation, the Indenture) as to which any Borrower is a party or
obligor, whether as principal or surety, the Borrowers shall forthwith give
written notice thereof to the Lenders and the Agents, describing the notice of
action and the nature of the claimed default.


 


§7.16.  Closure  and  Post  Closure  Liabilities.  The
Borrowers shall at all times adequately accrue, in accordance with GAAP, and
fund, as required by applicable Environmental Laws, all closure and post
closure liabilities with respect to the operations of the Borrowers.


 


§7.17.  Subsidiaries.  The Parent shall at all times
directly or indirectly through a Subsidiary own all of the shares of the
Capital Stock of each Subsidiary of the Parent.


 


§7.18.  Interest  Rate  Protection.  The
Borrowers will, within ninety (90) days of the Effective Date, have a minimum
aggregate amount of not less than 30% of the notional amount of Consolidated
Total Funded Debt as of the Effective Date on a fixed rate long term basis
(whether through Swap Contracts or as a result of having a fixed rate of
interest by its terms) on terms and conditions reasonably acceptable to the
Administrative Agent.


 


§7.19.  Additional  Borrowers.  To
the extent that such creation or acquisition is permitted under this Credit
Agreement, all newly-created or newly-acquired Subsidiaries (other than
Excluded Subsidiaries) shall become Borrowers hereunder by signing allonges to
the Notes, entering into a joinder and affirmation to this Credit Agreement in
substantially the form of Exhibit  F attached hereto (a “Joinder
Agreement”) providing that such Subsidiary shall become a Borrower
hereunder, and providing such other documentation as the Lenders or the
Administrative Agent may reasonably request including, without limitation,
documentation with respect to conditions noted in §10 hereof.  In such event, the Administrative Agent is
hereby authorized by the parties to amend Schedule  1 hereto to
include such Subsidiary as a Borrower hereunder.


 


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§8.  CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.  The
Borrowers covenant and agree that, so long as any Obligation or any Letter of
Credit is outstanding or the Lenders have any obligation to make Loans or the
Issuing Lender has any obligation to issue, extend or renew any Letters of
Credit hereunder, or the Lenders have any obligations to reimburse the Issuing
Lender for drawings honored under any Letter of Credit hereunder:


 


§8.1.  Restrictions  on  Indebtedness.  None
of the Borrowers or Excluded Subsidiaries shall become or be a guarantor or
surety of, or otherwise create, incur, assume, or be or remain liable,
contingently or otherwise, with respect to any Indebtedness, or become or be
responsible in any manner (whether by agreement to purchase any obligations,
stock, assets, goods or services, or to supply or advance any funds, assets,
goods or services or otherwise) with respect to any undertaking or Indebtedness
of any other Person, or incur any Indebtedness other than:


 


(a)                                  Indebtedness of the
Borrowers to the Lenders, the Issuing Lender and the Agents arising under this
Credit Agreement and the Loan Documents;


 


(b)                                 Subject to §8.9,
Seller Subordinated Debt not to exceed $15,000,000 in aggregate outstanding
principal amount at any time;


 


(c)                                  Existing Indebtedness
of the Borrowers with respect to loans and Capitalized Leases listed on Schedule
8.1(c), on the terms and conditions in effect as of the date hereof,
together with any renewals, extensions or refinancings thereof on terms which
are not materially different than those in effect as of the Effective Date;


 


(d)                                 Endorsements for
collection, deposit or negotiation and warranties of products or services
(including unsecured performance and payment bonds (“Performance  Bonds”)),
in each case incurred in the ordinary course of business;


 


(e)                                  Indebtedness of the
Borrowers incurred in connection with the acquisition or lease of any equipment
by the Borrowers under any Synthetic Lease, Capitalized Lease or other lease
arrangement or purchase money financing; provided that the aggregate
outstanding principal amount of such Indebtedness of the Borrowers (including
Indebtedness of such type listed on Schedule 8.1(c)) shall
not exceed $30,000,000 at any time;


 


(f)                                    Indebtedness of the
Borrowers in respect of Swap Contracts satisfactory to the Administrative
Agent;


 


(g)                                 Indebtedness of the
Borrowers under fuel price swaps, fuel price caps, and fuel price collar or
floor agreements, and similar agreements or arrangements designed to protect
against or manage fluctuations in fuel prices with respect to fuel purchased in
the ordinary course of business of the Borrowers (“Fuel  Derivatives
Obligations”), provided that the aggregate notional amount of
such agreements do not exceed $10,000,000 outstanding at any time, the maturity
of such agreements do not exceed thirty-six (36) months, and the terms are
consistent with past practices of the Borrowers;


 


57

















 


(h)                                 Other unsecured
Indebtedness incurred in connection with the acquisition by the Borrowers of
real or personal property, including any Indebtedness incurred with respect to
non-compete payments in connection with such acquisition(s), provided
that the aggregate outstanding principal amount of such Indebtedness of the
Borrowers shall not exceed $15,000,000 at any time;


 


(i)                                     Intercompany
Indebtedness among the Borrowers;


 


(j)                                     Indebtedness with
respect to mandatory redemption obligations as set forth in the Series A
Certificate and accrued dividends on the Borrower’s preferred stock; provided
that no Restricted Payments shall be made with respect to such Indebtedness
during the term of this Credit Agreement except as set forth in §8.6 hereof, or
as otherwise permitted by the prior written consent of the Required Lenders;


 


(k)                                  Senior Subordinated
Debt not to exceed $250,000,000 in aggregate principal amount;


 


(l)                                     Surety and similar
bonds and completion bonds and bid guarantees provided by or issued on behalf
of the Borrowers with respect to the closure, final-closure and post-closure
liabilities related to landfills owned or operated by the Borrowers; provided
that the aggregate amount of such Indebtedness shall not exceed $70,000,000 at
any time outstanding;


 


(m)                               indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or
assumed in connection with the Permitted Acquisitions or permitted dispositions
of Capital Stock or assets of the Borrowers; provided that the maximum
aggregate liability in respect of all such obligations shall at no time exceed
the gross proceeds, including non-cash proceeds, (the fair market value of such
non-cash proceeds being measured at the time received or paid and without
giving effect to any subsequent changes in value) actually received or paid by
the Borrowers in connection with such Permitted Acquisition or disposition;


 


(n)                                 Indebtedness arising
in connection with (i) the acquisition by the Parent of the Capital Stock of
Hardwick Landfill, Inc., a Massachusetts corporation (“Hardwick”),
pursuant to the terms of that certain Stock Purchase Agreement, dated as of
January 3, 2003 (the “Hardwick  Purchase  Agreement”),
by and among the Parent, Hardwick and the shareholders of Hardwick; provided
that the original principal amount of such Indebtedness does not exceed
$2,000,000, and (ii) the exercise by any Borrower of the option to purchase the
Capital Stock or the assets of Roach Enterprises, LLC pursuant to the terms and
conditions set forth in the Purchase Option Agreement attached as Exhibit
D to the Hardwick Purchase Agreement (the “Hardwick  Option
Agreement”); provided that the original principal amount of such
Indebtedness does not exceed 25% of the Base Purchase Price (as defined in the
Hardwick Option Agreement), and is calculated as set forth in the applicable
provisions of the Hardwick Option Agreement; and


 


(o)                                 Guarantees of
Indebtedness permitted pursuant to this §8.1 made by any of the Borrowers or
their Subsidiaries, the amount of such guarantees not to exceed the amount of
the underlying Indebtedness.


 


58

















 


§8.2.  Restrictions  on  Liens.  None
of the Borrowers or Excluded Subsidiaries will create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
negative pledge, charge, restriction or other security interest of any kind
upon any property or assets of any character, whether now owned or hereafter
acquired, or upon the income or profits therefrom; or transfer any of such
property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; or acquire, or
agree or have an option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security agreement, device or
arrangement; or suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it which if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or
sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles or chattel paper, with or without recourse, except
as follows (the “Permitted  Liens”):


 


(a)                                  Liens on property to
secure Indebtedness permitted under §8.1(e) hereof, provided that such Liens
(i) shall encumber only the specific equipment being financed or leased, (ii)
shall not exceed the fair market value thereof and (iii) shall not encumber property
with an aggregate value in excess of $30,000,000;


 


(b)                                 Liens to secure taxes,
assessments and other government charges or claims for labor, material or
supplies in respect of obligations not overdue and government liens in
existence less than 90 days from the date of creation thereof to secure taxes,
assessments, charges, levies or claims being contested in good faith by
appropriate proceedings if the Borrower shall have set aside on its books
adequate reserves with respect thereto;


 


(c)                                  Deposits or pledges
made in connection with, or to secure payment of, workmen’s compensation,
unemployment insurance, old age pensions or other social security obligations;


 


(d)                                 Liens of carriers,
warehousemen, mechanics and materialmen, and other like liens, in existence
less than 120 days from the date of creation thereof in respect of obligations
not overdue;


 


(e)                                  Encumbrances
consisting of easements, rights of way, zoning restrictions, restrictions on
the use of Real Property and defects and irregularities in the title thereto,
landlord’s or lessor’s liens under leases to which any Borrower is a party, and
other minor liens or encumbrances none of which in the opinion of the
respective Borrower interferes materially with the use of the property affected
in the ordinary conduct of the business of such Borrower, which defects do not
individually or in the aggregate have a material adverse effect on the business
of such Borrower individually or of the Borrowers on a consolidated basis;


 


(f)                                    Liens existing as
of the date hereof securing Indebtedness permitted under §8.1(c) hereof and
listed on Schedule  8.2(f) hereto;


 


59

















 


(g)                                 Liens granted pursuant
to the Security Documents to secure the Obligations (provided that secured Obligations
hereunder with respect to Fuel Derivatives Obligations with Lenders shall not
exceed $10,000,000 in the aggregate); and


 


(h)                                 Liens granted (i) on
the Capital Stock of Hardwick to secure the Indebtedness permitted under
§8.1(n)(i) and the contingent royalty payment obligations of the Parent under
the Hardwick Purchase Agreement; provided that such Liens shall be
subordinated and second in priority to the Administrative Agent’s first
priority Liens on such Capital Stock pursuant to the provisions of the
Collateral Pledge Agreement attached as Exhibit  E to the Hardwick
Purchase Agreement and a Subordination Agreement in the form of Exhibit  E
to the Existing Credit Agreement, with such changes as the Administrative Agent
has previously approved, (ii) on the Capital Stock of Roach Enterprises, LLC or
the Borrower exercising the option under the Hardwick Option Agreement and
securing the Indebtedness permitted under §8.1(n)(ii) and the contingent
royalty payment obligations of such Borrower under the Hardwick Option
Agreement, and (iii) on landfills acquired by a Borrower securing the landfill
royalty payment obligations of such Borrower so long as the Administrative
Agent shall have been granted a first mortgage on such landfills; provided,
that, in the case of each of clause (ii) and (iii) above, such Liens shall be
subordinated and second in priority to the Administrative Agent’s first
priority Liens on the Capital Stock or landfills, as applicable, on terms and
conditions satisfactory in all respects to the Administrative Agent.


 


§8.3.  Restrictions  on  Investments.  None
of the Borrowers shall make or permit to exist or to remain outstanding any
other Investment other than:


 


(a)                                  Investments in
obligations of the United States of America or Canada and agencies thereof and
obligations guaranteed by the United States of America or Canada that are due
and payable within one (1) year from the date of acquisition;


 


(b)                                 certificates of
deposit, time deposits, bankers’ acceptances or repurchase agreements which are
fully insured or are issued by commercial banks organized under the laws of the
United States of America or any state thereof or Canada and having total assets
in excess of $1,000,000,000;


 


(c)                                  commercial paper
maturing not more than nine (9) months from the date of issue, provided
that, at the time of purchase, such commercial paper is not rated lower than
“P-1” by Moody’s or “A-1” by S&P;


 


(d)                                 Investments associated
with insurance policies required or allowed by state or provincial law to be
posted as financial assurance for landfill closure and post-closure
liabilities;


 


(e)                                  Investments by any
Borrower in any wholly-owned Subsidiary which is also a Borrower;


 


(f)                                    Investments
existing on the Effective Date and listed on Schedule  8.3(f)
hereto;


 


(g)                                 any money market
account, short-term asset management account or similar investment account
maintained with one of the Lenders;


 


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(h)                                 loans made to
employees in an aggregate amount not to exceed $2,000,000 at any time
outstanding;


 


(i)                                     up to $10,000,000
in Investments in the Insurance Subsidiary at any time outstanding;


 


(j)                                     Existing
Investments in the Excluded Subsidiaries (other than the Insurance Subsidiary)
listed on Schedule  8.3(f) hereto;


 


(k)                                  Investments made
after the Effective Date in the Cellulose Joint Venture and the New Heights
Investment to the extent that the aggregate amount of such Investments does not
exceed the aggregate amount of actual cash dividends and cash partnership or
limited liability company distributions received by the Borrowers therefrom
since the Effective Date;


 


(l)                                     Investments in the
form of Permitted Acquisitions permitted pursuant to §8.4.1; and


 


(m)                               other Investments not to
exceed $15,000,000 in the aggregate at any time outstanding (including, without
limitation, Investments made after the Effective Date in the Cellulose Joint
Venture and the New Heights Investment in excess of actual cash dividends and
partnership or limited liability company distributions received by the Borrowers
from the Cellulose Joint Venture and the New Heights Investment after the
Effective Date);


 


provided; that none
of the Borrowers shall make or permit to exist or to remain outstanding any
Investment in any Subsidiary unless both before and after giving effect thereto
there does not exist a Default or Event of Default and no Default or Event of
Default would be created by the making of such Investment.


 


§8.4.  Mergers,  Consolidations,  Sales.


 


§8.4.1.  Mergers  and  Acquisitions.  The
Borrowers will not become a party to any merger, amalgamation, or
consolidation, or agree to or effect any asset acquisition or stock acquisition
(other than the acquisition of assets in the ordinary course of business
consistent with past practices) except the merger or consolidation of, or asset
or stock acquisitions between, existing Borrowers and except as otherwise
provided in this §8.4.1.   The Borrowers
may purchase or otherwise acquire all or substantially all of the assets or stock
or other equity interests of any other Person (a “Permitted  Acquisition”)
provided  that:


 


(a)                                  the Borrowers are in
current compliance with and, giving effect to the proposed acquisition
(including any borrowings made or to be made in connection therewith), will
continue to be in compliance with all of its covenants and agreements contained
in this Credit Agreement, including the financial covenants in §9 hereof on a
pro forma historical combined basis as if the transaction occurred on the first
day of the period of measurement;


 


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(b)                                 at the time of such
acquisition, no Default or Event of Default has occurred and is continuing, and
such acquisition will not otherwise create a Default or an Event of Default
hereunder;


 


(c)                                  the business to be acquired
is predominantly in the same lines of business as the Borrowers, or businesses
reasonably related or incidental thereto (e.g., non-hazardous solid waste
collection, transfer, hauling, recycling, or disposal);


 


(d)                                 the business to be
acquired operates predominantly in the United States or Canada;


 


(e)                                  (i) in the case of an
asset acquisition, all of the assets acquired shall be acquired by an existing
Borrower or a newly-created Subsidiary of the Parent, which Subsidiary shall
become a Borrower hereunder in accordance with §7.19, and 100% of its Capital
Stock and its assets shall be pledged simultaneously with such acquisition to
the Administrative Agent for the benefit of the Lenders and the Agents or, (ii)
in the case of an acquisition of Capital Stock, the acquired company,
simultaneously with such acquisition, shall become a Borrower in accordance
with §7.19 and 100% of its Capital Stock and its assets shall be pledged
simultaneously with such acquisition to the Administrative Agent for the benefit
of the Lenders and the Agents or the acquired company shall be merged or
amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such
newly-acquired or newly-created Subsidiary shall otherwise comply with the
provisions of §7.19 hereof;


 


(f)                                    if the total
consideration in connection with any such acquisition, including the aggregate
amount of all liabilities assumed, but excluding the payment of all fees and
expenses relating to such purchase, exceeds $5,000,000 (a “Material  Acquisition”),
then not later than seven (7) days prior to the proposed acquisition date, the
Borrowers shall furnish the Administrative Agent with (i) a copy of the
purchase agreement, (ii) its audited (if available, or otherwise unaudited)
financial statements for the preceding two (2) fiscal years or such shorter
period of time as such entity or division has been in existence, (iii) a
summary of the Borrowers’ results of their standard due diligence review, (iv)
in the case of a landfill acquisition or if the target company owns a landfill,
a review by a Consulting Engineer and a copy of the Consulting Engineer’s
report, (v) a Compliance Certificate demonstrating compliance with §9 on a pro
forma historical combined basis as if the transaction occurred on the first day
of the period of measurement, (vi) written evidence that the board of directors
and (if required by applicable law) the shareholders, or the equivalent
thereof, of the business to be acquired have approved such acquisition, and
(vii) such other information as the Administrative Agent may reasonably
request, which in each case shall be in form and substance acceptable to the
Administrative Agent;


 


(g)                                 the board of directors
and (if required by applicable law) the shareholders, or the equivalent
thereof, of the business to be acquired shall have approved such acquisition;


 


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(h)                                 if such acquisition is
made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of
the Parent (which may be the acquired company) which shall become a Borrower in
connection with such merger, shall be the surviving entity; and


 


(i)                                     cash consideration
to be paid by any Borrower in connection with any acquisition or series of
related acquisitions (including cash deferred payments, contingent or
otherwise, and the aggregate amount of all liabilities assumed or, in the case
of a stock acquisition, including all liabilities of the target company) shall
not exceed $15,000,000 without the consent of the Administrative Agent and the
Required Lenders.


 


§8.4.2.  Dispositions  of  Assets.  Except
as otherwise provided in this §8.4.2, none of the Borrowers will become a party
to or agree to or effect any disposition of assets; provided that,
subject to §4.4.1, so long as no Default or Event of Default has occurred and
is continuing, during the term of this Credit Agreement, the Borrowers may (a)
sell or transfer assets (including in connection with an asset swap) having an
aggregate fair market value not in excess of 5% of Consolidated Total Assets
(the “Basket”), for fair and reasonable value, as determined by the
board of directors of the Parent in good faith and evidenced by a resolution of
such directors which shall be delivered by the Parent to the Administrative
Agent prior to the consummation of such sale or transfer, and, in the case of
an asset swap, so long as such asset swap in the reasonable business judgement
of the Parent does not have a material adverse effect on the business or
financial condition of the Borrowers and (b) sell the Capital Stock or assets
of the Specified Entities. 
Notwithstanding the foregoing, the sale of inventory, the licensing of
intellectual property and the disposition of obsolete assets or assets that are
no longer useful, in each case in the ordinary course of business consistent
with past practices, are permitted hereunder without being charged against the
Basket.


 


§8.5.  Sale  and  Leaseback.  None
of the Borrowers shall enter into any arrangement, directly or indirectly,
whereby any Borrower shall sell or transfer any property owned by it in order
then or thereafter to lease such property or lease other property which such
Borrower intends to use for substantially the same purpose as the property
being sold or transferred, without the prior written consent of the Required
Lenders.


 


§8.6.  Restricted  Payments.  None
of the Borrowers will make any Restricted Payments except that, (a) any
Subsidiary may declare or pay cash Distributions to the Parent, (b) the Parent
may cause quarterly Distributions on its preferred stock (including the Series
A Preferred Stock) to accrue and be added to the liquidation value of such
preferred stock, and (c) the Parent may convert all or a portion of the Series
A Preferred Stock into shares of its common stock; provided, however,
that such conversion shall not be made unless permitted under the terms of the
Senior Subordinated Debt Documents.  In
addition, except as otherwise expressly permitted in this §8.6, the Borrowers
shall not prepay, redeem, convert, retire, repurchase or otherwise acquire
shares of any class of Capital Stock (including the Series A Preferred Stock)
of the Borrowers or Excluded Subsidiaries without the prior written consent of
the Administrative Agent and the Required Lenders.


 


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§8.7.  Employee  Benefit  Plans.  None
of the Borrowers nor any ERISA Affiliate will:


 


(a)                                  engage in any
“prohibited transaction” within the meaning of §406 of ERISA or §4975 of the
Code which could result in a material liability for any Borrower; or


 


(b)                                 permit any Guaranteed
Pension Plan to incur an “accumulated funding deficiency”, as such term is
defined in §302 of ERISA, whether or not such deficiency is or may be waived;
or


 


(c)                                  fail to contribute to
any Guaranteed Pension Plan to an extent which, or terminate any Guaranteed
Pension Plan in a manner which, could result in the imposition of a lien or
encumbrance on the assets of any Borrower pursuant to §302(f) or §4068 of
ERISA; or


 


(d)                                 amend any Guaranteed
Pension Plan in circumstances requiring the posting of security pursuant to
§307 of ERISA or §401(a)(29) of the Code;


 


(e)                                  permit or take any
action which would result in the aggregate benefit liabilities (with the
meaning of §4001 of ERISA) of all Guaranteed Pension Plans exceeding the value
of the aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in excess of
benefit liabilities.


 


The Borrowers will (i) promptly upon filing
the same with the Department of Labor or Internal Revenue Service, furnish to
the Lenders a copy of the most recent actuarial statement required to be
submitted under §103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan and (ii)
promptly upon receipt or dispatch, furnish to the Lenders any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under §§302,
4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer
Plan, under §§4041A, 4202, 4219, or 4245 of ERISA.


 


§8.8.  Prepayments  of  Certain
Obligations;  Modifications  of  Subordinated  Debt.  None
of the Borrowers will, nor will they permit their Subsidiaries to, (a) amend,
supplement or otherwise modify the terms of any Subordinated Debt; provided,
that the Borrowers may amend, supplement or otherwise modify the terms of any
Seller Subordinated Debt with the consent of the Administrative Agent if, in
the judgment of the Administrative Agent, such amendments, supplements or
modifications do not adversely effect the rights of the Lenders, or (b) prepay,
redeem or repurchase or issue any notice or offer of redemption with respect
to, elect to make, or effect, a defeasance with respect to, or take any other action
which would require the Borrowers or any of their Subsidiaries to, prepay,
redeem or repurchase any of the Subordinated Debt, (c) make any payments with
respect to any Seller Subordinated Debt other than scheduled payments of
principal and interest as and to the extent permitted under the applicable
Subordination Agreements, provided that no Default or Event of Default
shall have occurred or be continuing on the date of such payment, nor would be
created by the making of such payment, or (d) make any payments with respect to
any Senior Subordinated Debt other than scheduled payments of interest as and
to the extent 


 


64

















 


permitted
under the Indenture, provided that no Default or Event of Default shall
have occurred or be continuing on the date of such payment, nor would be
created by the making of such payment.


 


§8.9.  Negative  Pledges  and  Upstream
Limitations.  The Borrowers will not, nor will they permit
their Subsidiaries to (a) enter into or permit to exist any agreement or
arrangement (excluding this Credit Agreement, the other Loan Documents and the
Indenture) which directly or indirectly prohibits the creation or assumption or
incurrence by the Borrowers or their Subsidiaries of any lien or security
interest upon their properties (other than prohibitions on liens for particular
assets set forth in a security instrument in connection with secured
Indebtedness permitted by §8.1(e) to the extent such prohibition relates only
to such assets and the granting or effect of such liens does not otherwise
constitute a Default or Event of Default), revenues or assets, whether now
owned or hereafter acquired, or (b) enter into any agreement, contract or
arrangement (excluding this Credit Agreement, the other Loan Documents and the
Indenture) restricting the ability of (i) the Borrowers to amend or modify this
Credit Agreement or any other Loan Document, or (ii) any Borrower or its
Subsidiaries to pay or make dividends or distributions in cash or kind to any
Borrower or to make loans, advances or other payments of whatsoever nature to
any Borrower or to make transfers or distributions of all or any part of such
Borrower’s or such Subsidiary’s assets to a Borrower; in each case other than
(x) restrictions on specific assets which assets are the subject of purchase
money security interests to the extent permitted under §8.1(e), and (y)
customary anti-assignment provisions contained in leases and licensing
agreements entered into by such Borrower or such Subsidiary in the ordinary
course of its business.


 


§8.10.  Transactions  with  Affiliates.  The
Borrowers will not, and will not permit any of their Subsidiaries to, engage in
any transaction with any Affiliate (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
such Affiliate or, to the knowledge of the Borrowers, any corporation,
partnership, trust or other entity in which any such Affiliate has a
substantial interest or is an officer, director, trustee or partner, on terms
more favorable to such Person than would have been obtainable on an arm’s-length
basis in the ordinary course of business.


 


§8.11.  Business  Activities.  The
Borrowers will not, and will not permit any of their Subsidiaries to, engage
directly or indirectly (whether through Subsidiaries or otherwise) in any type
of business other than the businesses conducted by them on the Effective Date
and in related businesses or in connection with the acquisition of Greenfiber.


 


§8.12.  No  Other  Senior  Debt.  The
Borrowers (a) have not designated, and will not designate, any Indebtedness of
the Borrowers or any of their Subsidiaries as “Designated Senior Debt” for
purposes of (and as defined in) the Indenture, other than the Obligations, and
(b) have no “Senior Debt” as such term is defined in the Indenture other than
the Obligations and the Indebtedness permitted under §8.1 which ranks pari
passu with the Obligations.


 


§8.13.  Actions  Otherwise  Prohibited  by
Subordinated  Debt.  Notwithstanding anything
contained in this §8 that permits the Borrowers or any 


 


65

















 


of their
Subsidiaries to enter into transactions or take certain actions, the Borrowers
shall not enter into such transactions or take such actions if otherwise
prohibited from so doing by the terms of the Senior Subordinated Debt outstanding
from time to time.


 


§9.  FINANCIAL COVENANTS.


 


The Borrowers
covenant and agree that, so long as any Obligation or any Letter of Credit is
outstanding or the Lenders have any obligation to make Loans, or the Issuing
Lender has any obligation to issue, extend or renew any Letters of Credit
hereunder, or the Lenders have any obligations to reimburse the Issuing Lender
for drawings honored under any Letter of Credit hereunder:


 


§9.1.  Interest  Coverage  Ratio.  As
at the end of any fiscal quarter ended on or during any period set forth in the
table below, the ratio of (a) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters ended on the date of calculation to (b)
Consolidated Total Interest Expense for such period shall not be less than the
stated ratio set forth opposite such period in such table:


 


	
  Period

  	
   

  	
  Interest
  Coverage Ratio

  
	
  Effective Date through April 30, 2005

  	
   

  	
  2.60:1.00

  
	
  May 1, 2005 and thereafter

  	
   

  	
  2.70:1.00

  



 


§9.2.  Profitable  Operations.  The
Borrowers will not permit, as at the end of any fiscal quarter, the cumulative
Consolidated Adjusted Net Income for the period of two consecutive fiscal
quarters then ended to be less than $0.


 


§9.3.  Consolidated  Total  Funded  Debt
to  Consolidated  EBITDA.  As at the end of
any fiscal quarter, the ratio of (a) Consolidated Total Funded Debt as of such
date to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters ending on the date of calculation shall not exceed 4.50:1.00.


 


§9.4.  Consolidated  Senior  Funded  Debt
to  Consolidated  EBITDA.  As at the end of
any fiscal quarter, the ratio of (a) Consolidated Senior Funded Debt as of such
date to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters ending on the date of calculation shall not exceed 3.00:1.00.


 


§9.5.  Consolidated  Net  Worth.  The
Borrowers will not permit Consolidated Net Worth at any time to be less than
the sum of (a) $237,526,000 minus (b) $62,825,000 plus (c) on a
cumulative basis, fifty percent (50%) of positive Consolidated Adjusted Net
Income (after the payment of dividends with respect to any preferred stock of
the Parent) for each fiscal quarter beginning with the fiscal quarter ended
July 31, 2002, plus (d) one hundred percent (100%) of the proceeds
of any sale by the Borrowers after the Effective Date of (i) equity securities
issued by the Borrowers, or (ii) warrants or subscription rights for equity
securities issued by the Borrowers.


 


§9.6.  Capital  Expenditures.  The
Borrowers will not permit, as at the end of any fiscal quarter, the amount of
Capital Expenditures (excluding any Permitted Acquisitions) made by the
Borrowers for the period of four (4) consecutive fiscal quarters then ended to
exceed 1.5 multiplied  by the sum of depreciation and landfill
amortization expense for such four (4) fiscal quarter period (calculated in
accordance with GAAP).


 


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§10.  CLOSING CONDITIONS.  The
“Effective  Date” shall be such date on which all of the
conditions precedent set forth in this §10 have been met.  The obligations of the Existing Lenders to
convert their claims against the Borrowers with respect to the Existing Credit
Agreement into claims under this Credit Agreement, the obligations of the New
Lenders to become parties to this Credit Agreement, and the obligations of all
Lenders to make the initial Loans provided for in this Credit Agreement and
otherwise be bound by the terms hereof, and of the Issuing Lender to issue any
Letters of Credit hereunder, shall be subject to the satisfaction of each of
the following conditions precedent:


 


§10.1.  Corporate  Action.  All
corporate action necessary for the valid execution, delivery and performance by
each Borrower of the Loan Documents and the Senior Subordinated Debt Documents
shall have been duly and effectively taken, and evidence thereof satisfactory
to the Administrative Agent shall have been provided to the Administrative
Agent.


 


§10.2.  Loan  Documents;  Senior  Subordinated
Debt  Documents.  (a)  Each of the Loan Documents shall have been duly and properly
authorized, executed and delivered by the respective parties thereto and shall
be in full force and effect in a form satisfactory to the Lenders and (b) each
of the Senior Subordinated Debt Documents shall have been duly and properly
authorized, executed and delivered by the respective parties thereto, and shall
be in full force and effect in form and substance satisfactory to the Agents.


 


§10.3.  Officer’s  Certificate;  Certified
Copies  of  Charter  Documents.  For
each Borrower, the Administrative Agent shall have received a copy, certified
by a duly authorized officer of such Person to be true and complete on the
Effective Date, of each of (a) its charter or other incorporation or
constituent documents (including certificates of merger or amalgamation and
name changes) as in effect on such date of certification, and (b) its by-laws
(or equivalent company documents) as in effect on such date.


 


§10.4.  Incumbency  Certificate.  The
Administrative Agent shall have received an incumbency certificate from each
Borrower, dated as of the Effective Date, signed by duly authorized officers
giving the name and bearing a specimen signature of each individual who shall
be authorized: (a) to sign the Loan Documents and the Senior Subordinated Debt
Documents on behalf of the Borrowers; (b) to make Loan and Letter of Credit
Requests and Conversion Requests; and (c) to give notices and to take other
action on the Borrowers’ behalf under the Loan Documents.


 


§10.5.  Validity  of  Liens.  The
Security Documents shall be effective to create in favor of the Administrative
Agent (as collateral agent for the Lenders) a legal, valid and enforceable
first priority, perfected (except in the case of Real Property and motor
vehicles as set forth in §12) security interest in and lien upon the
Collateral, subject only to Permitted Liens. 
All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Administrative Agent to protect
and preserve such security interests, shall have been duly effected.  The Administrative Agent shall have received
evidence thereof in form and substance satisfactory to the Administrative
Agent.


 


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§10.6.  Certificates  of  Insurance.  The
Administrative Agent shall have received (a) a certificate of insurance from an
independent insurance broker, dated as of the Effective Date, or within fifteen
(15) days prior thereto, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance obtained in
accordance with the provisions of the Security Documents and (b) copies of all
policies evidencing such insurance.


 


§10.7.  Opinion  of  Counsel.  The
Lenders shall have received favorable legal opinions from counsel to the
Borrowers addressed to the Administrative Agent, for the benefit of the
Lenders, dated the Effective Date, in form and substance satisfactory to the
Administrative Agent.


 


§10.8.  Payment  of  Fees.  The
Borrowers shall have paid to the Administrative Agent for the accounts of the
Lenders or its own account, as applicable, all fees and expenses that are due
and payable as of the Effective Date and shall have paid the fees and
disbursements of counsel to the Administrative Agent.


 


§10.9.  Payoff.  The Administrative Agent shall
have received satisfactory evidence of the cancellation and payment in full of
the Existing Credit Agreement.


 


§10.10.  Financial  Statements.


 


(a)                                  The Lenders shall
have received the financial projections of the Borrowers and its Subsidiaries,
in form and substance satisfactory to the Agents and the Co-Arrangers, for the
period from the Effective Date through April 30, 2008.


 


(b)                                 The Agents shall have
received a satisfactory day-one balance sheet and sources and uses of funds,
showing the effects of the Senior Subordinated Debt and compliance with all
terms and conditions of this Credit Agreement, including the covenants in §9
hereof.


 


§10.11.  Financial  Condition.  The
Administrative Agent shall have received a certificate of a duly authorized
officer of the Parent, dated as of the Effective Date, and in form and detail
satisfactory to the Agents and the Lenders, demonstrating that the ratio of (a)
Consolidated Total Funded Debt on the Effective Date to (b) Consolidated EBITDA
for the period of four (4) consecutive fiscal quarters most recently ended
prior to the Effective Date, after giving effect, on a pro forma basis, to the
transactions contemplated by this Credit Agreement, including the issuance of
the Senior Subordinated Debt, does not exceed 3.75:1.00.


 


§10.12.  Perfection  Certificates  and
UCC  Search  Results.  The Administrative
Agent shall have received from each of the Borrowers a completed and
fully-executed Perfection Certificate and the results of UCC searches (and the
equivalent thereof in all applicable foreign jurisdictions) with respect to the
Collateral, indicating no Liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Administrative Agent.


 


§10.13.  Issuance  of  Senior  Subordinated
Debt.  The Borrowers shall have issued Senior Subordinated
Debt in principal amount at least equal to one hundred 


 


68

















 


fifty million
Dollars ($150,000,000) and shall have used the proceeds thereof to repay a
portion of the obligations outstanding under the Existing Credit Agreement and
the related transaction costs.


 


§11.  CONDITIONS OF ALL LOANS.  The
obligations of the Lenders to make any Loan and of the Issuing Lender to issue,
extend or renew any Letter of Credit, in each case on and subsequent to the
Effective Date is subject to the following conditions precedent:


 


§11.1.  Representations  True;  No
Event  of  Default.  Each of the
representations and warranties of the Borrowers contained in this Credit
Agreement or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement shall be true as of the date as of which
they were made and shall also be true at and as of the time of the making of
the Loans and the issuance, extension or renewal of Letters of Credit with the
same effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Credit Agreement
and changes occurring in the ordinary course of business which singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.


 


§11.2.  Performance;  No  Event  of
Default.  The Borrowers shall have performed and complied
with all terms and conditions herein required to be performed or complied with
by them prior to or at the time of the making of any Loan or issuance,
extension or renewal of any Letter of Credit and at the time of the making of
any Loan or issuance, extension or renewal of any Letter of Credit, there shall
exist no Event of Default or condition which would result in an Event of
Default upon consummation of such Loan or Letter of Credit issuance.  Each request by the Borrowers for a Loan or
Letter of Credit subsequent to the initial Loans and Letters of Credit shall
constitute certification by the Borrowers that the conditions specified in
§§11.1 and 11.2 will be duly satisfied on the date of such Loan or Letter of
Credit issuance.


 


§11.3.  No  Legal  Impediment.  No
change shall have occurred in any law or regulations thereunder or
interpretations thereof which in the reasonable opinion of the Lenders would
make it illegal for the Lenders to make Loans or the Issuing Lender to issue,
extend or renew Letters of Credit hereunder.


 


§11.4.  Proceedings  and  Documents.  All
proceedings in connection with the transactions contemplated by this Credit
Agreement shall be satisfactory to the Administrative Agent and all documents
incident thereto shall have been delivered to the Administrative Agent as of
the Effective Date in substance and in form satisfactory to the Lenders,
including without limitation, a Letter of Credit and Loan Request, in the form
attached hereto as Exhibit B ,and the Lenders shall have
received all information and such counterpart originals or certified or other
copies of such documents as the Lenders may reasonably request.


 


§12.  COLLATERAL SECURITY.  The
Obligations shall be secured by (a) a perfected (except in the case of Real
Property and motor vehicles, subject to the following proviso) first-priority
security interest (subject to Permitted Liens entitled to priority under
applicable law) in all assets of each Borrower, whether now owned or hereafter
acquired, pursuant to the terms of the Security Agreement to which each
Borrower is a party; (b) a pledge of 100% of the capital 


 


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stock or other equity interests
of such Borrowers (other than the Parent) to the Administrative Agent on behalf
of the Lenders and the Agents pursuant to the Pledge Agreement; and (c) a
pledge of 65% of the capital stock or other equity interests of each Foreign
Subsidiary; provided that the Borrowers hereby agree, upon the request
of the Administrative Agent and the Required Lenders, to deliver, as promptly
as practicable, but in any event within sixty (60) days, titles to motor
vehicles and mortgages with respect to Real Property and take such other steps
as may be reasonably requested (including, without limitation, the delivery of
legal opinions, Consulting Engineer’s reports and title insurance) so as to
provide the Administrative Agent, for the benefit of the Lenders and the Agents,
a perfected first-priority security interest in such assets.


 


§13.  EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF
COMMITMENT.


 


§13.1.  Events  of  Default  and  Acceleration.  If
any of the following events (“Events  of  Default” or, if
the giving of notice or the lapse of time or both is required, then, prior to
such notice and/or lapse of time, “Defaults”) shall occur:


 


(a)                                  if the Borrowers
shall fail to pay any principal of the Loans or any Reimbursement Obligation
when the same shall become due and payable, whether at the Revolving Credit
Maturity Date, the Term Loan Maturity Date or any accelerated date of maturity
or at any other date fixed for payment;


 


(b)                                 if the Borrowers shall
fail to pay any interest or fees or other amounts owing hereunder within five
(5) Business Days after the same shall become due and payable whether at the
Revolving Credit Maturity Date, the Term Loan Maturity Date or any accelerated
date of maturity or at any other date fixed for payment;


 


(c)                                  if the Borrowers
shall fail to comply with any of the covenants contained in §7 (other than
§§7.2, 7.3, 7.6, 7.7, 7.8, 7.9, 7.12, 7.14, 7.16, 7.17, and 7.18), §8 or §9
hereof;


 


(d)                                 if the Borrowers shall
fail to perform any term, covenant or agreement contained herein or in any of
the other Loan Documents (other than those specified in subsections (a), (b),
and (c) above) within thirty (30) days after written notice of such failure has
been given to the Borrowers by the Lenders;


 


(e)                                  if any representation
or warranty contained in this Credit Agreement or in any document or instrument
delivered pursuant to or in connection with this Credit Agreement shall prove
to have been false in any material respect upon the date when made or repeated;


 


(f)                                    if any Borrower or
Excluded Subsidiary shall fail to pay at maturity, or within any applicable
period of grace, any and all obligations for borrowed money or any guaranty
with respect thereto or credit received or in respect of any Capitalized
Leases, in each case, in an aggregate amount greater than $1,000,000
(including, without limitation, the Indebtedness evidenced by the Indenture),
or fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing
borrowed money or credit received or in respect of any Capitalized Leases in an
aggregate amount greater than $1,000,000 (including, without limitation, the
Indenture) for such period of time as would permit, assuming the giving of 


 


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appropriate notice if
required, the holder or holders thereof or of any obligations issued thereunder
to accelerate the maturity thereof;


 


(g)                                 if any Borrower or
Excluded Subsidiary makes an assignment for the benefit of creditors, or admits
in writing its inability to pay or generally fails to pay its debts as they
mature or become due, or petitions or applies for the appointment of a trustee
or other custodian, liquidator, receiver or receiver/manager of any Borrower or
Excluded Subsidiary or of any substantial part of the assets of any Borrower or
Excluded Subsidiary or commences any case or other proceeding relating to any
Borrower or Excluded Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or takes any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application is filed or any such case or other proceeding is
commenced against any Borrower or Excluded Subsidiary and any Borrower or
Excluded Subsidiary indicates its approval thereof, consent thereto or
acquiescence therein;


 


(h)                                 a decree or order is
entered appointing any such trustee, custodian, liquidator, receiver or receiver/manager
or adjudicating any Borrower or Excluded Subsidiary bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any Borrower or Excluded Subsidiary in an
involuntary case under federal bankruptcy laws as now or hereafter constituted,
and such decree or order remains in effect for more than sixty (60) days,
whether or not consecutive;


 


(i)                                     if there shall
remain in force, undischarged, unsatisfied and unstayed, for more than
forty-five (45) days, whether or not consecutive, any final judgment against
any Borrower or Excluded Subsidiary which, with other outstanding final
judgments, against the Borrowers and Excluded Subsidiaries exceeds in the
aggregate $2,500,000 after taking into account any undisputed insurance
coverage;


 


(j)                                     any Borrower or
Excluded Subsidiary or any ERISA Affiliate incurs any liability to the PBGC or
similar Canadian authorities or a Guaranteed Pension Plan (or any corresponding
plan described in any Applicable Canadian Pension Legislation) pursuant to
Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Borrower
or Excluded Subsidiary or any ERISA Affiliate is assessed withdrawal liability
pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate
annual payments exceeding $1,000,000, or any of the following occurs with
respect to a Guaranteed Pension Plan (or any corresponding plan described in
any Applicable Canadian Pension Legislation): (i) an ERISA Reportable Event
or similar event under Applicable Canadian Pension Legislation, or a failure to
make a required installment or other payment (within the meaning of §302(f)(1)
of ERISA), provided  that the Administrative Agent determines in
its reasonable discretion that such event (A) could be expected to result
in liability of any Borrower or Excluded Subsidiary to the PBGC, similar
Canadian authorities or such Plan in an aggregate amount exceeding $1,000,000
and (B) could constitute grounds for the termination of such Plan by the
PBGC or similar Canadian authorities, for the appointment by the appropriate
United States District Court or Canadian Court of a trustee to administer such
Plan or for the imposition of a lien in favor of such Plan; or (ii) the
appointment by a United States District Court or Canadian 


 


71

















 


Court of a trustee to administer such Plan; or (iii) the
institution by the PBGC or similar Canadian authorities of proceedings to
terminate such Plan;


 


(k)                                  if any of the Loan
Documents shall be cancelled, terminated, revoked or rescinded otherwise than
in accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Lenders, or any action at law, suit or in
equity or other legal proceeding to cancel, revoke or rescind any of the Loan
Documents shall be commenced by or on behalf of the Borrowers or any of their
respective stockholders, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or issue a judgment, order, decree or ruling to the effect that, any one or
more of the Loan Documents is illegal, invalid or unenforceable in accordance
with the terms thereof;


 


(l)                                     any Person or
group of Persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 25% or more of the outstanding shares of common
stock of the Parent (other than Berkshire Partners LLC); or, during any period
of twelve consecutive calendar months, individuals who were directors of the
Parent on the first day of such period shall cease to constitute a majority of
the board of directors of the Parent;


 


(m)                               a “Change
of  Control” as defined in the Series A Certificate shall occur;
or


 


(n)                                 a
“Change  of  Control” as defined in the Indenture shall
occur;


 


then, and in any such event, so long as the same
may be continuing, the Administrative Agent shall upon the request of the
Required Lenders, by notice in writing to the Borrowers, declare all amounts
owing with respect to this Credit Agreement, the Notes and the other Loan
Documents and all Reimbursement Obligations to be, and they shall thereupon
forthwith become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Borrowers; provided that in the event of any Event of Default
specified in §13.1(g) or 13.1(h), all such amounts shall become immediately due
and payable automatically and without any requirement of notice from the
Administrative Agent or any Lender. 
Upon demand by the Required Lenders after the occurrence of any Event of
Default, the Borrowers shall immediately provide to the Administrative Agent
cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters
of Credit outstanding, to be held by the Administrative Agent as collateral security
for the Obligations.


 


§13.2.  Termination
of  Commitments.  If any one
or more of the Events of Default specified in §13.1(g) or (h) shall occur, any
unused portion of the Total Commitment hereunder shall forthwith terminate and
the Lenders shall be relieved of all obligations to make Loans to, or issue
Letters of Credit for the account of, any of the Borrowers.  If any other Event of Default shall have
occurred and be continuing, or if on any Drawdown Date the conditions precedent
to the making of the Loans to be made on such Drawdown Date or the issuance of
any Letters of Credit to be issued on such date are not satisfied (except as a
consequence of a default on the part of the Lenders), the Administrative Agent
may, and upon request of the Required Lenders, shall, by notice to


 


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the Borrowers,
terminate the unused portion of the Total Commitment hereunder, and upon such
notice being given, such unused portion of the Total Commitment hereunder shall
terminate immediately and the Lenders shall be relieved of all further
obligations to make Loans to, or issue Letters of Credit for, the account of
the Borrowers hereunder.  No termination
of any portion of the Total Commitment hereunder shall relieve the Borrowers of
any of their existing Obligations to the Lenders hereunder or elsewhere.


 


§13.3.  Remedies.  Subject to §15.8, in case
any one or more of the Events of Default shall have occurred and be continuing,
and whether or not the Lenders shall have accelerated the maturity of the Loans
pursuant to §13.1, each Lender with the consent of the Required Lenders, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Credit Agreement and the other Loan
Documents or any instrument pursuant to which the Obligations to such Lender
are evidenced, including, without limitation, as permitted by applicable law,
the obtaining of the ex  parte appointment of a receiver, and, if
such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any legal or equitable right of such
Lender.  No remedy herein conferred upon
any Lender or the Agents or the holder of any Note or purchaser of any Letter
of Credit Participation is intended to be exclusive of any other remedy and
each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity
or by statute or any other provision of law.


 


§13.4.  Distribution
of  Collateral  Proceeds.  In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Administrative Agent or any Lender, as the case may be, receives
any monies in connection with the enforcement of any the Security Documents, or
otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:


 


(a)                                  First,
to the payment of, or (as the case may be) the reimbursement of the
Administrative Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Administrative Agent in connection with the collection of such monies by the
Administrative Agent, for the exercise, protection or enforcement by the
Administrative Agent of all or any of the rights, remedies, powers and
privileges of the Administrative Agent under this Agreement or any of the other
Loan Documents or in respect of the Collateral or in support of any provision
of adequate indemnity to the Administrative Agent against any taxes or liens
which by law shall have, or may have, priority over the rights of the
Administrative Agent to such monies;


 


(b)                                 Second,
to all other Obligations pari passu among the Administrative Agent and the
Lenders; provided, however, that (i) distributions shall be made
with respect to each type of Obligation owing to the Lenders, such as interest,
principal, fees and expenses, among the Lenders on a pro  rata
basis, and (ii) the Administrative Agent may in its discretion make proper
allowance to take into account any Obligations not then due and payable;


 


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(c)                                  Third,
upon payment and satisfaction in full or other provisions for payment in full
satisfactory to the Lenders and the Administrative Agent of all of the
Obligations, to the payment of any obligations required to be paid pursuant to
§9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts; and


 


(d)                                 Fourth,
the excess, if any, shall be returned to the Borrowers or to such other Persons
as are entitled thereto.


 


§14.  SETOFF.  The Borrowers hereby grant to
the Agents, the Issuing Lender and each of the Lenders a continuing lien,
security interest and right of setoff as security for all liabilities and
obligations to the Agents, the Issuing Lender and each Lender, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of such Agent, the Issuing Lender or such Lender or any
of their Affiliates and their respective successors and assigns or in transit
to any of them.Regardless of the adequacy of any collateral, if any of the
Obligations are due and payable and have not been paid or during the
continuance of an Event of Default, any deposits or other sums credited by or
due from any Lender or the Administrative Agent to the Borrowers and any
securities or other property of the Borrowers in the possession of such Lender
or the Administrative Agent may be applied to or set off against the payment of
the Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrowers to the Lenders. 
ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.  Each of the Lenders
agrees with each other Lender that if such Lender shall receive from the
Borrowers any amount in respect of the Obligations, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Loan Documents, by proceedings
against the Borrowers at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
and shall retain and apply to the payment of the Obligations owed to such
Lender any amount in excess of its ratable portion of the payments received by
all of the Lenders with respect to the Obligations owed to all of the Lenders,
such Lender will make such disposition and arrangements with the other Lenders
with respect to such excess, either by way of distribution, pro  tanto
assignment of claims, subrogation or otherwise as shall result in each Lender
receiving in respect of the Obligations such Lender’s proportionate payment as
contemplated by this Credit Agreement; provided that if all or any part
of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.


 


§15.  THE  AGENTS.


 


§15.1.  Appointment,
Powers  and  Immunities.


 


(a)                                  Each
Lender hereby irrevocably appoints and authorizes Fleet to act as the
Administrative Agent and BOA to act as Syndication Agent hereunder and under
the other Loan Documents.  Each Lender
irrevocably authorizes the Administrative Agent to execute the Security
Documents and all other instruments relating thereto and to take


 


74

















 


from time to
time any action with respect to any Collateral or the Security Documents which
may be necessary to perfect, maintain perfected or insure the priority of the
security interest in and liens upon the Collateral granted pursuant to the
Security Documents, and authorizes the Agents to take such other action on
behalf of each of the Lenders and to exercise all such powers as are delegated
to the Agents hereunder and under any of the other Loan Documents and all
related documents, together with such other powers as are reasonably incidental
thereto, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agents.


 


(b)                                 The
relationship between the Agents and each of the Lenders is that of an
independent contractor.  The use of the
terms “Administrative  Agent” and “Syndication  Agent”
is for convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agents and each of the
Lenders.  Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the Agents and any of the
Lenders.  As an independent contractor
empowered by the Lenders to exercise certain rights and perform certain duties
and responsibilities hereunder and under the other Loan Documents, the Agents
are nevertheless “representatives” of the Lenders, as that term is
defined in Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Lenders and the Agents with respect to all
collateral security and guaranties contemplated by the Loan Documents.  Such actions include the designation of the
Administrative Agent as “secured  party”, “mortgagee” or
the like on all financing statements and other documents and instruments,
whether recorded or otherwise, relating to the attachment, perfection, priority
or enforcement of any security interests, mortgages or deeds of trust in
collateral security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Lenders and the Agents.


 


(c)                                  The
Administrative Agent and the Syndication Agent may exercise their powers and
execute their duties by or through employees or agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such
employees, agents or attorneys-in-fact selected by it with reasonable
care.  The Agents shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to
their rights and duties under this Credit Agreement and the other Loan
Documents.  Each Agent may utilize the
services of such Persons as it in its sole discretion may reasonably determine,
and all reasonable fees and expenses of any such Persons shall be paid by the
Borrowers.


 


(d)                                 Neither
of the Agents nor any of their respective shareholders, directors, officers or
employees nor any other Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or approval given or
any action taken, or omitted to be taken, in good faith by it or them hereunder
or under any of the other Loan Documents, or in connection herewith or
therewith, or be responsible for the consequences of any oversight or error of
judgment whatsoever, except that the Agents or such other Person, as the case
may be, may be liable for losses due to their willful misconduct or gross
negligence.


 


(e)                                  Each
Agent in its separate capacity as a Lender shall have the same rights and
powers hereunder as any other Lender. 
It is agreed that the duties, rights,


 


75

















 


privileges and
immunities of the Issuing Lender, in its capacity as issuer of Letters of
Credit hereunder, shall be identical to its duties, rights, privileges and
immunities as a Lender as provided in this §15.


 


§15.2.  Actions
By  Agents.  The Agents shall
be fully justified in failing or refusing to take any action under this Credit
Agreement as they reasonably deem appropriate unless they shall first have
received such advice or concurrence of the Lenders and shall be indemnified to
its reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by them by reason of taking or continuing to take
any such action.  The Agents shall in
all cases be fully protected in acting, or in refraining from acting, under
this Credit Agreement or any of the Loan Documents in accordance with a request
of the Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Lenders and all future holders of
the Notes or any Letter of Credit Participation.


 


§15.3.  Indemnification
of  Agents.  Without limiting
the obligations of the Borrowers hereunder or under any other Loan Document,
the Lenders agree to indemnify the Agents and their respective affiliates,
agents, directors, officers and shareholders, and ratably in accordance with
their respective Loan Percentages for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements or any kind or nature whatsoever which may at any time be imposed
on, incurred by or asserted against the Agents in any way relating to or
arising out of this Credit Agreement or any other Loan Document or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
thereof or of any such other documents; provided, that no Lender
shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of such Agent (or any agent thereof).


 


§15.4.  Reimbursement
for  Advances  Made  by
Administrative  Agent.  Without limiting the
provisions of §15.3, the Lenders and the Administrative Agent hereby agree that
the Administrative Agent shall not be obliged to make available to any Person
any sum which the Administrative Agent is expecting to receive for the account
of that Person until the Administrative Agent has determined that it has
received that sum.  The Administrative
Agent may, however, disburse funds prior to determining that the sums which the
Administrative Agent expects to receive have been finally and unconditionally
paid to the Administrative Agent, if the Administrative Agent wishes to do
so.  If and to the extent that the
Administrative Agent does disburse funds and it later becomes apparent that the
Administrative Agent did not then receive a payment in an amount equal to the sum
paid out, then any Person to whom the Administrative Agent made the funds
available shall, on demand from the Administrative Agent, refund to the
Administrative Agent the sum paid to that Person.  If, in the opinion of the Administrative Agent, the distribution
of any amount received by it in such capacity hereunder or under the Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated
by a court of competent jurisdiction. 
If a court of competent jurisdiction shall adjudge that any amount
received and distributed by the Administrative Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either repay to
the Administrative Agent its proportionate share of the amount so adjudged to
be repaid or


 


76

















 


shall pay over
the same in such manner and to such Persons as shall be determined by such
court.


 


§15.5.  Closing
Documentation,  etc.  For
purposes of determining compliance with the conditions set forth in §10, each
Lender that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document and
matter either sent, or made available, by the Agents or the Co-Arrangers to
such Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be to be consent to or approved by or acceptable or satisfactory
to such Lender, unless an officer of such Agent or such Co-Arranger active upon
the Borrowers’ account shall have received notice from such Lender prior to the
Effective Date specifying such Lender’s objection thereto and such objection
shall not have been withdrawn by notice to such Agent or such Co-Arranger to
such effect on or prior to the Effective Date. 
The Administrative Agent will forward to each Lender, promptly after the
Administrative Agent’s receipt thereof, a copy of each notice or other document
furnished to the Administrative Agent for such Lender hereunder; provided,
however, that, notwithstanding the foregoing, the Administrative Agent
may furnish to the Lenders a monthly summary with respect to Letters of Credit
issued hereunder in lieu of copies of the related Letter of Credit
Applications.


 


§15.6.  Non-Reliance
on  Agents  and  Other
Lenders.  Each Lender represents that it has,
independently and without reliance on either Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of the financial condition and affairs of the Borrowers and
decision to enter into this Credit Agreement and the other Loan Documents and
agrees that it will, independently and without reliance upon either 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 appraisals and decisions in
taking or not taking action under this Credit Agreement or any other Loan
Document.  The Agents shall not be
responsible for the due execution or validity or enforceability of this Credit
Agreement, the Notes, the Letters of Credit, any of the other Loan Documents or
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrowers, or be bound to ascertain or inquire as to the performance or
observance by the Borrowers of any of the terms, conditions, covenants or
agreements in this Credit Agreement, the other Loan Documents or any other
document referred to or provided for herein or therein or to make inquiry of,
or to inspect the properties or books of, any Person.  The Agents shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrowers or any holder of
any of the Notes shall have been duly authorized or is true, accurate and
complete.  Except for notices, reports
and other documents and information expressly required to be furnished to the
Lenders by the Agents hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning any Person which may come into the possession of the Agents or any
of their affiliates.  The Agents have
not made nor do they now make any representations or warranties, express or
implied, nor do they assume any liability to the Lenders, with respect to the
credit worthiness or financial conditions of the Borrowers.  Each Lender shall have access to all documents
relating to each Agent’s performance of 


 


77

















 


its duties
hereunder at such Lender’s request. 
Unless any Lender shall promptly object to any action taken by an Agent
hereunder (other than actions to which the provisions of §15.8 are applicable
and other than actions which constitute gross negligence or willful misconduct
by such Agent), such Lender shall conclusively be presumed to have approved the
same.


 


§15.7.  Resignation.  The
Administrative Agent may resign at any time by giving sixty (60) days’ prior
written notice thereof to the Lenders and the Borrowers.  Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent.  If no successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent’s
giving of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Lender Agent, which shall be a
financial institution which shall be a financial institution having a rating of
not less than “A” or its equivalent by S&P.  Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.  After any retiring
Administrative Agent’s resignation, the provisions of this Credit Agreement
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.  Any new Administrative Agent appointed
pursuant to this §15.7 shall immediately issue new Letters of Credit in place
of Letters of Credit previously issued by the prior Administrative Agent.


 


§15.8.  Action  by
the  Lenders,
Consents,  Amendments,  Waivers,  Etc.  Any
consent or approval required or permitted by this Credit Agreement to be given
by the Lenders may be given, and any term of this Credit Agreement, the other
Loan Documents or any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower or any of its
Subsidiaries of any terms of this Credit Agreement, the other Loan Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrowers and the written consent of the Required Lenders.  Notwithstanding the foregoing, no amendment,
waiver or consent shall:


 


(a)                                  without
the written consent of the Borrowers and each Lender directly affected thereby:


 


(i)                                     reduce
or forgive the principal amount of any Loans or Reimbursement Obligations, or
reduce the rate of interest on the Notes or the amount of the Commitment Fee,
Financial L/C Fee or Performance L/C Fee;


 


(ii)                                  increase
the amount of such Lender’s Commitment or extend the expiration date of such
Lender’s Commitment;


 


(iii)                               postpone
or extend the Revolving Credit Maturity Date or the Term Loan Maturity Date or
any other regularly scheduled dates for payments of principal of, or interest
on, the Loans or Reimbursement Obligations or 


 


78

















 


any fees or
other amounts payable to such Lender (it being understood that any vote to
rescind any acceleration made pursuant to §13.1 of amounts owing with respect
to the Loans and other Obligations shall require only the approval of the
Required Lenders);


 


(iv)                              other
than pursuant to a transaction permitted by the terms of this Credit Agreement,
release (A) all or substantially all of the Collateral  (excluding, if any Borrower
becomes a debtor under the federal Bankruptcy Code, the release of “cash
collateral”, as defined in Section 363(a) of the federal Bankruptcy Code
pursuant to a cash collateral stipulation with the debtor approved by the
Required Lenders) or (B) any Borrower from its Obligations; and


 


(v)                                 amend
or modify the provisions of §4.4 (Mandatory Prepayments of Term Loan), §13.4
(Distribution of Collateral Proceeds) or §27(a) (Pari Passu Treatment);


 


(b)                                 without
the written consent of all of the Lenders, amend or waive this §15.8 or the
definition of Required Lenders;


 


(c)                                  without
the written consent of the Administrative Agent, amend or waive §2.8 or §15,
the amount or time of payment of the Administrative Agent’s fees payable for
the Administrative Agent’s account or any other provision applicable to the
Administrative Agent; or


 


(d)                                 without
the written consent of the Issuing Lender, amend or waive, the amount or time of
payment of any Financial L/C Fees or Performance L/C Fees or other fees payable
for the Issuing Lender’s account or any other provision applicable to the
Issuing Lender.


 


No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon.  No course of dealing or delay or omission on
the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrowers
shall entitle the Borrowers to other or further notice or demand in similar or
other circumstances.


 


§16.  EXPENSES.  Whether or not the
transactions contemplated herein shall be consummated, the Borrowers hereby
promise to pay (a) the reasonable costs of producing and reproducing this
Credit Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein, (b) subject to §5.2(d), any taxes (including any
interest and penalties in respect thereto) payable by either Agent, the Issuing
Lender or any of the Lenders (other than taxes based upon such Agent’s, the
Issuing Lender’s or any Lender’s net income) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to indemnify the Agents, the Issuing Lender and the Lenders with
respect thereto), (c) all reasonable fees, expenses and disbursements of
counsel for the Agents or any local counsel to the Administrative Agent
incurred or expended in connection with the preparation, syndication,
negotiation, administration or interpretation of this Credit Agreement, the
other Loan Documents, each closing hereunder, any amendment, modification,
approval, consent or waiver hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the 


 


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Obligations or pursuant to any
terms of such Loan Document providing for such cancellation, (d) all reasonable
out-of-pocket costs, fees and expenses of the Agents or any of their affiliates
incurred in connection with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments mentioned herein
(including, without limitation, collateral evaluation costs and Consulting Engineer’s
fees), (e) all reasonable out-of-pocket expenses (including, without
limitation, reasonable attorneys’ fees and costs, which attorneys may be
employees of any Lender or the Administrative Agent, and reasonable consulting,
accounting, appraisal, investment banker and similar professional fees and
charges) incurred by any Lender or the Administrative Agent in connection with
(i) the enforcement of, or preservation of rights under, any of the Loan
Documents against the Borrowers or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute, whether arising hereunder or otherwise, in any way related to the
credit hereunder and (f) all reasonable fees, expenses and disbursements of any
Lender or the Administrative Agent incurred in connection with UCC searches,
UCC filings,
intellectual property searches or intellectual property filings.  The covenants contained in this §16 shall
survive payment or satisfaction in full of all other obligations.


 


§17.  INDEMNIFICATION.  The Borrowers jointly and
severally agree to indemnify and hold harmless the Agents, the Issuing Lender
and the Lenders, as well as their respective shareholders, directors, agents,
officers, subsidiaries, affiliates, trustees and advisors, from and against all
damages, losses, settlement payments, obligations, liabilities, claims,
actions, suits (whether groundless or otherwise), penalties, assessments,
citations, directives, demands, judgments, actions or causes of action, whether
statutory created or under the common law, and reasonable costs and expenses
incurred, suffered, sustained or required to be paid by an indemnified party by
reason of or resulting from this Credit Agreement, the other Loan Documents or
the transactions contemplated hereby or thereby including, without limitation,
(a) any actual or proposed use by the Borrower or any of its Subsidiaries of
the proceeds of any of the Loans or Letters of Credit, (b) the Borrowers
entering into or performing this Credit Agreement or any of the other Loan
Documents or (c) with respect to the Borrowers and their respective properties
and assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, Release or threatened
Release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding, except in each case, as any of the foregoing result from the gross
negligence or willful misconduct of the indemnified party.  In any investigation, proceeding or
litigation, or the preparation therefor, each Lender shall be entitled to
select its own counsel and, in addition to the foregoing indemnity, the
Borrowers agree to pay promptly the reasonable fees and expenses of such
counsel.  In the event of the
commencement of any such proceeding or litigation, the Borrowers shall be entitled
to participate in such proceeding or litigation with counsel of their choice at
their expense, provided that such counsel shall be reasonably
satisfactory to the Lenders.  The
covenants of this §17 shall survive payment or satisfaction in full of the
Obligations.


 


§18.  SURVIVAL OF
COVENANTS, ETC.  Unless
otherwise stated herein, all covenants, agreements, representations and
warranties made herein, in the other Loan Documents or in any documents or
other papers delivered by or on behalf of the Borrowers pursuant hereto shall
be deemed to have been relied upon by the Lenders, the Issuing Lender and the
Agents, notwithstanding any investigation heretofore or hereafter made by any
of them, and shall survive 


 


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the making by the Lenders of
the Loans and the issuance, extension or renewal of any Letters of Credit, as
herein contemplated, and shall continue in full force and effect so long as any
amount due under this Credit Agreement, any Letter of Credit or the Notes
remains outstanding and unpaid or any Lender has any obligation to make any
Loans or issue any Letters of Credit hereunder.  All statements contained in any certificate or other paper
delivered by or on behalf of the Borrowers pursuant hereto or in connection
with the transactions contemplated hereby shall constitute representations and
warranties by the Borrowers hereunder.


 


§19.  ASSIGNMENTS  AND  PARTICIPATION.


 


(a)                                  Assignments.  It
is understood and agreed that each Lender shall have the right to assign at any
time all or any portion of its Commitment and interests in the risk relating to
any Revolving Credit Loans and outstanding Letters of Credit and/or its Term
Loan Percentage of the Term Loan to any Person, provided that: (i) each
such assignment shall be in a minimum amount of $1,000,000 (or, if less, in a
minimum amount equal to all of such Lender’s Commitment and interests in the
risk relating to any Revolving Credit Loans and outstanding Letters of Credit
and/or its Term Loan Percentage of the Term Loan); (ii) the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Parent, shall have consented to such assignment, which such consent of the
Parent shall not be unreasonably withheld; provided that the consent of
the Administrative Agent and the Parent shall not be required, and the minimum
assignment amount shall not apply, if the assignment is to a Lender or a Lender
Affiliate so long as such assignment would not result in increased costs to the
Borrowers hereunder; and (iii) the proposed assignee and the assigning Lender
execute and deliver to the Administrative Agent and the Borrowers hereunder an
Assignment and Acceptance in the form attached hereto as Exhibit G (in
each case, an “Assignment  and  Acceptance”).  Upon the execution and delivery
of such Assignment and Acceptance, (A) the Borrowers shall issue to the
assignee applicable Notes in the amount of such assignee’s Commitment and/or
portion of the Term Loan, dated the effective date of such Assignment and
Acceptance and otherwise completed in substantially the form of the Notes
executed and delivered to the Lenders on the Effective Date and, if applicable,
the assignor shall return to the Borrowers its existing Notes marked
“cancelled”; and (B) the assignee shall pay a processing and recordation fee of
$3,500 to the Administrative Agent. Only one such assignment fee shall be
payable for concurrent assignments to Lender Affiliates of an assigning Lender.


 


(b)                                 Participations.  Each
Lender shall also have the right to grant participations to one or more banks,
other financial institutions or other entities whose business is to purchase
and sell loan assets in the normal course (each a “Participant”) in or
to all or any part of any Loans owing to such Lender and the Note held by such
Lender; provided that (i) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Borrowers
and (ii) the only rights granted to the Participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of the Loan Documents shall be the rights to approve waivers, amendments or
modifications that would require consent by all of the Lenders under §15.8, and
(iii) any Participant shall be entitled to the benefits of §5.4, §5.5, §5.8,
§5.12 and §17 as if it were a Lender hereunder, provided, however, that
no Borrower shall be required to pay any amount which is greater than such
amount that otherwise would have been payable to the Lender which sold such
participation.


 


(c)                                  Miscellaneous.  Notwithstanding
the foregoing, no assignment, participation or accession shall operate to (i)
except in accordance with §19(g), increase the Total Commitment or amount of
the Term Loan hereunder unless consented to by the Required Lenders or (ii)
reduce 


 


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the Commitment or portion of
the Term Loan of any Lender to an amount less than $1,000,000  (or,
if less, in a minimum amount equal to all of such Lender’s Commitment and
interests in the risk relating to any Revolving Credit Loans and outstanding
Letters of Credit or its Term Loan Percentage of the Term Loan), or (iii)
otherwise alter the substantive terms of this Credit Agreement.  Anything contained in this §19 to the
contrary notwithstanding, any Lender may at any time grant a security interest
in all or any portion of its rights under this Credit Agreement and the other
Loan Documents to secure obligations of such Lender, including without
limitation (a) any pledge or assignment to secure obligations to any of the
twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12
U.S.C. §341 and (b) with respect to any Lender that is a Fund, to any lender or
any trustee for, or any other representative of, holders of obligations owed or
securities issued by such Fund as security for such obligations or securities
or any institutional custodian for such Fund or for such lender; provided
that no such grant shall release such Lender from any of its obligations
hereunder, provide any voting rights hereunder to the secured party thereof,
substitute any such secured party for such Lender as a party hereto or affect
any rights or obligations of the Borrowers or Agents hereunder.


 


(d)                                 Register.  On
the date specified in any Assignment and Acceptance or Instrument of Accession
and upon the satisfaction of the other conditions set forth in this §19, such
bank or financial institution shall become a party to this Credit Agreement and
the other Loan Documents for all purposes of this Credit Agreement and the
other Loan Documents, and its Commitment and/or portion of the Term Loan shall
be as set forth in the register of Lenders (the “Register”) maintained
by the Administrative Agent for the recordation of the names and addresses of
the Lenders and the Commitment Percentage of, Term Loan Percentage of, and
principal amount of the Loans owing to and Letter of Credit Participations
purchased by, the Lenders from time to time. 
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Credit Agreement. 
The Register shall be available for inspection by the Borrowers and the
Lenders at any reasonable time and from time to time upon reasonable prior
notice.


 


(e)                                  Assignee
or  Participant  Affiliated  with  a  Borrower.  If
any assignee Lender is an Affiliate of any Borrower, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Administrative Agent
pursuant to §13.1 or §13.2, and the determination of the Required Lenders shall
for all purposes of this Credit Agreement and the other Loan Documents be made
without regard to such assignee Lender’s interest in any of the Loans or Reimbursement
Obligations.  If any Lender sells a
participating interest in any of the Loans or Reimbursement Obligations to a
Participant, and such Participant is a Borrower or an Affiliate of a Borrower,
then such transferor Lender shall promptly notify the Administrative Agent of
the sale of such participation.  A
transferor Lender shall have no right to vote as a Lender hereunder or under
any of the other Loan Documents for purposes of granting consents or waivers or
for purposes of agreeing to amendments or modifications to any of the Loan
Documents or for purposes of making requests to the Administrative Agent
pursuant to §13.1 or §13.2 to the extent that such participation is
beneficially owned by a Borrower or any Affiliate of a Borrower, and the determination
of the Required Lenders shall for all purposes of this Credit Agreement and the
other Loan Documents be made without regard to the interest of such transferor
Lender in the Loans or Reimbursement Obligations to the extent of such
participation.  The provisions of this
§19(e) shall not apply to an assignee Lender or participant which is also a
Lender on the Effective Date or to an assignee Lender or participant which has 


 


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disclosed to the other Lenders that it is an Affiliate of a Borrower
and which, following such disclosure, has been excepted from the provisions of
this §19(e) in a writing signed by the Required Lenders determined without
regard to the interest of such assignee Lender or transferor Lender, to the
extent of such participation, in Loans or Reimbursement Obligations.


 


(f)                                    Special
Purpose Funding Vehicle.  Notwithstanding anything to the contrary
contained in this §19, any Lender (a “Granting  Lender”) may grant
to a special purpose funding vehicle (an “SPV”) of such Granting Lender,
identified as such in writing from time to time delivered by the Granting
Lender to the Administrative Agent and the Borrowers, the option to provide to
the Borrowers all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrowers pursuant to this Credit
Agreement, provided that (a) nothing herein shall constitute a
commitment to make any Loan by any SPV, (b) the Granting Lender’s obligations
under this Credit Agreement shall remain unchanged, (c) the Granting Lender
shall retain the sole right to enforce this Credit Agreement and to approve any
amendment, modification or waiver of any provision of this Credit Agreement and
(d) if an SPV 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 SPV hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender.  Each party hereto
hereby agrees that no SPV shall be liable for any expense reimbursement,
indemnity or similar payment obligation under this Credit Agreement (all
liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Credit Agreement) that, prior to the date that is one year and one day after
the later of (i) the payment in full of all outstanding senior indebtedness of
any SPV and (ii) the Revolving Credit Maturity Date, or, as applicable, the
Term Loan Maturity Date, it will not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States of America or any State thereof.  In addition, notwithstanding anything to the
contrary contained in this §19, any SPV may (A) with notice to, but (except as
specified below) without the prior written consent of, the Borrowers or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Lender or to any
financial institutions (consented to by the Administrative Agent and, so long
as no Default or Event of Default has occurred and is continuing, the
Borrowers, which consents shall not be unreasonably withheld or delayed)
providing liquidity and/or credit facilities to or for the account of such SPV
to fund the Loans made by such SPV or to support the securities (if any) issued
by such SPV to fund such Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans (other than financial statements
referred to in §6.4 or §7.4) to any rating agency, commercial paper dealer or
provider of a surety, guarantee or credit or liquidity enhancement to such
SPV.  In no event shall the Borrowers be
obligated to pay to an SPV that has made a Loan any greater amount than the
Borrowers would have been obligated to pay under this Agreement if the Granting
Lender had made such Loan.  An amendment
to this §19(f) without the written consent of an SPV shall be ineffective
insofar as it alters the rights and obligations of such SPV.


 


(g)                                 Acceding Lenders.  One or
more commercial banks, other financial institutions or other Persons (in each
case, an “Acceding Lender”) may, at the request of the Borrowers, become
party to this Credit Agreement as a Lender by entering into an Instrument of
Accession in substantially the form of Exhibit  H hereto (an “Instrument
of  Accession”) with the Borrowers and the Administrative Agent
and assuming thereunder the rights and obligations of a Lender hereunder,
including, without limitation, Commitments to make Revolving Credit Loans and


 


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participate in the risk
relating to Letters of Credit and (as the case may be) the obligation to fund a
portion of the Term Loan in amounts to be agreed upon by the Borrowers and the
Acceding Lender subject to the terms hereof, and the Total Commitment and (as
the case may be) the Term Loan shall thereupon be increased (each such increase
referred to as a “Post-Closing  Increase”) by the amount of such
Acceding Lender’s interest; provided that:


 


(i)                                     no
Default or Event of Default has occurred or is continuing at the time of such
accession;


 


(ii)                                  the
Lenders party to this Credit Agreement shall have the first option, and may
elect, to fund their pro rata share of any Post-Closing
Increase, but no Lender shall have any obligation to do so;


 


(iii)                               in
the event that an Acceding Lender was not a Lender party to this Credit
Agreement prior to giving effect to the Instrument of Accession, such Acceding
Lender shall be acceptable to the Administrative Agent;


 


(iv)                              in
no event shall the sum of (a) the Term Loan plus (b) the Total
Commitment (after giving effect to all Instruments of Accession) exceed in the
aggregate $375,000,000 minus any previously effected reductions of the
Total Commitment and the Term Loan pursuant to §2.2, 4.4 or 4.5, respectively;
and


 


(v)                                 the
Borrowers shall indemnify the Lenders and the Administrative Agent for any cost
or expense incurred as a consequence of the reallocation of any Eurodollar Rate
Loans to an Acceding Lender pursuant to the provisions of §5.12.


 


On the
effective date specified in any Instrument of Accession, Schedule 2
hereto shall be deemed to be amended to reflect (x) the name, address,
Commitment, Commitment Percentage and Term Loan Percentage of the Acceding
Lender, (y) the Total Commitment and the Term Loan after giving effect to the
Post-Closing Increase, and (z) the changes to the respective Commitments,
Commitment Percentages and Term Loan Percentages of the other Lenders, as
applicable, resulting from such Post-Closing Increase.


 


§20.  PARTIES  IN  INTEREST.  All the terms of this Credit
Agreement and the other Loan Documents shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns of the parties hereto and thereto; provided,
that no Borrower shall assign or transfer its rights or obligations hereunder
without the prior written consent of each Lender.  Nothing in this Credit Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby) any legal or equitable
right, remedy or claim under or by reason of this Credit Agreement or any of
the other Loan Documents.


 


§21.  NOTICES,
ETC.


 


Except as
otherwise expressly provided in this Credit Agreement, all notices and other
communications made or required to be given pursuant to this Credit Agreement
or the other Loan Documents shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first-class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telex or telecopier
and confirmed by delivery via courier or postal service, addressed as follows:


 


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(a)                                  if
to the Borrowers, c/o Casella Waste Systems, Inc. at 25 Greens Hill Lane, P.O.
Box 866, Rutland, Vermont 05701, Attention:  Chairman and Chief Financial Officer, telecopy number
802-775-6198, or at such other address for notice as the Borrowers shall last
have furnished in writing to the Person giving the notice;


 


(b)                                 if
to the Administrative Agent or Fleet, at 100 Federal Street, Boston,
Massachusetts 02110, USA, Attention: Timothy M. Laurion, Managing Director,
telecopy number 617-434-2160, or at such other address for notice as the
Administrative Agent or Fleet shall last have furnished in writing to the
Person giving the notice; or


 


(c)                                  if
to any Lender, at such Lender’s address set forth on Schedule 2
hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.


 


Any such
notice or demand shall be deemed to have been duly given or made and to have
become effective (a) if delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed, at the time of the
receipt thereof by such officer, (b) if sent by registered or certified
first-class mail, postage prepaid, five (5) Business Days after the posting
thereof, and (c) if sent by telex or cable, at the time of the dispatch
thereof, if in normal business hours in the country of receipt, or otherwise at
the opening of business on the following Business Day.


 


§22.  MISCELLANEOUS.  The rights and remedies herein
expressed are cumulative and not exclusive of any other rights which the
Lenders, the Issuing Lender or the Agents would otherwise have.  The captions in this Credit Agreement are
for convenience of reference only and shall not define or limit the provisions
hereof.  This Credit Agreement and any
amendment hereof may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument.  In proving this Credit Agreement it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.  Delivery by facsimile by any of the parties
hereto of an executed counterpart hereof or of any amendment or waiver hereto
shall be as effective as an original executed counterpart hereof or of such
amendment or waiver and shall be considered a representation that an original
executed counterpart hereof or such amendment or waiver, as the case may be,
will be delivered.


 


§23.  ENTIRE  AGREEMENT,  ETC.  The
Loan Documents and any other documents executed in connection herewith or
therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. 
Neither this Credit Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §15.8.  No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon.  No course of dealing or omission on the part
of the Administrative Agent or any Lender in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial thereto.  No notice to or demand upon the Borrowers
shall entitle the Borrowers to other or further notice or demand in similar or
other circumstances.


 


§24.  WAIVER  OF
JURY  TRIAL.  EACH
OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH


 


85

















 


RIGHTS AND OBLIGATIONS OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF ANY PARTY, INCLUDING ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES
THAT IT WILL NOT SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  Except as prohibited by law, each of the parties hereto hereby
waives any right it may have to claim or recover in any litigation referred to
in the preceding sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages.  Each of the Borrowers (a) certifies that no
representative, agent or attorney of any Lender, the Issuing Lender or the
Agents has represented, expressly or otherwise, that such Lender, the Issuing
Lender or the Agents would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that the Agents, the Issuing Lender and
the Lenders have been induced to enter into this Credit Agreement, the other
Loan Documents to which it is a party by, among other things, the waivers and
certifications contained herein.


 


§25.  GOVERNING LAW.  THIS CREDIT AGREEMENT AND,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OR CHOICE OF
LAW).  THE BORROWERS CONSENT AND AGREE
THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWERS IN ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED
IN §21.  THE BORROWERS HEREBY WAIVE ANY
OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.


 


§26.  SEVERABILITY.  The provisions of this Credit
Agreement are severable and if any one clause or provision hereof shall be held
invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Credit Agreement in any jurisdiction.


 


§27.  PARI PASSU TREATMENT.


 


(a)                                  Notwithstanding
anything to the contrary set forth herein (other than as set forth in §13.4),
each payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari passu
among the Lenders, in accordance with the aggregate outstanding amount of the
Obligations owing to each Lender divided by the aggregate outstanding amount of
all Obligations.


 


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(b)                                 Following
the occurrence and during the continuance of any Event of Default, each Lender
agrees that if it shall, through the exercise of a right of banker’s lien,
setoff or counterclaim against any Borrower (pursuant to §13.3 or otherwise),
including a secured claim under §506 of the Bankruptcy Code or other security
or interest arising from or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, obtain payment (voluntary or involuntary) in respect of the Notes,
Loans, and other Obligations held by it as a result of which the unpaid
principal portion of the Notes, Loans and the Obligations held by it shall be
proportionately less than the unpaid principal portion of the Notes, Loans and
Obligations held by any other Lender, it shall be deemed to have simultaneously
purchased from such other Lender a participation in the Notes, Loans and
Obligations held by such other Lender, so that the aggregate unpaid principal
amount of the Notes, Loans, Obligations and participations in Notes, Loans and
Obligations held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of the Notes, Loans and Obligations then
outstanding as the principal amount of the Notes, Loans and other Obligations
held by it prior to such exercise of banker’s lien, setoff or counterclaim was
to the principal amount of all Notes, Loans and other Obligations outstanding
prior to such exercise of banker’s lien, setoff or counterclaim; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this §27 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustments
restored without interest.


 


(c)                                  Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Person holding such a participation in the Notes, Loans and the Obligations
deemed to have been so purchased may exercise any and all rights of banker’s
lien, setoff or counterclaim with respect to any and all moneys owing by such
Borrower to such Person as fully as if such Person had made a Loan directly to
such Borrower in the amount of such participation.


 


(d)                                 Nothing
contained in this §27 shall impair, as between the Borrowers and any Lender,
the obligation of the applicable Borrowers to pay such Lender all amounts
payable in respect of such Lender’s Notes, Loans, and other Obligations as and
when the same shall become due and payable in accordance with the terms
thereof.


 


§28.  EXISTING CREDIT
AGREEMENT SUPERSEDED.  This
Credit Agreement shall supersede the Existing Credit Agreement in its entirety,
except as provided in this §28.  On the
Effective Date, the rights and obligations of the parties under the Existing
Credit Agreement and the “Notes” as defined therein shall be subsumed within
and be governed by this Credit Agreement and the Notes; provided,
however, that each of the “Revolving Credit Loans”, “Swingline Loans”, “Letters
of Credit” and the “Term Loan” (as each such term is defined in the Existing
Credit Agreement) outstanding under the Existing Credit Agreement on the
Effective Date shall, for purposes of this Credit Agreement, be included as
Revolving Credit Loans, Swingline Loans, Letters of Credit and the Term Loan
hereunder in accordance with the provisions hereof.


 


§29.  TREATMENT
OF CERTAIN CONFIDENTIAL INFORMATION.


 


§29.1.  Confidentiality.  Each of the Lenders, the
Issuing Lender and the Agents agrees, on behalf of itself and each of its affiliates,
directors, officers, employees and representatives, to use reasonable
precautions to keep confidential, in accordance with their customary procedures
for handling confidential information of the same nature and in accordance with
safe and sound banking practices, any non-public information


 


87

















 


supplied to it
by any of the Borrowers pursuant to this Credit Agreement that is identified by
such Borrower as being confidential at the time the same is delivered to such
Lender, the Issuing Lender or such Administrative Agent, provided that
nothing herein shall limit the disclosure of any such information (a) after
such information shall have become public other than through a violation of
this §29, or becomes available to any of the Lenders, the Issuing Lender or the
Agents on a nonconfidential basis from a source other than such Borrower, (b)
to the extent required by statute, rule, regulation or judicial process, (c) to
counsel for any of the Lenders, the Issuing Lender or the Agents, (d) to bank
examiners or any other regulatory authority having jurisdiction over any
Lender, the Issuing Lender or either Agent, or to auditors or accountants, (e)
to either Agent, the Issuing Lender, any Lender or any Financial Affiliate, (f)
in connection with any litigation to which any one or more of the Lenders, the
Issuing Lender or either Agents or any Financial Affiliate is a party, or in
connection with the enforcement of rights or remedies hereunder or under any other
Loan Document, (g) to an affiliate of any Lender or the Issuing Lender or a
Subsidiary or affiliate of either Agent, (h) to any actual or prospective
assignee or participant or any actual or prospective counterparty (or its
advisors) to any swap or derivative transactions referenced to credit or other
risks or events arising under this Credit Agreement or any other Loan Document
so long as such assignee, participant or counterparty, as the case may be,
agrees to be bound by the provisions of this §29.1 or (i) with the consent of
the Borrowers.  Moreover, each of the
Agents, the Issuing Lender, the Lenders and any Financial Affiliate is hereby
expressly permitted by the Borrowers to refer to any of the Borrowers and the
Excluded Subsidiaries in connection with any advertising, promotion or
marketing undertaken by such Agent, the Issuing Lender, such Lender or such
Financial Affiliate and, for such purpose, the such Agent, the Issuing Lender,
such Lender or such Financial Affiliate may utilize any trade name, trademark,
logo or other distinctive symbol associated with any of the Borrowers or any of
their Subsidiaries or any of their businesses.


 


§29.2.  Prior
Notification.  Unless specifically prohibited
by applicable law or court order, each of the Lenders, the Issuing Lender and
the Agents shall, prior to disclosure thereof, notify the Borrowers of any
request for disclosure of any such non-public information by any governmental
agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Lender, the Issuing Lender or
such Agent by such governmental agency) or pursuant to legal process.


 


§29.3.  Other.  In no event shall any
Lender, the Issuing Lender or either Agent be obligated or required to return
any materials furnished to it or any Financial Affiliate by the Borrowers.  The obligations of each Lender under this
§29 shall supersede and replace the obligations of such Lender under any
confidentiality letter in respect of this financing signed and delivered by
such Lender to the Borrowers prior to the date hereof and shall be binding upon
any assignee of, or purchaser of any participation in, any interest in any of
the Loans or Reimbursement Obligations from any Lender.


 


88

















 


IN WITNESS
WHEREOF, the undersigned have duly executed this Second Amended and Restated
Revolving Credit and Term Loan Agreement as a sealed instrument as of the date
first set forth above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
  CASELLA WASTE SYSTEMS, INC.

  
	
   

  	
  ALL CYCLE WASTE, INC.

  
	
   

  	
  ALTERNATE ENERGY, INC.

  
	
   

  	
  ATLANTIC COAST FIBERS, INC.

  
	
   

  	
  B. AND C. SANITATION CORPORATION

  
	
   

  	
  BLASDELL DEVELOPMENT GROUP, INC.

  
	
   

  	
  BRISTOL WASTE MANAGEMENT, INC.

  
	
   

  	
  CASELLA TRANSPORTATION, INC.

  
	
   

  	
  CASELLA WASTE MANAGEMENT OF MASSACHUSETTS, INC.

  
	
   

  	
  CASELLA WASTE MANAGEMENT OF N.Y., INC.

  
	
   

  	
  CASELLA WASTE MANAGEMENT OF PENNSYLVANIA, INC.

  
	
   

  	
  CASELLA WASTE MANAGEMENT, INC.

  
	
   

  	
  DATA DESTRUCTION SERVICES, INC.

  
	
   

  	
  FAIRFIELD COUNTY RECYCLING, INC.

  
	
   

  	
  FCR CAMDEN, INC.

  
	
   

  	
  FCR FLORIDA, INC.

  
	
   

  	
  FCR GREENSBORO, INC.

  
	
   

  	
  FCR GREENVILLE, INC.

  
	
   

  	
  FCR MORRIS, INC.

  
	
   

  	
  FCR PLASTICS, INC.

  
	
   

  	
  FCR REDEMPTION, INC.

  
	
   

  	
  FCR TENNESSEE, INC.

  
	
   

  	
  FCR VIRGINIA, INC.

  
	
   

  	
  FCR, INC.

  
	
   

  	
  FOREST ACQUISITIONS, INC.

  
	
   

  	
  GRASSLANDS INC.

  
	
   

  	
  HAKES C & D DISPOSAL, INC.

  
	
   

  	
  HIRAM HOLLOW REGENERATION CORP.

  
	
   

  	
  K-C INTERNATIONAL, LTD.

  
	
   

  	
  KTI BIO FUELS, INC.

  
	
   

  	
  KTI ENERGY OF VIRGINIA, INC.

  
	
   

  	
  KTI ENVIRONMENTAL GROUP, INC.

  
	
   

  	
  KTI NEW JERSEY FIBERS, INC.

  
	
   

  	
  KTI OPERATIONS INC.

  
	
   

  	
  KTI RECYCLING OF NEW ENGLAND, INC.

  
	
   

  	
  KTI RECYCLING OF NEW JERSEY, INC.

  
	
   

  	
  KTI SPECIALTY WASTE SERVICES, INC.

  
	
   

  	
  KTI, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [SIGNATURES CONTINUED ON

  FOLLOWING PAGE]

  



 

















 


	
   

  	
  MECKLENBURG COUNTY RECYCLING, INC.

  
	
   

  	
  NATURAL ENVIRONMENTAL, INC.

  
	
   

  	
  NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.

  
	
   

  	
  NEW ENGLAND WASTE SERVICES OF ME, INC.

  
	
   

  	
  NEW ENGLAND WASTE SERVICES OF N.Y., INC.

  
	
   

  	
  NEW ENGLAND WASTE SERVICES OF VERMONT, INC.

  
	
   

  	
  NEW ENGLAND WASTE SERVICES, INC.

  
	
   

  	
  NEWBURY WASTE MANAGEMENT, INC.

  
	
   

  	
  NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.

  
	
   

  	
  NORTHERN PROPERTIES CORPORATION OF PLATTSBURGH

  
	
   

  	
  NORTHERN SANITATION, INC.

  
	
   

  	
  PERC, INC.

  
	
   

  	
  PINE TREE WASTE, INC.

  
	
   

  	
  R.A. BRONSON INC.

  
	
   

  	
  RESOURCE RECOVERY OF CAPE COD, INC.

  
	
   

  	
  RESOURCE RECOVERY SYSTEMS OF SARASOTA, INC.

  
	
   

  	
  RESOURCE RECOVERY SYSTEMS, INC.

  
	
   

  	
  RESOURCE TRANSFER SERVICES, INC.

  
	
   

  	
  RESOURCE WASTE SYSTEMS, INC.

  
	
   

  	
  SCHULTZ LANDFILL, INC.

  
	
   

  	
  SUNDERLAND WASTE MANAGEMENT, INC.

  
	
   

  	
  U.S. FIBER, INC.

  
	
   

  	
  WASTE-STREAM INC.

  
	
   

  	
  WESTFIELD DISPOSAL SERVICE, INC.

  
	
   

  	
  WINTERS BROTHERS, INC.

  



 


 


	
   

  	
  By:

  	
  /s/ 
  Richard A. Norris

  	
   

  
	
   

  	
  Name: Richard A. Norris

  
	
   

  	
  Title:   Vice President and
  Treasurer

  



 


2

















 


	
   

  	
  CASELLA NH INVESTORS CO., LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By: KTI, Inc., its sole member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Norris

  	
   

  
	
   

  	
  Name: 
  Richard A. Norris

  
	
   

  	
  Title: 
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CASELLA NH POWER CO., LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By: KTI, Inc., its sole member

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ 
  Richard A. Norris

  	
   

  
	
   

  	
  Name: 
  Richard A. Norris

  
	
   

  	
  Title: 
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CASELLA RTG INVESTORS CO., LLC

  
	
   

  	
   

  
	
   

  	
   

  	
  By: Casella Waste Systems, Inc., its sole

  member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer and

  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE HYLAND FACILITY ASSOCIATES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:

  	
  Duly
  Authorized Agent

  
							



 


3

















 


	
   

  	
   

  
	
   

  	
  MAINE ENERGY RECOVERY COMPANY,

  LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: KTI Environmental Group, Inc.,

  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEW ENGLAND LANDFILL SOLUTIONS,

  LLC

  
	
   

  	
   

  
	
   

  	
  By: Rochester Environmental Park,

  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PERC MANAGEMENT COMPANY LIMITED

  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By: PERC Inc., general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROCHESTER ENVIRONMENTAL PARK,

  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  	
  Richard A.
  Norris

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Norris

  
	
   

  	
   

  	
  Title:  Vice President and Treasurer

  
											



 


4

















 


	
   

  	
  FLEET NATIONAL BANK,
  individually and

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David C. Brecht

  	
   

  
	
   

  	
  Name:

  	
  David C.
  Brecht

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  BANK OF AMERICA,
  N.A., individually and

  as Syndication Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Steven R. Arentsen

  	
   

  
	
   

  	
  Name:

  	
  Steven R.
  Arentsen

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
					



 

















 


	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ D. Scott Hagwell

  	
   

  
	
   

  	
  Name:

  	
  D. Scott
  Hagwell

  
	
   

  	
  Title:

  	
  CBO

  
					



 

















 


	
   

  	
  LASALLE BANK
  NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Peterson

  	
   

  
	
   

  	
  Name:

  	
  Brian
  Peterson

  
	
   

  	
  Title:

  	
  First Vice
  President

  
					



 

















 


	
   

  	
  BANK NORTH, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ E. Kirke Hart

  	
   

  
	
   

  	
  Name: 
  E. Kirke Hart

  
	
   

  	
  Title: 
  Regional vice President

  



 

















 


	
   

  	
  MERRILL LYNCH CAPITAL, a division of

  Merrill Lynch Business Financial Services,

  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Sheila C. Weimer

  	
   

  
	
   

  	
  Name:

  	
  Sheila C.
  Weimer

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  CITIZENS BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Daniel Bernard

  	
   

  
	
   

  	
  Name:

  	
  Daniel
  Bernard

  
	
   

  	
  Title:

  	
  Vice
  President