exv10w1






Exhibit 10.1




 

$2,000,000,000




AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT



dated as of May 9, 2011



by and among



WASTE MANAGEMENT, INC.

(the “Borrower”)



and



WASTE MANAGEMENT HOLDINGS, INC.

(the “Guarantor”)



and



CERTAIN BANKS



and



BANK OF AMERICA, N.A.,

as Administrative Agent



and



JPMORGAN CHASE BANK, N.A., and BARCLAYS CAPITAL,

as Syndication Agents



and



DEUTSCHE BANK SECURITIES INC. and THE ROYAL BANK OF SCOTLAND PLC,

as Documentation Agents



and



BNP PARIBAS and CITIBANK, N.A.,

as Co-Documentation Agents



and



J.P. MORGAN SECURITIES LLC, MERRILL LYNCH,
PIERCE, FENNER &
 SMITH INCORPORATED and BARCLAYS CAPITAL,

as Lead Arrangers and Joint Bookrunners


 








 



 


TABLE OF CONTENTS




	 	 	 	 	 

	§1. DEFINITIONS AND RULES OF INTERPRETATION
	 	 	3	 
	§1.1. Definitions
	 	 	3	 
	§1.2. Rules of Interpretation
	 	 	20	 
	§1.3. Classification of Loans and Borrowings
	 	 	20	 
	§2. THE LOAN FACILITIES
	 	 	21	 
	§2.1. Commitment to Lend
	 	 	21	 
	§2.2. Facility Fee
	 	 	21	 
	§2.3. Reduction and Increase of Total Commitment
	 	 	21	 
	§2.3.1 Reduction of Total Commitment
	 	 	21	 
	§2.3.2 Increase of Total Commitment
	 	 	22	 
	§2.4. Repayment of Loans; Evidence of Debt
	 	 	22	 
	§2.5. Interest on Loans
	 	 	23	 
	§2.6. Requests for Syndicated Loans
	 	 	24	 
	§2.7. Election of Eurodollar Rate; Notice of Election; Interest Periods;
Minimum Amounts
	 	 	24	 
	§2.8. Funds for Syndicated Loans
	 	 	25	 
	§2.9. Maturity of the Loans and Reimbursement Obligations
	 	 	26	 
	§2.10. Optional Prepayments or Repayments of Loans
	 	 	26	 
	§2.11. Swing Line Loans; Participations
	 	 	26	 
	§3. LETTERS OF CREDIT
	 	 	29	 
	§3.1. Letter of Credit Commitments
	 	 	29	 
	§3.2. Reimbursement Obligation of the Borrower
	 	 	32	 
	§3.3. Obligations Absolute
	 	 	33	 
	§3.4. Reliance by the Issuing Banks
	 	 	33	 
	§3.5. Notice Regarding Letters of Credit
	 	 	33	 
	§3.6. Letter of Credit Fee; Fronting Fee
	 	 	34	 
	§4. COMPETITIVE BID LOANS
	 	 	34	 
	§4.1. The Competitive Bid Option
	 	 	34	 
	§4.2. Competitive Bid Loan Accounts; Competitive Bid Loans
	 	 	34	 
	§4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes
	 	 	35	 
	§4.4. Alternative Manner of Procedure
	 	 	36	 
	§4.5. Submission and Contents of Competitive Bid Quotes
	 	 	36	 





- i -











 




 


	 	 	 	 	 

	§4.6. Notice to Borrower
	 	 	37	 
	§4.7. Acceptance and Notice by Borrower and Administrative Agent
	 	 	38	 
	§4.8. Allocation by Administrative Agent
	 	 	38	 
	§4.9. Funding of Competitive Bid Loans
	 	 	38	 
	§4.10. Funding Losses
	 	 	38	 
	§4.11. Repayment of Competitive Bid Loans; Interest
	 	 	39	 
	§5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT
	 	 	39	 
	§5.1. Payments
	 	 	39	 
	§5.2. Mandatory Repayments of the Loans
	 	 	41	 
	§5.3. Computations
	 	 	41	 
	§5.4. Illegality; Inability to Determine Eurodollar Rate
	 	 	41	 
	§5.5. Additional Costs, Etc
	 	 	42	 
	§5.6. Capital Adequacy
	 	 	43	 
	§5.7. Certificate
	 	 	44	 
	§5.8. Eurodollar and Competitive Bid Indemnity
	 	 	44	 
	§5.9. Interest on Overdue Amounts
	 	 	45	 
	§5.10. Interest Limitation
	 	 	45	 
	§5.11. Reasonable Efforts to Mitigate
	 	 	45	 
	§5.12. Replacement of Banks; Termination of Commitments
	 	 	45	 
	§5.13. Advances by Administrative Agent
	 	 	47	 
	§5.14. Defaulting Banks
	 	 	47	 
	§6. REPRESENTATIONS AND WARRANTIES
	 	 	49	 
	§6.1. Corporate Authority
	 	 	50	 
	§6.2. Governmental and Other Approvals
	 	 	50	 
	§6.3. Title to Properties; Leases
	 	 	50	 
	§6.4. Financial Statements; Solvency
	 	 	51	 
	§6.5. No Material Changes, Etc
	 	 	51	 
	§6.6. Franchises, Patents, Copyrights, Etc
	 	 	51	 
	§6.7. Litigation
	 	 	51	 
	§6.8. No Materially Adverse Contracts, Etc
	 	 	52	 
	§6.9. Compliance With Other Instruments, Laws, Etc
	 	 	52	 
	§6.10. Tax Status
	 	 	52	 
	§6.11. No Event of Default
	 	 	52	 





- ii -









 





	 	 	 	 	 

	§6.12. Investment Company Act
	 	 	52	 
	§6.13. Absence of Financing Statements, Etc
	 	 	52	 
	§6.14. Employee Benefit Plans
	 	 	53	 
	§6.14.1 In General
	 	 	53	 
	§6.14.2 Terminability of Welfare Plans
	 	 	53	 
	§6.14.3 Guaranteed Pension Plans
	 	 	53	 
	§6.14.4 Multiemployer Plans
	 	 	53	 
	§6.15. Environmental Compliance
	 	 	54	 
	§6.16. Disclosure
	 	 	55	 
	§6.17. Permits and Governmental Authority
	 	 	55	 
	§6.18. Margin Stock
	 	 	55	 
	§7. AFFIRMATIVE COVENANTS OF THE BORROWER
	 	 	55	 
	§7.1. Punctual Payment
	 	 	55	 
	§7.2. Maintenance of U.S. Office
	 	 	56	 
	§7.3. Records and Accounts
	 	 	56	 
	§7.4. Financial Statements, Certificates and Information
	 	 	56	 
	§7.5. Existence and Conduct of Business
	 	 	57	 
	§7.6. Maintenance of Properties
	 	 	57	 
	§7.7. Insurance
	 	 	58	 
	§7.8. Taxes
	 	 	58	 
	§7.9. Inspection of Properties, Books and Contracts
	 	 	58	 
	§7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of
Material Licenses and Permits
	 	 	58	 
	§7.11. Environmental Indemnification
	 	 	59	 
	§7.12. Further Assurances
	 	 	59	 
	§7.13. Notice of Potential Claims or Litigation
	 	 	59	 
	§7.14. Notice of Certain Events Concerning Environmental Claims
	 	 	60	 
	§7.15. Notice of Default
	 	 	60	 
	§7.16. Use of Proceeds
	 	 	61	 
	§7.17. Certain Transactions
	 	 	61	 
	§8. NEGATIVE COVENANTS OF THE BORROWER
	 	 	61	 
	§8.1. Restrictions on Indebtedness
	 	 	61	 
	§8.2. Restrictions on Liens
	 	 	62	 





- iii -









 





	 	 	 	 	 

	§8.3. Restrictions on Investments
	 	 	62	 
	§8.4. Mergers, Consolidations, Sales
	 	 	62	 
	§8.5. Restricted Distributions and Redemptions
	 	 	63	 
	§8.6. Employee Benefit Plans
	 	 	64	 
	§9. FINANCIAL COVENANTS OF THE BORROWER
	 	 	64	 
	§9.1. Interest Coverage Ratio
	 	 	64	 
	§9.2. Total Debt to EBITDA
	 	 	64	 
	§10. CONDITIONS PRECEDENT
	 	 	65	 
	§10.1. Conditions To Effectiveness
	 	 	65	 
	§10.1.1 Corporate Action
	 	 	65	 
	§10.1.2 Loan Documents, Etc
	 	 	65	 
	§10.1.3 Certified Copies of Charter Documents
	 	 	65	 
	§10.1.4 Incumbency Certificate
	 	 	65	 
	§10.1.5 Summary of Insurance
	 	 	65	 
	§10.1.6 Opinion of Counsel
	 	 	65	 
	§10.1.7 Satisfactory Financial Condition
	 	 	65	 
	§10.1.8 Payment of Closing Fees
	 	 	66	 
	§10.1.9 Closing Certificate
	 	 	66	 
	§10.1.10 USA Patriot Act
	 	 	66	 
	§11. CONDITIONS TO ALL LOANS
	 	 	66	 
	§11.1. Representations True
	 	 	66	 
	§11.2. Performance; No Event of Default
	 	 	66	 
	§11.3. Proceedings and Documents
	 	 	67	 
	§12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT
	 	 	67	 
	§12.1. Events of Default and Acceleration
	 	 	67	 
	§12.2. Termination of Commitments
	 	 	69	 
	§12.3. Remedies
	 	 	69	 
	§13. SETOFF
	 	 	70	 
	§14. EXPENSES
	 	 	70	 
	§15. THE AGENTS
	 	 	70	 
	§15.1. Authorization and Action
	 	 	70	 
	§15.2. Administrative Agent’s Reliance, Etc
	 	 	71	 




- iv -









 





	 	 	 	 	 

	§15.3. Bank of America and Affiliates
	 	 	71	 
	§15.4. Bank Credit Decision
	 	 	72	 
	§15.5. Indemnification
	 	 	72	 
	§15.6. Successor Administrative Agent
	 	 	72	 
	§15.7. Lead Arrangers, Etc
	 	 	73	 
	§15.8. Documents
	 	 	73	 
	§15.9. Action by the Banks, Consents, Amendments, Waivers, Etc
	 	 	73	 
	§16. INDEMNIFICATION
	 	 	74	 
	§17. WITHHOLDING TAXES
	 	 	75	 
	§18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION
	 	 	77	 
	§18.1. Confidentiality
	 	 	77	 
	§18.2. Prior Notification
	 	 	78	 
	§18.3. Other
	 	 	78	 
	§19. SURVIVAL OF COVENANTS, ETC
	 	 	78	 
	§20. ASSIGNMENT AND PARTICIPATION
	 	 	78	 
	§21. PARTIES IN INTEREST
	 	 	79	 
	§22. NOTICES, ETC
	 	 	80	 
	§23. MISCELLANEOUS
	 	 	82	 
	§24. CONSENTS, ETC
	 	 	83	 
	§25. WAIVER OF JURY TRIAL
	 	 	83	 
	§26. GOVERNING LAW; SUBMISSION TO JURISDICTION
	 	 	84	 
	§27. SEVERABILITY
	 	 	84	 
	§28. GUARANTY
	 	 	85	 
	§28.1. Guaranty
	 	 	85	 
	§28.2. Guaranty Absolute
	 	 	85	 
	§28.3. Effectiveness; Enforcement
	 	 	85	 
	§28.4. Waiver
	 	 	86	 
	§28.5. Expenses
	 	 	86	 
	§28.6. Concerning Joint and Several Liability of the Guarantor
	 	 	86	 
	§28.7. Waiver
	 	 	88	 
	§28.8. Subrogation; Subordination
	 	 	89	 
	§28.9. Consent and Confirmation
	 	 	89	 
	§29. PRO RATA TREATMENT
	 	 	89	 




- v -









 





	 	 	 	 	 

	§30. FINAL AGREEMENT
	 	 	90	 
	§31. USA PATRIOT ACT
	 	 	90	 
	§32. NO ADVISORY OR FIDUCIARY RESPONSIBILITY
	 	 	90	 
	§33. PAYMENTS SET ASIDE
	 	 	91	 





- vi -









 




EXHIBITS:




	 	 	 

	Exhibit A

	 	Form of Syndicated Loan Request
	Exhibit B

	 	Form of Swing Line Loan Notice
	Exhibit C

	 	Form of Letter of Credit Request
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Assignment and Assumption
	Exhibit F

	 	Form of Competitive Bid Quote Request
	Exhibit G

	 	Form of Invitation for Competitive Bid Quotes
	Exhibit H

	 	Form of Competitive Bid Quote
	Exhibit I

	 	Form of Notice of Acceptance/Rejection of Competitive Bid Quote(s)
	Exhibit J

	 	Form of Administrative Questionnaire






SCHEDULES:




	 	 	 

	Schedule 1

	 	Banks; Commitments
	Schedule 1.1

	 	Existing Liens
	Schedule 3.1

	 	Issuing Banks and Issuing Bank Limits
	Schedule 3.1.1

	 	Form of Increase/Decrease Letter
	Schedule 3.1.2

	 	Existing Letters of Credit
	Schedule 6.7

	 	Litigation
	Schedule 6.15

	 	Environmental Compliance
	Schedule 8.1(a)

	 	Existing Indebtedness
	Schedule 22

	 	Administrative Agent’s Office; Certain Addresses for Notices





- vii -









 



 




AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT




     This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of the 9th day of May, 2011,
by and among WASTE MANAGEMENT, INC., a Delaware corporation having its chief executive office at
1001 Fannin Street, Suite 4000, Houston, Texas 77002 (the “Borrower”), WASTE MANAGEMENT HOLDINGS,
INC., a wholly-owned Subsidiary of the Borrower (the “Guarantor”), the lenders from time to time
party hereto (the “Banks”) and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity,
the “Administrative Agent”).


A. The Borrower, Bank of America, N.A, as administrative agent, and the lenders party thereto (the
“Existing Banks”) entered into that certain Credit Agreement dated as of June 22, 2010 (as
amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit
Agreement”), pursuant to which the Existing Banks have made available to the Borrower a
revolving credit facility, with a letter of credit subfacility and a swing loan subfacility.



B. As further provided herein and upon the terms and conditions contained herein, the Banks and the
Administrative Agent have agreed to reallocate the Commitment and Commitment Percentages of each of
the Banks as set forth on Schedule 1.



C. The Borrower and the Guarantor have requested that the Existing Credit Agreement be further
amended and restated, among other things, to extend the maturity date and make certain other
changes as set forth herein, and the Administrative Agent and the Banks are willing to make such
amendments to the Existing Credit Agreement.




     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



     (i) Simultaneously with the Effective Date and after giving effect to any assignments on the
Effective Date from Existing Banks under the Existing Credit Agreement who elect not to become
Banks under this Agreement, but immediately prior to giving effect to paragraph (iv) below,
the parties hereby agree that (A) the Commitment of each of the Banks shall be as set forth in
Schedule 1, and the outstanding amount of the Syndicated Loans (as defined in and under the
Existing Credit Agreement, without giving effect to any Borrowings of Loans under this Agreement on
the Effective Date, but after giving effect to any repayment or reduction thereof with the proceeds
of any applicable sources) shall be reallocated in accordance with such Commitments, and the
requisite assignments shall be deemed to be made in such amounts among the Banks and from each Bank
to each other Bank (including from Banks who reduce their commitments in connection with this
Agreement), with the same force and effect as if such assignments were evidenced by applicable
Assignments and Assumptions (as defined in the Existing Credit Agreement) under the Existing Credit
Agreement, but without the payment of any related assignment fee and (B) the swing line subfacility
under the Existing Credit Agreement shall continue as the swing line subfacility hereunder, with
the Swing Line Sublimit set out herein, and the Swing Line Loans (as defined in the Existing Credit
Agreement), if any, shall continue as and be deemed to be Swing Line Loans hereunder, and (C) the
letter of credit subfacility provided in the Existing Credit Agreement shall continue as the Letter
of Credit










 




- 2 -






facility hereunder and the Existing Letters of Credit shall be deemed to be Letters of Credit
issued hereunder. There are no Competitive Bid Loans (as defined in the Existing Credit Agreement)
outstanding on the Effective Date under the Existing Credit Agreement.




     (ii) Notwithstanding anything to the contrary in §20 of the Existing Credit Agreement or §20
of this Agreement, no other documents or instruments, including any Assignment and Assumption,
shall be executed in connection with these assignments (all of which requirements are hereby
waived), and such assignments shall be deemed to be made with all applicable representations,
warranties and covenants as if evidenced by an Assignment and Assumption. On the Effective Date,
the applicable Banks shall make full cash settlement with one another (including with any Bank
whose commitments are being decreased), either directly or through the Administrative Agent, as the
Administrative Agent may direct or approve, with respect to all assignments, reallocations and
other changes in Commitments, such that after giving effect to such settlements (A) the Commitment
of each Bank shall be as set forth on Schedule 1 to this Agreement, (B) each Bank’s
Commitment Percentage of the Total Commitment equals (with customary rounding) its Commitment
Percentage of (x) the outstanding amount of all Loans, and (y) the outstanding amount of all
Letters of Credit.



     (iii) The Borrower, the Guarantor, the Administrative Agent and the Banks hereby agree that
upon the effectiveness of this Agreement, the terms and provisions of the Existing Credit Agreement
which in any manner govern or evidence the Obligations, the rights and interests of the
Administrative Agent and the Banks and any terms, conditions or matters related to any thereof,
shall be and hereby are amended and restated in their entirety by the terms, conditions and
provisions of this Agreement, and the terms and provisions of the Existing Credit Agreement, except
as otherwise expressly provided herein, shall be superseded by this Agreement.



     (iv) Notwithstanding this amendment and restatement of the Existing Credit Agreement and any
related Loan Documents (as such term is defined in the Existing Credit Agreement and referred to
herein, individually or collectively, as the “Existing Loan Documents”), (A) all of the
indebtedness, liabilities and obligations owing by any Person under the Existing Credit Agreement
and other Existing Loan Documents outstanding as of the Effective Date shall continue as
Obligations hereunder, (B) each of this Agreement and the Notes and the other Loan Documents is
given as a substitution or supplement of, as the case may be, and not as a payment of, the
indebtedness, liabilities and obligations of the Borrower and the Guarantor under the Existing
Credit Agreement or any Existing Loan Document and is not intended to constitute a novation thereof
or of any of the other Existing Loan Documents, and (C) certain of the Existing Loan Documents will
remain in full force and effect, as set forth in this Agreement. Upon the effectiveness of this
Agreement all loans outstanding and owing by the Borrower under the Existing Credit Agreement as of
the Effective Date, shall constitute Loans hereunder accruing interest with respect to the Base
Rate Loans under the Existing Credit Agreement, at the Applicable Base Rate hereunder. The parties
hereto agree that the Interest Periods for all Eurodollar Loans outstanding under the Existing
Credit Agreement on the Effective Date shall be terminated, the Borrower shall pay (on the
Effective Date) all accrued interest with respect to such Loans, and the Borrower shall furnish to
the Administrative Agent interest rate selection notices for existing Loans and borrowing notices
for additional Loans as may be required in connection with the allocation of Loans among Banks in
accordance with









 



- 3 -

their Commitment Percentages. The Administrative Agent and the Existing Banks agree that the
transactions contemplated in these recitals shall not give rise to any obligation of the Borrower
or the Guarantor to make any payment under §5.8 of the Existing Credit Agreement.




     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:


§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 Agreement referred to below:



     Absolute Competitive Bid Loan(s). Competitive Bid Loans bearing interest at a fixed
rate per annum in accordance with §4.5(b)(v).



     Accountants. See §7.4(a).



     Administrative Agent. See Preamble.



     Administrative Agent’s Office. The Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 22, or such other address or account as the
Administrative Agent may from time to time notify the Borrower and the Banks.



     Administrative Questionnaire. An Administrative Questionnaire in substantially the
form of Exhibit J or any other form approved by the Administrative Agent.



     Affected Bank. See §5.12.



     Agreement. This Revolving Credit Agreement, including the Schedules and Exhibits
hereto, as from time to time amended and supplemented in accordance with the terms hereof.



     Applicable Base Rate. The applicable rate per annum of interest on the Base Rate
Loans as set forth in the Pricing Table.



     Applicable Eurodollar Rate. The applicable rate per annum of interest on the
Eurodollar Loans shall be as set forth in the Pricing Table.



     Applicable Facility Fee Rate. The applicable rate per annum with respect to the
Facility Fee shall be as set forth in the Pricing Table.



     Applicable L/C Rate. The applicable rate per annum on the Maximum Drawing Amount
shall be as set forth in the Pricing Table.



     Applicable Requirements. See §7.10.



     Applicable Spot Rate. On any date, the quoted spot rate for conversion of U.S.
Dollars to Canadian Dollars by the Administrative Agent or the respective Issuing Bank, as
applicable, through its principal foreign exchange trading office at approximately 11:00 a.m. (New
York









 



- 4 -

time) on the date two Business Days prior to the date as of which the foreign exchange
computation is made; provided that the Administrative Agent or such Issuing Bank may obtain
such spot rate from another financial institution designated by the Administrative Agent or such
Issuing Bank or from Reuters page 1 FED (or on any successor or substitute page of such service, or
any successor to or substitute for such service providing rate quotations comparable to those
currently provide on such page of such service); and provided further that an
Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation
is made.




     Approved Fund. Any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary
course of its activities and that is administered or managed by (a) a Bank or (b) a Bank Affiliate.



     Assignment and Assumption. See §20.



     Balance Sheet Date. December 31, 2010.



     Bank Affiliate. (a) With respect to any Bank, (i) a Person that directly, or
indirectly through one or more intermediaries, possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of such Bank, whether through the
ability to exercise voting power, by contract or otherwise or is controlled by or is under common
control with such Bank (an “Affiliate”) or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its activities and is administered
or managed by a Bank or an Affiliate of such Bank and (b) with respect to any Bank that is a fund
which invests in bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment advisor as such Bank
or by an Affiliate of such investment advisor.



     Bank of America. Bank of America, N.A.



     Banks. See Preamble.



     Base Rate. For any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate
that would be applicable to a Eurodollar Loan borrowed on such date with a one month Interest
Period plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.



     Base Rate Loans. Syndicated or Swing Line Loans bearing interest calculated by
reference to the Base Rate.



     Borrower. See Preamble.









 



- 5 -


     Borrowing. (a) Syndicated Loans of the same Type, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect,
(b) a Competitive Bid Loan or group of Competitive Bids Loans of the same Type made on the same
date and as to which a single Interest Period is in effect or (c) Swing Line Loans.



     Business Day. Any day, other than a Saturday, Sunday or any day on which banking
institutions in New York, New York are authorized by law to close, and, when used in connection
with a Eurodollar Loan, such day is also a Eurodollar Business Day.



     Canadian Dollars or C$. The lawful currency of Canada.



     Canadian Dollar Letter of Credit. See §3.1(e).



     Canadian Subsidiary. A Subsidiary that is organized under the laws of Canada or any
province thereof.



     Capitalized Leases or Capital Leases. Leases under which a Person is the lessee or
obligor and the discounted future rental payment obligations under which are required to be
capitalized on the consolidated balance sheet of the lessee or obligor in accordance with GAAP.



     Cash Equivalents. Investments in (i) direct obligations of, or unconditionally
guaranteed by, the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is pledged in
support thereof) having maturities of less than one year, (ii) U.S. Dollar-denominated time
deposits, certificates of deposit and banker’s acceptances of any Bank or any other bank whose
short-term commercial paper rating from Standard & Poor’s is at least A-1 or from Moody’s is at
least P-1 (each an “Approved Bank”) with maturities of not more than one year from the date of
investment, (iii) commercial paper issued by, or guaranteed by, an Approved Bank or by the parent
company of an Approved Bank, or issued by, or guaranteed by, any company with a short-term debt
rating of at least A-1 by Standard & Poor’s and P-1 by Moody’s, in each case maturing within one
year from the date of investment, (iv) repurchase agreements with a term of less than one year for
underlying securities of the types described in clauses (ii) and (iii) entered into with an
Approved Bank, (v) variable rate demand notes with a put option no longer than seven days from date
of purchase to the extent backed by letters of credit issued by banks having a credit rating of at
least A1 from Moody’s or P1 from Standard & Poor’s; (vi) municipal securities rated at least A1 by
Moody’s or P-1 by Standard & Poor’s with a maturity of one year or less; (vii) any money market
fund that meets the requirements of Rule 2a-7 (c) (2), (3) and (4) promulgated under the Investment
Company Act of 1940, as amended; and (viii) any other fund or funds making substantially all of
their Investments in Investments of the kinds described in clauses (i) through (vi) above.



     CERCLA. See §6.15(a).



     Certified or 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, that such financial statements present fairly, in all material respects, the
financial position of such Person.



     CFO
or CAO. See §7.4(b).









 



- 6 -


     Class. When used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Syndicated Loans, Competitive Bid Loans or Swing Line
Loans.



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



     Commitment. With respect to each Bank, such Bank’s commitment to make Syndicated
Loans to, and to participate in Swing Line Loans and Letters of Credit for the account of, the
Borrower, determined by multiplying such Bank’s Commitment Percentage by the Total Commitment.



     Commitment Percentage. With respect to each Bank, the percentage initially set forth
next to such Bank’s name on Schedule 1 hereto, as the same may be adjusted in accordance
with §2.3, §5.14(iv) or §20.



     Competitive Bid Loan(s). A Borrowing hereunder consisting of one or more loans made
by any of the participating Banks whose offer to make a Competitive Bid Loan as part of such
Borrowing has been accepted by the Borrower under the auction bidding procedure described in §4
hereof.



     Competitive Bid Loan Accounts. See §4.2(a).



     Competitive Bid Margin. See §4.5(b)(iv).



     Competitive Bid Quote. An offer by a Bank to make a Competitive Bid Loan in
accordance with §4.5 hereof.



     Competitive Bid Quote Request. See §4.3.



     Competitive Bid Rate. See §4.5(b)(v).



     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 Borrower, its Subsidiaries and all variable interest
entities consolidated in accordance with GAAP.



     Consolidated Earnings Before Interest and Taxes or EBIT. For any period, the
Consolidated Net Income (or Deficit) of the Borrower on a consolidated basis plus, without
duplication, the sum of (1) interest expense, (2) equity in losses (earnings) of unconsolidated
entities, (3) income taxes, (4) non-cash writedowns or write-offs of assets, including non-cash
losses on the sale of assets outside the ordinary course of business and (5) EBIT of the businesses
acquired by the Borrower or any of its Subsidiaries (through asset purchases or otherwise) (each an
“Acquired Business”) or the Subsidiaries acquired or formed since the beginning of such period
(each a “New Subsidiary”) provided, that a statement identifying all such Acquired Businesses and
the EBIT of such Acquired Businesses is delivered to the Banks with the Compliance Certificate for
such period, all to the extent that each of items (1) through (4) was deducted in determining
Consolidated Net Income (or Deficit) in the relevant period,









 



- 7 -

minus non-cash extraordinary gains on the sale of assets outside the ordinary course
of business to the extent included in Consolidated Net Income (or Deficit).




     Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization or EBITDA.
For any period, EBIT plus (a) depreciation expense, and (b) amortization expense to the
extent the same would be included in the calculation of Consolidated Net Income (or Deficit) for
such period, determined in accordance with GAAP.



     Consolidated Net Income (or Deficit). The consolidated net income (or deficit) of the
Borrower, after deduction of all expenses, taxes, and other proper charges, determined in
accordance with GAAP.



     Consolidated Tangible Assets. Consolidated Total Assets less the sum of:




     (a) the total book value of all assets of the Borrower on a consolidated basis properly
classified as intangible assets under GAAP, including such items as goodwill, the purchase
price of acquired assets in excess of the fair market value thereof, trademarks, trade
names, service marks, customer lists, brand names, copyrights, patents and licenses, and
rights with respect to the foregoing; plus




     (b) all amounts representing any write-up in the book value of any assets of the
Borrower on a consolidated basis resulting from a revaluation thereof subsequent to the
Balance Sheet Date.



     Consolidated Total Assets. All assets of the Borrower determined on a consolidated
basis in accordance with GAAP.



     Consolidated Total Interest Expense. For any period, the aggregate amount of interest
expense required by GAAP to be paid or (without duplication) accrued during such period on all
Indebtedness of the Borrower on a consolidated basis outstanding during all or any part of such
period, including capitalized interest expense for such period, the amortization of debt discounts
and the amortization of fees payable in connection with the incurrence of Indebtedness.



     Defaulting Bank. Subject to §5.14, any Bank that (a) has failed to (i) perform all or
any portion of its funding obligations hereunder, including in respect of Loans or participations
in respect of Letters of Credit or Swing Line Loans within three Business Days of the date required
to be funded by it hereunder unless such Bank notifies the Administrative Agent and the Borrower in
writing that such failure is the result of such Bank’s determination that one or more conditions
precedent to funding (each of which conditions precedent, together with any applicable default,
shall be specifically identified in such writing) has not been satisfied, or (ii) pay to
Administrative Agent, any Issuing Bank, the Swing Line Bank or any other Bank any other amount
required to be paid by it hereunder (including in respect of its participation in Letters of Credit
or Swing Line Loans) within three Business Days of the date when due, (b) has notified the
Borrower, the Administrative Agent or any Bank that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect to its funding obligations
hereunder or under other agreements generally in which it commits to extend credit (unless such
writing or public statement relates to such Bank’s obligation to fund a Loan hereunder and states
that such position is based on such Bank’s determination that a condition









 



- 8 -

precedent to funding (which condition precedent, together with any applicable default, shall
be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three Business Days after request by the Administrative Agent, to confirm in writing
to the Administrative Agent that it will comply with its funding obligations (provided that such
Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent), or (d) has, or has a direct or indirect parent company
that has, (i) become the subject of a proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction,
(ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or a custodian appointed
for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or
acquiescence in any such proceeding or appointment; provided that a Bank shall not be a
Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that
Bank or any direct or indirect parent company thereof by a governmental agency so long as such
ownership interest does not result in or provide such Bank with immunity from the jurisdiction of
courts within the United States or from enforcement of judgments or writs of attachment on its
assets or permit such Bank (or governmental agency) to reject, repudiate, disavow or disaffirm any
contracts or agreements made with such Bank. Any determination by the Administrative Agent that a
Bank is a Defaulting Bank under clauses (a) through (d) above shall be conclusive and binding
absent manifest error, and such Bank shall be deemed to be a Defaulting Bank (subject to §5.14)
upon delivery of written notice of such determination to the Borrower, each Issuing Bank, the Swing
Line Bank and each Bank.




     Defaults. See §12.1.



     Disclosure Documents. The Borrower’s financial statements referred to in §6.4 and
filings made by the Borrower or the Guarantor with the Securities and Exchange Commission that were
publicly available prior to the Effective Date which were provided to the Banks.



     Disposal or Disposed. See “Release”.



     Distribution. The declaration or payment of any dividend or other return on equity on
or in respect of any shares of any class of capital stock, any partnership interests or any
membership interests of any Person (other than dividends or other such returns payable solely in
shares of capital stock, partnership interests or membership units of such Person, as the case may
be); the purchase, redemption, or other retirement of any shares of any class of capital stock,
partnership interests or membership units of such Person, directly or indirectly through a
Subsidiary or otherwise; the return of equity capital by any Person to its shareholders, partners
or members as such; or any other distribution on or in respect of any shares of any class of
capital stock, partnership interest or membership unit of such Person.



     Dollars or US$ or $ or U.S. Dollars. The lawful currency of the United States of
America.



     Drawdown Date. The date on which any Loan is made or is to be made, or any amount is
paid by an Issuing Bank under a Letter of Credit.









 



- 9 -


     EBIT. See definition of Consolidated Earnings Before Interest and Taxes.



     EBITDA. See definition of Consolidated Earnings Before Interest, Taxes, Depreciation
and Amortization.



     Effective Date. The date on which the conditions precedent set forth in §10.1 hereof
are satisfied.



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



     Environmental Laws. See §6.15(a).



     EPA. See §6.15(b).



     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, member of a
controlled group, or under common control with the Borrower or any of its Subsidiaries under §412,
§414 or §430 of the Code.



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



     Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Loan, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in effect on such day,
whether or not applicable to any Bank, under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Loan shall be adjusted automatically 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 Competitive Bid Loans. Competitive Bid Loans bearing interest calculated
by reference to the Eurodollar Rate in accordance with §4.5(b)(iv).



     Eurodollar Loans. Syndicated Loans bearing interest calculated by reference to clause
(a) of the definition of Eurodollar Rate.









 



- 10 -


     Eurodollar Rate. (a) For any Interest Period with respect to a Eurodollar Loan, the
rate per annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two Eurodollar Business Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period or, (ii) if such rate is not available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar
Loan being made, continued or converted and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two Eurodollar Business Days prior to
the commencement of such Interest Period, in each case divided by a number equal to 1.00
minus the Eurocurrency Reserve Rate, if applicable; and



     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two Eurodollar
Business Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



     Events of Default. See §12.1.



     Existing Credit Agreement. See Recital A in the Preamble.



     Existing Letters of Credit. Those Letters of Credit that were issued under the
Existing Credit Agreement and are outstanding as of the date hereof, and which are identified in
Schedule 3.1.2 hereof.



     Facility Fee. See §2.2.



     FASB ASC. The Accounting Standards Codification of the Financial Accounting Standards
Board.



     Federal Funds Rate. For any day, the rate per annum (rounded upward, if necessary, to
a whole multiple of 1/100 of 1%) 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 on
such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business Day as so published
on the next succeeding Business Day, and (ii) if no such rate is so published









 



- 11 -

on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average
rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America
on such day on such transactions as determined by the Administrative Agent.




     Financial Affiliate. A subsidiary of the bank holding company controlling any Bank,
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).



     Fronting Fee. See §3.6.



     Generally
accepted accounting principles or GAAP. (i) When used in this
Agreement, whether directly or indirectly through reference to a capitalized term used therein,
means (A) 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, and (B) to the extent consistent with such principles, the accounting
practice of the Borrower reflected in its financial statements for the year ended on the Balance
Sheet Date; provided, that, with respect to any financial statements prepared after the
Balance Sheet Date, such meaning in each of (A) and (B) shall include the application of revised
guidance associated with multiple-deliverable revenue arrangements effective per FASB ASC 605 on
January 1, 2011; provided, further, that in each case referred to in this
definition of “generally accepted accounting principles” a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in generally accepted accounting
principles) as to financial statements in which such principles have been properly applied.
Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including
the computation of any financial covenant) contained herein, “Indebtedness” of the Borrower and its
Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and
the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.



     Guaranteed Obligations. See §28.1.



     Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower, its Subsidiaries or any ERISA
Affiliate (or pursuant to which any such Person accrued an obligation to make contributions at any
time during the preceding five plan years) 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.



     Guarantor. See Preamble.



     Guaranty. Any obligation, contingent or otherwise, of a Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the
“primary obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such









 



- 12 -

Indebtedness or other obligation of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation, or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided that the term Guaranty shall not include endorsements for
collection or deposit in the ordinary course of business.




     Hazardous Substances. See §6.15(b).



     Indebtedness. Collectively, without duplication, whether classified as indebtedness,
an investment or otherwise on the obligor’s balance sheet, (a) all indebtedness for borrowed money,
(b) all obligations for the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of business which either (i) are not overdue by more than
ninety (90) days, or (ii) are being disputed in good faith and for which adequate reserves have
been established in accordance with GAAP), (c) all obligations evidenced by notes, bonds,
debentures or other similar debt instruments, (d) all obligations created or arising under any
conditional sale or other title retention agreement with respect to property acquired (even though
the rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations, liabilities and
indebtedness under Capitalized Leases, (f) all obligations, liabilities or indebtedness arising
from the making of a drawing under surety, performance bonds, or any other bonding arrangement, (g)
Guaranties with respect to all Indebtedness of others referred to in clauses (a) through (f) above,
and (h) all Indebtedness of others referred to in clauses (a) through (f) above secured or
supported by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured or supported by) any Lien on the property or assets of the Borrower or any
Subsidiary, even though the owner of the property has not assumed or become liable, contractually
or otherwise, for the payment of such Indebtedness; provided that if a Permitted
Receivables Transaction is outstanding and is accounted for as a sale of accounts receivable under
generally accepted accounting principles, Indebtedness shall also include the additional
Indebtedness, determined on a consolidated basis, which would have been outstanding had such
Permitted Receivables Transaction been accounted for as a borrowing.



     Interest Period. With respect to each 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 Borrower in accordance with this Agreement (i) for any Eurodollar Loan, 1, 2, 3, or
6 months; (ii) for any Absolute Competitive Bid Loan, from 7 through 180 days; and (iii) for any
Eurodollar Competitive Bid Loan, 1, 2, 3, 4, 5, or 6 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to such Loan and ending
on the last day of one of the periods set forth above, as selected by the Borrower in accordance
with this Agreement or if such period has no numerically corresponding day, on the last Business
Day of such period; provided that any Interest Period which would otherwise end on a day
which is not a Business Day shall be deemed to end on the next succeeding Business Day;
provided further that for any Interest Period for any Eurodollar Loan or Eurodollar
Competitive Bid Loan, if such next succeeding Business Day falls in the next succeeding calendar
month, such Interest Period shall be deemed to end on the next preceding Business Day; and
provided further that no Interest Period shall extend beyond the Maturity Date.









 



- 13 -


     Interim Balance Sheet Date. March 31, 2011.



     Investments. All expenditures made by a Person and all liabilities incurred
(contingently or otherwise) by a Person for the acquisition of stock of (other than the stock of
Subsidiaries), or Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any Guaranties or other commitments as described under Indebtedness,
or obligations of, any other Person, including without limitation, the funding of any captive
insurance company (other than loans, advances, capital contributions or transfers of property to
any Subsidiaries or variable interest entities consolidated in accordance with FASB ASC 810, or
Guaranties with respect to Indebtedness of any Subsidiary or variable interest entities
consolidated in accordance with FASB ASC 810). 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
partial or full 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 from the aggregate amount of Investments any decrease in the value thereof.



     ISP. The “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at
the time of issuance).



     Issuing Banks. (i) the Banks listed on Schedule 3.1 hereto, (ii) solely with
respect to that certain Existing Letter of Credit number S00056987 in the amount of $50,000, The
Bank of New York Mellon, formerly, The Bank of New York, and (iii) any other Bank that agrees (in
its sole discretion) to act as Issuing Bank pursuant to an instrument in writing in form and
substance satisfactory to such Bank, the Borrower and the Administrative Agent and signed by them
(which instrument shall set forth the maximum aggregate face amount of all Letters of Credit of
such Issuing Bank and shall, as to such maximum amount, automatically be deemed to supplement
Schedule 3.1 hereto); provided, that in the case of any Existing Letter of Credit
that was issued through an Affiliate of an Issuing Bank, such Letter of Credit shall be deemed for
purposes of §3.1(a) to have been issued by such Issuing Bank and the provisions of §3.1(g) shall
apply.



     Lead Arrangers. J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Barclays Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers and Joint Bookrunners in connection with the credit facility provided herein.



     Letter of Credit Applications. Letter of credit applications in such form or forms as
may be agreed upon by the Borrower and the relevant Issuing Bank from time to time with respect to
each Letter of Credit issued or deemed issued hereunder, as such Letter of Credit Applications may
be amended, varied or supplemented from time to time; provided, however, in the
event of









 



- 14 -

any conflict or inconsistency between the terms of any Letter of Credit Application and this
Agreement, the terms of this Agreement shall control.




     Letter of Credit Fee. See §3.6.



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



     Letter of Credit Request. See §3.1(a).



     Letters of Credit. Letters of credit issued or to be issued by the Issuing Banks
under §3 hereof for the account of the Borrower (including without limitation any Canadian Dollar
Letters of Credit), and the Existing Letters of Credit.



     Lien. With respect to any asset, (a) any mortgage, deed of trust, lien (statutory or
otherwise), pledge, hypothecation, encumbrance, charge, security interest, assignment, deposit
arrangement or other restriction in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, Capital Lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing) relating to such asset
and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.



     Loan Documents. This Agreement, the Letter of Credit Applications, the Letters of
Credit 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. Collectively, the Syndicated Loans, the Swing Line Loans and the Competitive
Bid Loans.



     Majority Banks. At any date, Banks the aggregate amount of whose Commitments is
greater than fifty percent (50%) of the Total Commitment; provided that in the event that
the Total Commitment has been terminated, the Majority Banks shall be Banks holding greater than
fifty percent (50%) of the aggregate outstanding principal amount of the Obligations on such date;
provided that the Commitment of, and the portion of the outstanding principal amount of the
Obligations held or deemed held by, any Defaulting Bank shall be excluded for purposes of making a
determination of Majority Banks.



     Material Adverse Effect. A material adverse effect on (a) the business, assets,
operations, or financial condition of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of the Borrower or the Guarantor to perform any of its obligations under any Loan Document
to which it is a party, or (c) the rights of, or remedies or benefits available to, the
Administrative Agent or any Bank under any Loan Document.



     Maturity Date. May 9, 2016.




	 	 	Maximum Drawing Amount. At any time, the maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit (using, in the case of
Canadian Dollar Letters of Credit, the U.S. Dollar Equivalent of the aggregate undrawn face
amount thereof on the relevant date) (plus, for purposes of computing










 



- 15 -


	 	 	amounts outstanding including under §§2.1(a), 2.2, 2.3.1(a), 2.6(a), 3.2(b), 4.1, 5.2 and
12.1, but without duplication, unpaid Reimbursement Obligations, if any). Unless otherwise
specified herein, the outstanding amount of a Letter of Credit at any time shall be deemed
to be the stated amount of such Letter of Credit in effect at such time; provided,
that with respect to any Letter of Credit that, by its terms or the terms of any document or
agreement related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time. For all purposes of this Agreement, if on
any date of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.





     Moody’s. Moody’s Investors Service, Inc.



     Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower, any of its Subsidiaries, or any ERISA Affiliate (or
pursuant to which any such Person accrued an obligation to make contributions at any time during
the preceding five plan years).



     New Lending Office. See §5.1(d).



     Non-U.S. Bank. See §5.1(c).



     Note. Any promissory note issued according to §2.4(e).



     Obligations. All indebtedness, obligations and liabilities of the Borrower to any of
the Banks and the Administrative Agent arising or incurred under this 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, or any other instrument at any time evidencing any thereof, individually or
collectively, existing on the date of this Agreement or arising thereafter, whether 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.



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



     Permitted Liens. Any of the following Liens:




     (a) Liens for taxes not yet due or that are being contested in compliance with §7.8;




     (b) carriers’, warehousemen’s, maritime, mechanics’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business that are being contested in good
faith by appropriate proceedings and for which adequate reserves with respect thereto have
been set aside as required by GAAP;









 



- 16 -



     (c) pledges and deposits made in the ordinary course of business in compliance with
workmen’s compensation, unemployment insurance and other social security laws or
regulations;




     (d) Liens to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Leases), statutory obligations, surety and appeal
bonds, suretyship, performance and landfill closure bonds and other obligations of a like
nature incurred in the ordinary course of business;




     (e) zoning restrictions, easements, rights-of-way, restrictions on use of property and
other similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;




     (f) the Liens on Schedule 1.1 hereto securing the obligations listed on such
Schedule and any replacement Lien securing any renewal, extension or refunding of such
obligations if the amount secured by such renewal, extension or refunding Lien shall not
exceed the amount of the outstanding obligations secured by the Lien being replaced at the
time of such renewal, extension or refunding (plus transaction costs, including premiums and
fees, related to such renewal, extension or refunding) and if such replacement Lien shall be
limited to substantially the same property that secured the Lien so replaced;




     (g) legal or equitable encumbrances deemed to exist by reason of the existence of any
litigation or other legal proceeding or arising out of a judgment or award with respect to
which an appeal is being prosecuted in good faith by appropriate action and with respect to
which adequate reserves are being maintained and, in the case of judgment liens, execution
thereon is stayed;




     (h) rights reserved or vested in any municipality or governmental, statutory or public
authority to control or regulate any property of the Borrower or any Subsidiary, or to use
such property in a manner that does not materially impair the use of such property for the
purposes for which it is held by the Borrower or such Subsidiary;




     (i) any obligations or duties affecting the property of the Borrower or any of its
Subsidiaries to any municipality, governmental, statutory or public authority with respect
to any franchise, grant, license or permit;




     (j) Liens filed in connection with sales of receivables by any of the Subsidiaries
(other than the Guarantor) to a wholly-owned special purpose financing Subsidiary for
purposes of perfecting such sales, provided that no third party has any rights with
respect to such Liens or any assets subject thereto;




     (k) any interest or title of a lessor under any sale lease-back transaction entered
into by the Borrower or any Subsidiary conveying only the assets so leased back to the
extent the related Indebtedness is permitted under §8.1 hereof;









 



- 17 -



     (l) Liens created or deemed to be created under Permitted Receivables Transactions at
any time provided such Liens do not extend to any property or assets other than the trade
receivables sold pursuant to such Permitted Receivables Transactions, interests in the goods
or products (including returned goods and products), if any, relating to the sales giving
rise to such trade receivables; any security interests or other Liens and property subject
thereto (other than on any leases or related lease payment rights or receivables between the
Borrower and any of its Subsidiaries, as lessors or sublessors) from time to time purporting
to secure the payment by the obligors of such trade receivables (together with any financing
statements authorized by such obligors describing the collateral securing such trade
receivables) pursuant to such Permitted Receivables Transactions; and




     (m) Liens securing other Indebtedness, provided that the aggregate amount of
all liabilities, including any Indebtedness, of the Borrower and its Subsidiaries secured by
all Liens permitted in subsections (k), (1) and (m), when added (without duplication) to the
aggregate amount of Indebtedness of the Borrower’s Subsidiaries permitted under §8.1(b) and
Indebtedness with respect to Permitted Receivables Transactions, shall not exceed 15% of
Consolidated Tangible Assets at any time.



     Permitted Receivables Transaction. Any sale or sales of, and/or securitization of,
any accounts receivable of the Borrower and/or any of its Subsidiaries (the “Receivables”) pursuant
to which (a) the Borrower and its Subsidiaries realize aggregate net proceeds of not more than
$750,000,000 at any one time outstanding, including, without limitation, any revolving purchase(s)
of Receivables where the maximum aggregate uncollected purchase price (exclusive of any deferred
purchase price) for such Receivables at any time outstanding does not exceed $750,000,000, and (b)
which Receivables shall not be discounted more than 25%.



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




	 	 	Pricing Table:





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	 	 	 	 	 
	 	 	 	 	Facility	 	Applicable	 	Applicable	 	Applicable
	Level	 	Senior Public Debt Rating	 	Fee Rate	 	L/C Rate	 	Base Rate	 	Eurodollar Rate
	1

	 	Greater than or equal to
A- by Standard & Poor’s
or greater than or equal
to A3 by Moody’s
	 	0.1500%
per annum
	 	0.9750%
per annum
	 	Base Rate
plus 0.0000%
per annum
	 	Eurodollar Rate
plus 0.9750% per
annum
	2

	 	BBB+ by Standard &
Poor’s or Baa1 by
Moody’s
	 	0.1750%
per annum
	 	1.0750%
per annum
	 	Base Rate
plus 0.0750%
per annum
	 	Eurodollar Rate
plus 1.0750% per
annum
	3

	 	BBB by Standard & Poor’s
or Baa2 by Moody’s
	 	0.2250%
per annum
	 	1.1750%
per annum
	 	Base Rate
plus 0.1750%
per annum
	 	Eurodollar Rate
plus 1.1750% per
annum












 



- 18 -


	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	 	 	 	 	 
	 	 	 	 	Facility	 	Applicable	 	Applicable	 	Applicable
	Level	 	Senior Public Debt Rating	 	Fee Rate	 	L/C Rate	 	Base Rate	 	Eurodollar Rate
	4

	 	BBB- by Standard &
Poor’s or Baa3 by
Moody’s
	 	0.3000%
per annum
	 	1.3500%
per annum
	 	Base Rate
plus 0.3500%
per annum
	 	Eurodollar Rate
plus 1.3500% per
annum
	5

	 	Less than or equal to
BB+ by Standard & Poor’s
or less than or equal to
Ba1 by Moody’s
	 	0.3500%
per annum
	 	1.8000%
per annum
	 	Base Rate
plus 0.8000%
per annum
	 	Eurodollar Rate
plus 1.8000% per
annum





The applicable rates charged for any day shall be determined by the higher Senior Public Debt
Rating in effect as of that day, provided that if the higher Senior Public Debt Rating is
more than one level higher than the lower Senior Public Debt Rating, the applicable rate shall be
set at one level below the higher Senior Public Debt Rating. Initially, as of the Effective Date,
level 3 shall apply.




     RCRA. See §6.15(a).



     Real Property. All real property heretofore, now, or hereafter owned, operated, or
leased by the Borrower or any of its Subsidiaries.



     Reimbursement Obligation. The Borrower’s obligation to reimburse the applicable
Issuing Bank and the Banks on account of any drawing under any Letter of Credit, all as provided in
§3.2.



     Release. Shall have the meaning specified in CERCLA and the term “Disposal” (or
“Disposed”) shall have the meaning specified in the 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 Canada or a state, province,
territory or other political subdivision thereof wherein the property lies establish a meaning for
“Release” or “Disposal” which is broader than specified in either CERCLA, or RCRA, such broader
meaning shall apply to the Borrower’s or any of its Subsidiaries’ activities in that state,
province, territory or political subdivision.



     Replacement Bank. See §5.12.



     Replacement Notice. See §5.12.



     Revaluation Date. With respect to any Canadian Letter of Credit, each of the
following: (i) each date of the issuance of such Canadian Letter of Credit, (ii) each date of an
amendment thereof having the effect of increasing the amount thereof (solely with respect to the
increased amount), (iii) each date of any payment by the applicable Issuing Bank thereunder, and
(iv) such additional dates as the Administrative Agent or the applicable Issuing Bank shall
determine or the Majority Banks shall require.



     Senior Public Debt Rating. The ratings of the Borrower’s public unsecured long-term
senior debt, without third party credit enhancement, issued by Moody’s and Standard & Poor’s.











 



- 19 -

     Significant Subsidiary. At any time, a Subsidiary that at such time meets the
definition of “significant subsidiary” contained in Regulation S-X of the Securities and Exchange
Commission as in effect on the date hereof, but as if each reference in said definition to the
figure “10 percent” were a reference to the figure “3 percent”.


     Standard & Poor’s. Standard & Poor’s Financial Services LLC, a subsidiary of The
McGraw-Hill Companies, Inc.



     Subsidiary. As to any Person, any corporation, association, trust, or other business
entity of which such Person shall at any time own, directly or indirectly, at least a majority of
the outstanding capital stock or other interest entitled to vote generally and whose financial
results are required to be consolidated with the financial results of the designated parent in
accordance with GAAP. Unless otherwise specified herein or the context otherwise requires, any
reference herein to a Subsidiary shall be deemed to refer to a Subsidiary of the Borrower.



     Swap Contracts. All obligations in respect of interest rate, currency or commodity
exchange, forward, swap, or futures contracts or similar transactions or arrangements entered into
to protect or hedge the Borrower and its Subsidiaries against interest rate, exchange rate or
commodity price risks or exposure, or to lower or diversify their funding costs.



     Swing Line Bank. Bank of America.



     Swing Line Loan. See §2.11(a).



     Swing Line Loan Notice. A notice of a Swing Line Borrowing pursuant to §2.11, which,
if in writing, shall be substantially in the form of Exhibit B.



     Swing Line Sublimit. An amount equal to the lesser of (a) $100,000,000 and (b) the
Total Commitments. The Swing Line Sublimit is part of, and not in addition to, the Total
Commitments.



     Syndicated Loan Request. See §2.6(a).



     Syndicated Loans. A Borrowing hereunder consisting of one or more loans made by the
Banks to the Borrower under the procedures described in §2.1(a).



     Terminated Plans. The Waste Management, Inc. Pension Plan and The Waste Management of
Alameda County, Inc. Retirement Plan.



     Total Commitment. Initially $2,000,000,000, as such amount may be increased or
reduced in accordance with the terms hereof, or, if such Total Commitment has been terminated
pursuant to §2.3.1 or §12.2 hereof, zero.



     Total Debt. The sum, without duplication, of all (1) Indebtedness of the Borrower on
a consolidated basis under subsections (a) through (h) of the definition of “Indebtedness”
(provided, however, that Indebtedness with respect to Permitted Receivables Transactions shall not
be included in such calculation), plus (2) non-contingent reimbursement obligations of the Borrower
and its Subsidiaries with respect to drawings under any letters of credit.











 




- 20 -


     Type. When used in reference to any Loan, refers to whether the rate of interest on
such Loan is determined by reference to the Eurodollar Rate, the Base Rate or, in the case of a
Competitive Bid Loan, whether it is a Eurodollar Competitive Bid Loan or Absolute Competitive Bid
Loan.



     U.S. Dollar Equivalent. With respect to any amount denominated in Canadian Dollars
computed at any time, the equivalent amount thereof in U.S. Dollars as determined by the
Administrative Agent or the Issuing Bank, as the case may be, at such time on the basis of the
Applicable Spot Rate (determined in respect of the most recent Revaluation Date).



     USA Patriot Act. The USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).



     §1.2. Rules of Interpretation.




     (a) Unless otherwise noted, a reference to any document or agreement (including this
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 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 capitalized but not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles 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 generally accepted accounting
principles, which terms are defined in the Uniform Commercial Code as in effect in the
State of New York, have the meanings assigned to them therein.




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




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



     §1.3. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Syndicated Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Syndicated Loan”).









 



- 21 -

§2. THE LOAN FACILITIES.




     §2.1. Commitment to Lend.




     (a) Subject to the terms and conditions set forth in this Agreement, each of the Banks
severally agrees to lend to the Borrower and the Borrower may borrow, repay, and reborrow
from time to time between the Effective Date and the Maturity Date, upon notice by the
Borrower to the Administrative Agent given in accordance with this §2, its Commitment
Percentage of the Syndicated Loans requested by the Borrower; provided that the sum
of the outstanding principal amount of the Syndicated Loans plus the outstanding
principal amount of the Swing Line Loans plus the Maximum Drawing Amount of
outstanding Letters of Credit shall not exceed the Total Commitment minus the
aggregate amount of Competitive Bid Loans outstanding at such time.




     (b) On the date of each request for a Loan or Letter of Credit hereunder, the Borrower
shall be deemed to have made a representation and warranty that the conditions set forth in
§10 and §11, as the case may be, have been satisfied on the date of such request. Any
unpaid Reimbursement Obligation shall be a Base Rate Loan, as set forth in §3.2(a).



     §2.2. Facility Fee. The Borrower agrees to pay to the Administrative Agent for the account of
the Banks a fee (the “Facility Fee”) on the Total Commitment (whether or not utilized) equal to the
Applicable Facility Fee Rate multiplied by the Total Commitment, provided that after the expiry or
termination of the Total Commitment, the Facility Fee shall be computed on the sum of (A) the
Maximum Drawing Amount of all Letters of Credit, if any, outstanding from time to time and (B) all
Loans outstanding from time to time. The Facility Fee shall be payable for the period from and
after the Effective Date quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter, with the first such payment commencing on July 1, 2011, and
on the Maturity Date (or on the date of termination in full of the Total Commitment, if earlier)
and on the date of termination of all Letters of Credit and payment in full of all Loans. The
Facility Fee shall be distributed pro rata among the Banks in accordance with each Bank’s
Commitment Percentage.



     §2.3. Reduction and Increase of Total Commitment.



          §2.3.1 Reduction of Total Commitment.





     (a) The Borrower shall have the right at any time and from time to time upon three (3)
Business Days’ prior written notice to the Administrative Agent to reduce by $25,000,000 or
a greater amount, or terminate entirely, the Total Commitment, whereupon each Bank’s
Commitment shall be reduced pro rata in accordance with such Bank’s
Commitment Percentage 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 of all Letters of Credit (other
than the amount of cash collateral or other credit support satisfactory to the
Administrative Agent and each applicable Issuing Bank that the Borrower has provided









 



- 22 -



to secure Reimbursement Obligations prior to or concurrently with such termination
which would exceed the Total Commitment), and (B) all Loans then outstanding.




     (b) 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.




     (c) The Administrative Agent will notify the Banks promptly after receiving any notice
delivered by the Borrower pursuant to this §2.3.1 and will distribute to each Bank a
revised Schedule 1 to this Agreement.



          §2.3.2 Increase of Total Commitment. Unless a Default or Event of Default has occurred and is
continuing, the Borrower may request, subject to the approval of the Administrative Agent, that the
Total Commitment be increased, provided that such increase shall not, except with the
consent of the Majority Banks, in any event exceed $500,000,000 plus the amount, if any, by
which the Total Commitment has been reduced as a result of the termination of the Commitments of
any Bank pursuant to §5.12 hereunder; provided, however, that (i) any Bank which is
a party to this Agreement prior to such increase shall have the first option, and may elect, to
fund its pro rata share of the increase, thereby increasing its Commitment hereunder, but no Bank
shall have any obligation to do so, (ii) in the event that it becomes necessary to include a new
Bank to provide additional funding under this §2.3.2, such new Bank must be reasonably acceptable
to the Administrative Agent and the Borrower, and (iii) the Banks’ Commitment Percentages shall be
correspondingly adjusted, as necessary, to reflect any increase in the Total Commitment and
Schedule 1 shall be amended to reflect such adjustments. Any such increase in the Total
Commitment shall require, among other things, the satisfaction of such conditions precedent as the
Administrative Agent may reasonably require, including, without limitation, the Administrative
Agent’s receipt of evidence of applicable corporate authorization and other corporate documentation
from the Borrower and the Guarantor and the legal opinion of counsel to the Borrower and the
Guarantor, each in form and substance satisfactory to the Administrative Agent and such Banks as
are participating in such increase. The Borrower shall prepay that portion of any Syndicated Loans
outstanding on the effective date of any such increase to the extent necessary to keep the
outstanding Syndicated Loans ratable with any revised Commitment Percentages arising from any
nonratable increase in the Total Commitments under this Section.



     §2.4. Repayment of Loans; Evidence of Debt.




     (a) The Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the pro rata account of the Banks, the then unpaid principal amount of the
Syndicated Loans on the Maturity Date, (ii) to the Administrative Agent for the account of
the applicable Bank, the then unpaid principal amount of such Bank’s Competitive Bid Loan
on the last day of the Interest Period applicable to such Loan, and (iii) to the Swing Line
Bank, for its account, the then unpaid principal amount of each Swing Line Loan on the
earlier of the Maturity Date and the first date after such Swing Line Loan is made that is
the 15th or last day of a calendar month and is at least two Business Days after
such Swing Line Loan is made; provided that on each date that a









 



- 23 -



Syndicated Loan or Competitive Bid Loan is made, the Borrower shall repay all Swing
Line Loans then outstanding.




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




     (c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest Period (if
any) applicable thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Bank hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the Banks and each
Bank’s share thereof.




     (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this §2.4 shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Bank or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the terms of
this Agreement.




     (e) Any Bank may request that any Loans made by it be evidenced by a promissory note.
In such event, the Borrower shall prepare, execute and deliver to such Bank a promissory
note payable to the order of such Bank (or, if requested by Bank, to such Bank and its
registered assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to §20) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).



     §2.5. Interest on Loans.




     (a) The outstanding principal amount of Base Rate Syndicated Loans and Swing Line
Loans shall bear interest at the rate per annum equal to the Applicable Base Rate. The
outstanding principal amount of the Eurodollar Rate Syndicated Loans shall bear interest at
the Applicable Eurodollar Rate.




     (b) Interest shall be payable (i) quarterly in arrears on the first Business Day of
each calendar quarter, with the first such payment commencing July 1, 2011, on Base Rate
Loans, (ii) on the last day of the applicable Interest Period, and if such Interest Period
is longer than three months, also on the last day of each three month period following the
commencement of such Interest Period, on Eurodollar Loans, and (iii) on the Maturity Date
for all Loans.









 



- 24 -


     §2.6. Requests for Syndicated Loans.




     (a) The Borrower shall give to the Administrative Agent written notice in the form of
Exhibit A hereto (or telephonic notice confirmed in writing or a facsimile in the
form of Exhibit A hereto) of each Syndicated Loan requested hereunder (a
“Syndicated Loan Request”) not later than (a) 11:00 a.m. (New York time) on the proposed
Drawdown Date of any Base Rate Loan, or (b) 11:00 a.m. (New York time) three (3) Eurodollar
Business Days prior to the proposed Drawdown Date of any Eurodollar Loan. Each such
Syndicated Loan Request shall specify (A) the principal amount of the Syndicated Loan
requested, (B) the proposed Drawdown Date of such Syndicated Loan, (C) whether such
Syndicated Loan requested is to be a Base Rate Loan or a Eurodollar Loan, and (D) the
Interest Period for such Syndicated Loan, if a Eurodollar Loan. Each Syndicated Loan
requested shall be in a minimum amount of $10,000,000. Each such Syndicated Loan Request
shall reflect the Maximum Drawing Amount of all Letters of Credit outstanding and the
amount of all Loans outstanding (including Competitive Bid Loans and Swing Line Loans).
Syndicated Loan Requests made hereunder shall be irrevocable and binding on the Borrower,
and shall obligate the Borrower to accept the Syndicated Loan requested from the Banks on
the proposed Drawdown Date.




     (b) Each of the representations and warranties made by the Borrower to the Banks or
the Administrative Agent in this Agreement or any other Loan Document shall be true and
correct in all material respects when made and shall, for all purposes of this Agreement,
be deemed to be repeated by the Borrower on and as of the date of the submission of a
Syndicated Loan Request, Competitive Bid Quote Request, or Letter of Credit Application and
on and as of the Drawdown Date of any Loan or the date of issuance of any Letter of Credit
(except to the extent (i) of changes resulting from transactions contemplated or permitted
by this Agreement and the other Loan Documents and changes occurring in the ordinary course
of business that either individually or in the aggregate do not result in a Material
Adverse Effect, or (ii) that such representations and warranties expressly relate only to
an earlier date).




     (c) The Administrative Agent shall promptly notify each Bank of each Syndicated Loan
Request received by the Administrative Agent (i) on the proposed Drawdown Date of any Base
Rate Loan, or (ii) three (3) Eurodollar Business Days prior to the proposed Drawdown Date
of any Eurodollar Loan.



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




     (a) At the Borrower’s option, so long as no Default or Event of Default has occurred
and is then continuing, the Borrower may (i) elect to convert any Base Rate Syndicated Loan
or a portion thereof to a Eurodollar Loan, (ii) at the time of any Syndicated Loan Request,
specify that such requested Loan shall be a Eurodollar Loan, or (iii) upon expiration of
the applicable Interest Period, elect to maintain an existing Eurodollar Loan as such,
provided that the Borrower give notice to the Administrative Agent pursuant to
§2.7(b) hereof. Upon determining any Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrower and the









 



- 25 -



Banks, and each such notice to the Borrower shall be considered prima
facie correct and binding, absent manifest error.




     (b) Three (3) Eurodollar Business Days prior to the making of any Eurodollar Loan or
the conversion of any Base Rate Syndicated Loan to a Eurodollar Loan, or, in the case of an
outstanding Eurodollar Loan, the expiration date of the applicable Interest Period, the
Borrower shall give written, telex or facsimile notice (or telephonic notice promptly
confirmed in a writing or a facsimile) received by the Administrative Agent not later than
11:00 a.m. (New York time) of its election pursuant to §2.7(a). Each such notice delivered
to the Administrative Agent shall specify the aggregate principal amount of the Syndicated
Loans to be borrowed or maintained as or converted to Eurodollar Loans and the requested
duration of the Interest Period that will be applicable to such Eurodollar Loan, and shall
be irrevocable and binding upon the Borrower. If the Borrower shall fail to give the
Administrative Agent notice of its election hereunder together with all of the other
information required by this §2.7(b) with respect to any Syndicated Loan, whether at the
end of an Interest Period or otherwise, such Syndicated Loan shall be deemed a Base Rate
Loan. The Administrative Agent shall promptly notify the Banks in writing (or by telephone
confirmed in writing or by facsimile) of such election.




     (c) Notwithstanding anything herein to the contrary, the Borrower may not specify an
Interest Period that would extend beyond the Maturity Date.




     (d) No conversion of Loans pursuant to this §2.7 may result in any Eurodollar
Borrowing that is less than $5,000,000. In no event shall the Borrower have more than ten
(10) different Interest Periods for Borrowings of Eurodollar Loans outstanding at any time.




     (e) Subject to the terms and conditions of §5.8 hereof, if any Affected Bank demands
compensation under §5.5(c) or (d) with respect to any Eurodollar Loan, the Borrower may at
any time, upon at least three (3) Business Days’ prior written notice to the applicable
Administrative Agent, elect to convert such Eurodollar Loan into a Base Rate Loan (on which
interest and principal shall be payable contemporaneously with the related Eurodollar Loans
of the other Banks). Thereafter, and until such time as the Affected Bank notifies the
Administrative Agent that the circumstances giving rise to the demand for compensation
under §5.5(c) or (d) no longer exist, all requests for Eurodollar Loans from such Affected
Bank shall be deemed to be requests for Base Rate Loans. Once the Affected Bank notifies
the Administrative Agent that such circumstances no longer exist, the Borrower may elect
that the principal amount of each such Loan converted hereunder shall again bear interest
as Eurodollar Loans beginning on the first day of the next succeeding Interest Period
applicable to the related Eurodollar Loans of the other Banks.



     §2.8. Funds for Syndicated Loans. Not later than 1:00 p.m. (New York time) on the proposed
Drawdown Date of Syndicated Loans, each of the Banks will make available to the Administrative
Agent at the Administrative Agent’s Office, in immediately available funds, the amount of its
Commitment Percentage of the amount of the requested Loan.









 



- 26 -

Upon receipt from each Bank of such amount, and upon receipt of the documents required by §10
and §11 and the satisfaction of the other conditions set forth therein, the Administrative Agent
will make available to the Borrower the aggregate amount of such Syndicated Loans made available by
the Banks. The failure or refusal of any Bank 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 Syndicated Loan shall not relieve any other Bank from its several obligations hereunder
to make available to the Administrative Agent the amount of such Bank’s Commitment Percentage of
the requested Loan.




     §2.9. Maturity of the Loans and Reimbursement Obligations. The Borrower promises to pay on
the Maturity Date, and there shall become absolutely due and payable on the Maturity Date, all of
the Loans and unpaid Reimbursement Obligations outstanding on such date, together with any and all
accrued and unpaid interest thereon and any fees and other amounts owing hereunder.



     §2.10. Optional Prepayments or Repayments of Loans. Subject to the terms and conditions of
§5.8, the Borrower shall have the right, at its election, to repay or prepay the outstanding amount
of the Loans, as a whole or in part, at any time without penalty or premium. The Borrower shall
give the Administrative Agent no later than 11:00 a.m. (New York time) (a) on the proposed date of
prepayment or repayment of Base Rate Loans, and (b) three (3) Eurodollar Business Day prior to the
proposed date of prepayment or repayment of all other Loans, written notice (or telephonic notice
confirmed in writing or by facsimile) of any proposed prepayment or repayment pursuant to this
§2.10, specifying the proposed date of prepayment or repayment of Loans and the principal amount to
be paid. Notwithstanding the foregoing, the Borrower may not prepay any Competitive Bid Loans
without the consent of the applicable Bank. The Administrative Agent shall promptly notify each
Bank by written notice (or telephonic notice confirmed in writing or by facsimile) of such notice
of payment.



     §2.11. Swing Line Loans; Participations.




     (a) Subject to the terms and conditions set forth herein, the Swing Line Bank, in
reliance upon the agreements of the other Banks set forth in this §2.11, shall make loans
(each such loan, a “Swing Line Loan”) to the Borrower on any Business Day from time to time
between the Effective Date and the Maturity Date, upon notice by the Borrower to the
Administrative Agent in an aggregate amount not to exceed at any time outstanding the
amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Commitment Percentage of the Syndicated Loans and Maximum Drawing
Amount of outstanding Letters of Credit of the Bank acting as Swing Line Bank, may exceed
the amount of such Bank’s Commitment; provided, that after giving effect to any
Swing Line Loan, (i) the sum of the outstanding principal amount of the Syndicated Loans
plus the outstanding principal amount of the Swing Line Loans plus the
Maximum Drawing Amount of outstanding Letters of Credit shall not exceed the Total
Commitment minus the aggregate amount of Competitive Bid Loans outstanding at such
time, and (ii) the aggregate outstanding principal amount of the Syndicated Loans of any
Bank plus such Bank’s Commitment Percentage of the outstanding principal amount of
the Swing Line Loans plus such Bank’s Commitment Percentage of the outstanding
principal amount of the Maximum Drawing Amount of









 



- 27 -



outstanding Letters of Credit shall not exceed such Bank’s Commitment, and
provided, further, that the Borrower shall not use the proceeds of any
Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrower may borrow under this
§2.11, prepay under §2.10, and reborrow under this §2.11. Each Swing Line Loan shall be a
Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Bank shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Bank a risk participation in such Swing Line Loan in an amount equal to the product of
such Bank’s Commitment Percentage times the amount of such Swing Line Loan.




     (b) Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to
the Swing Line Bank and the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Swing Line Bank and the Administrative Agent not later
than 1:00 p.m (New York time). on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Swing Line Bank and the Administrative Agent of a
written Swing Line Loan Request, appropriately completed and signed by an authorized
officer of the Borrower. Promptly after receipt by the Swing Line Bank of any telephonic
Swing Line Loan Request, the Swing Line Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such Swing Line
Loan Request and, if not, the Swing Line Bank will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Bank has received
notice (by telephone or in writing) from the Administrative Agent (including at the request
of any Bank) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Bank not to make such Swing Line Loan as a result of the
limitations set forth in the first proviso to the first sentence of §2.11(a), or (B) that
one or more of the applicable conditions specified in §11 is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Bank will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Request, make the amount of
its Swing Line Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Bank in immediately available funds.




     (c) The Swing Line Bank at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Bank to so request on its
behalf), that each Bank make a Base Rate Syndicated Loan in an amount equal to such Bank’s
Commitment Percentage of the amount of Swing Line Loans then outstanding. Such request
shall be made in writing (which written request shall be deemed to be a Syndicated Loan
Request for purposes hereof) and in accordance with the requirements of §2.6, without
regard to the minimum and multiples specified therein, but subject to the unutilized
portion of the Total Aggregate Commitments and the conditions set forth in §11. The Swing
Line Bank shall furnish the Borrower with a copy of the applicable Syndicated Loan Request
promptly after delivering such notice to the Administrative Agent. Each Bank shall make an
amount equal to its Commitment Percentage of the amount specified in such Syndicated Loan
Request available to the Administrative Agent in immediately available funds (and the
Administrative Agent may









 



- 28 -



apply any cash collateral or other credit support available with respect to the
applicable Swing Line Loan) for the account of the Swing Line Bank at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Syndicated Loan
Request, whereupon, subject to §2.11(d), each Bank that so makes funds available shall be
deemed to have made a Base Rate Syndicated Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line Bank.




     (d) If for any reason any Swing Line Loan cannot be refinanced by such a Syndicated
Borrowing in accordance with §2.11(c), the request for Base Rate Syndicated Loans submitted
by the Swing Line Bank as set forth herein shall be deemed to be a request by the Swing
Line Bank that each of the Banks fund its risk participation in the relevant Swing Line
Loan and each Bank’s payment to the Administrative Agent for the account of the Swing Line
Bank pursuant to §2.11(c) shall be deemed payment in respect of such participation.




     (e) If any Bank fails to make available to the Administrative Agent for the account of
the Swing Line Bank any amount required to be paid by such Bank pursuant to the foregoing
provisions of this §2.11 by the time specified herein, the Swing Line Bank shall be
entitled to recover from such Bank (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Swing Line Bank at a rate
per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing
Line Bank in accordance with banking industry practice on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the Swing Line Bank in
connection with the foregoing. If such Bank pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Bank’s Syndicated Loan included in the
relevant Syndicated Borrowing or funded participation in the relevant Swing Line Loan, as
the case may be. A certificate of the Swing Line Bank submitted to any Bank (through the
Administrative Agent) with respect to any amounts owing under this paragraph shall be
conclusive absent manifest error.




     (f) Each Bank’s obligation to make Syndicated Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this §2.11 shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Bank may have against the Swing
Line Bank, the Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, that each Bank’s obligation to make
Syndicated Loans pursuant to this §2.11 is subject to the conditions set forth in §11. No
such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.




     (g) At any time after any Bank has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Bank receives any payment on account of such









 



- 29 -



Swing Line Loan, the Swing Line Bank will distribute to such Bank its Commitment
Percentage thereof in the same funds as those received by the Swing Line Bank.




     (h) If any payment received by the Swing Line Bank in respect of principal or interest
on any Swing Line Loan is required to be returned by the Swing Line Bank under any of the
circumstances described in §33 (including pursuant to any settlement entered into by the
Swing Line Bank in its discretion), each Bank shall pay to the Swing Line Bank its
Commitment Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per annum equal
to the Federal Funds Rate. The Administrative Agent will make such demand upon the request
of the Swing Line Bank. The obligations of the Banks under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.




     (i) The Swing Line Bank shall be responsible for invoicing the Borrower for interest
on the Swing Line Loans. Until each Bank funds its Base Rate Syndicated Loan or risk
participation pursuant to this §2.11 to refinance such Bank’s Commitment Percentage of any
Swing Line Loan, interest in respect of such Commitment Percentage shall be solely for the
account of the Swing Line Bank.




     (j) The Borrower shall make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Bank.


§3. LETTERS OF CREDIT.




     §3.1. Letter of Credit Commitments.




     (a) Subject to the terms and conditions hereof and the receipt by the Administrative
Agent of a written notice in the form of Exhibit C hereto (a “Letter of Credit
Request”) reflecting the Maximum Drawing Amount of all Letters of Credit (including the
requested Letter of Credit), and receipt by an Issuing Bank, with a copy to the
Administrative Agent, of a Letter of Credit Application, such Issuing Bank, on behalf of
the Banks and in reliance upon the representations and warranties of the Borrower contained
herein and the agreement of the Banks contained in §3.1(c) hereof, agrees to issue standby
Letters of Credit (including so-called “direct pay” standby Letters of Credit) for the
account of the Borrower (which may, with such Issuing Bank’s consent, incorporate automatic
renewals for periods of up to twelve (12) months), in such form as may be requested from
time to time by the Borrower and agreed to by such Issuing Bank; provided,
however, that, after giving effect to such request, the aggregate Maximum Drawing
Amount of all Letters of Credit issued at any time shall not exceed the Total Commitment
minus the aggregate outstanding amount of the Loans; provided
further, that (i) no Letter of Credit shall have an expiration date later than the
earlier of (A) eighteen (18) months after the date of issuance (which may incorporate
automatic renewals for periods of up to twelve (12) months), or (B) five (5) Business Days
prior to the Maturity Date; (ii) no Issuing Bank shall be under any obligation to issue any
Letter of Credit if (A) any order, judgment or decree of any governmental authority or
arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing









 



- 30 -



the Letter of Credit, or any law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank
refrain from, the issuance of letters of credit generally or the Letter of Credit in
particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any
restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise
compensated hereunder or otherwise) not in effect on the Effective Date, or shall impose
upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on
the Effective Date and which such Issuing Bank in good faith deems material to it, (B) the
issuance of the Letter of Credit would violate one or more material policies of such
Issuing Bank applicable to letters of credit generally applied on a consistent basis to
similarly situated letter of credit applicants, or (C) any Bank is at that time a
Defaulting Bank, unless (x) such Issuing Bank has entered into arrangements, including the
delivery of cash collateral or other credit support, satisfactory to such Issuing Bank (in
its sole discretion), with the Borrower or such Bank to eliminate such Issuing Bank’s
actual or potential fronting exposure with respect to such Defaulting Bank, or (y) such
actual or potential fronting exposure with respect to such Defaulting Bank has been
reallocated to Banks that are non-Defaulting Banks pursuant to clause (iv) of §5.14 and
(iii) the aggregate face amount of all Letters of Credit issued by any one Issuing Bank
shall not at any time exceed the amount set forth opposite the name of such Issuing Bank on
Schedule 3.1 hereto, as such amount may be increased (in the sole discretion of
such Issuing Bank) or decreased (if so agreed by such Issuing Bank and the Borrower by the
execution and delivery by such Issuing Bank, the Borrower, the Guarantor and the
Administrative Agent of an instrument in substantially the form of Schedule 3.1.1
hereto. Each Issuing Bank will promptly confirm to the Administrative Agent the issuance
of each Letter of Credit specifying the face amount thereof or any increase thereto, and
the Administrative Agent will transmit such information to the Banks.




     (b) Each Letter of Credit shall be denominated in Dollars or, in accordance with and
subject to the terms of §3.1(e) hereof, in Canadian Dollars.




     (c) Each Bank severally agrees that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default, the termination of the Total Commitment
pursuant to §12.2, or any other condition precedent or circumstance whatsoever (other than
as stated in the next sentence hereof), to the extent of such Bank’s Commitment Percentage
(computed after the termination of the Total Commitment in accordance with the Commitment
Percentage in effect immediately prior to such Termination), to reimburse each Issuing Bank
on demand for the amount of each draft paid by such Issuing Bank under each Letter of
Credit issued by such Issuing Bank to the extent that such amount is not reimbursed by the
Borrower pursuant to §3.2 (such agreement of a Bank being called herein the “Letter of
Credit Participation” of such Bank). Each Bank agrees that its obligation to reimburse each
Issuing Bank pursuant to this §3.1(c) shall not be affected in any way by any circumstance
whatsoever other than the gross negligence or willful misconduct of such Issuing Bank,
provided that the making of a payment under a Letter of Credit against documents
that appear on their face









 



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to substantially comply with the terms and conditions of such Letter of Credit shall
not be deemed to be gross negligence or willful misconduct.




     (d) Each such reimbursement payment made by a Bank to an Issuing Bank shall be made to
an account of such Issuing Bank in the United States of America and shall be treated as the
purchase by such Bank of a participating interest in the applicable Reimbursement
Obligation under §3.2 in an amount equal to such payment. Each Bank shall share in
accordance with its participating interest in any interest which accrues pursuant to §3.2.




     (e) (i) The Borrower shall be entitled to request that one or more Letters of Credit
be denominated in Canadian Dollars for the account of any Canadian Subsidiary of the
Borrower (each a “Canadian Dollar Letter of Credit”); provided that (i) the
aggregate undrawn face amount of all Canadian Dollar Letters of Credit may not exceed
C$200,000,000 at any time and (ii) each Canadian Dollar Letter of Credit shall provide for
payment of any drawing thereunder on a date not earlier than three Business Days after the
relevant Issuing Bank determines that the documents submitted in connection with such
drawing appear on their face to substantially comply with the terms and conditions of such
Letter of Credit.




     (ii) The Letter of Credit Application in respect of each Canadian Dollar Letter
of Credit shall be signed by the Borrower; provided that nothing therein
shall be deemed to alter the obligations of the Borrower under this Agreement in
respect of any drawing under any such Letter of Credit.




     (iii) If an Issuing Bank makes a payment in Canadian Dollars pursuant to a
Canadian Dollar Letter of Credit, the amount of such payment shall, for all purposes
of this Agreement (but without prejudice to the terms of such Letter of Credit),
immediately be deemed converted into the U.S. Dollar Equivalent thereof and shall
for all purposes hereof be deemed to have been made in U.S. Dollars in said amount.




     (f) As of the Effective Date, the Existing Letters of Credit shall automatically be
deemed to be Letters of Credit for all purposes of this Agreement, having the respective
face amounts specified in Schedule 3.1.2 hereof.




     (g) The parties acknowledge and agree that (i) certain of the Existing Letters of
Credit have been issued by Affiliates of Issuing Banks identified in Schedule 3.1.2
hereof, and that (ii) an Issuing Bank may hereafter comply with the provisions of §3.1 in
respect of the issuance of Canadian Dollar Letters of Credit by arranging for an Affiliate
of such Issuing Bank organized under the laws of Canada to issue such Canadian Dollar
Letter of Credit (each Letter of Credit issued by an Affiliate of an Issuing Bank as
provided herein being herein referred to as a “Bank Affiliate Letter of Credit”),
provided that such Issuing Bank shall, prior to such issuance, have notified the
Administrative Agent and the Borrower of the identity of such Affiliate. The parties agree
that (1) each Bank Affiliate Letter of Credit is and shall be a “Letter of Credit” for all
purposes of this Agreement; (2) each reference in the definition of “Reimbursement
Obligation” and in









 



- 32 -



§3.2, §3.3 and §3.4 to an Issuing Bank shall be deemed to include the issuer of each
such Bank Affiliate Letter of Credit; (3) notwithstanding the foregoing, the issuance,
extension or renewal of each Letter of Credit shall remain subject to the conditions and
requirements of §3.1 and §11, and each provision of this Agreement, including without
limitation the last sentence of §3.1(a) and §3.5, requiring the giving of a notice
hereunder by or to an Issuing Bank shall be deemed to refer to such Issuing Bank and not to
such Affiliate; and (4) the obligations of the Banks, the Borrower and the Guarantor to
each Issuing Bank shall, in the case of each Bank Affiliate Letter of Credit, inure to the
benefit of the Affiliate issuing or having issued such Bank Affiliate Letter of Credit and
be enforceable by such Affiliate and/or by such Issuing Bank on behalf of such Affiliate.
Each Canadian Dollar Letter of Credit issued by a Canadian Affiliate of an Issuing Bank
shall be issued on a Business Day which is not a day on which banking institutions in
Toronto and Montreal, Canada are authorized by law to close.




     (h) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a
Letter of Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), the rules of the ISP shall apply to each standby Letter of Credit.



     §3.2. Reimbursement Obligation of the Borrower. In order to induce the Issuing Banks to
issue, extend and renew each Letter of Credit, the Borrower hereby agrees to reimburse or pay to
each Issuing Bank, with respect to each Letter of Credit issued, extended or renewed by such
Issuing Bank hereunder, as follows:




     (a) if any draft presented under any Letter of Credit is honored by such Issuing Bank
or such Issuing Bank otherwise makes payment with respect thereto, the sum of (i) the
amount paid by such Issuing Bank under or with respect to such Letter of Credit (except
that in the case of a payment in Canadian Dollars, it shall reimburse or pay the U.S.
Dollar Equivalent thereof), and (ii) the amount of any taxes, fees, charges or other costs
and expenses whatsoever incurred by such Issuing Bank in connection with any payment made
by such Issuing Bank under, or with respect to, such Letter of Credit; provided,
however, if the Borrower does not reimburse such Issuing Bank on the Drawdown Date,
such amount shall, provided that no Event of Default under §§12.1(g) or 12.1(h) has
occurred, become automatically a Base Rate Syndicated Loan advanced hereunder in an amount
equal to such sum (and the Administrative Agent shall notify the Banks upon receipt of the
notice thereof from the applicable Issuing Bank pursuant to §3.5, which notice shall be
deemed to constitute a Syndicated Loan Request and satisfy the requirements of §2.6); and




     (b) upon the date that is five (5) Business Days prior to the Maturity Date (or, if
such day is not a Business Day, the next preceding Business Day) or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in accordance with §12, an
amount equal to the then Maximum Drawing Amount of all outstanding Letters of Credit shall
be paid by the Borrower to the Administrative Agent to be held as cash collateral for the
applicable Reimbursement Obligations, and the Borrower hereby grants to the Administrative
Agent a security interest therein.









 



- 33 -


     §3.3. Obligations Absolute. The Borrower’s 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 Borrower may have or have had against any Issuing Bank, any Bank or any
beneficiary of a Letter of Credit, and the Borrower expressly waives any such rights that it may
have with respect thereto. The Borrower further agrees with each Issuing Bank and the Banks that
such Issuing Bank and the Banks (i) shall not be responsible for, and the Borrower’s 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 (unless due to the willful misconduct of such Issuing
Bank or any other Bank), or any dispute between or among the Borrower and the beneficiary of any
Letter of Credit or any financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee, and (ii) 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 except to the extent of their own willful
misconduct. The Borrower agrees that any action taken or omitted by any Issuing Bank or any Bank in
good faith under or in connection with any Letter of Credit and the related drafts and documents
shall be binding upon the Borrower and shall not result in any liability on the part of such
Issuing Bank or any Bank (or their respective affiliates) to the Borrower. Nothing herein shall
constitute a waiver by the Borrower of any of its rights against any beneficiary of a Letter of
Credit.



     §3.4. Reliance by the Issuing Banks. To the extent not inconsistent with §3.3, each Issuing
Bank 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,
facsimile, telex or teletype message, statement, order or other document believed by such Issuing
Bank in good faith 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 such Issuing Bank.



     §3.5. Notice Regarding Letters of Credit. One (1) Business Day prior to the issuance of any
Letter of Credit or any amendment, extension or termination thereof, the applicable Issuing Bank
shall notify the Administrative Agent of the terms of such Letter of Credit, amendment, extension
or termination. In the case of any such issuance, amendment or extension, the Administrative Agent
will promptly notify such Issuing Bank whether such issuance, amendment or extension is permissible
under the limitation set forth in the proviso to §2.1(a). On the day of any drawing under any
Letter of Credit, such Issuing Bank shall notify the Administrative Agent of such drawing,
specifying the amount thereof, and on the day of any payment under any Letter of Credit (or failure
of the Borrower to reimburse such drawing in accordance with §3.2), such Issuing Bank shall notify
the Administrative Agent of such payment (or failure), specifying the amount thereof and, in the
case of a payment (or failure) under a Canadian Dollar Letter of Credit, the U.S. Dollar Equivalent
thereof. Additionally, each Issuing Bank shall no later than the third Business Day following the
last day of each month, provide to Administrative Agent a schedule of the Letters of Credit issued
by it, in form and substance reasonably satisfactory to Administrative Agent, showing the date of
issuance of each Letter of









 



- 34 -

Credit, the account party, the original face amount (if any), the Maximum Drawing Amount, the
expiration date, and the reference number of any Letter of Credit outstanding at any time during
each month, and showing the aggregate amount (if any) payable by the Borrower to such Issuing Bank
during such month. Promptly after the receipt of such schedule from each Issuing Bank, the
Administrative Agent shall provide to all Banks a summary aggregating the schedules received from
each of the Issuing Banks.




     §3.6. Letter of Credit Fee; Fronting Fee. The Borrower shall pay a fee (the “Letter of Credit
Fee”) equal to the Applicable L/C Rate on the Maximum Drawing Amount to the Administrative Agent
for the account of the Banks, to be shared pro rata by the Banks in accordance with
their respective Commitment Percentages; provided, that any Letter of Credit Fees otherwise
payable for the account of a Defaulting Bank with respect to any Letter of Credit as to which such
Defaulting Bank has not provided cash collateral or other credit support satisfactory to the
applicable Issuing Bank shall be payable, to the maximum extent permitted by applicable Law, to the
other Banks in accordance with the upward adjustments in their respective Commitment Percentages
allocable to such Letter of Credit pursuant to § 5.14(iv), with the balance of such fee, if any,
payable to the Issuing Bank for its own account. The Letter of Credit Fee shall be payable
quarterly in arrears on the third Business Day of each calendar quarter for the quarter just ended,
with the first such payment being due on July 6, 2011, and on the Maturity Date. In addition, a
fronting fee (the “Fronting Fee”) with respect to each Letter of Credit as agreed upon between the
Borrower and each Issuing Bank shall be payable by the Borrower to such Issuing Bank for its
account, and the Borrower shall pay directly to each applicable Issuing Bank for its own account
the customary issuance, presentation, amendment and other processing fees, and other standard costs
and charges, of such Issuing Bank relating to letters of credit as from time to time in effect.


§4. COMPETITIVE BID LOANS.




     §4.1. The Competitive Bid Option. In addition to the Syndicated Loans made pursuant to §2
hereof, the Borrower may request Competitive Bid Loans pursuant to the terms of this §4. The Banks
may, but shall have no obligation to, make offers for Competitive Bid Loans and the Borrower may,
but shall have no obligation to, accept such offers in the manner set forth in this §4.
Notwithstanding any other provision herein to the contrary, at no time shall (x) the aggregate
principal amount of Competitive Bid Loans outstanding at any time exceed the Total Commitment
minus the sum of (a) the aggregate outstanding principal amount of Syndicated Loans
plus (b) the aggregate outstanding principal amount of Swing Loans plus (c) the
Maximum Drawing Amount of Letters of Credit, outstanding at such time, and (y) there be more than
10 Competitive Bid Loans outstanding at any time.



     §4.2. Competitive Bid Loan Accounts; Competitive Bid Loans.




     (a) The obligation of the Borrower to repay the outstanding principal amount of any
and all Competitive Bid Loans, plus interest at the applicable rate accrued thereon, shall
be evidenced by this Agreement and by individual loan accounts (the “Competitive Bid Loan
Accounts” and individually, a “Competitive Bid Loan Account”) maintained by the
Administrative Agent on its books for each of the Banks, it being the intention of the
parties hereto that, except as provided for in paragraph (b) of this §4.2,









 



- 35 -



the Borrower’s obligations with respect to Competitive Bid Loans are to be evidenced
only as stated herein and not by separate promissory notes.




     (b) Any Bank may at any time, and from time to time, request that any Competitive Bid
Loans outstanding to such Bank be evidenced by a promissory note of the Borrower in the
form approved by the Administrative Agent, dated as of the Effective Date and completed
with appropriate insertions.




     (c) The Borrower irrevocably authorizes the Administrative Agent to make or cause to
be made, in connection with a Drawdown Date of any Competitive Bid Loan or at the time of
receipt of any payment of principal on the applicable Bank’s Competitive Bid Loan Account,
an appropriate notation on the Administrative Agent’s records, reflecting the making of the
Competitive Bid Loan, or the receipt of such payment (as the case may be). The outstanding
amount of the Competitive Bid Loans set forth on the Administrative Agent’s records, shall
be prima facie evidence of the principal amount thereof owing and unpaid to
such Bank, but the failure to record, or any error in so recording, any such amount shall
not limit or otherwise affect the obligations of the Borrower hereunder to make payments of
principal of or interest on any Competitive Bid Loan when due.



     §4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes.




     (a) When the Borrower wishes to request offers to make Competitive Bid Loans under
this §4, it shall transmit to the Administrative Agent by telex or facsimile a Competitive
Bid Quote Request substantially in the form of Exhibit F hereto (a “Competitive Bid
Quote Request”) so as to be received no later than 1:00 p.m. (New York time) (x) five (5)
Eurodollar Business Days prior to the requested Drawdown Date in the case of a Eurodollar
Competitive Bid Loan or (y) two (2) Business Days prior to the requested Drawdown Date in
the case of an Absolute Competitive Bid Loan, specifying:




     (i) the requested Drawdown Date (which must be a Eurodollar Business Day in the
case of a Eurodollar Competitive Bid Loan or a Business Day in the case of an
Absolute Competitive Bid Loan);




     (ii) the aggregate amount of such Competitive Bid Loans, which shall be
$10,000,000 or larger multiple of $1,000,000;




     (iii) the duration of the Interest Period(s) applicable thereto, subject to the
provisions of the definition of Interest Period; and




     (iv) whether the Competitive Bid Quotes requested are for Eurodollar
Competitive Bid Loans or Absolute Competitive Bid Loans.




	 	 	The Borrower may request offers to make Competitive Bid Loans for more than one Interest
Period in a single Competitive Bid Quote Request. No new Competitive Bid Quote Request shall
be given until the Borrower has notified the Administrative Agent of










 



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	 	 	its acceptance or non-acceptance of the Competitive Bid Quotes relating to any outstanding
Competitive Bid Quote Request.






     (b) Promptly upon receipt of a Competitive Bid Quote Request, the Administrative Agent
shall send to the Banks by telecopy or facsimile transmission an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit G hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Competitive Bid Quotes in accordance with
this §4.



     §4.4. Alternative Manner of Procedure. If, after receipt by the Administrative Agent and each
of the Banks of a Competitive Bid Quote Request from the Borrower in accordance with §4.3, the
Administrative Agent or any Bank shall be unable to complete any procedure of the auction process
described in §§4.5 through 4.6 (inclusive) due to the inability of such Person to transmit or
receive communications through the means specified therein, such Person may rely on telephonic
notice for the transmission or receipt of such communications. In any case where such Person shall
rely on telephone transmission or receipt, any communication made by telephone shall, as soon as
possible thereafter, be followed by written confirmation thereof.



     §4.5. Submission and Contents of Competitive Bid Quotes.




     (a) Each Bank may, but shall be under no obligation to, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid Loans in response to any Competitive
Bid Quote Request. Each Competitive Bid Quote must comply with the requirements of this
§4.5 and must be submitted to the Administrative Agent by telex or facsimile transmission
at its offices as specified in or pursuant to §22 not later than (x) 2:00 p.m. (New York
time) on the fourth Eurodollar Business Day prior to the proposed Drawdown Date, in the
case of a Eurodollar Competitive Bid Loan or (y) 10:00 a.m. (New York time) one Business
Day prior to the proposed Drawdown Date, in the case of an Absolute Competitive Bid Loan;
provided that Competitive Bid Quotes may be submitted by the Administrative Agent
in its capacity as a Bank only if it submits its Competitive Bid Quote to the Borrower not
later than (x) one hour prior to the deadline for the other Banks, in the case of a
Eurodollar Competitive Bid Loan or (y) 15 minutes prior to the deadline for the other
Banks, in the case of an Absolute Competitive Bid Loan. Subject to the provisions of §§10
and 11 hereof, any Competitive Bid Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the Borrower.




     (b) Each Competitive Bid Quote shall be in substantially the form of Exhibit H
hereto and shall in any case specify:




     (i) the proposed Drawdown Date;




     (ii) the principal amount of the Competitive Bid Loan for which each proposal
is being made, which principal amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) must be $5,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the aggregate principal amount of









 



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Competitive Bid Loans for which offers were requested and (z) may be subject to
an aggregate limitation as to the principal amount of Competitive Bid Loans for
which offers being made by such quoting Bank may be accepted;




     (iii) the Interest Period(s) for which Competitive Bid Quotes are being
submitted;




     (iv) in the case of a Eurodollar Competitive Bid Loan, the margin above or
below the applicable Eurodollar Rate (the “Competitive Bid Margin”) offered for each
such Competitive Bid Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such Eurodollar Rate;




     (v) in the case of an Absolute Competitive Bid Loan, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the “Competitive Bid Rate”)
offered for each such Absolute Competitive Bid Loan; and




     (vi) the identity of the quoting Bank.




	 	 	A Competitive Bid Quote may include up to five separate offers by the quoting Bank with
respect to each Interest Period specified in the related Competitive Bid Quote Request.






     (c) Any Competitive Bid Quote shall be disregarded if it:




     (i) is not substantially in the form of Exhibit H hereto;




     (ii) contains qualifying, conditional or similar language;




     (iii) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bid Quotes; or




     (iv) arrives after the time set forth in §4.5(a) hereof.



     §4.6. Notice to Borrower. The Administrative Agent shall promptly notify the Borrower of the
terms (x) of any Competitive Bid Quote submitted by a Bank that is in accordance with §4.5 and (y)
of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent
unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Administrative Agent’s notice to the Borrower shall specify
(A) the aggregate principal amount of Competitive Bid Loans for which offers have been received for
each Interest Period specified in the related Competitive Bid Quote Request, (B) the respective
principal amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may be, so
offered, and the identity of the respective Banks submitting such offers, and (C) if applicable,
limitations on the aggregate principal amount of Competitive Bid Loans for which offers in any
single Competitive Bid Quote may be accepted.
















 





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          §4.7. Acceptance and Notice by Borrower and Administrative Agent. Not later than (x) 11:00
a.m. (New York time) on the third Eurodollar Business Day prior to the proposed Drawdown Date, in
the case of a Eurodollar Competitive Bid Loan or (y) 11:00 a.m. (New York time) on the proposed
Drawdown Date, in the case of an Absolute Competitive Bid Loan, the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of each Competitive Bid Quote in
substantially the form of Exhibit H hereto. The Borrower may accept any Competitive Bid
Quote in whole or in part; provided that:





     (i) the aggregate principal amount of each Competitive Bid Loan may not exceed
the applicable amount set forth in the related Competitive Bid Quote Request;




     (ii) acceptance of offers may only be made on the basis of ascending
Competitive Bid Margins or Competitive Bid Rates, as the case may be, and




     (iii) the Borrower may not accept any offer that is described in subsection
4.5(c) or that otherwise fails to comply with the requirements of this Agreement.


The Administrative Agent shall promptly notify each Bank which submitted a Competitive Bid Quote of
the Borrower’s acceptance or non-acceptance thereof. At the request of any Bank which submitted a
Competitive Bid Quote and with the consent of the Borrower, the Administrative Agent will promptly
notify all Banks which submitted Competitive Bid Quotes of (a) the aggregate principal amount of,
and (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the accepted Competitive
Bid Loans for each requested Interest Period.




          §4.8. Allocation by Administrative Agent. If offers are made by two or more Banks with the
same Competitive Bid Margin or Competitive Bid Rate, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Banks as nearly as possible (in such
multiples, not less than $1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination by the Administrative
Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error.




          §4.9. Funding of Competitive Bid Loans. If, on or prior to the Drawdown Date of any
Competitive Bid Loan, the Total Commitment has not terminated in full and if, on such Drawdown
Date, the applicable conditions of §§10 and 11 hereof are satisfied, the Bank or Banks whose offers
the Borrower has accepted will fund each Competitive Bid Loan so accepted. Such Bank or Banks will
make such Competitive Bid Loans by crediting the Administrative Agent for further credit to the
Borrower’s specified account with the Administrative Agent, in immediately available funds not
later than 1:00 p.m. (New York time) on such Drawdown Date.




          §4.10. Funding Losses. If, after acceptance of any Competitive Bid Quote pursuant to §4, the
Borrower (i) fails to borrow any Competitive Bid Loan so accepted on the










 



- 39 -

date specified therefor, or (ii) repays the outstanding amount of the Competitive Bid Loan
prior to the last day of the Interest Period relating thereto, the Borrower shall indemnify the
Bank making such Competitive Bid Quote or funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired
by such Bank to fund or maintain such unborrowed Competitive Bid Loans, including, without
limitation compensation as provided in §5.8.




          §4.11. Repayment of Competitive Bid Loans; Interest. The principal of each Competitive Bid
Loan shall become absolutely due and payable by the Borrower on the last day of the Interest Period
relating thereto, and the Borrower hereby absolutely and unconditionally promises to pay to the
Administrative Agent for the account of the relevant Banks at or before 1:00 p.m. (New York time)
on the last day of the Interest Periods relating thereto the principal amount of all such
Competitive Bid Loans, plus interest thereon at the applicable rates. The Competitive Bid Loans
shall bear interest at the rate per annum specified in the applicable Competitive Bid Quotes.
Interest on the Competitive Bid Loans shall be payable (a) on the last day of the applicable
Interest Periods, and if any such Interest Period is longer than three months, also on the last day
of the third month following the commencement of such Interest Period, and (b) on the Maturity Date
for all Loans. Subject to the terms of this Agreement, the Borrower may make Competitive Bid Quote
Requests with respect to new Borrowings of any amounts so repaid prior to the Maturity Date.



§5. PROVISIONS RELATING TO ALL LOANS AND LETTERS OF CREDIT.




          §5.1. Payments.





     (a) All payments of principal, interest, Reimbursement Obligations, fees (other than
the Fronting Fee) and any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Administrative Agent at the Administrative Agent’s Office in
immediately available funds by 11:00 a.m. (New York time) on any due date. Subject to the
provisions of §29, if a payment is received by the Administrative Agent at or before 1:00
p.m. (New York time) on any Business Day, the Administrative Agent shall on the same
Business Day transfer in immediately available funds, as applicable, to (1) each of the
Banks, their pro rata portion of such payment in accordance with their respective
Commitment Percentages, in the case of payments with respect to Syndicated Loans and
Letters of Credit, (2) the Swing Line Bank in the case of payments with respect to Swing
Line Loans, and (3) the appropriate Bank(s), in the case of payments with respect to
Competitive Bid Loans. If such payment is received by the Administrative Agent after 1:00
p.m. (New York time) on any Business Day, such transfer shall be made by the Administrative
Agent to the applicable Bank(s) on the next Business Day.




     (b) All payments by the Borrower and the Guarantor hereunder and under any of the
other Loan Documents shall be made without recoupment, 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 Borrower or









 



- 40 -



the Guarantor is compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower or the Guarantor with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower or the Guarantor, as
the case may be, will pay to the Administrative Agent, for the account of the Banks 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 Banks or the Administrative Agent to receive the same net
amount which the Banks or the Administrative Agent would have received on such due date had
no such obligation been imposed upon the Borrower or the Guarantor. The Borrower and the
Guarantor will deliver promptly to the Administrative Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect to payments made
by it hereunder or under such other Loan Document.




     (c) Each Bank that is not incorporated or organized under the laws of the United
States of America or a state thereof or the District of Columbia (a “Non-U.S. Bank”) agrees
that, prior to the first date on which any payment is due to it hereunder, it will deliver
to the Borrower and the Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, certifying in each case that such Non-U.S. Bank is entitled to receive payments
under this Agreement, without deduction or withholding of any United States federal income
taxes. Each Non-U.S. Bank that so delivers a Form W-8BEN or W-8ECI pursuant to the
preceding sentence further undertakes to deliver to each of the Borrower and the
Administrative Agent two further copies of Form W-8BEN or W-8ECI or successor applicable
form, or other manner of certification, as the case may be, on or before the date that any
such letter or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the Borrower, and
such extensions or renewals thereof as may reasonably be requested by the Borrower,
certifying in the case of a Form W-8BEN or W-8ECI that such Non-U.S. Bank is entitled to
receive payments under this Agreement without deduction or withholding of any United States
federal income taxes, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable or which
would prevent such Non-U.S. Bank from duly completing and delivering any such form with
respect to it and such Non-U.S. Bank advises the Borrower that it is not capable of
receiving payments without any deduction or withholding of United States federal income
tax.




     (d) The Borrower shall not be required to pay any additional amounts to any Non-U.S.
Bank in respect of United States Federal withholding tax pursuant to §17 to the extent that
(i) the obligation to withhold amounts with respect to United States Federal withholding
tax existed on the date such Non-U.S. Bank became a party to this Agreement or, with
respect to payments to a different lending office designated by the Non-U.S. Bank as its
applicable lending office (a “New Lending Office”), the date such Non-U.S. Bank designated
such New Lending Office with respect to a Loan; provided, however, that
this clause (i) shall not apply to any transferee or New Lending Office as a









 



- 41 -



result of an assignment, transfer or designation made at the request of the Borrower;
and provided further, however, that this clause (i) shall not apply
to the extent the indemnity payment or additional amounts any transferee, or Bank through a
New Lending Office, would be entitled to receive without regard to this clause (i) do not
exceed the indemnity payment or additional amounts that the Person making the assignment or
transfer to such transferee, or Bank making the designation of such New Lending Office,
would have been entitled to receive in the absence of such assignment, transfer or
designation; or (ii) the obligation to pay such additional amounts would not have arisen
but for a failure by such Non-U.S. Bank to comply with the provisions of paragraph (b)
above.




     (e) Notwithstanding the foregoing, each Bank agrees to use reasonable efforts
(consistent with legal and regulatory restrictions) to change its lending office to avoid
or to minimize any amounts otherwise payable under §17 in each case solely if such change
can be made in a manner so that such Bank, in its sole determination, suffers no legal,
economic or regulatory disadvantage.



          §5.2. Mandatory Repayments of the Loans. If at any time (including without limitation by
reason of fluctuation in the rate of exchange between the Canadian Dollar and the U.S. Dollar) the
sum of the outstanding principal amount of the Loans plus the Maximum Drawing Amount of all
outstanding Letters of Credit exceeds the Total Commitment, whether by reduction of the Total
Commitment or otherwise, then the Borrower shall immediately pay the amount of such excess to the
Administrative Agent, (i) for application to the Loans, first to Swing Line Loans,
second to Syndicated Loans, then to Competitive Bid Loans, subject to §5.8, or (ii) if no
Loans shall be outstanding, to be held by the Administrative Agent for the benefit of the Banks as
collateral security for such excess Maximum Drawing Amount and the Borrower hereby grants a
security interest in such amount to the Administrative Agent for the benefit of the Banks;
provided, however, that if the amount of cash collateral held by the Administrative
Agent pursuant to this §5.2 exceeds the Maximum Drawing Amount required to be collateralized from
time to time, the Administrative Agent shall return such excess to the Borrower.




          §5.3. Computations. Except as otherwise expressly provided herein, all computations of
interest, Facility Fees, Letter of Credit Fees or other fees shall be based on a 360-day year and
paid for the actual number of days elapsed, except that computations based on the Base Rate
(including Base Rate Loans determined by reference to the Eurodollar Rate) shall be based on a 365
or 366, as applicable, 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; provided that for any Interest Period for any
Eurodollar Loan if such next succeeding Business Day falls in the next succeeding calendar month or
after the Maturity Date, it shall be deemed to end on the next preceding Business Day.




          §5.4. Illegality; Inability to Determine Eurodollar Rate. Notwithstanding any other provision
of this Agreement (other than §5.10), if (a) the introduction of, any change in, or any change in
the interpretation of, any law or regulation applicable to any Bank or the Administrative Agent
shall make it unlawful, or any central bank or other governmental












 



- 42 -



authority having jurisdiction thereof shall assert that it is unlawful, for any Bank or the
Administrative Agent to perform its obligations in respect of any Eurodollar Loans or in connection
with an existing or proposed Base Rate Loan bearing interest at the rate described in clause (c) of
the definition of Base Rate, or (b) if the Majority Banks or the Administrative Agent, as
applicable, shall reasonably determine with respect to Eurodollar 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 Banks 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 Banks or the
Administrative Agent of obtaining or maintaining the Eurodollar Loans during any Interest Period,
then such Banks (through the Administrative Agent) or the Administrative Agent shall promptly give
telephonic, telex or cable notice of such determination to the Borrower (which notice shall be
conclusive and binding upon the Borrower). Upon such notification, the obligation of the Banks and
the Administrative Agent to make Eurodollar Loans shall be suspended and, in the event of clauses
(a) or (b)(i) or (ii) of the immediately preceding sentence, the utilization of the Eurodollar Rate
component in determining the Base Rate shall be suspended, in each case until the Banks 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 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 to such former
Eurodollar Loans.




          §5.5. 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 Bank by any central
bank or other fiscal, monetary or other authority, whether or not having the force of law;
provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States regulatory authorities, in each case
pursuant to Basel III, shall in each case be included in such expression, regardless of the date
enacted, adopted or issued) shall:





     (a) subject such Bank to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement, the other Loan Documents, such
Bank’s Commitment or the Loans (other than taxes based upon or measured by the income or
profits of such Bank imposed by the jurisdiction of its incorporation or organization, or
the location of its lending office); or




     (b) materially change the basis of taxation (except for changes in taxes on income or
profits of such Bank imposed by the jurisdiction of its incorporation or organization, or
the location of its lending office) of payments to such Bank of the









 



- 43 -



principal or of the interest on any Loans or any other amounts payable to such Bank
under this Agreement or the other Loan Documents; or




     (c) except as provided in §5.6 or as otherwise reflected in the Base Rate, the
Eurodollar Rate, or the applicable rate for Competitive Bid Loans, impose or increase or
render applicable (other than to the extent specifically provided for elsewhere in this
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 commitments of, an office of any Bank
with respect to this Agreement, the other Loan Documents, such Bank’s Commitment or the
Loans; or




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




     (i) to increase the cost to such Bank of making, funding, issuing, renewing,
extending or maintaining the Loans or such Bank’s Commitment or issuing or
participating in Letters of Credit;




     (ii) to reduce the amount of principal, interest or other amount payable to
such Bank hereunder on account of such Bank’s Commitment, the Loans or the
Reimbursement Obligations; or




     (iii) to require such Bank to make any payment or to forego any interest or
other sum payable hereunder, the amount of which payment or foregone interest or
other sum is calculated by reference to the gross amount of any sum receivable or
deemed received by such Bank from the Borrower hereunder,


then, and in each such case, the Borrower will, upon demand made by such Bank at any time and from
time to time as often as the occasion therefor may arise (which demand shall be accompanied by a
statement setting forth the basis of such demand which shall be conclusive absent manifest error),
pay such reasonable additional amounts as will be sufficient to compensate such Bank for such
additional costs, reduction, payment or foregone interest or other sum; provided that the
determination and allocation of amounts, if any, claimed by any Bank under this §5.5 are made on a
reasonable basis in a manner consistent with such Bank’s treatment of customers of such Bank that
such Bank considers, in its reasonable discretion, to be similar to the Borrower and having
generally similar provisions in their agreements with such Bank.




          §5.6. Capital Adequacy. If any Bank shall have determined that, after the date hereof, (a)
the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change in
any such law, rule, or regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or












 



- 44 -



comparable agency, or (b) compliance by such Bank or the Administrative Agent or any
corporation controlling such Bank 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, has or would have the effect of reducing the rate of return on
capital of such Bank (or any corporation controlling such Bank) as a consequence of such Bank’s
obligations hereunder to a level below that which such Bank (or any corporation controlling such
Bank) could have achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will, in such Bank’s reasonable determination,
fairly compensate such Bank (or any corporation controlling such Bank) for such reduction. Each
Bank shall allocate such cost increases among its customers in good faith and on an equitable
basis.




          §5.7. Certificate. A certificate setting forth the additional amounts payable pursuant to
§5.5 or §5.6 and a reasonable explanation of such amounts which are due, submitted by any Bank to
the Borrower, shall be conclusive, absent manifest error, that such amounts are due and owing;
provided that no Bank shall be entitled to additional amounts with respect to events or
circumstances occurring more than one hundred and twenty (120) days prior to the delivery of such
certificate.




          §5.8. Eurodollar and Competitive Bid Indemnity. The Borrower agrees to indemnify the Banks
and the Administrative Agent and to hold them harmless from and against any reasonable loss, cost
or expense that any such Bank and the Administrative Agent may sustain or incur as a consequence of
(a) the default by the Borrower in payment of the principal amount of or any interest on any
Eurodollar Loans or Competitive Bid Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by any Bank or the Administrative Agent to lenders of
funds obtained by it in order to maintain its Eurodollar Loans or Competitive Bid Loans, (b) the
default by the Borrower in making a Borrowing of a Eurodollar Loan or Competitive Bid Loan or
conversion of a Eurodollar Loan or a prepayment of a Eurodollar or Competitive Bid Loan after the
Borrower has given (or is deemed to have given) a Syndicated Loan Request, a notice pursuant to
§2.7 or a Notice of Acceptance/Rejection of Competitive Bid Quote(s), or a notice pursuant to
§2.10, and (c) the making of any payment of a Eurodollar Loan or Competitive Bid Loan, or the
making of any conversion of any Eurodollar Loan to a Base Rate Loan, on a day that is not the last
day of the applicable Interest Period with respect thereto. Such loss, cost, or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined by each Bank of (i)
its cost of obtaining the funds for (A) the Eurodollar Loan being paid, prepaid, converted, not
converted, reallocated, or not borrowed, as the case may be (based on the Eurodollar Rate), or (B)
the Competitive Bid Loan being paid, prepaid, or not borrowed, as the case may be (based on the
applicable interest rate) for the period from the date of such payment, prepayment, conversion, or
failure to borrow or convert, as the case may be, to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for the Loan which would have
commenced on the date of such failure to borrow) over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in reemploying the funds so paid,
prepaid, converted, or not












 



- 45 -



borrowed, converted, or prepaid for such period or Interest Period, as the case may be, which
determinations shall be conclusive absent manifest error.




          §5.9. Interest on Overdue Amounts. 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 the Applicable Base Rate plus 2% per annum, until such amount shall be paid in
full (after as well as before judgment).




          §5.10. Interest Limitation. Notwithstanding any other term of this Agreement, 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 by any Bank 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 Bank under applicable laws (including, to the extent applicable, the
provisions of §5197 of the Revised Statutes of the United States of America, as amended, and 12
U.S.C. §85, as amended, and without prejudice to the first sentence of §26 hereof).




          §5.11. Reasonable Efforts to Mitigate. Each Bank agrees that as promptly as practicable after
it becomes aware of the occurrence of an event or the existence of a condition that would cause it
to be affected under §§5.4, 5.5 or 5.6, such Bank will give notice thereof to the Borrower, with a
copy to the Administrative Agent and, to the extent so requested by the Borrower and not
inconsistent with such Bank’s internal policies, such Bank shall use reasonable efforts and take
such actions as are reasonably appropriate if as a result thereof the additional moneys which would
otherwise be required to be paid to such Bank pursuant to such sections would be materially
reduced, or the illegality or other adverse circumstances which would otherwise require a
conversion of such Loans or result in the inability to make such Loans pursuant to such sections
would cease to exist, and in each case if, as determined by such Bank in its sole discretion, the
taking of such actions would not adversely affect such Loans or such Bank or otherwise be
disadvantageous to such Bank.




          §5.12. Replacement of Banks; Termination of Commitments. If any Bank (an “Affected Bank”) (i)
makes demand upon the Borrower for (or if the Borrower is otherwise required to pay) amounts
pursuant to §§5.5 or 5.6, (ii) is unable to make or maintain Eurodollar Loans as a result of a
condition described in §5.4, (iii) is a Defaulting Bank, or (iv) is a Non-Consenting Bank (as
defined below), the Borrower may, within 90 days of receipt of such demand, notice (or the
occurrence of such other event causing the Borrower to be required to pay such compensation or
causing §5.4 to be applicable), default or approval of such amendment, waiver or consent by the
Majority Banks, as the case may be, by notice (a “Replacement Notice”) in writing to the
Administrative Agent and such Affected Bank (A) request the Affected Bank to cooperate with the
Borrower in obtaining a replacement bank satisfactory to the Administrative Agent and the Borrower
(the “Replacement Bank”) as provided herein, but none of such Banks shall be under an obligation to
find a Replacement Bank; (B) request the non-Affected Banks to acquire and assume all of the
Affected Bank’s Loans and Commitment, and to participate in Letters of Credit as provided herein,
but none of such Banks shall be under an obligation to do so; (C) designate a Replacement Bank
reasonably satisfactory to the Administrative Agent; or (D) so long as no Event of Default












 



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has occurred and is continuing, terminate the Commitments of such Bank as set forth below. If
any satisfactory Replacement Bank shall be obtained, and/or any of the non-Affected Banks shall
agree to acquire and assume all of the Affected Bank’s Loans and Commitment, and obligations to
participate in Letters of Credit, then the Borrower may, upon notice to such Affected Bank and the
Administrative Agent, require such Affected Bank to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, §20), all
of its interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Bank, if a Bank accepts
such assignment), provided that:





     (i) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in §20 (to the extent not waived);




     (ii) subject to the provisions in §5.14 with respect to any Defaulting Bank in
the case of reallocation of payments to such Defaulting Bank for amounts described
in clauses first, sixth and seventh of such §5.14, such Affected Bank shall have
received payment of an amount equal to 100% of the outstanding principal of its
Loans and funded participations in Letters of Credit, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under §§5.5, 5.6 and 5.8) from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts);




     (iii) in the case of any such assignment resulting from a claim for
compensation under §§5.5 or 5.6, such assignment will result in a reduction in such
compensation or payments thereafter; and




     (iv) such assignment does not conflict with applicable law.


A Bank shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Bank or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply. Upon the effective date of such assignment, such
Replacement Bank shall become a “Bank” for all purposes under this Agreement and the other Loan
Documents.




          If the Borrower elects to terminate the Commitments of a Bank in accordance with clause (D)
above, all of the Commitments of such Bank shall be terminated immediately (with the Total
Commitment reduced in a like amount on a non-pro rata basis) upon the later of (i) the date of the
receipt by the Administrative Agent and such Bank of the Borrower’s written notice of such election
and (ii) the date that the Borrower has repaid all outstanding principal of its Loans of such Bank
and provided cash collateral or other credit support satisfactory to the Administrative Agent and
each applicable Issuing Bank with respect to all such Bank’s Letters of Credit, together with
accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under §§5.5, 5.6 and 5.8) (which payments and credit
support may be held and applied to the Loans, interest, fees and other obligations of such Bank on
a non-pro rata basis with payments made to the other Banks, notwithstanding the provisions of §29
to the contrary); provided, that the Borrower may not












 



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terminate the Commitments of a Bank pursuant to this paragraph if, after giving effect to such
termination and the repayment of Loans of such Bank required hereby, the sum of (x) the outstanding
principal amount of the Loans plus (y) the Maximum Drawing Amount of outstanding Letters of
Credit minus (z) the amount of cash collateral or other credit support satisfactory to the
Administrative Agent and each applicable Issuing Bank that the Borrower has provided to secure
Reimbursement Obligations prior to or concurrently with such termination which would exceed the
Total Commitment.




     For the purposes of this §5.12, a “Non-Consenting Bank” means a Bank that fails to approve an
amendment, waiver or consent requested by the Borrower pursuant to §15.9 that has received the
written approval of not less than the Majority Banks but also requires the approval of such Bank.




          §5.13. Advances by Administrative Agent. Unless the Administrative Agent shall have been
notified in writing by any Bank prior to a borrowing hereunder that such Bank will not make the
amount that would constitute its allocable share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Bank is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the borrowing date therefor, such Bank shall pay to
the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Rate for the period until such Bank makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted to any Bank with
respect to any amounts owing under this Section shall be conclusive in the absence of manifest
error. If such Bank’s Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Bank within three Business Days of such borrowing date, the
Administrative Agent shall be entitled to recover such amount with interest thereon at the rate per
annum applicable to such Loan hereunder, on demand, from the Borrower.




          §5.14. Defaulting Banks. Notwithstanding anything to the contrary contained in this
Agreement, if any Bank becomes a Defaulting Bank, then, until such time as such Bank is no longer a
Defaulting Bank, to the extent permitted by applicable law:





     (i) such Defaulting Bank’s right to approve or disapprove any amendment, waiver
or consent with respect to this Agreement shall be restricted as set forth in §15.9;




     (ii) any payment of principal, interest, fees or other amounts received by the
Administrative Agent for the account of any such Bank on account of such Bank’s
Syndicated Loans, shall be applied by the Administrative Agent as follows: first, to
the payment of any amounts owing by that Defaulting Bank to the Administrative Agent
hereunder; second, to the payment on a pro rata basis of any amounts owing by that
Defaulting Bank to the Issuing Banks or Swing Line Bank hereunder; third, if so
determined by the Administrative Agent or requested by the Issuing Banks or Swing
Line Bank, to be held as cash collateral for future funding obligations of that
Defaulting Bank of any participation in any Swing









 



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Line Loan or Letter of Credit (and each such Bank hereby grants to the
Administrative Agent a security interest therein); fourth, if the Borrower so
requests (so long as no Default or Event of Default exists), to the funding of any
Syndicated Loan in respect of which that Defaulting Bank has failed to fund its
portion thereof as required by this Agreement, as determined by the Administrative
Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be
held in a non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Bank to fund Syndicated Loans under this Agreement;
sixth, to the payment of any amounts owing to the Banks as a result of any judgment
of a court of competent jurisdiction obtained by any Bank against that Defaulting
Bank as a result of that Defaulting Bank’s breach of its obligations under this
Agreement; seventh, so long as no Default or Event of Default exists, to the payment
of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against that Defaulting Bank as a
result of that Defaulting Bank’s breach of its obligations under this Agreement; and
eighth, to that Defaulting Bank or as otherwise directed by a court of competent
jurisdiction, provided that if (x) such payment is a payment of the
principal amount of any Syndicated Loans or Letter of Credit Participations in
respect of which that Defaulting Bank has not fully funded its appropriate share and
(y) such Loans or Letter of Credit Participations were made at a time when the
conditions set forth in §11 were satisfied or waived, such payment shall be applied
solely to pay the Loans of, and Letter of Credit Participations owed to, all
non-Defaulting Banks on a pro rata basis prior to being applied to the payment of
any Loans of, or Letter of Credit Participations owed to, that Defaulting Bank (and
any such amounts paid or payable to a Defaulting Bank that are applied to pay
amounts owed by a Defaulting Bank or to post cash collateral pursuant to this §5.14
shall be deemed paid to and redirected by such Defaulting Bank, and each Bank
irrevocably consents hereto);




     (iii) such Defaulting Bank (x) shall be entitled to receive Facility Fees only
to extent allocable to the sum of (1) the outstanding amount of the Syndicated Loans
funded by it and (2) its Commitment Percentage of the stated amount of Letters of
Credit and Swing Line Loans for which it has provided cash collateral or other
credit support satisfactory to each Issuing Bank (in its sole discretion) and the
Swing Line Bank (in its sole discretion)(and the Borrower shall (A) be required to
pay to each Issuing Bank and the Swing Line Bank, as applicable, the amount of such
Facility Fee allocable to its fronting exposure arising from that Defaulting Bank
and (B) not be required to pay the remaining amount of such fee that otherwise would
have been required to have been paid to that Defaulting Bank) and (y) shall be
limited in its right to receive Letter of Credit Fees as provided in §3.6;




     (iv) for purposes of computing the amount of the obligation of each
non-Defaulting Bank to acquire, refinance or fund participations in Letters of
Credit or Swing Line Loans hereunder, including, without limitation, under §3.1(c),
the “Commitment Percentage” of each non-Defaulting Bank shall be computed without
giving effect to the Commitment of that Defaulting Bank using









 



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a fraction the numerator of which is the Commitment of such non-Defaulting Bank
and the denominator of which is the aggregate Commitments of all non-Defaulting
Banks; provided, that, (A) the foregoing change in computation shall be
given effect only if, at the date the applicable Bank becomes a Defaulting Bank, no
Default or Event of Default exists, and (B) the aggregate obligation of each
non-Defaulting Bank to acquire, refinance or fund participations in Letters of
Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1)
the Commitment of that non-Defaulting Bank minus (2) the aggregate outstanding
amount of the Syndicated Loans of that non-Defaulting Bank; and




     (v) immediately upon the request of the Administrative Agent or any Issuing
Bank and provided that such Defaulting Bank has not provided cash collateral or
other credit support satisfactory to the Administrative Agent or each such Issuing
Bank (in its sole discretion)(which each Bank hereby agrees to provide in the event
that it becomes a Defaulting Bank), the Borrower shall deliver to the Administrative
Agent cash collateral or other credit support satisfactory to the Administrative
Agent or each such Issuing Bank (in its sole discretion) (and the Borrower hereby
grants to the Administrative Agent a security interest therein) in an amount
sufficient to cover the fronting exposure of such Persons for the Defaulting Bank’s
participation in any outstanding Letters of Credit after giving effect to the
reallocation of such exposure to the non-Defaulting Banks pursuant to clause (iv)
above and any cash collateral or other credit support provided by the Defaulting
Bank.


If the Borrower, the Administrative Agent, the Swing Line Bank and the Issuing Banks agree in
writing in their sole discretion that a Defaulting Bank should no longer be deemed to be a
Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the
effective date specified in such notice and subject to any conditions set forth therein (which may
include arrangements with respect to any cash collateral or other credit support satisfactory to
the Administrative Agent, the Swing Line Bank and each applicable Issuing Bank), such Bank will
purchase such portion of outstanding Syndicated Loans of the other Banks or take such other actions
as the Administrative Agent may determine to be necessary to cause the Syndicated Loans and funded
and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata
basis by the Banks in accordance with their Commitment Percentages (disregarding any portions not
funded by other Defaulting Banks), whereupon such Bank will cease to be a Defaulting Bank;
provided that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of Borrower while such Bank was a Defaulting Bank; and
provided, further, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or
release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank



§6. REPRESENTATIONS AND WARRANTIES. The Borrower (and the Guarantor, where applicable)
represents and warrants to the Banks that:













 



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          §6.1. Corporate Authority.





     (a) Incorporation; Good Standing. The Borrower and each of its Significant
Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of formation, (ii) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently contemplated, and (iii)
is in good standing 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 could not reasonably be expected to
have a Material Adverse Effect.




     (b) Authorization. The execution, delivery and performance of its Loan
Documents and the transactions contemplated hereby and thereby (i) are within the corporate
authority of the Borrower and the Guarantor, (ii) have been duly authorized by all
necessary corporate proceedings on the part of each of the Borrower and the Guarantor,
(iii) do not conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which any of the Borrower or the Guarantor or any of
their Subsidiaries is subject, (iv) do not contravene any judgment, order, writ,
injunction, license or permit applicable to the Borrower, the Guarantor or any of their
Subsidiaries so as to have a Material Adverse Effect, and (v) do not conflict with any
provision of the corporate charter or bylaws of the Borrower, the Guarantor or any
Significant Subsidiary or any agreement or other instrument binding upon the Borrower, the
Guarantor or any of their Significant Subsidiaries, except for those conflicts with any
such agreement or instrument which could not reasonably be expected to have a Material
Adverse Effect.




     (c) Enforceability. The execution, delivery and performance of the Loan
Documents by the Borrower and the Guarantor will result in valid and legally binding
obligations of the Borrower and the Guarantor enforceable against them 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 generally and general principles
of equity.



          §6.2. Governmental and Other Approvals. The execution, delivery and performance of the Loan
Documents by the Borrower and the Guarantor and the consummation by the Borrower and the Guarantor
of the transactions contemplated hereby and thereby do not require any approval or consent of, or
filing with, any governmental agency or authority or other third party other than those already
obtained and those required after the date hereof in connection with the Borrower’s performance of
the covenants contained in §§7, 8 and 9 hereof.




          §6.3. Title to Properties; Leases. The Borrower and its Subsidiaries own all of the assets
reflected in the consolidated balance sheet as at the Interim Balance Sheet Date or acquired since
that date (except property and assets (a) operated under Capital Leases, (b) sold or otherwise
disposed of in the ordinary course of business since that date, or (c) consolidated in












 



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accordance with variable entity guidance in FASB ASC 810), subject to no Liens except
Permitted Liens.




          §6.4. Financial Statements; Solvency.





     (a) There have been furnished to the Banks consolidated balance sheets of the Borrower
dated the Balance Sheet Date and consolidated statements of operations for the fiscal
periods then ended, certified by the Accountants. In addition, there have been furnished to
the Banks consolidated balance sheets of the Borrower and its Subsidiaries dated the
Interim Balance Sheet Date and the related consolidated statements of operations for the
fiscal quarter ending on the Interim Balance Sheet Date. All said balance sheets and
statements of operations have been prepared in accordance with GAAP (but, in the case of
any of such financial statements which are unaudited, only to the extent GAAP is applicable
to interim unaudited reports), and fairly present, in all material respects, the financial
condition of the Borrower on a consolidated basis as at the close of business on the dates
thereof and the results of operations for the periods then ended, subject, in the case of
unaudited interim financial statements, to changes resulting from audit and normal year-end
adjustments and to the absence of complete footnotes. There are no contingent liabilities
of the Borrower and its Subsidiaries involving material amounts, known to the officers of
the Borrower or the Guarantor, which have not been disclosed in said balance sheets and the
related notes thereto or otherwise in writing to the Banks.




     (b) The Borrower on a consolidated basis (both before and after giving effect to the
transactions contemplated by this Agreement) is solvent (i.e., it has assets having
a fair value in excess of the amount required to pay its probable liabilities on its
existing debts as they become absolute and matured) and has, and expects to have, the
ability to pay its 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 been no material
adverse changes in the consolidated financial condition, business, assets or liabilities
(contingent or otherwise) of the Borrower and its Subsidiaries, taken as a whole, other than
changes in the ordinary course of business which have not had a Material Adverse Effect.




          §6.6. Franchises, Patents, Copyrights, Etc. The Borrower and each of its Subsidiaries possess
all franchises, patents, copyrights, trademarks, trade names, licenses and permits, and rights in
respect of the foregoing, adequate for the conduct of their business substantially as now conducted
(other than those the absence of which would not have a Material Adverse Effect) without known
conflict with any rights of others other than a conflict which would not have a Material Adverse
Effect.




          §6.7. Litigation. Except as set forth on Schedule 6.7 or in the Disclosure Documents,
there are no actions, suits, proceedings or investigations of any kind pending or, to the knowledge
of the Borrower, threatened against the Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board which, either in any case or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.













 



- 52 -




          §6.8. No Materially Adverse Contracts, Etc. Neither the Borrower nor any of its Subsidiaries
is subject to any charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation which in the judgment of the Borrower’s or such Subsidiary’s officers has or
could reasonably be expected in the future to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries is a party to any contract or agreement which in the judgment of the
Borrower’s or its Subsidiary’s officers has or could reasonably be expected to have any Material
Adverse Effect, except as otherwise reflected in adequate reserves as required by GAAP.




          §6.9. Compliance With Other Instruments, Laws, Etc. Neither the Borrower nor any of its
Subsidiaries is (a) violating any provision of its charter documents or bylaws or (b) violating any
agreement or instrument to 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 (in the case of such agreements or such instruments) reasonably
be expected to result in a Material Adverse Effect.




          §6.10. Tax Status. The Borrower and its Subsidiaries have filed all federal, state,
provincial and territorial income and all other tax returns, reports and declarations (or obtained
extensions with respect thereto) required by applicable law to be filed by them (unless and only to
the extent that the Borrower or such Subsidiary has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes as required by GAAP); and have paid all
taxes and other governmental assessments and charges (other than taxes, assessments and other
governmental charges imposed by jurisdictions other than the United States, Canada or any political
subdivision thereof which in the aggregate are not material to the financial condition, business or
assets of the Borrower or such Subsidiary on an individual basis or of the Borrower on a
consolidated basis) 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, as required by GAAP,
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. Except to
the extent contested in the manner permitted in the preceding sentence, there are no unpaid taxes
in any material amount claimed by the taxing authority of any jurisdiction to be due and owing by
the Borrower or any Subsidiary, nor do the officers of the Borrower or any of its Subsidiaries know
of any basis for any such claim.




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




          §6.12. Investment Company Act. Neither the Borrower nor any of its Subsidiaries is a
“registered investment company”, or an “affiliated company” or a “principal underwriter” of a
“registered investment company”, as such terms are defined in the Investment Company Act of 1940.




          §6.13. Absence of Financing Statements, Etc. Except as permitted by §8.1 of this Agreement,
there is no Indebtedness senior to the Obligations, and except for Permitted Liens, there are no
Liens, or any 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 purports to cover, affect or give notice of any present or












 



- 53 -



possible future Lien on any assets or property of the Borrower or any of its Subsidiaries or
right thereunder.




          §6.14. Employee Benefit Plans.




               §6.14.1 In General. Each Employee Benefit Plan has been maintained and operated in material
compliance with the provisions of ERISA and, to the extent applicable, the Code, including but not
limited to the provisions thereunder respecting prohibited transactions. Promptly upon the request
of any Bank or the Administrative Agent, the Borrower will furnish 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.



               §6.14.2 Terminability of Welfare Plans. Under each Employee Benefit Plan which is an employee
welfare benefit plan within the meaning of §3(1) or §3(2)(B) of ERISA, no benefits are due unless
the event giving rise to the benefit entitlement occurs prior to plan termination (except as
required by Title 1, Part 6 of ERISA). The Borrower or an ERISA Affiliate, as appropriate, may
terminate each such employee welfare benefit plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of the Borrower or such ERISA
Affiliate without material liability to any Person.



               §6.14.3 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 §303(k) 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. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the Borrower or any ERISA
Affiliate with respect to any Guaranteed Pension Plan (other than Terminated Plans) and there has
not been any ERISA Reportable Event, or any other event or condition which presents a material risk
of termination of any Guaranteed Pension Plan by the PBGC. Other than with respect to the
Terminated Plans, 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, each Guaranteed Pension Plan is in compliance with the
minimum funding standards as set forth in §302 of ERISA and is not subject to any restrictions
concerning (i) providing shutdown or similar benefits, (ii) amendments to increase benefits, (iii)
paying lump sums or (iv) continuing to accrue benefits, as described by the Pension Protection Act
of 2006.



               §6.14.4 Multiemployer Plans. Except for liabilities that have been discharged prior to the
Effective Date or as to which accruals have been made in accordance with GAAP prior to the
Effective Date as reflected in the Disclosure Documents, neither the 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. Neither the Borrower nor any
ERISA Affiliate has been notified that any Multiemployer Plan is










 



- 54 -



in reorganization or insolvent under and within the meaning of §4241 or §4245 of ERISA or that
any Multiemployer Plan intends to terminate or has been terminated under §4041A of ERISA.




          §6.15. Environmental Compliance. The Borrower and its Subsidiaries have taken all steps that
they have deemed reasonably necessary to investigate the past and present condition and usage of
the Real Property and the operations conducted by the Borrower and its Subsidiaries and, based upon
such diligent investigation, have determined that, except as set forth on Schedule 6.15 or
in the Disclosure Documents:





     (a) Neither the Borrower, its Significant 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 the Resource Conservation and Recovery Act (“RCRA”), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended
(“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
applicable international, federal, state, provincial, territorial or local statute,
regulation, ordinance, order or decree relating to health, safety, waste transportation or
disposal, or the environment (the “Environmental Laws”), which violation, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.




     (b) Except with respect to any such matters that could not reasonably be expected to
have a Material Adverse Effect, neither the Borrower nor any of its Significant
Subsidiaries has received notice from any third party including, without limitation: any
federal, state, provincial, territorial or local governmental authority, (i) that any one
of them has been identified by the United States Environmental Protection Agency (“EPA”) as
a potentially responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that 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) or any toxic substance, oil or
hazardous materials or other chemicals or substances regulated by any Environmental Laws,
excluding household hazardous waste (“Hazardous Substances”), which any one of them has
generated, transported or disposed of, has been found at any site at which a federal,
state, provincial, territorial or local agency or other third party has conducted or has
ordered that the Borrower or any of its Significant Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental Law; or (iii)
that it is or shall be a named party to any claim, action, cause of action, complaint,
legal or administrative proceeding arising out of any third party’s incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the Release of
Hazardous Substances.




     (c) Except for those occurrences or situations that could not reasonably be expected
to have a Material Adverse Effect, (i) no portion of the Real Property or other assets of
the Borrower and its Significant Subsidiaries has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with applicable
Environmental Laws; (ii) in the course of any activities conducted by the









 



- 55 -



Borrower, its Significant Subsidiaries, or operators of the Real Property or other
assets of the Borrower and its Significant Subsidiaries, no Hazardous Substances have been
generated or are being used on such properties except in accordance with applicable
Environmental Laws; (iii) there have been no unpermitted Releases or threatened Releases of
Hazardous Substances on, upon, into or from the Real Property or other assets of the
Borrower or its Significant Subsidiaries; and (iv) any Hazardous Substances that have been
generated on the Real Property or other assets of the Borrower or its Significant
Subsidiaries have been transported offsite only by carriers having an identification number
issued by the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities have been and are, to the Borrower’s knowledge, operating in
compliance with such permits and applicable Environmental Laws.



          §6.16. Disclosure. No representation or warranty made by the Borrower or the Guarantor in
this Agreement or in any agreement, instrument, document, certificate, or financial statement
furnished to the Banks or the Administrative Agent by or on behalf of or at the request of the
Borrower and the Guarantor 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, taken as a whole, not misleading in
light of the circumstances in which they are made.




          §6.17. Permits and Governmental Authority. All permits (other than those the absence of which
could not reasonably be expected to have a Material Adverse Effect) required for the construction
and operation of all landfills currently owned or operated by the Borrower or any of its
Significant Subsidiaries have been obtained and remain in full force and effect and are not subject
to any appeals or further proceedings or to any unsatisfied conditions that may allow material
modification or revocation. Neither the Borrower nor any of its Subsidiaries, nor, to the knowledge
of the Borrower, the holder of such permits is in violation of any such permits, except for any
violation which could not reasonably be expected to have a Material Adverse Effect.




          §6.18. Margin Stock. The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System), and no proceeds of any Loans will be used to
purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock in violation of Regulations T, U or X of the Board of Governors of the
Federal Reserve System.



§7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower agrees that, so long as any
Obligation or Letter of Credit is outstanding or the Banks have any obligation to make Loans or any
Issuing Bank has any obligation to issue, extend or renew any Letter of Credit hereunder, or the
Banks have any obligations to reimburse any Issuing Bank for drawings honored under any Letter of
Credit, it shall, and shall cause its Subsidiaries to, comply with the following covenants:




          §7.1. Punctual Payment. The Borrower will duly and punctually pay or cause to be paid the
principal of and interest on the Loans, all Reimbursement Obligations, fees












 



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and other amounts provided for in this Agreement and the other Loan Documents, all in
accordance with the terms of this Agreement and such other Loan Documents.




          §7.2. Maintenance of U.S. Office. The Borrower will maintain its chief executive offices at
Houston, Texas, or at such other place in the United States of America as the Borrower shall
designate upon 30 days’ prior written notice to the Administrative Agent.




          §7.3. Records and Accounts. The Borrower will, and will cause each of its Subsidiaries to,
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 and 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.




          §7.4. Financial Statements, Certificates and Information. The Borrower will deliver to the
Banks:





     (a) as soon as practicable, but, in any event not later than 100 days after the end of
each fiscal year of the Borrower, the consolidated balance sheet of the Borrower as at the
end of such year, consolidated statements of cash flows, and the related consolidated
statements of operations, each 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, with respect to the consolidated financial
statements, certified by Ernst & Young LLP or by other nationally recognized independent
auditors selected by the Borrower and reasonably satisfactory to the Administrative Agent
(the “Accountants”). In addition, simultaneously therewith, the Borrower shall provide the
Banks with a written statement from such Accountants to the effect that they have read a
copy of this Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event of Default, or, if
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;




     (b) as soon as practicable, but in any event not later than 60 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower, copies of the
consolidated balance sheet and statement of operations of the Borrower as at the end of
such quarter, subject to year-end adjustments, and the related consolidated statement of
cash flows, all in reasonable detail and prepared in accordance with GAAP (to the extent
GAAP is applicable to interim unaudited financial statements) with a certification by the
principal financial or accounting officer of the Borrower (the “CFO” or the “CAO”) that the
consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP
is applicable to interim unaudited financial statements) and fairly present, in all
material respects, the consolidated financial condition of the Borrower as at the close of
business on the date thereof and the results of operations for the period then ended,
subject to year-end adjustments and the exclusion of detailed footnotes;









 



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     (c) simultaneously with the delivery of the financial statements referred to in (a)
and (b) above, a certificate in the form of Exhibit D hereto (the “Compliance
Certificate”) signed by the CFO or the CAO or the Borrower’s corporate treasurer, stating
that the Borrower and its Subsidiaries are in compliance with the covenants contained in
§§7, 8 and 9 hereof as of the end of the applicable period and setting forth in reasonable
detail computations evidencing such compliance with respect to the covenants contained in
§9 hereof and that no Default or Event of Default exists, provided that if the
Borrower shall at the time of issuance of such Compliance Certificate or at any other time
obtain knowledge of any Default or Event of Default, the Borrower shall include in such
certificate or otherwise deliver forthwith to the Banks a certificate specifying the nature
and period of existence thereof and what action the Borrower proposes to take with respect
thereto;




     (d) 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
Borrower’s and its Subsidiaries’ stockholders generally; and




     (e) from time to time such other financial data and other information as any of the
Banks may reasonably request through the Administrative Agent.



     The Borrower hereby authorizes each Bank to disclose any information obtained pursuant to this
Agreement to all appropriate governmental regulatory authorities where required by law;
provided, however, this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Banks of any such information which the Borrower has or
may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time,
except as to matters specifically permitted therein.




          §7.5. Existence and Conduct of Business. The Borrower will, and will cause each Significant
Subsidiary to, do or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; and effect and maintain its foreign qualifications
(except where the failure of the Borrower or any Significant Subsidiary to remain so qualified
could not reasonably be expected to have a Material Adverse Effect), licensing, domestication or
authorization, except as any of the foregoing may be terminated by its Board of Directors in the
exercise of its reasonable judgment; provided that such termination could not reasonably be
expected to have a Material Adverse Effect. The Borrower will not, and will cause its Subsidiaries
not to, become obligated under any contract or binding arrangement which, at the time it was
entered into, could reasonably be expected to have a Material Adverse Effect. The Borrower will,
and will cause each Subsidiary to, continue to engage primarily in any of the businesses now
conducted by the Borrower and its Subsidiaries and in related, complementary or supplemental
businesses, and any additional businesses acquired pursuant to the terms of §8.4(a) hereunder.




          §7.6. Maintenance of Properties. The Borrower will, and will cause its Significant
Subsidiaries to, 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 (ordinary wear and tear
excepted) and supplied with all necessary equipment and cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of












 



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the Borrower and its Significant Subsidiaries 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 the Borrower or any
of its Subsidiaries from discontinuing the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Borrower or such Subsidiary, desirable in the
conduct of its or their business and which could not reasonably be expected to have a Material
Adverse Effect.




          §7.7. Insurance. The Borrower will, and will cause its Subsidiaries to, maintain insurance of
the kinds, covering the risks (other than risks arising out of or in any way connected with
personal liability of any officers and directors thereof) and in the relative proportionate amounts
usually carried by reasonable and prudent companies conducting businesses similar to that of the
Borrower and its Subsidiaries, in amounts substantially similar to the existing coverage maintained
by the Borrower and its Subsidiaries. Such insurance shall be with financially sound and reputable
insurance companies (including captive insurance companies), funds or underwriters, or may be
pursuant to self-insurance plans. In addition, the Borrower will furnish from time to time, upon
the Administrative Agent’s request, a summary of the insurance coverage of the Borrower and its
Subsidiaries, 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.




          §7.8. Taxes. The Borrower will, and will cause its Subsidiaries to, duly pay and discharge,
or cause to be paid and discharged, before the same shall become overdue, all taxes, assessments
and other governmental charges 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 upon any of its property;
provided, however, that any such tax, assessment, charge, levy or claim need not be
paid if the failure to do so (either individually, or in the aggregate for all such failures) could
not reasonably be expected to have a Material Adverse Effect and the validity or amount thereof
shall currently be contested in good faith by appropriate proceedings and if the Borrower or such
Subsidiary shall have set aside on its books adequate reserves with respect thereto as required by
GAAP; and provided, further, that the Borrower or such Subsidiary will pay all such
taxes, assessments, charges, levies or claims prior to the foreclosure on any Lien which may have
attached as security therefor.




          §7.9. Inspection of Properties, Books and Contracts. The Borrower will, and will cause its
Significant Subsidiaries to, permit the Administrative Agent or any Bank or any of their designated
representatives, upon reasonable notice, to visit and inspect any of the properties of the Borrower
and its Significant Subsidiaries, to examine the books of account of the Borrower and its
Significant Subsidiaries, or contracts (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrower and its Significant Subsidiaries with,
and to be advised as to the same by, their officers, all at such times and intervals as may be
reasonably requested.




          §7.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance of Material Licenses
and Permits. The Borrower will, and will cause each Subsidiary to, (i) comply with the provisions
of its charter documents and by-laws; (ii) comply with all agreements and instruments by which it
or any of its properties may be bound except












 



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where noncompliance could not reasonably be expected to have a Material Adverse Effect; (iii)
comply with all applicable laws and regulations (including Environmental Laws), decrees, orders,
judgments, licenses and permits, including, without limitation, all environmental permits
(“Applicable Requirements”), except where noncompliance with such Applicable Requirements could not
reasonably be expected to have a Material Adverse Effect; (iv) maintain all operating permits for
all landfills now owned or hereafter acquired, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (v) dispose of hazardous waste only
at licensed disposal facilities operating, to the Borrower’s knowledge, in compliance with
Environmental Laws, except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. If at any time any authorization, consent, approval, permit or license
from any officer, agency or instrumentality of any government shall become necessary or required in
order that the Borrower or any Significant Subsidiary may fulfill any of its obligations hereunder
or under any other Loan Document, the Borrower will immediately take or cause to be taken all
reasonable steps within the power of the Borrower or such Significant Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the Banks with evidence thereof.




          §7.11. Environmental Indemnification. The Borrower covenants and agrees that it will
indemnify and hold the Banks, the Issuing Banks and the Administrative Agent and their respective
affiliates, and each of the representatives, agents and officers of each of the foregoing, harmless
from and against any and all claims, expense, damage, loss or liability incurred by the Banks, the
Issuing Banks or the Administrative Agent (including all reasonable costs of legal representation
incurred by the Banks, the Issuing Banks or the Administrative Agent) relating to (a) any Release
or threatened Release of Hazardous Substances on the Real Property; (b) any violation of any
Environmental Laws or Applicable Requirements with respect to conditions at the Real Property or
other assets of the Borrower or its Subsidiaries, or the operations conducted thereon; or (c) the
investigation or remediation of offsite locations at which the Borrower, any of its Subsidiaries,
or their predecessors are alleged to have directly or indirectly Disposed of Hazardous Substances.
It is expressly acknowledged by the Borrower that this covenant of indemnification shall survive
the payment of the Loans and Reimbursement Obligations and satisfaction of all other Obligations
hereunder and shall inure to the benefit of the Banks, the Issuing Banks, the Administrative Agent
and their affiliates, successors and assigns.




          §7.12. Further Assurances. The Borrower and the Guarantor will cooperate with the
Administrative Agent and execute such further instruments and documents as the Administrative Agent
shall reasonably request to carry out to the Majority Banks’ satisfaction the transactions
contemplated by this Agreement.




          §7.13. Notice of Potential Claims or Litigation. The Borrower shall deliver to the Banks
written notice of the initiation of any action, claim, complaint, investigation or any other notice
of dispute or litigation against the Borrower or any of its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect, or which questions the validity or enforceability of
any Loan Document, together with a copy of each such complaint or other notice received by the
Borrower or any of its Subsidiaries if requested by the Administrative Agent within 30 days of
receipt thereof or of the determination that such action could reasonably












 



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be expected to have a Material Adverse Effect, whichever occurs later (and the Borrower will
make such determination in each case as promptly as practicable).




          §7.14. Notice of Certain Events Concerning Environmental Claims. The Borrower will promptly,
and in any event within ten (10) Business Days of the Borrower’s obtaining knowledge thereof,
notify the Banks in writing of any of the following events:





     (i) the Borrower’s or any Significant Subsidiary’s obtaining knowledge of any
violation of any Environmental Law regarding the Real Property or the Borrower’s or
any Subsidiary’s operations which violation could reasonably be expected to have a
Material Adverse Effect;




     (ii) the Borrower’s or any Significant Subsidiary’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 reasonably be expected to have a
Material Adverse Effect;




     (iii) the Borrower’s or any Significant Subsidiary’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)
the Borrower’s, any Significant Subsidiary’s or any Person’s operation of the Real
Property, (B) contamination on, from, or into the Real Property, or (C)
investigation or remediation of offsite locations at which the Borrower, any
Significant Subsidiary, or its predecessors are alleged to have directly or
indirectly Disposed of Hazardous Substances, if any thereof could reasonably be
expected to have a Material Adverse Effect; or




     (iv) the Borrower’s or any Significant Subsidiary’s obtaining knowledge that
any expense or loss has been incurred by any governmental authority in connection
with the assessment, containment, removal or remediation of any Hazardous Substances
with respect to which the Borrower or any Significant Subsidiary has been alleged to
be liable by such governmental authority or for which a Lien may be imposed on the
Real Property by such governmental authority, if any thereof could reasonably be
expected to have a Material Adverse Effect.



          §7.15. Notice of Default. The Borrower will promptly notify the Banks 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 Agreement or any other note, evidence of indebtedness, indenture or other obligation
evidencing indebtedness in excess of $75,000,000 as to which the Borrower or any of its Significant
Subsidiaries is a party or obligor, whether as principal or surety, the Borrower shall promptly
upon obtaining actual knowledge thereof give written notice thereof to the Banks, describing the
notice of action and the nature of the claimed default.













 



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          §7.16. Use of Proceeds. The proceeds of the Loans shall be used for general corporate
purposes, to provide working capital, to backstop commercial paper, to provide letters of credit
and as an extension and continuation of the Indebtedness of the Borrower and its Subsidiaries under
the Existing Credit Agreement. After application of the proceeds of any Loan, not more than 25% of
the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a
consolidated basis) that are subject to any restriction on sale, pledge, or disposal under this
Agreement will be represented by “margin stock,” as defined in accordance with Regulation U issued
by the Board of Governors of the Federal Reserve System, now or hereafter in effect.




          §7.17. Certain Transactions. Except as disclosed in the Disclosure Documents prior to the
Effective Date, and except for arm’s length transactions pursuant to which the Borrower or any
Subsidiary makes payments in the ordinary course of business, none of the officers, directors, or
employees or any other affiliate of the Borrower or any Subsidiary are presently or shall be a
party to any transaction with the Borrower or any Subsidiary (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 Borrower or any Subsidiary, 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 or partner.



§8. NEGATIVE COVENANTS OF THE BORROWER. The Borrower agrees that, so long as any
Obligation or Letter of Credit is outstanding or the Banks have any obligation to make Loans or any
Issuing Bank has any obligation to issue, extend or renew any Letter of Credit hereunder, or the
Banks have any obligation to reimburse any Issuing Bank for drawings honored under any Letter of
Credit, it shall, and shall cause its Subsidiaries to, comply with the following covenants:




          §8.1. Restrictions on Indebtedness. The Borrower will not permit any of its Subsidiaries (a)
to create, incur, assume, or be or remain liable, contingently or otherwise, with respect to any
Indebtedness, or (b) to 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 Indebtedness, in each case, of any other Person other
than the Borrower or any of its Subsidiaries, other than:





(i) Indebtedness of the Borrower’s Subsidiaries listed in Schedule 8.1(a) and any
extension, renewal or refinancing of such Indebtedness, provided that the terms and
conditions of any such extensions, renewals or refinancings do not increase the relative
priority of the original Indebtedness and provided, further, that such extended, renewed or
refinanced Indebtedness does not in the aggregate exceed the Dollar amount of the original
Indebtedness; and




(ii) Other Indebtedness of the Borrower’s Subsidiaries (other than of the Guarantor)
provided that the aggregate amount of all such Indebtedness under this §8.1(b), when
added (without duplication) to the aggregate outstanding amount of secured Indebtedness of
the Borrower and its Subsidiaries under subsections (k), (l) and (m) of the definition of









 



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“Permitted Liens” and Indebtedness with respect to Permitted Receivables Transactions, shall
not exceed 15% of Consolidated Tangible Assets at any time.



          §8.2. Restrictions on Liens. The Borrower will not, and will cause its Subsidiaries not to,
create or incur or suffer to be created or incurred or to exist any Lien 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 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 for
Permitted Liens.




     The Borrower and the Guarantor covenant and agree that if either of them or any of their
Subsidiaries shall create or incur any Lien upon any of their respective properties or assets,
whether now owned or hereafter acquired, other than Permitted Liens (unless prior written consent
shall have been obtained from the Banks), the Borrower and the Guarantor will make or cause to be
made effective provision whereby the Obligations and the Guaranteed Obligations will be secured by
such Lien equally and ratably with any and all other Indebtedness thereby secured so long as such
other Indebtedness shall be so secured; provided that the covenants of the Borrower and the
Guarantor contained in this sentence shall only be in effect for so long as the Borrower or the
Guarantor shall be similarly obligated under any other Indebtedness; provided,
further, that an Event of Default shall occur for so long as such other Indebtedness
becomes secured notwithstanding any actions taken by the Borrower or the Guarantor to ratably
secure the Obligations and the Guaranteed Obligations hereunder.




          §8.3. Restrictions on Investments. Except to the extent provided in §8.4, neither the
Borrower nor any Subsidiary may make or permit to exist or to remain outstanding any Investment,
other than Investments in Cash Equivalents unless both before and after giving effect thereto (i)
the Borrower and its Subsidiaries are in compliance with the covenants set forth in §§7, 8 and 9
hereof and (ii) 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; provided that the aggregate
amount of all Investments (excluding Investments in Cash Equivalents), does not exceed 15% of
Consolidated Tangible Assets; and provided further that the ability of the
Subsidiaries of the Borrower to incur any Indebtedness in connection with any Investment permitted
by this §8.3 shall be governed by §8.1.




          §8.4. Mergers, Consolidations, Sales.





     (a) Neither the Borrower nor any Subsidiary shall be a party to any merger,
consolidation or exchange of stock unless the Borrower shall be the surviving entity with
respect to any such transaction to which the Borrower is a party and the Guarantor shall be
the survivor of any merger with any other Subsidiary or a Subsidiary shall be the









 



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surviving entity (and continue to be a Subsidiary) with respect to any such
transactions to which one or more Subsidiaries is a party (and the conditions set forth
below are satisfied), or purchase or otherwise acquire all or substantially all of the
assets or stock of any class of, or any partnership, membership or joint venture or other
interest in, any other Person except as otherwise provided in §8.3 or this §8.4.
Notwithstanding the foregoing, the Borrower and its Subsidiaries may purchase or otherwise
acquire all or substantially all of the assets or stock of any class of, or joint venture
or other interest in, any Person if the following conditions have been met: (i) the
proposed transaction will not otherwise create a Default or an Event of Default hereunder;
and (ii) the business to be acquired predominantly involves (A) the collection, transfer,
hauling, disposal or recycling of solid waste or thermal soil remediation, or (B) other
lines of businesses currently engaged in, or related, associated, complementary or
supplementary thereto, whether from an operational, business, financial, technical or
administrative standpoint; provided that the Borrower or its Subsidiaries may
purchase or otherwise acquire all or substantially all of the assets or stock of any class
of, or any partnership, membership or joint venture or other interest in, any Persons in
unrelated businesses, not to exceed a total aggregate amount of $400,000,000 during the
term of this Agreement. Notwithstanding anything herein to the contrary, the ability of the
Subsidiaries of the Borrower to incur any Indebtedness in connection with any transaction
permitted pursuant to this §8.4 shall be governed by §8.1.




     (b) Neither the Borrower nor any Subsidiary shall sell, transfer, convey or lease any
assets or group of assets, including the sale or transfer of any property owned by the
Borrower or any Subsidiary in order then or thereafter to lease such property or lease
other property which the Borrower or such Subsidiary intends to use for substantially the
same purpose as the property being sold or transferred, or sell or assign, with or without
recourse, any receivables, except (i) transfers of real or personal property among
Subsidiaries of the Borrower, (ii) so long as no Default or Event of Default has occurred
and is continuing, or would result therefrom, sales of assets or pursuant to a
sale-leaseback transaction; provided that any net cash proceeds from any such sale
or sale-leaseback shall, within 180 days, either be used to pay down outstanding Loans
under this Agreement or be reinvested by such Person in assets of the business of the
Borrower and its Subsidiaries, used for working capital, invested in Investments in
accordance with the provisions of §8.3 or used for other general corporate purposes, (iii)
sales of accounts receivable (and contract rights, general intangibles or chattel paper
related thereto) more than sixty (60) days past due sold or assigned in the ordinary course
of collecting past due accounts, or (iv) pursuant to a Permitted Receivables Transaction.



          §8.5. Restricted Distributions and Redemptions. Neither the Borrower nor any of its
Subsidiaries will (a) declare or pay any Distributions, or (b) redeem, convert, retire or otherwise
acquire shares of any class of its capital stock (other than in connection with a merger permitted
by §8.4 hereof or conversion into another form of equity of any preferred shares of the Borrower
existing as of the Effective Date pursuant to the terms thereof), unless at the time of such
Distribution or redemption no Default or Event of Default exists or would be created hereunder.
Notwithstanding the above, any Subsidiary may make Distributions to the Borrower












 



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and the Borrower agrees that neither the Borrower nor any Significant Subsidiary will enter
into any agreement restricting Distributions from such Significant Subsidiary to the Borrower.




          §8.6. Employee Benefit Plans. None of the Borrower, any of its Subsidiaries, or 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 the Borrower on a
consolidated basis; or




     (b) permit any Guaranteed Pension Plan to be in “at risk” status or subject to the
notice and lien provisions described in §303 of ERISA, whether or not a minimum funding
waiver has been granted; 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 the Borrower or the Guarantor pursuant to §303 or §4068 of
ERISA; or




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



     The Borrower and its Subsidiaries will (i) promptly upon the request of any Bank or the
Administrative Agent, furnish to the Banks 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 Banks any notice, report or demand sent or received in respect of a Guaranteed Pension Plan
under §§302, 303, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under §§4041A, 4202, 4219, 4242 or 4245 of ERISA.



§9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower agrees that, so long as any
Obligation or Letter of Credit is outstanding or the Banks have any obligation to make Loans or any
Issuing Bank has any obligation to issue, extend or renew any Letter of Credit hereunder, or the
Banks have any obligation to reimburse any Issuing Bank for drawings honored under any Letter of
Credit, it shall comply with the following covenants:




          §9.1. Interest Coverage Ratio. As of the end of any fiscal quarter of the Borrower, the
Borrower will not permit the ratio of (a) EBIT for the four fiscal quarters then ending to (b)
Consolidated Total Interest Expense for such period to be less than 2.75:1.00.




          §9.2. Total Debt to EBITDA. As of the end of any fiscal quarter of the Borrower, the Borrower
will not permit the ratio of (a) Total Debt to (b) EBITDA for the four fiscal quarters then ending
to exceed 3.50:1.00.













 



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§10. CONDITIONS PRECEDENT.




          §10.1. Conditions To Effectiveness. The effectiveness of this Agreement as an amendment and
restatement of the Existing Credit Agreement shall be subject to the satisfaction of each of the
following conditions precedent on or before May 31, 2011:




               §10.1.1 Corporate Action. All corporate action necessary for the valid execution, delivery
and performance by the Borrower and the Guarantor of the Loan Documents shall have been duly and
effectively taken, and evidence thereof certified by authorized officers of the Borrower and the
Guarantor and satisfactory to the Administrative Agent shall have been provided to the Banks.



               §10.1.2 Loan Documents, Etc. Each of the Loan Documents and other documents listed on the
closing agenda 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
Majority Banks.



               §10.1.3 Certified Copies of Charter Documents. The Banks shall have received from each of the
Borrower and the Guarantor, certified by a duly authorized officer of such Person to be true and
complete on the Effective Date, (a) its charter or other incorporation documents, (b) its by-laws
and (c) good standing certificates and such foreign qualifications as may be requested by the
Administrative Agent.



               §10.1.4 Incumbency Certificate. The Banks shall have received an incumbency certificate,
dated as of the Effective Date, signed by duly authorized officers of the Borrower and the
Guarantor giving the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign the Loan Documents on behalf of the Borrower and the Guarantor; (b) to make
Syndicated Loan Requests and Letter of Credit Requests; (c) to make Competitive Bid Quote Requests;
and (d) to give notices and to take other action on the Borrower’s or the Guarantor’s behalf under
the Loan Documents.



               §10.1.5 Summary of Insurance. The Administrative Agent shall have received a summary of the
insurance coverage of the Borrower and its Subsidiaries of the type described in §7.7.



               §10.1.6 Opinion of Counsel. The Banks shall have received a favorable legal opinion from the
Vice President and Assistant General Counsel of the Borrower and the Guarantor addressed to the
Banks, dated the Effective Date, in form and substance satisfactory to the Administrative Agent,
and a favorable legal opinion of McGuireWoods LLP, special New York counsel to the Administrative
Agent, dated the Effective Date, as to the validity and binding effect of this Agreement.



               §10.1.7 Satisfactory Financial Condition. Other than as disclosed in the Disclosure
Documents, no material adverse change shall have occurred in the financial condition, results of
operations, business, properties or prospects of the Borrower and its Subsidiaries, taken as a
whole, since the Balance Sheet Date.









 



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               §10.1.8 Payment of Closing Fees. The Borrower shall have paid the agreed-upon closing fees to
the Administrative Agent and Lenders.



               §10.1.9 Closing Certificate. The Borrower shall have delivered to the Administrative Agent a
certificate, dated as of the Effective Date, stating that, as of such date (a) the representations
and warranties set forth herein and in the other Loan Documents are true and correct, and (b) no
Default or Event of Default has occurred and is continuing.



               §10.1.10 USA Patriot Act. The Borrower shall have delivered all documentation and other
information that the Administrative Agent or any Bank requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the USA Patriot Act.



     Without limiting the generality of the provisions of the last paragraph of §15.2, for
purposes of determining compliance with the conditions specified in this §10, each Bank that has
signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Bank unless the Administrative Agent shall have received notice
from such Bank prior to the proposed Effective Date specifying its objection thereto.


§11. CONDITIONS TO ALL LOANS. The obligations of the Banks to make or continue for an
additional Interest Period in accordance with §2.7 any Loan and the obligation of any Issuing Bank
to issue, extend, or renew any Letter of Credit at the time of and subsequent to the Effective Date
is subject to the following conditions precedent:




          §11.1. Representations True. The Borrower shall have certified to the Administrative Agent
and the Banks that each of the representations and warranties of the Borrower and the Guarantor (as
applicable) contained in this Agreement or in any document or instrument delivered pursuant to or
in connection with this Agreement, other than the representation and warranty in §6.5 hereof, is
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 such Loan or the issuance, extension, or renewal of any Letter of Credit, as applicable,
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 Agreement and changes occurring in the ordinary
course of business which either individually or in the aggregate do not result in a Material
Adverse Effect, and to the extent that such representations and warranties relate expressly and
solely to an earlier date).




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













 



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          §11.3. Proceedings and Documents. All proceedings in connection with the transactions
contemplated by this Agreement shall have been taken and all documents incident thereto shall have
been delivered to the Banks as of the date of the making of any extension of credit in substance
and in form satisfactory to the Banks, including without limitation a Syndicated Loan Request or a
Letter of Credit Request and the Banks shall have received all information and such counterpart
originals or certified or other copies of such documents as the Banks may reasonably request.



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




          §12.1. 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 Borrower shall fail to pay any principal of the Loans when the same shall
become due and payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;




     (b) if the Borrower shall fail to pay any interest or fees or other amounts owing
hereunder (other than those specified in subsection (a) above) within five (5) Business
Days after the same shall become due and payable whether at the Maturity Date or any
accelerated date of maturity or at any other date fixed for payment;




     (c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4,
7.5, 7.15, 7.16, 8 and 9 hereof;




     (d) if the Borrower 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) and such failure shall not be remedied within 30 days after
written notice of such failure shall have been given to the Borrower by the Administrative
Agent or any of the Banks;




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




     (f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within
any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an
aggregate amount greater than $75,000,000, or fail to observe or perform any material term,
covenant or agreement contained in any one or more agreements by which it is bound,
evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate
amount greater than $75,000,000 for such period of time as would permit, or would have
permitted (assuming the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity thereof or
terminate its commitment with respect thereto;









 



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     (g) if the Borrower, the Guarantor or any Significant 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 or receiver of the Borrower, the Guarantor or
any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the
Guarantor or any Significant Subsidiary or commences any case or other proceeding relating
to the Borrower, the Guarantor or any Significant 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 the Borrower, the
Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant
Subsidiary indicates its approval thereof, consent thereto or acquiescence therein;




     (h) if a decree or order is entered appointing any such trustee, custodian, liquidator
or receiver or adjudicating the Borrower or the Guarantor or any Significant 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 the Borrower or the Guarantor or any
Significant Subsidiary in an involuntary case under federal bankruptcy laws of any
jurisdiction as now or hereafter constituted;




     (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more
than thirty days, whether or not consecutive, any final judgment against the Borrower or
any Subsidiary which, with other outstanding final judgments against the Borrower and its
Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed
insurance coverage;




     (j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall
have occurred and the Banks shall have determined in their reasonable discretion that such
event reasonably could be expected to result in liability of the Borrower or any Subsidiary
to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the
circumstances occurring reasonably could constitute grounds for the partial or complete
termination of such Plan by the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer such Plan; or a trustee shall have been
appointed by the appropriate United States District Court to administer such Plan; or the
PBGC shall have instituted 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 Banks, 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 Borrower, the Guarantor, 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,









 



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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; or




     (l) if 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 voting stock of the
Borrower; or during any period of twelve consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period (together with any new directors
whose election by such board or whose nomination for election by the shareholders of the
Borrower was approved by a vote of a majority of the directors still in office who were
either directors at the beginning of such period or whose election or nomination for
election was previously so approved) shall cease to constitute a majority of the board of
directors of the Borrower;


then, and in any such event, so long as the same may be continuing, the Administrative Agent may,
and upon the request of the Majority Banks shall, by notice in writing to the Borrower, declare all
amounts owing with respect to this Agreement 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, notice of intent to accelerate, notice of acceleration to the extent
permitted by law or other notice of any kind, all of which are hereby expressly waived by the
Borrower; provided that in the event of any Event of Default specified in §12.1(g) or 12.1(h) with
respect to the Borrower or the Guarantor, all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Administrative Agent or any Bank. Upon
demand by the Majority Banks after the occurrence of any Event of Default, the Borrower shall
immediately provide to the Administrative Agent cash in an amount equal to the aggregate Maximum
Drawing Amount to be held by the Administrative Agent as collateral security for the Reimbursement
Obligations.




          §12.2. Termination of Commitments. If any Event of Default pursuant to §§ 12.1(g) or 12.1(h)
hereof shall occur with respect to the Borrower or the Guarantor, any unused portion of the Total
Commitment hereunder shall forthwith terminate and the Banks and the Issuing Banks shall be
relieved of all obligations to make Loans or to issue, extend or renew Letters of Credit hereunder;
or if any other Event of Default shall occur, the Majority Banks may by notice to the Borrower
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 Banks and
the Issuing Banks shall be relieved of all further obligations to make Loans or to issue, extend or
renew Letters of Credit hereunder. No termination of any portion of the Total Commitment hereunder
shall relieve the Borrower of any of its existing Obligations to the Banks, the Issuing Banks or
the Administrative Agent hereunder or elsewhere.




          §12.3. Remedies. In case any one or more of the Events of Default shall have occurred and be
continuing, and whether or not the Banks shall have accelerated the maturity of the Loans and other
Obligations pursuant to §12.1, each Bank, upon notice to the other Banks, 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,












 



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whether for the specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents or any instrument pursuant to which the Obligations to such Bank 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 Bank, any recovery being subject to the terms of §29 hereof. No remedy herein conferred upon
any Bank or the Administrative Agent or the holder of any Note 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. SETOFF. During the continuance of an Event of Default, any deposits or other sums
credited by or due from any Bank to the Borrower and any securities or other property of the
Borrower in the possession of such Bank 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 Borrower to the Banks or the
Administrative Agent. Any amounts set off with respect to the Obligations shall, except to the
extent §5.14 applies, be distributed ratably in accordance with §29 among all of the Banks by the
Bank setting off such amounts. If any Bank fails to share such setoff ratably, the Administrative
Agent shall have the right to withhold such Bank’s share of the Borrower’s payments until each of
the Banks shall have, in the aggregate, received a pro rata repayment.



§14. EXPENSES. Whether or not the transactions contemplated herein shall be consummated,
the Borrower hereby promises to reimburse the Administrative Agent and the Lead Arrangers for all
reasonable out-of-pocket fees and disbursements (including all reasonable attorneys’ fees) incurred
or expended in connection with the syndication, preparation, filing or recording, or interpretation
of this Agreement, the other Loan Documents, or any amendment, modification, approval, consent or
waiver hereof or thereof. The Borrower further promises to reimburse the Administrative Agent and
the Banks for all reasonable out-of-pocket fees and disbursements (including all reasonable legal
fees and the allocable cost of in-house attorneys’ fees) incurred or expended in connection with
the enforcement of any Obligations or the satisfaction of any indebtedness of the Borrower
hereunder or under any other Loan Document, or in connection with any litigation, proceeding or
dispute hereunder in any way related to the credit hereunder. The Borrower also promises to pay the
Administrative Agent all reasonable out-of-pocket fees and disbursements, incurred or expended in
connection with the Competitive Bid Loan procedure under §4 hereof.



§15. THE AGENTS.




          §15.1. Authorization and Action. Each Bank hereby irrevocably appoints Bank of America as
Administrative Agent hereunder and authorizes Bank of America to take such action as Administrative
Agent on its behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this Agreement and the other
Loan Documents, the Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the












 



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instructions of the Majority Banks (or, when expressly required hereby, all of the Banks), and
such instructions shall be binding upon all Banks; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement or the other Loan Documents or
applicable law.




          §15.2. Administrative Agent’s Reliance, Etc. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any of the Banks for any action taken
or omitted to be taken by it or them under or in connection with this Agreement or the other Loan
Documents, except for its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other experts selected by
it and shall not be liable to the Banks for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts; (ii) shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing; (iii) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its affiliates that is communicated to or obtained
by the Person serving as the Administrative Agent or any of its affiliates in any capacity; (iv)
makes no warranty or representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or in connection with
this Agreement or the other Loan Documents; (v) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions of this Agreement
or the other Loan Documents on the part of the Borrower or the Guarantor (or as to the contents of
any certificate, report or other document delivered hereunder or thereunder) or to inspect the
property (including the books and records) of the Borrower or the Guarantor or any of their
Subsidiaries, and shall not be deemed to have knowledge or notice of any Default or Event of
Default unless and until it shall have received, at its office specified in §22, a notice
describing the same and entitled “Notice of Default”; (vi) shall not be responsible to any Bank for
the due execution (other than its own), legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any related agreement, instrument or document furnished
pursuant hereto; and (vii) shall incur no liability to the Banks under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram, cable or telex) reasonably believed by it to be genuine and signed or
sent by the proper party or parties. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Bank or an Issuing Bank, the Administrative Agent may presume that such condition
is satisfactory to such Bank or Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Bank or Issuing Bank prior to the making of such Loan or the
issuance of such Letter of Credit.




          §15.3. Bank of America and Affiliates. With respect to its Commitment, Bank of America shall
have the same rights and powers under this Agreement and under the other Loan Documents as any
other Bank and may exercise the same as though it were not the Administrative Agent, and the term
“Bank” or “Banks” shall, unless otherwise expressly indicated, include Bank of America in its
individual capacity. Bank of America and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally












 



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engage in any kind of business with, the Borrower, the Guarantor, any of their Subsidiaries
and any Person who may do business with or own securities of the Borrower, the Guarantor, or any
such Subsidiary, all as if Bank of America were not the Administrative Agent and without any duty
to account therefor to the Banks. The Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through any one
or more sub-agents appointed by the Administrative Agent. To the extent any such rights or powers
are delegated to a sub-agent, the Administrative Agent shall remain responsible for such
sub-agent’s performance or exercise of such duties, rights and powers; provided, that the
exculpatory provisions of this Agreement (including the provisions in §15) shall apply to any such
sub-agent.




          §15.4. Bank Credit Decision. Each Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Bank and based on the financial statements
referred to in §6.4 and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each
Bank also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.




          §15.5. Indemnification. The Banks agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to the respective amounts of their Commitments
as most recently in effect at the time such indemnity is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits and reasonable
costs, expenses and disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents or any action taken or omitted by the Administrative
Agent under this Agreement or the other Loan Documents, provided that no Bank shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence
or willful misconduct or from a material breach by the Administrative Agent of its obligations
under this Agreement or under any other Loan Document, as determined by a court of competent
jurisdiction. Without limiting the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share as aforesaid of any reasonable out of pocket
expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and the other Loan Documents, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrower.




          §15.6. Successor Administrative Agent. The Administrative Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower and may be removed at any time with or
without cause by the Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent that, unless a Default or Event of
Default shall have occurred and then be continuing, is reasonably acceptable to the Borrower. If
no successor Administrative Agent shall have been so












 



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appointed by the Majority Banks, and shall have accepted such appointment, within 45 days
after the retiring Administrative Agent’s giving of notice of resignation or the Majority Banks’
removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf
of the Banks, appoint a successor Administrative Agent, which shall be a commercial bank, financial
institution, trust company or similar entity regularly engaged in the business of administering
syndicated loans and which successor Administrative Agent shall be organized under the laws of the
United States of America or of any State thereof and have total assets of at least $1,000,000,000;
provided that if the Administrative Agent shall notify the Borrower and the Banks that no
such qualifying Person has accepted such appointment, then (x) such resignation shall nonetheless
become effective in accordance with such notice and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents, and (y)
the Borrower may appoint a successor Administrative Agent to act until replaced by a successor
Administrative Agent that is appointed by the Majority Banks (which successor Administrative Agent
appointed by the Borrower shall be a commercial bank, financial institution, trust company or
similar entity regularly engaged in the business of administering syndicated loans that is
organized under the laws of the United States of America or of any State thereof and have total
assets of at least $1,000,000,000). 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 under this Agreement and the other Loan Documents. After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this §15 shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.




          §15.7. Lead Arrangers, Etc. The parties identified on the cover hereof as Lead Arrangers and
Joint Bookrunners, Documentation Agents and Co- Documentation Agents shall have no obligations or
liabilities under this Agreement and the other Loan Documents.




          §15.8. Documents. The Administrative Agent will forward to each Bank, promptly after receipt
thereof, a copy of each notice or other document furnished to the Administrative Agent for such
Bank hereunder; provided, however, that, notwithstanding the foregoing, the
Administrative Agent may furnish to the Banks a monthly summary with respect to Letters of Credit
issued hereunder in lieu of copies of the related Letter of Credit Applications.




          §15.9. Action by the Banks, Consents, Amendments, Waivers, Etc. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Bank in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and
remedies of the Administrative Agent, the Issuing Banks and the Banks hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower or the Guarantor therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this
section, and then such waiver or consent shall be effective only in the specific instance and for
the purpose for












 



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which given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of
Default, regardless of whether the Administrative Agent, any Bank or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time.





     (b) Except as otherwise provided in §3.1(a) hereof with respect to Schedule
3.1, neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and
the Majority Banks or by the Borrower and the Administrative Agent with the consent of the
Majority Banks; provided that no such agreement shall (i) increase the Commitment
of any Bank without the written consent of such Bank, (ii) reduce the principal amount of
any Loan or Reimbursement Obligations, or reduce the rate of interest on the Loans or
reduce any fees payable hereunder, without the written consent of each Bank affected
thereby; (iii) postpone the date of any payment of the principal amount of any Loan, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Bank affected thereby; (iv) release the Borrower from its
Obligations or the Guarantor from its Guaranteed Obligations hereunder without the written
consent of each Bank; (v) modify §29(a); or (vi) change any of the provisions of this §15.9
or any provision of this Agreement requiring action by all the Banks, or the percentage of
Banks constituting “Majority Banks”, without the written consent of each Bank; provided
further that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or any Issuing Bank hereunder without the prior written
consent of the Administrative Agent or the Issuing Banks, as the case may be.
Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver
or consent which by its terms requires the consent of all Banks or each affected Bank may
be effected with the consent of the applicable Banks other than Defaulting Banks), except
that (x) the Commitment of any Defaulting Bank may not be increased or extended without the
consent of such Bank and (y) any waiver, amendment or modification requiring the consent of
all Banks or each affected Bank that by its terms affects any Defaulting Bank more
adversely than other affected Banks shall require the consent of such Defaulting Bank.


§16. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the Banks, the
Issuing Banks, the Lead Arrangers and the Administrative Agent and their affiliates, as well as
their and their affiliates’ shareholders, directors, agents, officers, subsidiaries and affiliates,
from and against all damages, losses, settlement payments, obligations, liabilities, claims, suits,
penalties, assessments, citations, directives, demands, judgments, actions or causes of action,
whether statutorily 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
the transactions contemplated hereby, except any of the foregoing which result from the gross
negligence or willful misconduct of such indemnified party or a material breach of the obligations
of such indemnified party under this Agreement or under any other Loan Document, as determined by a
court of competent jurisdiction. In any investigation, enforcement matter, proceeding or
litigation, or the preparation therefor, the Banks, the Issuing












 



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Banks, the Lead Arrangers and the Administrative Agent shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel (including the non-duplicative allocated cost of
internal counsel), and settlement costs. In the event of the commencement of any such proceeding or
litigation against the Banks or Administrative Agent by third parties, the Borrower shall be
entitled to participate in such proceeding or litigation with counsel of their choice at their
expense. In the case of an investigation, litigation or proceeding to which the indemnity in this
§16 applies, such indemnity shall be effective, subject to the limitations herein, whether or not
such investigation, litigation or proceeding is brought by the Borrower, the Borrower’s
equityholders, affiliates or creditors or such an indemnified party, whether or not such
indemnified party is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The covenants of this §16 shall survive payment or satisfaction of payment
of amounts owing with respect to any Note or the Loans and satisfaction of all the Obligations
hereunder and under the Loan Documents, IT BEING THE INTENT OF THE PARTIES HERETO THAT ALL SUCH
INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE, COMPARATIVE OR CONTRIBUTORY
NEGLIGENCE. WITHOUT LIMITATION OF THE FOREGOING, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY IN
RESPECT OF ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ASSERTED BY SUCH OTHER PARTY WITH
RESPECT TO THE MATTERS CONTEMPLATED BY THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY USE MADE OR
TO BE MADE WITH THE PROCEEDS OF ANY CREDIT EXTENSION HEREUNDER OR THEREUNDER.



§17. WITHHOLDING TAXES. The Borrower hereby agrees that:





     (a) Any and all payments made by the Borrower hereunder shall be made free and clear
of, and without deduction for, any and all present or future taxes, levies, fees, duties,
imposts, deductions, charges or withholdings of any nature whatsoever, excluding, in the
case of each of the Administrative Agent and each of the Banks (including, without
limitation, the Issuing Banks), (i) taxes imposed on, or measured by, its net income or
profits, (ii) franchise taxes imposed on it, (iii) taxes imposed by any jurisdiction as a
direct consequence of it, or any of its affiliates, having a present or former connection
with such jurisdiction, including, without limitation, being organized, existing or
qualified to do business, doing business or maintaining a permanent establishment or office
in such jurisdiction, and (iv) taxes imposed by reason of its failure to comply with any
applicable certification, identification, information, documentation or other reporting
requirement (all such non-excluded taxes being hereinafter referred to as “Indemnifiable
Taxes”). In the event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Indemnifiable Taxes pursuant to any
applicable law, or governmental rule or regulation, then the Borrower will (i) direct to
the relevant taxing authority the full amount required to be so withheld or deducted, (ii)
forward to the Administrative Agent for delivery to the applicable Bank an official receipt
or other documentation satisfactory to the Administrative Agent and the applicable Bank
evidencing such payment to such taxing authority, and (iii) direct to the Administrative
Agent for the account of the relevant Banks such additional amount or amounts as is
necessary to ensure that the net amount actually received by each relevant Bank will equal
the full amount such Bank









 



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would have received had no such withholding or deduction (including any Indemnifiable
Taxes on such additional amounts) been required. Moreover, if any Indemnifiable Taxes are
directly asserted against the Administrative Agent or any Bank with respect to any payment
received by the Administrative Agent or such Bank by reason of the Borrower’s failure to
properly deduct and withhold such Indemnifiable Taxes from such payment, the Administrative
Agent or such Bank may pay such Indemnifiable Taxes and the Borrower will promptly pay all
such additional amounts (including any penalties, interest or reasonable expenses) as is
necessary in order that the net amount received by such Person after the payment of such
Indemnifiable Taxes (including any Indemnifiable Taxes on such additional amount) shall
equal the amount such Person would have received had not such Indemnifiable Taxes been
asserted; provided that the Administrative Agent or such Bank, as the case may be,
agrees to use commercially reasonable efforts, at the expense of the Borrower, to contest
or otherwise challenge such Indemnifiable Taxes if the Administrative Agent or such Bank,
as applicable, determines in good faith that a reasonable basis exists to do so. Any such
payment shall be made promptly after the receipt by the Borrower from the Administrative
Agent or such Bank, as the case may be, of a written statement setting forth in reasonable
detail the amount of the Indemnifiable Taxes and the basis of the claim.




     (b) The Borrower shall pay any present or future stamp or documentary taxes or any
other excise or any other similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (“Other Taxes”).




     (c) The Borrower hereby indemnifies and holds harmless the Administrative Agent and
each Bank for the full amount of Indemnifiable Taxes or Other Taxes (including, without
limitation, any Indemnifiable Taxes or Other Taxes imposed on amounts payable under this
§17) paid by the Administrative Agent or such Bank, as the case may be, and any liability
(including penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, by reason of the Borrower’s failure to properly deduct and withhold Indemnifiable
Taxes pursuant to paragraph (a) above or to properly pay Other Taxes pursuant to paragraph
(b) above. Any indemnification payment from the Borrower under the preceding sentence shall
be made promptly after receipt by the Borrower from the Administrative Agent or Bank of a
written statement setting forth in reasonable detail the amount of such Indemnifiable Taxes
or such Other Taxes, as the case may be, and the basis of the claim.




     (d) If the Borrower pays any amount under this §17 to the Administrative Agent or any
Bank and such payee knowingly receives a refund or tax credit in respect of any taxes with
respect to which such amount was paid, the Administrative Agent or such Bank, as the case
may be, shall remit to the Borrower, promptly following the receipt thereof by such payee,
an amount equal to the amount determined by such payee to be equal to the amount of any net
reduction in taxes actually obtained by such payee and determined by it to be allocable to
such refund or credit; provided, that the decision as to whether or not to claim
any such refund or credit, and as to the amount and allocation of any such refund or credit
so claimed, shall be made by each such payee in its sole and absolute discretion; and
provided, further, that nothing herein shall be









 



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deemed to obligate any Bank or the Administrative Agent to disclose to the Borrower or
the Guarantor its tax returns or any information regarding its tax affairs.




     (e) In the event any taxing authority notifies the Borrower or the Guarantor that any
of them has improperly failed to deduct or withhold any taxes (other than Indemnifiable
Taxes) from a payment made hereunder to the Administrative Agent or any Bank, the Borrower
shall timely and fully pay such taxes to such taxing authority.




     (f) The Administrative Agent or the Banks shall, upon the request of the Borrower,
take reasonable measures to avoid or mitigate the amount of Indemnifiable Taxes required to
be deducted or withheld from any payment made hereunder if such measures can be taken
without such Person in its sole judgment suffering any legal, regulatory or economic
disadvantage.




     (g) Without prejudice to the survival of any other agreement of the parties hereunder,
the agreements and obligations of the Borrower contained in this §17 shall survive the
payment in full of the Obligations.


§18. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.




          §18.1. Confidentiality. Each of the Banks and the Administrative Agent 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 supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Agreement that is identified by such Person as being confidential at the time the
same is delivered to the Banks or the 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 §18, or becomes available to any of the Banks or the
Administrative Agent on a nonconfidential basis from a source other than the Borrower, (b) to the
extent required by statute, rule, regulation or judicial process, (c) to counsel for any of the
Banks or the Administrative Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Bank or any of its affiliates or the Administrative Agent or any
self-regulatory body in which any of such Persons participates, or to auditors or accountants, (e)
to the Administrative Agent, any Bank or any Financial Affiliate, (f) in connection with any
litigation to which any one or more of the Banks, the Administrative Agent 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 Bank or the Administrative 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 Agreement or any other Loan Document or to any credit insurance provider
relating to the Borrower and its Obligations so long as such assignee, participant, counterparty or
credit insurance provider, as the case may be, agrees to be bound by the provisions of §18.1, or
(i) with the consent of the Borrower.













 



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          §18.2. Prior Notification. Unless specifically prohibited by applicable law or court order,
each of the Banks and the Administrative Agent shall, prior to disclosure thereof, notify the
Borrower 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 Bank by such governmental agency) or pursuant to legal process.




          §18.3. Other. In no event shall any Bank or the Administrative Agent be obligated or required
to return any materials furnished to it or any Financial Affiliate by the Borrower or any of its
Subsidiaries. The obligations of each Bank under this §18 shall supersede and replace the
obligations of such Bank under any confidentiality letter in respect of this financing signed and
delivered by such Bank to the Borrower 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 Bank.



§19. 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 Borrower or the Guarantor pursuant
hereto shall be deemed to have been relied upon by the Banks, the Issuing Banks and the
Administrative Agent, notwithstanding any investigation heretofore or hereafter made by them, and
shall survive the making by the Banks of the Loans and the issuance, extension or renewal of any
Letters of Credit by any Issuing Bank, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Agreement, any Obligation, or any Letter of Credit
remains outstanding and unpaid or any Bank has any obligation to make any Loans or any Issuing Bank
has any obligation to issue, extend, or renew any Letters of Credit hereunder. All statements
contained in any certificate or other paper delivered by or on behalf of the Borrower pursuant
hereto or in connection with the transactions contemplated hereby shall constitute representations
and warranties by the Borrower hereunder.



§20. ASSIGNMENT AND PARTICIPATION. It is understood and agreed that each Bank shall have
the right to assign at any time all or a portion of its Commitment Percentage and interests in the
risk relating to the Loans, outstanding Letters of Credit and its Commitment hereunder in an amount
equal to or greater than (unless otherwise agreed to by the Borrower and the Administrative Agent)
$5,000,000 (or, if a Bank’s Commitment is less than $5,000,000, in a minimum amount equal to such
Bank’s Commitment; provided that prior to any Commitment reductions pursuant to §2.3.1, such Bank’s
Commitment was at least $5,000,000), to additional banks, other financial institutions or Bank
Affiliates (other than Defaulting Banks) with the prior written approval of the Administrative
Agent, the Swing Line Bank and each Issuing Bank and, so long as no Event of Default has occurred
and is continuing, the consent of the Borrower (provided that (i) the Borrower’s consent shall not
be required in the case of an assignment to a Bank Affiliate or to an Approved Fund and (ii) the
Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within ten (10) Business Days after having received
notice thereof), which approvals shall not be unreasonably withheld. Any Bank may at any time, and
from time to time, assign to any branch, lending office, or Bank Affiliate all or any part of its
rights and obligations under the Loan Documents by notice to the Administrative Agent and the
Borrower. It is further agreed that each bank or other financial institution which executes and
delivers to the Administrative












 



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Agent and the Borrower hereunder an Assignment and Assumption substantially in the form of Exhibit
E hereto, or such other form approved by the Administrative Agent (an “Assignment and Assumption”)
together with an assignment fee in the amount of $3,500 payable by the assigning Bank to the
Administrative Agent, shall, on the date specified in such Assignment and Assumption, become a
party to this Agreement and the other Loan Documents for all purposes of this Agreement and the
other Loan Documents, and its portion of the Commitment, the Loans and Letters of Credit shall be
as set forth in such Assignment and Assumption; provided, that the Administrative Agent may, in its
sole discretion, elect to waive such assignment fee. The Bank assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment
and Assumption, relinquish its rights (except for indemnity rights arising out of the period prior
to such assignment) and be released from its obligations under this Agreement and the other Loan
Documents. Upon the execution and delivery of such Assignment and Assumption (a) to the extent
applicable, the Borrower shall issue Notes (and replacement Notes) or the Administrative Agent
shall make appropriate entries on the applicable loan account(s) to reflect such assignment of
Loan(s); and (b) this Agreement and Schedule 1 shall be deemed to be appropriately amended to
reflect (i) the status of the bank, financial institution or Bank Affiliate as a party hereto and
(ii) the status and rights of the Banks hereunder.




     Each Bank shall also have the right to grant participations to one or more banks, other
financial institutions or Bank Affiliates (other than Defaulting Banks) in its Commitment, the
Loans and outstanding Letters of Credit. The documents evidencing any such participation shall
limit such participating bank’s, financial institution’s or Bank Affiliate’s, voting rights with
respect to this Agreement to the matters set forth in §15.9(b)(i) — (v); and each such participant
shall be entitled to the benefit of §5.5 hereof to the extent of its participation, subject to the
limitations set forth therein.



     Notwithstanding the foregoing, no assignment or participation shall (a) be made to the
Borrower or any Affiliate or (b) operate to increase the Total Commitment hereunder or otherwise
alter the substantive terms of this Agreement, and no Bank which retains a Commitment hereunder
shall have a Commitment of less than $5,000,000, except as a result of reductions in the Total
Commitment pursuant to §2.3 hereof.



     Anything contained in this §20 to the contrary notwithstanding, any Bank may at any time
pledge all or any portion of its interest and rights under this Agreement (including all or any
portion of its Notes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal
Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor
Bank from its obligations hereunder or under any of the other Loan Documents.



     The Borrower agrees that in addition to disclosures made in accordance with standard and
customary banking practices any Bank may disclose information obtained by such Bank pursuant to
this Agreement to assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or participants shall
agree to be bound by §18 hereof.


§21. PARTIES IN INTEREST. All the terms of this Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of and be enforceable by the respective












 



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successors and assigns of the parties hereto and thereto; provided, that neither the Borrower nor
the Guarantor shall assign or transfer its rights or obligations hereunder or thereunder without
the prior written consent of each of the Banks.



§22. NOTICES, ETC.





     (a) Except in the case of notices and other communications expressly permitted to be
given by telephone (and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent, an Issuing Bank or the Swing
Line Bank, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 22; and




     (ii) if to any other Bank, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire
(including, as appropriate, notices delivered solely to the Person designated by a
Bank on its Administrative Questionnaire then in effect for the delivery of notices
that may contain material non-public information relating to the Borrower).




Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and
other communications sent by telecopier shall be deemed to have been given when sent (except
that, if not given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the recipient). Notices
and other communications delivered through electronic communications to the extent provided
in subsection (b) below, shall be effective as provided in such subsection (b).




     (b) The Borrower hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement and the other Loan Documents, including,
without limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such communication
that (i) relates to a request for a new, or a conversion of an existing, Borrowing or other
extension of credit (including any election of an interest rate or Interest Period relating
thereto), (ii) relates to the payment of any principal or other amount due under this
Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or
Event of Default under this Agreement or (iv) is required to be delivered to satisfy any
condition precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit thereunder (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the Communications in an
electronic/soft medium in a format acceptable to









 



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the Administrative Agent pursuant to procedures approved by the Administrative Agent.
In addition, the Borrower agrees to continue to provide the Communications to the
Administrative Agent in the manner specified in this Agreement but only to the extent
requested by the Administrative Agent. Unless the Administrative Agent otherwise
prescribes, (i) Communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be deemed to have been
sent at the opening of business on the next business day for the recipient, and (ii)
Communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and
identifying the website address therefor.




     (c) The Borrower further agrees that (i) the Administrative Agent and/or the Lead
Arrangers may make the Communications and/or information provided by or on behalf of the
Borrower hereunder available to the Banks by posting the Communications and such other
information on Intralinks or a substantially similar electronic transmission system (the
“Platform”) and (ii) certain of the Banks (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with respect to the
Borrower or its affiliates, or the respective securities of any of the foregoing, and who
may be engaged in investment and other market-related activities with respect to such
Persons’ securities. The Borrower hereby agrees that (w) all Communications and such other
information that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking such Communications and other
information “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Lead Arrangers, the Issuing Banks and the Banks to treat such Communications and
other information as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Communications and other information subject to
§18.1, they shall be treated as set forth in §18.1); (y) all Communications and other
information marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) the Administrative Agent and the
Lead Arrangers shall be entitled to treat any Communications and other information that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Side Information.” Each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of the Platform
in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and
state securities Laws, to make reference to Borrower Materials that are not made available
through the “Public Side Information” portion of the Platform and that may contain material
non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.









 



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     (d) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE
ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, AN WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO
EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT
PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY BANK OR ANY OTHER PERSON OR ENTITY FOR
DAMAGES OF ANY KIND ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF
ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR MATERIAL BREACH; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL
ANY AGENT PARTY HAVE ANY LIABILITY TO THE BORROWER, ANY BANK, ANY ISSUING BANK OR ANY OTHER
PERSON FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO
DIRECT OR ACTUAL DAMAGES).




     (e) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective
delivery of the Communications to the Administrative Agent for purposes of this Agreement.
Each Bank agrees that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of the
Communications to such Bank for purposes of this Agreement. Each Bank agrees to notify the
Administrative Agent in writing (including by electronic communication) from time to time
of such Bank’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail address.




     (f) Nothing herein shall prejudice the right of the Administrative Agent or any Bank
to give any notice or other communication pursuant to this Agreement in any other manner
specified herein.


§23. MISCELLANEOUS. The rights and remedies herein expressed are cumulative and not
exclusive of any other rights which the Banks, the Issuing Banks or the Administrative Agent would
otherwise have. The captions in this Agreement are for convenience of reference only and shall not
define or limit the provisions hereof. This Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which












 



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when so executed and delivered shall be an original, but all of which together shall constitute one
instrument. In proving this 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. This Agreement, to the
extent signed and delivered by means of a facsimile machine or other electronic imaging means,
shall be treated in all manner and respects as an original agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto, each other party hereto shall re-execute
original forms thereof and deliver them to all other parties. No party hereto shall raise the use
of a facsimile machine or other electronic imaging means to deliver a signature or the fact that
any signature or agreement or instrument was transmitted or communicated through the use of a
facsimile machine or other electronic imaging means as a defense to the formation of a contract and
each party forever waives such defense. The words “execution,” “signed,” “signature,” and words of
like import in any Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.



§24. CONSENTS, ETC. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in this §24, subject to the provisions of §15.9. No
waiver shall extend to or affect any obligation not expressly waived or impair any right consequent
thereon. Except as otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement to be given by the Banks may be given, and any term of this
Agreement or of any other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower or the Guarantor of any terms of this Agreement 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 Borrower and the Majority Banks. To the extent permitted by law,
no course of dealing or delay or omission on the part of any of the Banks, the Issuing Banks or the
Administrative Agent in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower or the Guarantor shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.



§25. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER
LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, THE BORROWER AND THE GUARANTOR HEREBY WAIVE ANY RIGHT
EITHER OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE
ANY SPECIAL, EXEMPLARY, PUNITIVE OR












 



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CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER
AND THE GUARANTOR EACH (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK, ANY
ISSUING BANK, THE ADMINISTRATIVE AGENT OR ANY AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH BANK, SUCH ISSUING BANK, THE ADMINISTRATIVE AGENT OR SUCH AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE ADMINISTRATIVE
AGENT, THE BANKS, AND THE ISSUING BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS BECAUSE OF, AMONG OTHER THINGS, THE BORROWER’S AND THE GUARANTOR’S WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.



§26. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL, PURSUANT TO NEW YORK
GENERAL OBLIGATIONS LAW §5-1401, BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. THE BORROWER AND THE GUARANTOR CONSENT AND AGREE THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK SITTING IN MANHATTAN OR THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK AND ANY APPELLATE COURT FROM ANY THEREOF AND CONSENTS TO THE EXCLUSIVE
JURISDICTION OF SUCH COURTS AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER IN
ACCORDANCE WITH LAW AT THE ADDRESS SPECIFIED IN §22. THE BORROWER AND THE GUARANTOR 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 FORUM. EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST ANY OTHER PARTY OR SUCH PARTY’S PROPERTIES IN THE COURTS OF ANY JURISDICTION.



§27. SEVERABILITY. The provisions of this 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 Agreement in any jurisdiction. Without
limiting the foregoing provisions of this §27, if and to the extent that the enforceability of any
provisions in this Agreement relating to Defaulting Banks shall be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws, as determined in good faith by the












 



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Administrative Agent, the Issuing Banks or the Swing Line Bank, as applicable, then such provisions
shall be deemed to be in effect only to the extent not so limited.



§28. GUARANTY.




          §28.1. Guaranty. For value received and hereby acknowledged and as an inducement to the Banks
and the Issuing Banks to make the Loans available to the Borrower, and issue, extend or renew
Letters of Credit for the account of the Borrower, the Guarantor hereby unconditionally and
irrevocably guarantees (a) the full punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the Borrower now or hereafter existing whether for
principal, interest, fees, expenses or otherwise, and (b) the strict performance and observance by
the Borrower of all agreements, warranties and covenants applicable to the Borrower in the Loan
Documents and (c) the obligations of the Borrower under the Loan Documents (such Obligations
collectively being hereafter referred to as the “Guaranteed Obligations”).




          §28.2. Guaranty Absolute. The Guarantor guarantees that the Guaranteed Obligations will be
paid strictly in accordance with the terms hereof, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Bank,
any Issuing Bank or the Administrative Agent with respect thereto. The liability of the Guarantor
under the guaranty granted under this Agreement with regard to the Guaranteed Obligations shall be
absolute and unconditional irrespective of:





     (a) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Guaranteed Obligations or any other amendment or waiver of or any consent
to departure from this Agreement or any other Loan Document (with regard to such Guaranteed
Obligations);




     (b) any release or amendment or waiver of or consent to departure from any other
guaranty for all or any of its Guaranteed Obligations;




     (c) any change in ownership of the Borrower;




     (d) any acceptance of any partial payment(s) from the Borrower or the Guarantor; or




     (e) any other circumstance whatsoever which might otherwise constitute a defense
available to, or a discharge of, a guarantor or surety or the Borrower in respect of its
Obligations under any Loan Document.



     The guaranty under this Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any Guaranteed Obligation is rescinded or must otherwise be
returned by the Banks, the Issuing Banks or the Administrative Agent upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been
made.




          §28.3. Effectiveness; Enforcement. The guaranty under this Agreement shall be effective and
shall be deemed to be made with respect to each Loan and each Letter of Credit












 



- 86 -



as of the time it is made, issued or extended, or becomes a Letter of Credit under this
Agreement, as applicable. No invalidity, irregularity or unenforceability by reason of any
bankruptcy or similar law, or any law or order of any government or agency thereof purporting to
reduce, amend or otherwise affect any liability of the Borrower, and no defect in or insufficiency
or want of powers of the Borrower or irregular or improperly recorded exercise thereof, shall
impair, affect, be a defense to or claim against such guaranty. The guaranty under this Agreement
is a continuing guaranty and shall (a) survive any termination of this Agreement, and (b) remain in
full force and effect until payment in full of, and performance of, all Guaranteed Obligations and
all other amounts payable under this Agreement. The guaranty under this Agreement is a guaranty of
payment (and not of collection) made for the benefit of the Administrative Agent, the Issuing Banks
and the Banks and their successors and assigns, and may be enforced from time to time as often as
occasion therefor may arise and without requirement on the part of the Administrative Agent, the
Issuing Banks or the Banks first to exercise any rights against the Borrower, or to resort to any
other source or means of obtaining payment of any of the said obligations or to elect any other
remedy.




          §28.4. Waiver. Except as otherwise specifically provided in any of the Loan Documents, the
Guarantor hereby waives promptness, diligence, protest, notice of protest, all suretyship defenses,
notice of acceptance and any other notice with respect to any of its Guaranteed Obligations and the
guaranty under this Agreement and any requirement that the Banks, the Issuing Banks or the
Administrative Agent protect, secure, perfect any security interest or Lien or any property subject
thereto or exhaust any right or take any action against the Borrower or any other Person. The
Guarantor also irrevocably waives, to the fullest extent permitted by law, all defenses which at
any time may be available to it in respect of its Guaranteed Obligations by virtue of any statute
of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect.




          §28.5. Expenses. The Guarantor hereby promises to reimburse (a) the Administrative Agent for
all reasonable out-of-pocket fees and disbursements (including all reasonable attorneys’ fees),
incurred or expended in connection with the preparation, filing or recording, or interpretation of
the guaranty under this Agreement, the other Loan Documents or any amendment, modification,
approval, consent or waiver hereof or thereof, and (b) the Administrative Agent, the Issuing Banks
and the Banks and their respective affiliates for all reasonable out-of-pocket fees and
disbursements (including reasonable attorneys’ fees), incurred or expended in connection with the
enforcement of its Guaranteed Obligations (whether or not legal proceedings are instituted). The
Guarantor will pay any taxes (including any interest and penalties in respect thereof) other than
the Banks’ taxes based on overall income or profits, payable on or with respect to the transactions
contemplated by the guaranty under this Agreement, the Guarantor hereby agreeing jointly and
severally to indemnify each Bank with respect thereto.




          §28.6. Concerning Joint and Several Liability of the Guarantor.





     (a) The Guarantor hereby irrevocably and unconditionally accepts, not merely as a
surety but also as a co-debtor, joint and several liability with the Borrower, with respect
to the payment and performance of all of its Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations arising under this §28), it









 



- 87 -



being the intention of the parties hereto that all such Guaranteed Obligations shall
be the joint and several Guaranteed Obligations of the Guarantor and the Borrower without
preferences or distinction among them.




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




     (c) The Guaranteed Obligations of the Guarantor under the provisions of this §28
constitute full recourse obligations of the Guarantor enforceable against the Guarantor to
the full extent of its properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstance whatsoever.




     (d) Except as otherwise expressly provided in this Agreement, the Guarantor hereby
waives notice of acceptance of its joint and several liability, notice of any Loans made,
or Letters of Credit issued under this Agreement, notice of any action at any time taken or
omitted by the Administrative Agent, the Issuing Banks or the Banks under or in respect of
any of the Guaranteed Obligations, and, generally, to the extent permitted by applicable
law, all demands, notices and other formalities of every kind in connection with this
Agreement. The Guarantor hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Guaranteed Obligations, the
acceptance of any payment of any of the Guaranteed Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent, the Issuing Banks or the Banks at any time or times in respect of any
Default or Event of Default by the Borrower or the Guarantor in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement or any other
Loan Document, any and all other indulgences whatsoever by the Administrative Agent, the
Issuing Banks or the Banks in respect of any of the Guaranteed 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 Guaranteed Obligations or the addition, substitution or release, in
whole or in part, of the Borrower or the Guarantor. Without limiting the generality of the
foregoing, the Guarantor assents to any other action or delay in acting or failure to act
on the part of the Banks, the Issuing Banks or the Administrative Agent with respect to the
failure by the Borrower or the Guarantor to comply with its respective Obligations or
Guaranteed 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 §28, afford grounds for
terminating, discharging or relieving the Guarantor, in whole or in part, from any of the
Guaranteed Obligations under this §28, it being the intention of the Guarantor that, so
long as any of the Guaranteed Obligations hereunder remain unsatisfied, the Guaranteed
Obligations of the Guarantor under this §28 shall not be discharged except by performance
and then only to the extent of such performance. The Guaranteed Obligations of the
Guarantor under this §28 shall not be diminished or rendered unenforceable by any winding
up, reorganization, arrangement, liquidation, reconstruction or similar proceeding with
respect to the Borrower or the Guarantor or the Banks, the Issuing Banks or the
Administrative Agent. The joint and









 



- 88 -



several liability of the Guarantor hereunder shall continue in full force and effect
notwithstanding any absorption, merger, consolidation, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of the Borrower or
the Guarantor, the Banks, the Issuing Banks or the Administrative Agent.




     (e) The Guarantor shall be liable under this §28 only for the maximum amount of such
liabilities that can be incurred under applicable law without rendering this §28 voidable
under applicable law relating to fraudulent conveyance and fraudulent transfer, and not for
any greater amount. Accordingly, if any obligation under any provision under this §28 shall
be declared to be invalid or unenforceable in any respect or to any extent, it is the
stated intention and agreement of the Guarantor, the Administrative Agent, the Issuing
Banks and the Banks that any balance of the obligation created by such provision and all
other obligations of the Guarantor under this §28 to the Banks, the Issuing Banks or the
Administrative Agent shall remain valid and enforceable, and that all sums not in excess of
those permitted under applicable law shall remain fully collectible by the Banks, the
Issuing Banks and the Administrative Agent from the Borrower or the Guarantor, as the case
may be.




     (f) The provisions of this §28 are made for the benefit of the Administrative Agent,
the Issuing Banks and the Banks and their successors and assigns, and may be enforced in
good faith by them from time to time against the Guarantor as often as occasion therefor
may arise and without requirement on the part of the Administrative Agent, the Issuing
Banks or the Banks first to marshal any of their claims or to exercise any of their rights
against the Borrower or the Guarantor or to exhaust any remedies available to them against
the Borrower or the Guarantor 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 §28 shall remain in effect until all of the Guaranteed Obligations shall have been
paid in full or otherwise fully satisfied and the Commitments have expired and all
outstanding Letters of Credit have expired, matured or otherwise been terminated. If at any
time, any payment, or any part thereof, made in respect of any of the Guaranteed
Obligations, is rescinded or must otherwise be restored or returned by the Banks, the
Issuing Banks or the Administrative Agent upon the insolvency, bankruptcy or reorganization
of the Borrower or the Guarantor, or otherwise, the provisions of this §28 will forthwith
be reinstated in effect, as though such payment had not been made.



          §28.7. Waiver. Until the final payment and performance in full of all of the Obligations, the
Guarantor shall not exercise and the Guarantor hereby waives any rights the Guarantor may have
against the Borrower arising as a result of payment by the Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in
competition with the Administrative Agent, the Issuing Banks or any Bank in respect of any payment
hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; the
Guarantor will not claim any setoff, recoupment or counterclaim against the Borrower in respect of
any liability of the Borrower to the Guarantor; and the Guarantor waives any benefit of and any
right to participate in any collateral security which may be held by the Administrative Agent, the
Issuing Banks or any Bank.

















 




- 89 -


          §28.8. Subrogation; Subordination. The payment of any amounts due with respect to any
indebtedness of the Borrower for money borrowed or credit received now or hereafter owed to the
Guarantor is hereby subordinated to the prior payment in full of all of the Obligations. The
Guarantor agrees that, after the occurrence of any default in the payment or performance of any of
the Obligations, the Guarantor will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Borrower to the Guarantor until all of the Obligations shall have been paid in
full. If, notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or receive
any amounts in respect of such indebtedness while any Obligations are still outstanding, such
amounts shall be collected, enforced and received by the Guarantor as trustee for the Banks, the
Issuing Banks and the Administrative Agent and be paid over to the Administrative Agent at Default,
for the benefit of the Banks, the Issuing Banks, and the Administrative Agent on account of the
Obligations without affecting in any manner the liability of the Guarantor under the other
provisions hereof.




          §28.9. Consent and Confirmation. The Guarantor hereby (i) consents, acknowledges and agrees to
the amendment and restatement of the Existing Credit Agreement provided hereby and set forth
herein, (ii) confirms and ratifies in all respects this Agreement and the enforceability of this
Agreement in accordance with its terms, and (iii) confirms and agrees that the Guarantor’s payment
and performance obligations under this Agreement, and the Guaranteed Obligations, do and shall
continue as to and include all Obligations upon and after the effectiveness of this Agreement and
the amendment and restatement of the Existing Credit Agreement contemplated hereby.



§29. PRO RATA TREATMENT.





     (a) Notwithstanding anything to the contrary set forth herein, each payment or
prepayment of principal and interest received after the occurrence of an Event of Default
hereunder shall be distributed pro rata among the Banks, in accordance with the aggregate
outstanding principal amount of the Obligations owing to each Bank divided by the aggregate
outstanding principal amount of all Obligations.




     (b) Each Bank agrees that if it shall, through the exercise of a right of banker’s
lien, setoff or counterclaim against the Borrower (pursuant to §13 or otherwise), including
a secured claim under Section 506 of the Bankruptcy Code or other security or interest
arising from or in lieu of, such secured claim, received by such Bank under any applicable
bankruptcy, insolvency or other similar law or otherwise, obtain payment (voluntary or
involuntary) in respect of the Notes, Loans, Reimbursement Obligations and other
Obligations held by it (other than pursuant to §5.5, §5.6 or §5.8) as a result of which the
unpaid principal portion of the Notes and the Obligations held by it shall be
proportionately less than the unpaid principal portion of the Notes and the Obligations
held by any other Bank, it shall be deemed to have simultaneously purchased from such other
Bank a participation in the Notes and the Obligations held by such other Bank, so that the
aggregate unpaid principal amount of the Notes and the Obligations and participations in
Notes and Obligations held by each Bank shall be in the same proportion to the aggregate
unpaid principal amount of the Notes and the Obligations then outstanding as the principal
amount of the Notes and the Obligations held by it prior to such exercise of banker’s lien,
setoff or counterclaim was to the principal amount of













 





- 90 -



all Notes and Obligations outstanding prior to such exercise of banker’s lien, setoff
or counterclaim; provided, however, that (i) if any such purchase or purchases or
adjustments shall be made pursuant to this §29 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 and (ii) the provisions of this Section shall not be construed to apply to
(x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the
express terms of this Agreement (including the application of funds arising from the
existence of a Defaulting Bank), or (y) any payment obtained by a Bank as consideration for
the assignment of or sale of a participation in any of its Syndicated Loans or
subparticipations in Reimbursement Obligations or Swing Line Loans to any assignee or
participant, other than an assignment to the Borrower or any Subsidiary thereof (as to
which the provisions of this Section shall apply). The Borrower expressly consents to the
foregoing arrangements and agrees that any Person holding such a participation in 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 the Borrower to
such Person as fully as if such Person had made a Loan directly to the Borrower in the
amount of such participation.


§30. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.



§31. USA PATRIOT ACT. Each Bank hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Bank to identify the Borrower in accordance with the USA Patriot
Act. Each Borrower and each of its Subsidiaries shall provide such information and take such
actions as are reasonably requested by the Administrative Agent or any Bank in order to assist the
Administrative Agent and the Banks in maintaining compliance with the USA Patriot Act.



§32. NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each of the Borrower and the Guarantor
acknowledges and agrees, and acknowledges its affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Administrative Agent, the
Banks and the Lead Arrangers are arm’s-length commercial transactions between the Borrower, the
Guarantor and their respective affiliates, on the one hand, and the Administrative Agent, the Banks
and the other Lead Arrangers, on the other hand, (B) each of the Borrower and the Guarantor has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower and the Guarantor is capable of evaluating, and understands and
accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent, each Bank and each Lead Arranger each is and has
been acting solely as a principal and, except as expressly agreed in
















 





- 91 -



writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent
or fiduciary for the Borrower, the Guarantor or any of their respective affiliates, or any other
Person and (B) neither the Administrative Agent nor any Bank nor any Lead Arranger has any
obligation to the Borrower, the Guarantor or any of their respective affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent, the Banks and the Lead Arrangers and
their respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Borrower, the Guarantor and their respective affiliates, and neither
the Administrative Agent nor any Bank nor any Lead Arranger has any obligation to disclose any of
such interests to the Borrower, the Guarantor or any of their respective affiliates. To the
fullest extent permitted by law, each of the Borrower and the Guarantor hereby waives and releases
any claims that it may have against the Administrative Agent, the Banks and the other Lead
Arrangers with respect to any breach or alleged breach of any agency or fiduciary duty to the
Borrower, the Guarantor or any of their respective Affiliates in connection with any aspect of any
transaction contemplated hereby.



§33. PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, an Issuing Bank or any Bank, or the Administrative Agent, an
Issuing Bank or any Bank exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, an Issuing Bank or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any bankruptcy, insolvency or similar law or
otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such setoff had not occurred, and (b) each Bank and each Issuing Bank
severally agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect. The obligations of the Banks and each Issuing
Bank under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.




[Remainder of page is intentionally left blank; signature pages follow]








 









 








     IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first set
forth above.



	 	 	 	 	 

	 	 	THE BORROWER AND GUARANTOR:
	 
	 	 	 	 
	 	 	WASTE MANAGEMENT, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cherie C. Rice
	 

	 	 	 	 
	 	 	Name: Cherie C. Rice
	 	 	Title: Vice President – Finance and Treasurer
	 
	 	 	 	 
	 	 	WASTE MANAGEMENT HOLDINGS, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Cherie C. Rice
	 

	 	 	 	 
	 	 	Name: Cherie C. Rice
	 	 	Title: Vice President and Treasurer
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Devina A. Rankin
	 

	 	 	 	 
	 	 	Name: Devina A. Rankin
	 	 	Title: Assistant Treasurer
	 
	 	 	 	 
	 	 	THE ADMINISTRATIVE AGENT:
	 
	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Maria F. Maia
	 

	 	 	 	 
	 	 	Name: Maria F. Maia
	 	 	Title: Managing Director







AMENDED AND RESTATED CREDIT AGREEMENT

Waste Management, Inc.

Signature Page




 









 






	 	 	 	 	 

	 	 	THE BANKS:
	 
	 	 	 	 
	 	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Maria F. Maia
	 

	 	 	 	 
	 	 	Name: Maria F. Maia
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Aized A. Rabbani
	 

	 	 	 	 
	 	 	Name: Aized A. Rabbani
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	BARCLAYS BANK PLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kevin Cullen
	 

	 	 	 	 
	 	 	Name: Kevin Cullen
	 	 	Title: Director
	 
	 	 	 	 
	 	 	BNP PARIBAS
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Andy Strait
	 

	 	 	 	 
	 	 	Name: Andy Strait
	 	 	Title: Managing Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael Pearce
	 

	 	 	 	 
	 	 	Name: Michael Pearce
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	CITIBANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Vasudha Saxena
	 

	 	 	 	 
	 	 	Name: Vasudha Saxena
	 	 	Title: Vice President






AMENDED AND RESTATED CREDIT AGREEMENT

Waste Management, Inc.

Signature Page





 









 






	 	 	 	 	 

	 	 	DEUTSCHE BANK AG NEW YORK BRANCH
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Ross Levitsky
	 

	 	 	 	 
	 	 	Name: Ross Levitsky
	 	 	Title: Managing Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/Ming Chu
	 

	 	 	 	 
	 	 	Name: Ming Chu
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND PLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ L. Peter Yetman
	 

	 	 	 	 
	 	 	Name: L. Peter Yetman
	 	 	Title: Director
	 
	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Reginald M. Goldsmith III
	 

	 	 	 	 
	 	 	Name: Reginald M. Goldsmith III
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Shaheen Malik
	 

	 	 	 	 
	 	 	Name: Shaheen Malik
	 	 	Title: Vice President
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kevin Buddhdew
	 

	 	 	 	 
	 	 	Name: Kevin Buddhdew
	 	 	Title: Associate
	 
	 	 	 	 
	 	 	GOLDMAN SACHS BANK USA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark Walton
	 

	 	 	 	 
	 	 	Name: Mark Walton
	 	 	Title: Authorized Signatory






AMENDED AND RESTATED CREDIT AGREEMENT

Waste Management, Inc.

Signature Page





 









 






	 	 	 	 	 

	 	 	THE BANK OF NOVA SCOTIA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Karen L. Anillo
	 

	 	 	 	 
	 	 	Name: Karen L. Anillo
	 	 	Title: Director
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Patrick D. Engel
	 

	 	 	 	 
	 	 	Name: Patrick D. Engel
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ D. Barnell
	 

	 	 	 	 
	 	 	Name: D. Barnell
	 	 	Title: Authorized Signatory
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK MELLON
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert Besser
	 

	 	 	 	 
	 	 	Name: Robert Besser
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	COMERICA BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ L. J. Perenyi
	 

	 	 	 	 
	 	 	Name: L. J. Perenyi
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	COMPASS BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jason Goetz
	 

	 	 	 	 
	 	 	Name: Jason Goetz
	 	 	Title: Vice President






AMENDED AND RESTATED CREDIT AGREEMENT

Waste Management, Inc.

Signature Page





 









 






	 	 	 	 	 

	 	 	LLOYDS TSB BANK, PLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jonathan Eng
	 

	 	 	 	 
	 	 	Name: Jonathan Eng
	 	 	Title: Vice President Corporate Banking USA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Christian Hammerbeck
	 

	 	 	 	 
	 	 	Name: Christian Hammerbeck
	 	 	Title: Vice President Corporate Banking USA
	 
	 	 	 	 
	 	 	MIZUHO CORPORATE BANK (USA)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Leon Mo
	 

	 	 	 	 
	 	 	Name: Leon Mo
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Philip K. Liebscher
	 

	 	 	 	 
	 	 	Name: Philip K. Liebscher
	 	 	Title: Senior Vice President
	 
	 	 	 	 
	 	 	SUMITOMO MITSUI BANKING CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Shuji Yabe
	 

	 	 	 	 
	 	 	Name: Shuji Yabe
	 	 	Title: General Manager
	 
	 	 	 	 
	 	 	MORGAN STANLEY BANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Sherrese Clarke
	 

	 	 	 	 
	 	 	Name: Sherrese Clarke
	 	 	Title: Authorized Signatory






AMENDED AND RESTATED CREDIT AGREEMENT

Waste Management, Inc.

Signature Page




 









 





EXHIBIT A




FORM OF SYNDICATED LOAN REQUEST




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011



	 	 	 	 	 

	Syndicated Loan Request under §2.6(a)
	 	 	 	 
	Total Commitment
	 	 	 	 
	 
	 	 	 
	Loans outstanding
	 	 	 	 
	 
	 	 	 
	Amount of this Request
	 	 	 	 
	 
	 	 	 
	Maximum Drawing Amount of outstanding Letters of Credit
	 	 	 	 
	 
	 	 	 
	Canadian Dollar component
	 	C$	 	 
	 
	 	 	 
	U.S. Dollar Equivalent of C$ component
	 	US$
	 
	 	 	 
	Total of all outstanding and requested Loans plus Maximum Drawing
Amount of all outstanding Letters of Credit plus Amount of this
Request (must not exceed Total Commitment)
	 	 	 	 
	 
	 	 	 
	Proposed Drawdown Date
	 	 	 	 
	 
	 	 	 
	Interest Rate Option (Base Rate or Eurodollar)
	 	 	 	 
	 
	 	 	 
	Interest Period (if Eurodollar)
	 	 	 	 
	 
	 	 	 
	 
	 	 	 	 
	Conversion under §2.7
	 	 	 	 
	Amount to be converted from Eurodollar to Base Rate:
	 	 	 	 
	 
	 	 	 
	Amount to be converted from Base Rate to Eurodollar:
	 	 	 	 
	 
	 	 	 
	Amount to be maintained as Eurodollar Loan
	 	 	 	 
	 
	 	 	 
	Conversion Date
	 	 	 	 
	 
	 	 	 
	Interest Period (if Eurodollar)
	 	 	 	 
	 
	 	 	 





     I certify that the above is true and correct, and that all of the conditions set forth in §11
of the Credit Agreement have been satisfied as of the date hereof.



	 	 	 	 	 

	 	 	WASTE MANAGEMENT, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 





 









 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011



	 	 	 	 	 

	Swing Line Loan Request under §2.11
	 	 	 	 
	Total Commitment
	 	 	 	 
	 
	 	 	 
	Loans outstanding
	 	 	 	 
	 
	 	 	 
	Amount of this requested Swing Line Loan
(must not exceed the Swing Line Sublimit)
	 	 	 	 
	 
	 	 	 
	Maximum Drawing Amount of outstanding Letters of Credit
	 	 	 	 
	 
	 	 	 
	Canadian Dollar component
	 	C$	 	 
	 
	 	 	 
	U.S. Dollar Equivalent of C$ component
	 	US$
	 
	 	 	 
	Total of all outstanding and requested Loans plus Maximum Drawing
Amount of all outstanding Letters of Credit plus amount requested in
this notice
(must not exceed Total Commitment)
	 	 	 	 
	 
	 	 	 
	Proposed Drawdown Date
	 	 	 	 
	 
	 	 	 





     I certify that the above is true and correct, and that all of the conditions set forth in §11
of the Credit Agreement have been satisfied as of the date hereof.



	 	 	 	 	 

	 	 	WASTE MANAGEMENT, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 





 









 





EXHIBIT C




FORM OF LETTER OF CREDIT REQUEST




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011



	 	 	 	 	 

	Letter of Credit Request Under §3.1
	 	 	 	 
	Total Commitment
	 	 	 	 
	 
	 	 	 
	Maximum Drawing Amount of Letters of Credit outstanding
	 	 	 	 
	 
	 	 	 
	Amount of this Request from Letter of Credit Application (attached)
	 	 	 	 
	 
	 	 	 
	— U.S. Dollars
	 	 	 	 
	 
	 	 	 
	— Canadian Dollars
	 	 	 	 
	 
	 	 	 
	Loans Outstanding
	 	 	 	 
	 
	 	 	 
	Maximum Drawing Amount of all outstanding and Requested Letters of
Credit (must not exceed the Total Commitment minus Total of all Loans
outstanding)
	 	 	 	 
	 
	 	 	 





     I certify that the above is true and correct, and that all of the conditions set forth in §11
of the Credit Agreement have been satisfied as of the date hereof.



	 	 	 	 	 

	 	 	WASTE MANAGEMENT, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date:	 	 
	 

	 	 	 	 






 











 





EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Compliance Certificate dated ________




     I, _______________, [Chief Financial Officer] [Chief Accounting Officer] [Corporate Treasurer]
of WASTE MANAGEMENT, INC. (the “Borrower”) certify that no Default or Event of Default exists and
that the Borrower is in compliance with §§7, 8 and 9 of the Amended and Restated Revolving Credit
Agreement dated as of May 9, 2011 (as amended, modified, supplemented, restated and in effect from
time to time, the “Credit Agreement”), [as of the end of the quarter ended ________]. Computations
to evidence compliance with §9 of the Credit Agreement are detailed below. Capitalized terms used
herein without definition shall have the meanings assigned to such terms in the Credit Agreement.



	 	 	 	 	 	 	 

	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 

	§9.1 Interest Coverage Ratio
	 	 
	Consolidated Net Income (or Deficit)
	 	$__________(i)
	Plus (without duplication):
	 	 
	interest expense
	 	$__________(ii)
	equity in losses (earnings) of
unconsolidated
	 	$__________(iii)
	entities
	 	$__________(iv)
	income tax expense
	 	$__________(v)
	non-cash writedowns or writeoffs of assets
	 	$__________(vi)
	Minus non-cash extraordinary gains on the sale of
assets
	 	 
	EBIT (sum of (i) through (v) minus (vi))
	 	$__________(a)
	Consolidated Net Income of Acquired Businesses
	 	$__________(i)
	Plus (without duplication):
	 	 
	interest expense
	 	$__________(ii)
	equity in losses (earnings) of
unconsolidated
	 	$__________(iii)
	entities
	 	$__________(iv)
	income tax expense
	 	$__________(v)
	non-cash writedowns or write-offs of assets
	 	$__________(vi)
	Minus non-cash extraordinary gains on the sale of
assets
	 	 
	EBIT of Acquired Businesses (sum of (i) through (v) minus (vi))
	 	$__________(b)
	Sum of (a) plus (b)
	 	$__________(c)
	Consolidated Total Interest Expense
	 	$__________(d)






 









 






	 	 	 

	Ratio of (c) to (d)
	 	_______:______
	Minimum ratio
	 	2.75 : 1.00
	§9.2 Total Debt to EBITDA
	 	 
	EBIT (from §9.1 item (c) above)
	 	$__________(i)
	Plus:
	 	 
	Depreciation expense
	 	$__________(ii)
	Amortization expense
	 	$__________(iii)
	EBITDA (sum of (i) through (iii))
	 	$__________(iv)
	The sum of the following (calculated on a consolidated basis
for the Borrower and its Subsidiaries):
	 	 
	Indebtedness for borrowed money
	 	$__________(v)
	Obligations for deferred purchase price of property
or services (other than trade payables)
	 	$__________(vi)
	Obligations evidenced by debt instruments
	 	$__________(vii)
	Obligations under conditional sales
	 	$__________(viii)
	Obligations, liabilities and indebtedness under
Capitalized Leases
	 	$__________(ix)
	Obligations, liabilities and indebtedness under
bonding arrangements (to the extent that a surety
has been called upon to make payment on a bond)
	 	$__________(x)
	Guaranties of the Indebtedness of others
	 	$__________(xi)
	Indebtedness secured by liens or encumbrances on
property
	 	$__________(xii)
	Non-contingent reimbursement obligations with
respect to letters of credit
	 	$__________(xiii)
	Total Debt (sum of v through xiii)
	 	$__________(xiv)
	Ratio of (xiv) to (iv)
	 	________:________
	Maximum ratio:
	 	3.50 : 1.00






 









 





EXHIBIT E




FORM OF ASSIGNMENT AND ASSUMPTION




ASSIGNMENT AND ASSUMPTION



     This Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below and is entered into by and between the Assignor identified in
item 1 below (the “Assignor”) and the Assignee identified in item 2 below (the
“Assignee”). Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the Assignor under
the respective facilities identified below (including, without limitation, the Letters of Credit
and the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or
in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the
Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned Interest”). Each such sale and assignment is
without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 

	1.

	 	Assignor:
	 	____________________
	 
	 	 	 	 
	2.

	 	Assignee:
	 	____________________
	 
	 	 	 	 
	3.

	 	Borrower:
	 	Waste Management, Inc.
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the
administrative agent under the Credit
Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Amended and Restated Credit Agreement, dated as of May 9,
2011, among, Waste Management, Inc., as Borrower, Waste Management Holdings, Inc., as
Guarantor, the Banks from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, an Issuing Bank, and Swing Line Bank






 









 






	 	 	 	 	 

	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate Amount	 	Amount of	 	Percentage	 	 
	 	 	 	 	 	 	of Commitment/	 	Commitment/	 	Assigned of	 	 
	 	 	 	 	Facility	 	Loans for all	 	Loans	 	Commitment/	 	CUSIP
	Assignor	 	Assignee	 	Assigned	 	Banks	 	Assigned	 	Loans	 	Number
	 
	 	 	 	 	 	$	 	$	 	%	 	 






	 	 	 	 	 

	[7.

	 	Trade Date:
	 	__________________]1





Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to and]2 Accepted:



BANK OF AMERICA, N.A., as Administrative Agent




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


[Consented to:]3



[WASTE MANAGEMENT, INC.




	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Title:] 	 
	 	 	 	 
	 





 




			
	1	 	To be completed if the Assignor
and the Assignee intend that the minimum assignment amount is to be determined
as of the Trade Date.
	 
	2	 	To be added only if the consent of
the Administrative Agent is required by the terms of the Credit Agreement.
	 
	3	 	To be added only if the consent of
the Borrower and/or other parties (e.g. Swing Line Bank, Issuing Banks) is
required by the terms of the Credit Agreement.






 









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




Amended
and Restated Credit Agreement, dated as of May 9, 2011, among, Waste Management, Inc., as

Borrower, Waste Management Holdings, Inc., as Guarantor, the Banks from time to time party thereto, and

Bank of America, N.A., as Administrative Agent, an Issuing Bank, and Swing Line Bank




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION



     1. Representations and Warranties.



     1.1. Assignor. the Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. the Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Bank under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under §20 of the
Credit Agreement (subject to such consents, if any, as may be required under §20 of the
Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Bank thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the Person exercising
discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to §7.4 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance
upon the Administrative Agent or any other Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, and (vii) if it is a Non-U.S. Bank, attached
hereto is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance upon the Administrative Agent, the Assignor or any other Bank,
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it
will perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Bank.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees



 









 




and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.




     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.



 









 





EXHIBIT F




FORM OF COMPETITIVE BID QUOTE REQUEST




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011




	 	 	 	 	 

	Competitive Bid Quote Request under §4.3
	 	 	 	 
	Total Commitment
	 	 	___________________	 
	Competitive Bid Loans outstanding
	 	 	___________________	 
	Competitive Bid Loans requested
	 	 	___________________	 
	Maximum Drawing Amount of outstanding
Letters of Credit
	 	 	___________________	 
	Syndicated Loans outstanding
	 	 	___________________	 
	Swing Line Loans outstanding
	 	 	___________________	 
	Total of all Outstanding and Requested
Competitive Bid Loans
	 	 	___________________	 
	(must not exceed the lesser of
the Total Commitment minus Total
of all Syndicated Loans
outstanding, Swing Line Loans
outstanding and Maximum Drawing
Amount of outstanding Letters of
Credit)
	 	 	 	 
	 
	 	 	 	 
	Type of Competitive Bid Loans Requested
	 	Eurodollar/Absolute
	 
	 	 	 	 
	Requested Drawdown Date
	 	 	___________________	 






	 	 	 
	Principal Amount of	 	Requested
	Competitive Bid Loan Requested	 	Interest Period(s)
	___________________

	 	___________________






     I certify that the above is true and correct, and that all of the conditions set forth in §11
of the Credit Agreement have been satisfied as of the date hereof.



	 	 	 	 	 	 	 

	 	 	WASTE MANAGEMENT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 





EXHIBIT G




FORM OF INVITATION FOR COMPETITIVE BID QUOTES




WASTE MANAGEMENT, INC.

(the “Borrower”)

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011



	 	 	 

	ATTN:

	 	[______________________]
	 
	 	 
	REF:

	 	[______________________]
	 
	 	 
	RE:

	 	INVITATION FOR

COMPETITIVE BID QUOTES AGREEMENT DATED ____/____/____





BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT INVITATION FOR COMPETITIVE BID QUOTES DATED
____/____/____



PURSUANT TO §4.3 OF THE ABOVE REFERENCED CREDIT AGREEMENT, YOU ARE INVITED TO SUBMIT A
COMPETITIVE BID QUOTE TO THE BORROWER FOR THE FOLLOWING PROPOSED COMPETITIVE BID LOAN(S):



DATE OF BORROWING: ____/____/____



AGGREGATE AMOUNT REQUESTED:




	 	 	 

	PRINCIPAL AMOUNT
	 	INTEREST PERIOD
	 	 	 





SUCH COMPETITIVE BID QUOTES SHOULD OFFER COMPETITIVE BID RATE(S)/ MARGIN(S).



PLEASE RESPOND IN WRITING TO THIS INVITATION BY NO LATER THAN ___:___ A.M./P.M. (NEW YORK TIME
ON____/____/____ TO ONE OF THE FOLLOWING:




PRIMARY FAX NO.: [_____________ (Attn:_____________) Confirm]

ALTERNATE FAX NO.: [_____________ (Attn:_____________) Confirm]



NOTE: PLEASE FOLLOW-UP YOUR SUBMITTED WRITTEN BID(S) WITH PHONE VERIFICATION TO CONFIRM. IF YOU
ARE UNABLE TO SEND YOUR FAX DUE TO AN OCCUPIED FAX LINE, PLEASE CALL BY ___:___ A.M./P.M. IN
ADDITION,





 









 







PLEASE SUBMIT YOUR BID(S) IN SUBSTANTIALLY THE FORM OF “EXHIBIT H” TO THE CREDIT AGREEMENT.



QUOTES RECEIVED AFTER ___:___ A.M./P.M. (NEW YORK TIME) WILL NOT BE FORWARDED TO THE BORROWER.



SUBMITTED BIDS MUST BE TEN MILLION DOLLARS ($10,000,000) OR LARGER MULTIPLE OF ONE MILLION DOLLARS
($1,000,000). ALSO, PLEASE SPECIFY LIMITATION AMOUNTS, IF APPLICABLE.




	 	 	 	 	 	 	 

	 	 	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 





EXHIBIT H




FORM OF COMPETITIVE BID QUOTE




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011


Competitive Bid Quote under §4.5




	 	 	 	 	 

	Bank:
	 	 	 	 
	 

	 	 

	 	 
	Person to Contact:
	 	 	 	 
	 

	 	 

	 	 
	Date of Competitive


Bid Quote Request:
	 	 	 	 
	 

	 	 

	 	 
	Type of Competitive

Bid Loans Requested:

	 	Eurodollar/Absolute	 	 
	 
	Requested Drawdown Date:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 	 	 	 	 
	Principal Amount of	 	 	 	 
	Competitive Bid Loan	 	Requested	 	Proposed Competitive Bid
	Offered	 	Interest Period(s)	 	Rate/Competitive Bid Margin





     I certify that the above is true and correct, and that the offer(s) set forth above
irrevocably obligates us to make such Competitive Bid Loan(s) if such offer(s) is/are accepted by
the Borrower and all of the conditions set forth in §11 of the Credit Agreement have been satisfied
as of the requested Drawdown Date.



	 	 	 	 	 	 	 

	 	 	[NAME OF BANK]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 







 











 





EXHIBIT I




FORM OF NOTICE OF

ACCEPTANCE/REJECTION OF COMPETITIVE BID QUOTE(S)




WASTE MANAGEMENT, INC.

Amended and Restated Revolving Credit Agreement

(the “Credit Agreement”) dated as of May 9, 2011



Notice of Competitive Bid Quote(s) under §4.7



Date of Competitive Bid Quote Request:                     



Type of Competitive Bid Loans Requested: Eurodollar/Absolute



Requested Drawdown Date:                     



We hereby accept the following Competitive Bid Quote(s):




	 	 	 	 	 	 	 
	Principal	 	 	 	Competitive Rate/	 	 
	Amount of Quotes	 	Interest Period(s)	 	Competitive Bid Margin	 	Bank
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 




We hereby reject the following Competitive Bid Quote(s):




	 	 	 	 	 	 	 
	Principal	 	 	 	Competitive Rate/	 	 
	Amount of Quotes	 	Interest Period(s)	 	Competitive Bid Margin	 	Bank
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 





     The accepted and rejected Competitive Bid Quotes described above constitute all Competitive
Bid Quotes submitted by the Banks in accordance with §4.5 of the Credit Agreement.



	 	 	 	 	 	 	 

	 	 	WASTE MANAGEMENT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 






EXHIBIT J




FORM OF ADMINISTRATIVE QUESTIONNAIRE




See attached.



 









 





ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY


CONFIDENTIAL



FAX ALONG WITH COMMITMENT LETTER TO: Ronaldo Naval (ronaldo.naval@baml.com)



FAX # 877-511-6124



I. Borrower Name: Waste Management Inc.



$2,000,000,000.00 Type of Credit Facility Revolving Credit Facility



II. Legal Name of Lender of Record for Signature Page:



 






	 	•	 	Signing Credit Agreement                           YES                            NO
	 
	 	•	 	Coming in via Assignment                           YES                            NO





III. Type of Lender:                     



(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund,
Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle,
Other — please specify)




	 	 	 

	IV. Domestic Address:

	 	V. Eurodollar Address:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 





VI. Contact Information:



Syndicate level information (which may contain material non-public information about the
Borrower and its related parties or their respective securities will be made available to the
Credit Contact(s). The Credit Contacts identified must be able to receive such information in
accordance with his/her institution’s compliance procedures and applicable laws, including
Federal and State securities laws.




	 	 	 	 	 	 	 
	 	 	 	 	Primary	 	Secondary
	 	 	Credit Contact	 	Operations Contact	 	Operations Contact
	Name:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Telephone:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Facsimile:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	E Mail Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	IntraLinks E Mail Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 





Does Secondary Operations Contact need copy of notices? ___YES ___ NO




					
	 	 	 	 	 
	
	 	1
	 	12/2007






 









 






ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY


CONFIDENTIAL




	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	Draft Documentation	 	 
	 	 	Contact	 	Contact	 	Legal Counsel
	Name:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Telephone:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Facsimile:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	E Mail Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 





VII. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance
Fed Wire Payment Instructions (if applicable):



Pay to:




	 	 	 

	 

(Bank Name)

	 	 
	 
	 	 
	 

(ABA #)

	 	 
	 
	 	 
	 

(Account #)

	 	 
	 
	 	 
	 

(Attention)

	 	 






VIII. Lender’s Fed Wire Payment Instructions:



Pay to:




	 	 	 

	 
	(Bank Name)
	 	 
	 
	 	 
	 
	(ABA#)

	 	(City/State)
	 
	 	 
	 
	(Account #)

	 	(Account Name)
	 
	 	 
	 
	(Attention)
	 	 






					
	 	 	 	 	 
	
	 	2
	 	12/2007






 









 






ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY


CONFIDENTIAL




IX. Organizational Structure and Tax Status



Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:



Lender Taxpayer Identification Number (TIN):       ___     ___     -    
___     ___     ___     ___     ___    
___



Tax Withholding Form Delivered to Bank of America*:




                     W-9




                     W-8BEN




                     W-8ECI




                     W-8EXP




                     W-8IMY




	 	 	 
	 	 	Tax Contact
	Name:
	 	 
	 

	 	 
	Title:
	 	 
	 

	 	 
	Address:
	 	 
	 

	 	 
	Telephone:
	 	 
	 

	 	 
	Facsimile:
	 	 
	 

	 	 
	E Mail Address:
	 	 
	 

	 	 





NON—U.S. LENDER INSTITUTIONS




1. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form
W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively
Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government
or Governmental Agency).



A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.
It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty
with the U.S. Please refer to the instructions when completing the form applicable to your
institution. In addition, please be advised that U.S. tax regulations do not permit the
acceptance of faxed forms. An original tax form must be submitted.




					
	 	 	 	 	 
	
	 	3
	 	12/2007






 









 






2. Flow-Through Entities



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other
non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary,
Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be
completed by the intermediary together with a withholding statement. Flow-through entities other
than Qualified Intermediaries are required to include tax forms for each of the underlying
beneficial owners.



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.




U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be
advised that we require an original form W-9.



Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned on or prior to the date on which your
institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form
when requested will subject your institution to U.S. tax withholding.






 




			
	*	 	Additional guidance and instructions as to where to submit this documentation can be found at this link:






X. Bank of America Payment Instructions:





	Pay to:	 	 Bank of America, N.A.

ABA # 026009593

New York, NY

Acct. # 1292000883

Attn: Corporate Credit Services

Ref: Waste Management, Inc. / Sandra Gonzalez





					
	 	 	 	 	 
	
	 	4
	 	12/2007






 









 






SCHEDULE 1




BANKS; COMMITMENTS




	 	 	 	 	 
	Bank	 	Commitment	 
	Bank of America N.A.
	 	$	180,000,000	 
	JPMorgan Chase Bank N.A.
	 	$	180,000,000	 
	Barclays Bank PLC
	 	$	180,000,000	 
	BNP Paribas
	 	$	135,000,000	 
	Citibank, N.A.
	 	$	135,000,000	 
	Deutsche Bank AG New York Branch
	 	$	135,000,000	 
	The Royal Bank of Scotland plc
	 	$	135,000,000	 
	Wells Fargo Bank, National Association
	 	$	135,000,000	 
	Credit Suisse AG, Cayman Islands Branch
	 	$	90,000,000	 
	Goldman Sachs Bank USA
	 	$	90,000,000	 
	The Bank of Nova Scotia
	 	$	90,000,000	 
	U.S. Bank National Association
	 	$	90,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	67,500,000	 
	The Bank of New York Mellon
	 	$	47,500,000	 
	Comerica Bank
	 	$	47,500,000	 
	Compass Bank
	 	$	47,500,000	 
	Lloyds TSB Bank, plc
	 	$	47,500,000	 
	Mizuho Corporate Bank (USA)
	 	$	47,500,000	 
	PNC Bank, National Association
	 	$	47,500,000	 
	Sumitomo Mitsui Banking Corporation
	 	$	47,500,000	 
	Morgan Stanley Bank, N.A.
	 	$	25,000,000	 
	 
	 	 	 
	Total
	 	$	2,000,000,000	 
	 
	 	 	 






 









 






SCHEDULE 1.1




EXISTING LIENS



Secured Debt



Tax-exempt project bonds issued by Subsidiaries, as disclosed in Note 3, Debt, to the Borrower’s
condensed consolidated financial statements included within its Quarterly Report on Form 10-Q for
the quarter ended March 31, 2011 and Note 7, Debt, to the Borrower’s consolidated financial
statements included within its Annual Report on Form 10-K for the year ended December 31, 2010.



Tax-exempt bonds issued by Subsidiaries in California to finance vehicles and equipment used to
perform collection services under municipal contracts.




Capital Leases



Various capital leases entered into by Subsidiaries in the ordinary course of business for
operating equipment and facilities.




 









 








SCHEDULE 3.1




ISSUING BANKS AND ISSUING BANK LIMITS




	 	 	 	 	 

	Bank of America, N.A.
	 	$	1,000,000,000	 
	JPMorgan Chase Bank, N.A.
	 	$	500,000,000	 
	Barclays Bank PLC
	 	$	500,000,000	 
	PNC Bank
	 	$	500,000,000	 
	Well Fargo Bank, N.A.
	 	$	300,000,000	 
	BNP Paribas
	 	$	300,000,000	 
	Compass Bank
	 	$	75,000,000	 






 









 






SCHEDULE 3.1.1




FORM OF INCREASE/DECREASE LETTER




Date:                     



     Reference is made to the AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of May 9,
2011 (as amended and in effect from time to time, the “Credit Agreement”), by and among WASTE
MANAGEMENT, INC., a Delaware corporation (the “Borrower”), WASTE MANAGEMENT HOLDINGS, INC., a
wholly-owned Subsidiary of the Borrower (the “Guarantor”), certain Banks, and BANK OF AMERICA,
N.A., as Administrative Agent (the “Administrative Agent”), and specifically to Schedule 3.1
attached thereto.



     The undersigned, being an Issuing Bank as defined in the Credit Agreement, hereby agrees
pursuant to §3.1 of the Credit Agreement that the limit set forth in said Schedule 3.1 with respect
to the undersigned shall, effective on the date hereof, be changed to $___________.



     The Borrower, the Guarantor and the Administrative Agent acknowledge the foregoing.



     This letter agreement may be executed in any number of counterparts, and shall be governed by
and construed in accordance with the law of the State of New York.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[Name of Issuing Bank]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	WASTE MANAGEMENT, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 






	 	 	 	 	 	 	 

	 	 	WASTE MANAGEMENT HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 







 











 





SCHEDULE 3.1.2




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 
	Issuing Bank	 	Instrument ID	 	Beneficiary Name	 	Amount	 
	 
	Bank of America	 	1232800	 	The Bank of NY Trust Co, NA
	 	$	27,757,743.00	 
	 	 	1247976	 	The Bank of NY Trust Co, NA
	 	$	7,356,311.00	 
	 	 	1251000	 	The Bank of NY Trust Co, NA
	 	$	15,236,713.00	 
	 	 	1257761	 	The Bank of NY, Corp Trust
	 	$	22,368,877.00	 
	 	 	1282117	 	CIWMB
	 	$	200,000.00	 
	 	 	1302974	 	Pennsylvania DEP
	 	$	18,284,965.00	 
	 	 	1303357	 	City of Tampa, FL
	 	$	1,500,000.00	 
	 	 	1335043	 	Pennsylvania DEP
	 	$	10,219,006.00	 
	 	 	1335072	 	Pennsylvania DEP
	 	$	34,188,305.00	 
	 	 	1344215	 	Massachusetts DEP/US Bank
	 	$	12,702,550.00	 
	 	 	1409712	 	Bank of NY
	 	$	15,140,035.00	 
	 	 	1411998	 	Bank of NY
	 	$	10,157,809.00	 
	 	 	1S1278952	 	New Castle County
	 	$	340.00	 
	 	 	1S1335049	 	Dept. of Public Works County of Los Angeles
	 	$	10,000.00	 
	 	 	1S1335064	 	City of Chicago
	 	$	250,000.00	 
	 	 	1S64016609	 	Michigan DEQ
	 	$	160,000.00	 
	 	 	50061221	 	Pennsylvania DEP
	 	$	19,356,575.00	 
	 	 	50061263	 	Florida Dept. of Labor & Employment Security
	 	$	100,000.00	 
	 	 	50061302	 	Louisiana DNR
	 	$	1,733,241.00	 
	 	 	50061572	 	Shade Township
	 	$	1,748,866.00	 
	 	 	50061680	 	West Virginia DEP
	 	$	32,000.00	 
	 	 	50061694	 	Village of Hawthorn Woods
	 	$	50,000.00	 
	 	 	50061772	 	City of Irwindale/DEC Mine Reclamation
	 	$	31,413.00	 
	 	 	50061858	 	Arrowood Indemnity Company
	 	$	85,000.00	 
	 	 	50061869	 	Village of Holiday Hills
	 	$	10,000.00	 
	 	 	50061886	 	Pennsylvania DEP
	 	$	24,508,684.00	 
	 	 	50061897	 	Stafford County
	 	$	160,000.00	 
	 	 	50061909	 	Vermont Commissioner of Insurance
	 	$	250,000.00	 
	 	 	50061910	 	Consumers Power Company
	 	$	311,889.00	 
	 	 	50061920	 	Waste System Authority of Eastern Montgomery County
	 	$	215,392.00	 
	 	 	50061985	 	AIG
	 	$	260,000.00	 
	 	 	50061986	 	AIG
	 	$	250,000.00	 
	 	 	50061998	 	City of Two Rivers
	 	$	5,000.00	 
	 	 	50062000	 	Village of Third Lake
	 	$	75,000.00	 
	 	 	50062044	 	Continental Casualty Company
	 	$	5,117,000.00	 
	 	 	50062050	 	Rayford Hudson
	 	$	1,440,000.00	 
	 	 	50062053	 	City of Chicago
	 	$	100,000.00	 
	 	 	50062099	 	New Jersey DEP
	 	$	239,610.00	 
	 	 	50062137	 	ACE-INA Overseas Insurance
	 	$	740,799.00	 
	 	 	64016602	 	National Resource Recovery, Ltd
	 	$	50,000.00	 
	 	 	64016613	 	County Commissioners of Worcester County
	 	$	300,000.00	 
	 	 	64016621	 	New England Power Company
	 	$	340,788.00	 
	 	 	64016622	 	ISO New England, Inc, in its individual capacity and on behalf of the participants in the ISO’s
	 	$	20,885.22	 
	 	 	64016624	 	ACE-INA Overseas Insurance
	 	$	21,350,000.00	 
	 	 	64016626	 	City of Phoenix — Aviation Department
	 	$	54,000.00	 
	 	 	64016628	 	ISO New England Inc.
	 	$	47,493.04	 
	 	 	64016635	 	City of Winters
	 	$	14,000.00	 
	 	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	Issuing Bank	 	Instrument ID	 	Beneficiary Name	 	Amount	 
	 
	 	 	64016640	 	PJM Interconnection, LLC
	 	$	367,000.00	 
	 	 	64016649	 	ISO New England, Inc.
	 	$	28,000.00	 
	 	 	64016650	 	PJM Interconnection, LLC
	 	$	332,200.00	 
	 	 	64016654	 	Commonwealth of Pennsylvania
	 	$	9,500.00	 
	 	 	64016655	 	The Bank of NY Mellon
	 	$	10,138,889.00	 
	 	 	64016661	 	ISO New England, Inc.
	 	$	53,730.33	 
	 	 	64016664	 	US Bank National Association
	 	$	10,180,556.00	 
	 	 	64016672	 	County of Monmouth New Jersey
	 	$	200,000.00	 
	 	 	68012181	 	City of Santa Clarita
	 	$	250,000.00	 
	 	 	68031686	 	Bank of NY Mellon
	 	$	6,657,879.00	 
	 	 	68031687	 	Bank of NY Mellon
	 	$	8,519,656.00	 
	 	 	7269871	 	Insurance Company of North America (ACE)
	 	$	582,000.00	 
	 	 	7316489	 	City of Mission Viejo
	 	$	250,000.00	 
	 	 	7403099	 	State of Nevada Dept of Insurance
	 	$	100,000.00	 
	 	 	7404298	 	Charter Township of Orion
	 	$	100,000.00	 
	 	 	7404522	 	City of Chicago
	 	$	5,000.00	 
	 	 	7404577	 	City of Chicago
	 	$	5,000.00	 
	 	 	7404789	 	US Bank Trust NA
	 	$	15,070,000.00	 
	 	 	7412800	 	Deutsche Bank Trust Company
	 	$	10,118,357.00	 
	 	 	C7316467	 	City of Norco
	 	$	15,000.00	 
	 	 	213002	 	National Union Fire Insurance
	 	$	9,467,000.00	 
	 	 	1303916	 	Commissioner, NY
	 	$	8,459,697.00	 
	 	 	7400154	 	Lumbermen’s Underwriting
	 	$	350,000.00	 
	 	 	7404115	 	City of Diamond Bar
	 	$	125,000.00	 
	 	 	7411564	 	Commissioner of Insurance
	 	$	17,750,000.00	 
	 	 	7412006	 	Director
	 	$	8,000,000.00	 
	 	 	50060791	 	Prairie Crossing HOA
	 	$	10,000,000.00	 
	 	 	50060807	 	Reliance Insurance Company
	 	$	1,373,000.00	 
	 	 	50061032	 	Pennsylvania Manufacturing
	 	$	2,300,000.00	 
	 	 	50061478	 	Commonwealth of Pennsylvania
	 	$	6,485,433.00	 
	 	 	50061801	 	National Union Fire Insurance
	 	$	10,863,137.00	 
	 	 	50062136	 	New Jersey Department
	 	$	5,845,257.00	 
	 	 	50062140	 	National Union Fire Insurance
	 	$	250,000.00	 
	 	 	64016606	 	Consumers Energy Company
	 	$	32,000.00	 
	 	 	64016688	 	Wayne County Airport Authority
	 	$	10,000.00	 
	 	 	64016689	 	AEP Ohio
	 	$	54,000.00	 
	 	 	64016690	 	Tennessee Valley Authority
	 	$	72,000.00	 
	 	 	64551002	 	County Administrator
	 	$	22,024.00	 
	 	 	64551004	 	Tennessee Valley Authority
	 	$	24,000.00	 
	 	 	64551003	 	County Administrator
	 	$	36,150.00	 
	 	 	64551005	 	First Energy Service Company
	 	$	439,200.00	 
	 	 	64551007	 	Village of Richmond
	 	$	25,000.00	 
	 	 	64551008	 	McHenry County Treasurer
	 	$	364,755.25	 
	 	 	64551010	 	Commonwealth Edison Co.
	 	$	248,000	 
	 	 	64551009	 	Ameren Illinois Co.
	 	$	10,000	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	400,118,709.84	 
	 	 	 	 	 
	 	 	 	 
	Bank of New York Mellon	 	S00056987	 	Borough of Palmyra
	 	$	50,000.00	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	50,000.00	 
	 	 	 	 	 
	 	 	 	 
	BNP	 	S401645	 	City of Del Mar
	 	$	100,000.00	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	100,000.00	 






 









 






	 	 	 	 	 	 	 	 	 
	Issuing Bank	 	Instrument ID	 	Beneficiary Name	 	Amount	 
	 
	JP Morgan Chase	 	P010300 (867678)	 	The Bank of New York, as Trustee
	 	$	5,793,498.00	 
	 	 	P010301 (867885)	 	The Bank of New York, as Trustee
	 	$	4,414,094.00	 
	 	 	P010302 (867886)	 	The Bank of New York, as Trustee
	 	$	20,323,221.00	 
	 	 	P224678 (I445690)	 	National Union Fire Ins Co
	 	$	99,400.00	 
	 	 	P224680 (I455132)	 	National Union Fire Ins Co
	 	$	900,000.00	 
	 	 	P224681 (I459334)	 	National Union Fire Insurance Company
	 	$	1,911,666.00	 
	 	 	P224694 (I449058)	 	California Regional Water Quality Control Board
	 	$	203,400.00	 
	 	 	P225252	 	Bank of New York
	 	$	20,279,452.06	 
	 	 	P225809	 	Bank of New York
	 	$	10,118,357.00	 
	 	 	P227887	 	Bank of New York
	 	$	20,236,713.00	 
	 	 	P228576	 	Bank of New York
	 	$	14,327,593.00	 
	 	 	P230274	 	Bank of New York
	 	$	10,118,357.00	 
	 	 	P230584	 	Bank of New York
	 	$	20,236,713.00	 
	 	 	P231095	 	Deutsche Bank Trust Company
	 	$	14,165,699.00	 
	 	 	P231096	 	Deutsche Bank Trust Company
	 	$	25,295,891.00	 
	 	 	P231097	 	Deutsche Bank Trust Company
	 	$	4,755,628.00	 
	 	 	P231098	 	Deutsche Bank Trust Company
	 	$	20,236,713.00	 
	 	 	P232178	 	Bank of New York
	 	$	25,295,891.00	 
	 	 	P247295	 	Deutsche Bank Trust Company
	 	$	35,414,247.00	 
	 	 	TFTS821440	 	Nevada Power Company
	 	$	246,000.00	 
	 	 	TFTS838883	 	Southeastern Public Service Authority of Virginia
	 	$	5,000,000.00	 
	 	 	TFTS841563	 	City of La Habra
	 	$	100,000.00	 
	 	 	TFTS864324	 	Village of Germantown
	 	$	20,000.00	 
	 	 	TFTS867061	 	Exxon Mobil Corporation
	 	$	3,400,000.00	 
	 	 	TFTS875152	 	Village of Germantown
	 	$	20,000.00	 
	 	 	TFTS881373	 	Pennsylvania Department of Environmental Protection (PA DEP), Bureau of Waste Management
	 	$	10,000.00	 
	 	 	TFTS889901	 	Charter Township of Orion
	 	$	6,900.00	 
	 	 	TFTS889904	 	Charter Township of Orion
	 	$	92,000.00	 
	 	 	TFTS907859	 	County of Ventura Public Works Agency
	 	$	1,000,000.00	 
	 	 	TFTS917985	 	County of Santa Barbara
	 	$	573,000.00	 
	 	 	TPTS265736	 	Bank of New York
	 	$	20,230,137.00	 
	 	 	TPTS747619	 	City of Ann Arbor
	 	$	250,000.00	 
	 	 	TPTS761990	 	Sutton Brook Disposal Area Superfund Site Group Settlement Account Trust
	 	$	3,360,104.00	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	288,434,674.06	 
	 	 	 	 	 
	 	 	 	 
	PNC	 	18102759	 	ACE Insurance Company
	 	$	53,600,000.00	 
	 	 	18102837	 	Cumberland Improvement Authority
	 	$	400,000.00	 
	 	 	18103139	 	City of Elk Grove
	 	$	140,000.00	 
	 	 	18103294	 	Liberty Mutual Insurance Company
	 	$	500,000.00	 
	 	 	18104131	 	County of Frederick, VA
	 	$	670,103.68	 
	 	 	18104190	 	Town of Salina
	 	$	40,045.60	 
	 	 	18104577	 	The Port Authority of New York and New Jersey
	 	$	90,000.00	 
	 	 	18109587	 	City of Crystal Lake
	 	$	81,720.00	 
	 	 	18110148	 	City of Crystal Lake
	 	$	576,168.00	 
	 	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	Issuing Bank	 	Instrument ID	 	Beneficiary Name	 	Amount	 
	 
	 	 	18110471	 	Deutsche Bank Trust Company
	 	$	11,130,192.00	 
	 	 	18110472	 	The Bank of New York, as Trustee
	 	$	25,295,891.00	 
	 	 	18110584	 	Deutsche Bank Trust Company
	 	$	7,538,176.00	 
	 	 	18111125	 	City of Spokane Valley
	 	$	15,219.72	 
	 	 	18111692	 	City of Simi Valley
	 	$	5,000.00	 
	 	 	18111741	 	New Jersey DEP
	 	$	58,500.00	 
	 	 	18111745	 	Roy City
	 	$	150,000.00	 
	 	 	18111758	 	State of Illinois c/o Illinois EPA
	 	$	218,750.00	 
	 	 	18111906	 	City of Moorpark
	 	$	20,000.00	 
	 	 	18112080	 	Canadian National Railway and Subsidiaries
	 	$	25,000.00	 
	 	 	18112161	 	City of Santa Clarita
	 	$	20,000.00	 
	 	 	18112292	 	San Joaquin Valley Unified Air Pollution Control District
	 	$	50,000.00	 
	 	 	18114751	 	Borough of Palmyra
	 	$	50,000.00	 
	 	 	18114752	 	City of New York
	 	$	29,640,000.00	 
	 	 	18114753	 	City of New York
	 	$	19,344,179.00	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	149,658,945.00	 
	 	 	 	 	 
	 	 	 	 
	Wells Fargo/ Wachovia	 	LC870-093799	 	State Street Bank and Trust Company
	 	$	36,686,795.00	 
	 	 	LC870-097201	 	State Street Bank and Trust
	 	$	2,500,000.00	 
	 	 	LC870123638	 	Bank of New York
	 	$	20,346,667.00	 
	 	 	LC870123639	 	Bank of New York
	 	$	10,173,334.00	 
	 	 	SM203351W	 	Commissioner, New York State Dept. of Environmental Conservation
	 	$	68,657,993.00	 
	 	 	LC870-112455 (80005)	 	Bank of New York
	 	$	15,260,000.00	 
	 	 	LC870099286	 	Bank of New York
	 	$	10,376,667.00	 
	 	 	SM204054W	 	Bank of New York
	 	$	15,177,535.00	 
	 	 	SM204597W	 	Deutsche Bank Trust Company
	 	$	10,121,644.00	 
	 	 	SM204784W	 	Deutsche Bank Trust Company
	 	$	30,355,069.00	 
	 	 	SM205508W	 	Deutsche Bank Trust Company
	 	$	3,769,088.00	 
	 	 	SM205509W	 	Deutsche Bank Trust Company
	 	$	4,224,414.00	 
	 	 	SM205510W	 	Deutsche Bank Trust Company
	 	$	4,401,485.00	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	$	232,050,691.00	 
	 	 	 	 	 
	 	 	 	 
	Grand Total:	 	 	 	 
	 	$	1,070,413,019.90	 






 









 





SCHEDULE 6.7




LITIGATION



See the disclosure provided in (1) the “Litigation” section of Note 8, Commitments and
Contingencies, to Borrower’s condensed consolidated financial statements included within its
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2011 and (2) the “Litigation”
section of Note 11, Commitments and Contingencies, to Borrower’s consolidated financial statements
included within its Annual Report on Form 10-K for the fiscal year ended December 31, 2010.




 









 





SCHEDULE 6.15




ENVIRONMENTAL COMPLIANCE



See the disclosure provided in (1) Note 2, Landfill and Environmental Remediation Liabilities and
the “Environmental Matters” and “Litigation” sections of Note 8, Commitments and Contingencies, to
Borrower’s condensed consolidated financial statements included within its Quarterly Report on Form
10-Q for the fiscal quarter ended March 31, 2011 and (2) Note 4, Landfill and Environmental
Remediation Liabilities, and the “Environmental Matters” and “Litigation” sections of Note 11,
Commitments and Contingencies, to Borrower’s consolidated financial statements included within its
Annual Report on Form 10-K for the fiscal year ended December 31, 2010.




 









 





SCHEDULE 8.1(a)




EXISTING INDEBTEDNESS




	 	 	 	 	 	 	 	 	 
	Name	 	Principal	 	 	Maturity	 
	 
	Waste Management Holdings Senior Notes:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	$450,000,000 due 08/01/26
	 	$	448,975,000	 	 	 	8/1/2026	 
	 
	 	 	 	 	 	 	 
	Total WM Holdings Senior Notes
	 	$	448,975,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Tax Exempt Revenue Bonds:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Amelia, Virginia due 4/1/27
	 	$	26,800,000	 	 	 	4/1/2027	 
	Arkansas due 6/01/28
	 	 	15,000,000	 	 	 	6/1/2028	 
	Brazoria County
	 	 	12,000,000	 	 	 	5/1/2028	 
	Bucks County due 12/01/22
	 	 	25,000,000	 	 	 	12/1/2022	 
	California CPCFA
	 	 	35,700,000	 	 	 	11/1/2038	 
	California CPCFA 2005A
	 	 	50,000,000	 	 	 	4/1/2025	 
	California CPCFA 2005B
	 	 	50,000,000	 	 	 	4/1/2025	 
	California CPCFA 2005C
	 	 	75,000,000	 	 	 	11/1/2023	 
	California CPCFA due 1/1/22
	 	 	48,500,000	 	 	 	1/1/2022	 
	California CPCFA due 12/01/27
	 	 	15,000,000	 	 	 	12/1/2027	 
	California CPCFA due 7/01/31
	 	 	19,000,000	 	 	 	7/1/2031	 
	California CPCFA due 7/1/27
	 	 	38,435,000	 	 	 	7/1/2027	 
	California Municipal Finance Authority
	 	 	15,000,000	 	 	 	9/1/2014	 
	California Municipal Finance Authority - 2008 Issuance
	 	 	33,900,000	 	 	 	2/1/2019	 
	California Municipal Finance Authority - 2009A
	 	 	30,000,000	 	 	 	2/1/2039	 
	Charles City (Virginia due 2/1/29)
	 	 	30,000,000	 	 	 	2/1/2029	 
	Charles City (Virginia)
	 	 	10,000,000	 	 	 	8/1/2027	 
	Charles City (Virginia) due 4/1/27
	 	 	10,000,000	 	 	 	4/1/2027	 
	Chesser A due 4/1/18
	 	 	4,450,000	 	 	 	4/1/2018	 
	City of Granite City Illinois due 5/1/27
	 	 	30,320,000	 	 	 	5/1/2027	 
	City of Minor Lane Heights due 3/1/21
	 	 	11,000,000	 	 	 	3/1/2021	 
	City of Mobile
	 	 	4,175,000	 	 	 	10/1/2038	 
	Cobb County Series 2004A
	 	 	10,000,000	 	 	 	4/1/2033	 
	Cobb County Series 2004B
	 	 	10,000,000	 	 	 	4/1/2033	 
	Colorado due 7/1/27
	 	 	14,160,000	 	 	 	7/1/2027	 
	Colorado due 8/1/38
	 	 	10,000,000	 	 	 	8/1/2038	 
	Colorado Series 2004
	 	 	10,840,000	 	 	 	7/1/2018	 
	Countryside (Lake County) due 4/1/21
	 	 	5,670,000	 	 	 	4/1/2021	 
	Countryside (Lake County) due 9/1/21
	 	 	4,320,000	 	 	 	9/1/2021	 
	County of Logan due 3/1/21
	 	 	7,450,000	 	 	 	3/1/2021	 
	CSCDA due 4/1/11
	 	 	25,000,000	 	 	 	4/1/2011	 
	Denton County (TX 2003B)
	 	 	10,000,000	 	 	 	5/1/2028	 
	East Central Alabama
	 	 	3,725,000	 	 	 	10/1/2038	 
	Gilliam County
	 	 	15,000,000	 	 	 	7/1/2038	 
	Gilliam County (2007)
	 	 	25,000,000	 	 	 	10/1/2018	 
	Gilliam County due 07/01/29
	 	 	25,000,000	 	 	 	7/1/2029	 
	Gilliam County due 08/01/25
	 	 	15,900,000	 	 	 	8/1/2025	 
	Gloucester (VA 2003A)
	 	 	10,000,000	 	 	 	9/1/2038	 
	Gulf Coast Series 2004A
	 	 	35,000,000	 	 	 	4/1/2019	 
	 
	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Principal	 	 	Maturity	 
	 
	Hampton (Wachovia) due 4/1/13
	 	 	10,000,000	 	 	 	4/1/2013	 
	Hampton due 9/1/28
	 	 	10,000,000	 	 	 	9/1/2028	 
	Harris County (Gulf Coast)
	 	 	25,000,000	 	 	 	4/1/2012	 
	Harrison County (West Virginia due 4/1/24)
	 	 	8,420,000	 	 	 	4/1/2024	 
	Illinois due 10/1/2023
	 	 	20,000,000	 	 	 	10/1/2023	 
	Illinois due 4/1/13
	 	 	30,000,000	 	 	 	4/1/2013	 
	Illinois due 8/1/2029
	 	 	30,000,000	 	 	 	8/1/2029	 
	Illinois due 9/1/27
	 	 	30,000,000	 	 	 	9/1/2027	 
	Indiana due 10/01/25
	 	 	14,000,000	 	 	 	10/1/2025	 
	Indiana due 10/01/25
	 	 	25,000,000	 	 	 	10/1/2025	 
	Indiana due 10/01/31
	 	 	10,000,000	 	 	 	10/1/2031	 
	King George due 6/1/23
	 	 	20,000,000	 	 	 	6/1/2023	 
	King George due 9/1/21 (Garnet)
	 	 	19,890,000	 	 	 	9/1/2021	 
	Maine
	 	 	13,500,000	 	 	 	11/1/2015	 
	Maine
	 	 	30,000,000	 	 	 	2/1/2016	 
	Maricopa (Arizona) due 12/01/31
	 	 	15,580,000	 	 	 	12/1/2031	 
	Maryland due 4/1/16
	 	 	10,200,000	 	 	 	4/1/2016	 
	Massachusetts
	 	 	15,000,000	 	 	 	6/1/2014	 
	Massachusetts due 5/1/27
	 	 	15,000,000	 	 	 	5/1/2027	 
	Miami Dade County Series 2004A
	 	 	11,500,000	 	 	 	12/1/2018	 
	Miami Dade County Series 2004B
	 	 	11,500,000	 	 	 	12/1/2018	 
	Miami Dade County Series 2006
	 	 	25,000,000	 	 	 	10/1/2018	 
	Miami Dade County Series 2007
	 	 	25,000,000	 	 	 	9/1/2027	 
	Miami Dade County Series 2008
	 	 	25,000,000	 	 	 	8/1/2023	 
	Michigan due 12/1/2012
	 	 	35,000,000	 	 	 	12/1/2012	 
	Michigan due 12/1/2013
	 	 	22,000,000	 	 	 	12/1/2013	 
	Michigan due 8/1/2027
	 	 	35,000,000	 	 	 	8/1/2027	 
	Michigan Strategic Fund
	 	 	13,000,000	 	 	 	12/1/2013	 
	Mission, TX Series 2006
	 	 	41,750,000	 	 	 	12/1/2018	 
	Mississippi due 3/1/27
	 	 	10,000,000	 	 	 	3/1/2027	 
	Mississippi due 3/1/29
	 	 	10,000,000	 	 	 	3/1/2029	 
	Mississippi due 7/1/2017
	 	 	20,000,000	 	 	 	7/1/2017	 
	Mississippi due 7/1/28
	 	 	10,000,000	 	 	 	7/1/2028	 
	Nashville (Tennessee) due 8/01/31
	 	 	10,000,000	 	 	 	8/1/2031	 
	Nebraska
	 	 	10,000,000	 	 	 	11/1/2033	 
	Nevada due 10/01/14
	 	 	10,000,000	 	 	 	10/1/2014	 
	New Jersey due 11/01/13
	 	 	20,000,000	 	 	 	11/1/2013	 
	New Jersey due 6/01/15
	 	 	15,000,000	 	 	 	6/1/2015	 
	New Jersey due 6/01/15
	 	 	10,000,000	 	 	 	6/1/2015	 
	New York City due 12/1/17
	 	 	20,000,000	 	 	 	12/1/2017	 
	New York City due 5/1/19
	 	 	25,000,000	 	 	 	5/1/2019	 
	New York due 5/1/12
	 	 	31,000,000	 	 	 	5/1/2012	 
	New York Series 2004A
	 	 	20,000,000	 	 	 	7/1/2017	 
	North Carolina due 8/01/14
	 	 	6,500,000	 	 	 	8/1/2014	 
	North Sumter, AL
	 	 	4,350,000	 	 	 	10/1/2038	 
	Ohio WDA due 11/1/22
	 	 	45,865,000	 	 	 	11/1/2022	 
	Ohio WDA due 6/1/13
	 	 	25,000,000	 	 	 	6/1/2013	 
	Ohio WDA due 7/1/21 (Series 2004)
	 	 	15,000,000	 	 	 	7/1/2021	 
	Okeechobee due 8/1/24
	 	 	15,000,000	 	 	 	8/1/2024	 
	Okeechobee Series 2004A
	 	 	15,970,000	 	 	 	7/1/2039	 
	Oklahoma
	 	 	10,000,000	 	 	 	12/1/2021	 
	Pennsylvania
	 	 	4,000,000	 	 	 	11/1/2021	 
	Pennsylvania
	 	 	20,000,000	 	 	 	11/1/2021	 
	Pennsylvania
	 	 	30,000,000	 	 	 	11/1/2021	 






 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Principal	 	 	Maturity	 
	 
	Pennsylvania
	 	 	40,000,000	 	 	 	9/1/2013	 
	Pennsylvania
	 	 	14,000,000	 	 	 	10/1/2027	 
	Pennsylvania Series 2009
	 	 	100,000,000	 	 	 	12/1/2033	 
	Rhode Island Series 2004A
	 	 	8,000,000	 	 	 	4/1/2016	 
	Richland (SC) due 6/1/15
	 	 	10,000,000	 	 	 	6/1/2015	 
	Savannah Series 2004A
	 	 	5,000,000	 	 	 	7/1/2016	 
	Schuylkill/Pine Grove due 10/1/19
	 	 	11,700,000	 	 	 	10/1/2019	 
	South Carolina
	 	 	12,500,000	 	 	 	11/1/2016	 
	South Carolina 2008 Issue
	 	 	15,000,000	 	 	 	2/1/2015	 
	South Carolina Series 2003A
	 	 	15,000,000	 	 	 	7/1/2024	 
	State of New Hampshire
	 	 	15,000,000	 	 	 	8/1/2024	 
	State of New Hampshire due 5/1/27
	 	 	20,000,000	 	 	 	5/1/2027	 
	State of New Hampshire due 9/1/12
	 	 	20,000,000	 	 	 	9/1/2012	 
	Sussex Co. Virginia
	 	 	10,000,000	 	 	 	9/1/2027	 
	Sussex County
	 	 	10,000,000	 	 	 	6/1/2028	 
	SW Illinois due 10/1/2027
	 	 	4,700,000	 	 	 	10/1/2027	 
	Tennessee - 2003
	 	 	25,000,000	 	 	 	7/1/2033	 
	Tennessee - 2006
	 	 	22,000,000	 	 	 	7/1/2012	 
	Texas due 8/1/20 (Mission EDC)
	 	 	67,000,000	 	 	 	8/1/2020	 
	Travis County (Texas 2003C)
	 	 	12,000,000	 	 	 	5/1/2028	 
	Washington due 10/1/25
	 	 	13,650,000	 	 	 	10/1/2025	 
	Washington due 10/1/25
	 	 	13,650,000	 	 	 	10/1/2025	 
	Washington due 10/1/27
	 	 	20,000,000	 	 	 	10/1/2027	 
	Washington due 11/1/2017
	 	 	27,000,000	 	 	 	11/1/2017	 
	Washington due 12/1/25
	 	 	7,235,000	 	 	 	12/1/2025	 
	Washington due 2/1/26
	 	 	22,000,000	 	 	 	2/1/2026	 
	Washington due 6/1/20
	 	 	30,000,000	 	 	 	6/1/2020	 
	Washington due 7/1/30
	 	 	20,000,000	 	 	 	7/1/2030	 
	Wisconsin Series 2003
	 	 	50,000,000	 	 	 	4/1/2016	 
	Wisconsin Series 2006A
	 	 	30,000,000	 	 	 	11/1/2016	 
	Wisconsin Series 2007A
	 	 	20,000,000	 	 	 	12/1/2014	 
	Wood County due 4/1/24
	 	 	6,580,000	 	 	 	4/1/2024	 
	Yavapai (Arizona) due 3/1/28
	 	 	17,420,000	 	 	 	3/1/2028	 
	Yavapai (Arizona) due 3/1/28
	 	 	20,000,000	 	 	 	3/1/2028	 
	Yavapai (Arizona) due 6/1/27
	 	 	30,000,000	 	 	 	6/1/2027	 
	 
	 	 	 	 	 	 	 
	Total Tax-Exempt Revenue Bonds
	 	$	2,599,805,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Tax Exempt Project Bonds:
	 	 	 	 	 	 	 	 
	Concord Debt Series A
	 	$	31,315,000	 	 	 	01/01/18	 
	Concord Debt Series B
	 	 	4,925,000	 	 	 	01/01/18	 
	Gloucester Bonds
	 	 	32,585,000	 	 	 	12/01/29	 
	Gloucester Bonds
	 	 	6,930,000	 	 	 	12/01/29	 
	Massachusetts
	 	 	10,000,000	 	 	 	05/01/27	 
	North Broward
	 	 	15,480,000	 	 	 	12/01/11	 
	South Broward
	 	 	14,865,000	 	 	 	06/01/11	 
	 
	 	 	 	 	 	 	 
	Total Tax-Exempt Project Bonds
	 	$	116,100,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 
	Name	 	Principal	 	 	Maturity	 
	 
	Canada Credit Facility:
	 	 	 	 	 	 	 	 
	Canada facility debt
	 	$	77,347,500	 	 	 	6/9/2011	 
	Canada facility debt
	 	 	144,382,000	 	 	 	12/9/2011	 
	 
	 	 	 	 	 	 	 
	Total Canada Credit Facility
	 	$	221,729,500	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Other
	 	$	440,496,699	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	$	440,496,699	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total Existing Indebtedness (a)
	 	$	3,827,106,199	 	 	 	 	 
	 
	 	 	 	 	 	 	 








 




			
	(a)	 	Excludes indebtedness incurred and scheduled payments made subsequent to March 31, 2011.





 









 





SCHEDULE 22




ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES



ADMINISTRATIVE AGENT:




Administrative Agent’s Office (for payments and Requests for Credit Extensions):


Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-11

Dallas, Texas 75202-3714

Attention: Sandra Gonzalez

Telephone: 214-209-2139

Telecopier: 214-672-8760

Electronic Mail: sandra.h.gonzalez@baml.com




	 	 	 	 	 

	Wiring Instructions:
	 
	 	 	 	 
	Account No.:
	 	1292000883
	Reference:
	 	Waste Management
	ABA No.:
	 	026-009-593





Administrative Agent’s Office (Other Notices as Administrative Agent):





	1)	 	Bank of America, N.A.

Agency Management

901 Main Street

Mail Code: TX1-492-14-11

Dallas, Texas 75202-3714

Attention: Ron Naval

Telephone: 214-209-1162

Telecopier: 877-511-6124

Electronic Mail: ronaldo.naval@baml.com






	2)	 	With copy to:

Bank of America, N.A.

100 Federal Street

Mail Code: MA5-100-09-07

Boston, MA 02110

Attention: Maria F. Maia

Telephone: 617-434-5751

Telecopier: 980-233-7700

Electronic Mail: maria.f.maia@baml.com





 









 





L/C ISSUER:




Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: Mary J. Cooper

Telephone: 570-330-4235

Telecopier: 570-330-4186

Electronic Mail: mary.j.cooper@baml.com




	 	 	 	 	 

	Wiring Instructions:
	 
	 	 	 	 
	Account No.:
	 	1292000883
	Reference:
	 	Waste Management
	ABA No.:
	 	026-009-593