exv10w1



 







Exhibit 10.1



Execution Copy




AMENDED AND RESTATED

CREDIT AGREEMENT




dated as of June 24, 2005,

as amended and restated as of May 26, 2006




among




COVANTA ENERGY CORPORATION,




COVANTA HOLDING CORPORATION,

as a Guarantor,




CERTAIN SUBSIDIARIES OF COVANTA ENERGY CORPORATION,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger, Sole Book Runner, Sole Syndication Agent,

Administrative Agent and Collateral Agent,




JPMORGAN CHASE BANK,

as Co-Documentation Agent, Revolving Issuing Bank and

a Funded LC Issuing Bank,




UBS AG, STAMFORD BRANCH,

as a Funded LC Issuing Bank,




UBS SECURITIES LLC

as Co-Documentation Agent




and




CALYON NEW YORK BRANCH

as Co-Documentation Agent



 



$789,312,500.00 Senior Secured Credit Facilities


 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	2	 
	1.2. Accounting Terms
	 	 	42	 
	1.3. Interpretation, etc.
	 	 	43	 
	 
	 	 	 	 
	SECTION 2. LOANS AND LETTERS OF CREDIT
	 	 	43	 
	 
	 	 	 	 
	2.1. Tranche C Term Loans and Delayed Draw Term Loans
	 	 	43	 
	2.2. Revolving Loans
	 	 	44	 
	2.3. Swing Line Loans
	 	 	45	 
	2.4. Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	48	 
	2.5. Pro Rata Shares; Availability of Funds
	 	 	58	 
	2.6. Use of Proceeds
	 	 	59	 
	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	59	 
	2.8. Interest on Loans
	 	 	60	 
	2.9. Conversion/Continuation
	 	 	63	 
	2.10. Default Interest
	 	 	63	 
	2.11. Fees
	 	 	64	 
	2.12. Scheduled Payments
	 	 	65	 
	2.13. Voluntary Prepayments/Commitment Reductions
	 	 	66	 
	2.14. Mandatory Prepayments/Commitment Reductions
	 	 	68	 
	2.15. Application of Prepayments
	 	 	71	 
	2.16. General Provisions Regarding Payments
	 	 	72	 
	2.17. Ratable Sharing
	 	 	73	 
	2.18. Making or Maintaining Eurodollar Rate Loans
	 	 	74	 
	2.19. Increased Costs; Capital Adequacy
	 	 	76	 
	2.20. Taxes; Withholding, etc.
	 	 	77	 
	2.21. Obligation to Mitigate
	 	 	80	 
	2.22. Defaulting Lenders
	 	 	80	 
	2.23. Removal or Replacement of a Lender
	 	 	81	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	82	 
	 
	 	 	 	 
	3.1. Closing Date
	 	 	82	 
	3.2. Conditions to Each Credit Extension
	 	 	88	 
	3.3. Effective Date
	 	 	89	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	91	 
	 
	 	 	 	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	91	 
	4.2. Capital Stock and Ownership
	 	 	91	 
	4.3. Due Authorization
	 	 	91	 
	4.4. No Conflict
	 	 	91	 
	4.5. Governmental Consents
	 	 	92	 






i









 






	 	 	 	 	 
	 	 	Page	 
	4.6. Binding Obligation
	 	 	92	 
	4.7. Historical Financial Statements
	 	 	92	 
	4.8. Projections
	 	 	92	 
	4.9. No Material Adverse Change
	 	 	93	 
	4.10. No Restricted Junior Payments
	 	 	93	 
	4.11. Adverse Proceedings, etc.
	 	 	93	 
	4.12. Payment of Taxes
	 	 	93	 
	4.13. Properties
	 	 	93	 
	4.14. Environmental Matters
	 	 	94	 
	4.15. No Defaults
	 	 	94	 
	4.16. Material Contracts
	 	 	94	 
	4.17. Governmental Regulation
	 	 	95	 
	4.18. Margin Stock
	 	 	95	 
	4.19. Employee Matters
	 	 	95	 
	4.20. Employee Benefit Plans
	 	 	95	 
	4.21. Certain Fees
	 	 	96	 
	4.22. Solvency
	 	 	96	 
	4.23. Related Agreements
	 	 	96	 
	4.24. Disclosure
	 	 	96	 
	4.25. Patriot Act
	 	 	97	 
	4.26. Financing Statements
	 	 	97	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	97	 
	 
	 	 	 	 
	5.1. Financial Statements and Other Reports
	 	 	98	 
	5.2. Existence
	 	 	101	 
	5.3. Payment of Taxes and Claims
	 	 	101	 
	5.4. Maintenance of Properties
	 	 	101	 
	5.5. Insurance
	 	 	102	 
	5.6. Inspections
	 	 	102	 
	5.7. Lenders Meetings
	 	 	102	 
	5.8. Compliance with Laws
	 	 	103	 
	5.9. Environmental
	 	 	103	 
	5.10. Subsidiaries
	 	 	105	 
	5.11. Additional Material Real Estate Assets
	 	 	106	 
	5.12. Interest Rate Protection
	 	 	106	 
	5.13. Further Assurances
	 	 	106	 
	5.14. Miscellaneous Business Covenants
	 	 	107	 
	5.15. Cash Management Systems
	 	 	107	 
	5.16. Insurance Regulatory Account
	 	 	108	 
	5.17. Plan of Reorganization Account
	 	 	108	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	108	 
	 
	 	 	 	 
	6.1. Indebtedness
	 	 	108	 
	6.2. Liens
	 	 	115	 
	6.3. [Intentionally left blank]
	 	 	117	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	6.4. No Further Negative Pledges
	 	 	118	 
	6.5. Restricted Junior Payments
	 	 	118	 
	6.6. Restrictions on Subsidiary Distributions
	 	 	120	 
	6.7. Investments
	 	 	121	 
	6.8. Financial Covenants
	 	 	123	 
	6.9. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	130	 
	6.10. Disposal of Subsidiary Interests
	 	 	131	 
	6.11. Prohibition on Sales and Lease-Backs
	 	 	132	 
	6.12. Transactions with Shareholders and Affiliates
	 	 	132	 
	6.13. Conduct of Business
	 	 	132	 
	6.14. Amendments or Waivers of Certain Related Agreements
	 	 	132	 
	6.15. Amendments or Waivers with respect to MSW Notes, MSW Refinancing
Notes, ARC Notes, ARC Refinancing Notes, New MSW Notes and New
ARC Notes
	 	 	133	 
	6.16. Amendments or Waivers of the Second Lien Credit Agreement and
Second Lien Notes Indenture
	 	 	133	 
	6.17. Fiscal Year
	 	 	133	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	134	 
	 
	 	 	 	 
	7.1. Guaranty of the Obligations
	 	 	134	 
	7.2. Contribution by Guarantors
	 	 	134	 
	7.3. Payment by Guarantors
	 	 	134	 
	7.4. Liability of Guarantors Absolute
	 	 	135	 
	7.5. Waivers by Guarantors
	 	 	137	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc.
	 	 	137	 
	7.7. Subordination of Other Obligations
	 	 	138	 
	7.8. Continuing Guaranty
	 	 	138	 
	7.9. Authority of Guarantors or Company
	 	 	138	 
	7.10. Financial Condition of Company
	 	 	138	 
	7.11. Bankruptcy, etc.
	 	 	139	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	139	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	140	 
	 
	 	 	 	 
	8.1. Events of Default
	 	 	140	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	143	 
	 
	 	 	 	 
	9.1. Appointment of Agents
	 	 	143	 
	9.2. Powers and Duties
	 	 	144	 
	9.3. General Immunity
	 	 	144	 
	9.4. Agents Entitled to Act as Lender
	 	 	146	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	146	 
	9.6. Right to Indemnity
	 	 	146	 
	9.7. Successor Administrative Agent and Swing Line Lender
	 	 	147	 
	9.8. Collateral Documents and Guaranty
	 	 	147	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 10. MISCELLANEOUS
	 	 	148	 
	 
	 	 	 	 
	10.1. Notices
	 	 	148	 
	10.2. Expenses
	 	 	149	 
	10.3. Indemnity
	 	 	150	 
	10.4. Set-Off
	 	 	150	 
	10.5. Amendments and Waivers
	 	 	151	 
	10.6. Successors and Assigns; Participations
	 	 	153	 
	10.7. Independence of Covenants
	 	 	157	 
	10.8. Survival of Representations, Warranties and Agreements
	 	 	157	 
	10.9. No Waiver; Remedies Cumulative
	 	 	157	 
	10.10. Marshalling; Payments Set Aside
	 	 	158	 
	10.11. Severability
	 	 	158	 
	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	158	 
	10.13. Headings
	 	 	158	 
	10.14. APPLICABLE LAW
	 	 	158	 
	10.15. CONSENT TO JURISDICTION
	 	 	158	 
	10.16. WAIVER OF JURY TRIAL
	 	 	159	 
	10.17. Confidentiality
	 	 	160	 
	10.18. Usury Savings Clause
	 	 	160	 
	10.19. Counterparts
	 	 	161	 
	10.20. Effectiveness
	 	 	161	 
	10.21. Patriot Act
	 	 	161	 
	10.22. Electronic Execution of Assignments
	 	 	161	 
	10.23. Amendment and Restatement
	 	 	161	 
	10.24. Reaffirmation and Grant of Security Interests
	 	 	162	 






iv









 






	 	 	 	 	 	 	 
	APPENDICES:

	 	 	A-1	 	 	Tranche C Term Loan Commitments
	 

	 	 	A-2	 	 	Delayed Draw Term Loan Commitments
	 

	 	 	B	 	 	Notice Addresses
	 
	 	 	 	 	 	 
	SCHEDULES:

	 	 	1.1(a)	 	 	Certain Adjustments to Financial Covenant Definitions
	 

	 	 	1.1(b)	 	 	Closing Date Excluded Subsidiaries
	 

	 	 	1.1(c)	 	 	Existing Letters of Credit
	 

	 	 	1.1(d)	 	 	Closing Date Foreign Subsidiaries
	 

	 	 	1.1(e)	 	 	Detroit Letters of Credit
	 

	 	 	1.1(f)	 	 	Transition Costs
	 

	 	 	2.4(f)	 	 	Allocation of New Credit Linked Deposits
	 

	 	 	3.1(d)	 	 	Certain Closing Date Indebtedness Events
	 

	 	 	3.1(h)	 	 	Closing Date Mortgaged Properties
	 

	 	 	4.1	 	 	Jurisdictions of Organization
	 

	 	 	4.2	 	 	Capital Stock and Ownership
	 

	 	 	4.13	 	 	Real Estate Assets
	 

	 	 	4.17	 	 	Material Contracts
	 

	 	 	5.15	 	 	Cash Management Systems
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.7	 	 	Certain Investments
	 

	 	 	6.9-A	 	 	Certain Permitted Asset Sales
	 

	 	 	6.9-B	 	 	Foreign Subsidiary Restructuring
	 

	 	 	6.12	 	 	Certain Affiliate Transactions
	 
	 	 	 	 	 	 
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	A-3	 	 	Issuance Notice
	 

	 	 	B-1	 	 	Term Loan Note
	 

	 	 	B-2	 	 	Revolving Loan Note
	 

	 	 	B-3	 	 	Swing Line Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D-1	 	 	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
	 

	 	 	D-2	 	 	Opinion of LeBoeuf, Lamb, Greene & MacRae LLP
	 

	 	 	D-3	 	 	Opinion of Mr. Timothy Simpson
	 

	 	 	E	 	 	Assignment Agreement
	 

	 	 	F	 	 	Certificate Re Non-bank Status
	 

	 	 	G-1	 	 	Closing Date Certificate
	 

	 	 	G-2	 	 	Effective Date Certificate
	 

	 	 	G-3	 	 	Solvency Certificate
	 

	 	 	H	 	 	Counterpart Agreement
	 

	 	 	I-1	 	 	Pledge and Security Agreement
	 

	 	 	I-2	 	 	Holding Pledge Agreement
	 

	 	 	J	 	 	Mortgage
	 

	 	 	K	 	 	Intercreditor Agreement






v









 






AMENDED AND RESTATED CREDIT AGREEMENT




          This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of June 24, 2005, as amended
and restated as of May 26, 2006 is entered into by and among COVANTA ENERGY CORPORATION, a Delaware
corporation (“Company”), COVANTA HOLDING CORPORATION (formerly known as Danielson Holding
Corporation), a Delaware corporation (“Holding”), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors,
the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”) as Sole
Lead Arranger, Sole Book Runner and Sole Syndication Agent (in such respective capacities, the
“Lead Arranger”, “Book Runner”, and “Syndication Agent) as Administrative Agent (together with its
permitted successors in such capacity, “Administrative Agent”) and as Collateral Agent (together
with its permitted successor in such capacity, “Collateral Agent”), JPMORGAN CHASE BANK (“JPMC”),
UBS SECURITIES LLC (“UBSS”) and CALYON NEW YORK BRANCH (“Calyon” together with JPMC and UBSS as
Co-Documentation Agents in such capacities, “Co-Documentation Agents”) and JPMC, as a Revolving
Issuing Bank and a Funded LC Issuing Bank, and UBS AG, STAMFORD BRANCH (“UBS”) as a Funded LC
Issuing Bank.




RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Company, Holding, GSCP, as Joint Lead Arranger, Joint Book Runner, Administrative
Agent and Collateral Agent, certain Subsidiaries of Company as Guarantors, the agents and lenders
party thereto from time to time and certain other Persons are parties to that certain Credit and
Guaranty Agreement, dated as of June 24, 2005 (the “Existing Credit Agreement”);



     WHEREAS, Company desires that certain of the existing lenders and other parties hereto agree
to amend and restate the Existing Credit Agreement in its entirety to: (i) establish new Tranche C
Term Loans and Delayed Draw Term Loans to be made hereunder; (ii) refinance the existing Term Loans
made under and as defined in the Existing Credit Agreement (the “Existing Term Loans”) with the
Tranche C Term Loans made hereunder; (iii) establish New Credit Linked Deposits to be funded
hereunder; (iv) refinance the existing Credit Linked Deposits funded under the Existing Credit
Agreement (the “Existing Credit Linked Deposits”) with the New Credit Linked Deposits funded
hereunder; (v) permit the prepayment of certain Second Lien Loans outstanding under the Second Lien
Credit Agreement and any premium related thereto with the proceeds of the Delayed Draw Term Loans
and (vi) make certain other changes as more fully set forth herein, which amendment and restatement
shall become effective upon the Effective Date as defined herein;



     WHEREAS, the Requisite Lenders have, on or prior to the Effective Date, authorized the
Administrative Agent to execute this Agreement on behalf of all Continuing Lenders;



     WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement and



 









 







that this Agreement amend and restate in its entirety the Existing Credit Agreement and
re-evidence the Obligations outstanding on the Effective Date as contemplated hereby; and



     WHEREAS, it is the intent of Credit Parties to confirm that all Obligations of the Credit
Parties under the other Credit Documents, as amended hereby, shall continue in full force and
effect and that, from and after the Effective Date, all references to the “Credit Agreement”
contained therein shall be deemed to refer to this Agreement.



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Acquired Business” means Covanta ARC Holdings Inc., together with its Subsidiaries.




          “Acquisition” means the acquisition by Holding of the Acquired Business pursuant to the Stock
Purchase Agreement.




          “Acquisition Holding Contribution” as defined in Section 2.14(c).




          “Act” as defined in Section 4.25.




          “Adjusted Company Operating Cash Flow” means, for any Fiscal Quarter and without duplication,
(a) Company Cash Flow for such Fiscal Quarter, minus, to the extent that each is reflected
in such Company Cash Flow, (b), the sum of (i) cash proceeds from Asset Sales, capital
contributions or issuances of Capital Stock (or any other payments from Holding) or the incurrence
of Indebtedness or any proceeds otherwise attributable to extraordinary gains or other
non-recurring items, plus (ii) Net Insurance/Condemnation Proceeds, plus (iii)
returns of invested capital upon liquidation, sale or other similar extraordinary return of an
Investment, minus (c) any Cash or Cash Equivalents that are subject to a Lien (other than a
Lien created under the Collateral Documents or the collateral documents relating to the Second Lien
Notes Indenture or the Second Lien Credit Agreement), plus (d) payments (or intercompany
loans) made by Company to or on behalf of its Subsidiaries for Investments incurred in connection
with intercompany loans permitted under Sections 6.1(d), (e) (other than subsections (i)(A), (i)(B)
and (i)(D) thereof) and (t) or Investments incurred pursuant to Section 6.7(g), Section 6.7(j)(ii)
(but in the case of Section 6.7(j)(ii), other than to the extent made with the proceeds of an
Acquisition Holding Contribution) and Section 6.7(n)(ii), plus (e) (but only to the extent
that since the Closing Date the aggregate of all amounts added to pursuant to this clause (e) does
not exceed by more than $75,000,000 the aggregate of all amounts deducted pursuant to clause (f) of
this definition) to the extent permitted hereunder any out of pocket expenses, costs and other
similar payments made by Company or its Subsidiaries to third parties in connection with the
construction of any Expansion owned by a Subsidiary of Company, minus (f) any cash
received





2









 







in connection with the construction of any Expansion owned by a Subsidiary of Company,
plus (g) payments made by Company or any of its Subsidiaries for MSW Put-Related Costs,
plus (h) any payment of Company Cash Interest Expense, plus (i) any payment of
principal of Company Total Debt.




          “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan or New Credit Linked Deposit, the rate per annum
obtained by dividing (and rounding upward to the next whole multiple of 1/16 of 1%) (i) (a) the
rate per annum (rounded to the nearest 1/100 of 1%) equal to the offered rate which appears on the
page of the Telerate Screen which displays an average British Bankers Association Interest
Settlement Rate (such page currently being page number 3740 or 3750, as applicable) for deposits
(for delivery on the first day of such period) with a term equivalent to such period in Dollars,
determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not
appear on such page or service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to
be the offered rate on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per annum (rounded to
the nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in the London
interbank market by Credit Suisse for deposits (for delivery on the first day of the relevant
period) in Dollars of amounts in same day funds comparable to the principal amount of the
applicable Loan or New Credit Linked Deposit, for which the Adjusted Eurodollar Rate is then being
determined with maturities comparable to such period as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.




          “Administrative Agent” as defined in the preamble hereto.




          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration at law or in equity, or before or by any
Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending
or, to the knowledge of Company or any of its Subsidiaries, threatened against or affecting Company
or any of its Subsidiaries or any property of Company or any of its Subsidiaries.




          “Affected Entities” means the collective reference to Covanta Warren Energy Resource Corp.
L.P., Covanta Warren Holdings I, Inc., Covanta Warren Holdings II, Inc. (collectively the “Covanta
Warren Entities”) and Magellan Cogeneration Inc. in each case only for so long as such Person
continues to be the subject of a proceeding under applicable bankruptcy or insolvency law.




          “Affected Lender” as defined in Section 2.18(b).




          “Affected Loans” as defined in Section 2.18(b).





3









 








          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.




          “Agent” means each of Syndication Agent, Administrative Agent and Collateral Agent.




          “Aggregate Amounts Due” as defined in Section 2.17.




          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means (i) in respect of the period prior to the Effective Date, the Existing
Credit Agreement and (ii) in respect of any period on and after the Effective Date, this Amended
and Restated Credit and Guaranty Agreement, dated as of May 26, 2006, as it may be amended,
supplemented or otherwise modified from time to time.




          “Applicable Margin’’ means




          (i) with respect to Revolving Loans that are Eurodollar Rate Loans, a percentage per annum,
determined by reference to Company Leverage Ratio in effect from time to time as set forth below:




	 	 	 	 	 
	  Company	 	Applicable Margin for Revolving
	  Leverage	 	Loans
	    Ratio	 	(Eurodollar Loans)
	3 4.25:1.00
	 	 	3.00	%
	 
	 	 	 	 
	< 4.25:1.00
	 	 	 	 
	3 3.50:1.00
	 	 	2.75	%
	 
	 	 	 	 
	< 3.50:1.00
	 	 	2.50	%





(ii) with respect to Swing Line Loans and Revolving Loans that are Base Rate Loans, an amount equal
to the Applicable Margin for Eurodollar Rate Loans as set forth in clause (i) minus 1.00% per
annum; (iii) with respect to the Term Loans that are Eurodollar Rate Loans, Funded Letters of
Credit and New Credit Linked Deposits, 2.25% per annum and (iv) with respect to Term
Loans that are Base Rate Loans, 1.25% per annum. No change in the Applicable Margin shall be
effective until three Business Days after the date on which Administrative Agent shall have





4









 







received the applicable financial statements and a Compliance Certificate pursuant to Section
5.1(d) calculating the Company Leverage Ratio. At any time Company has not submitted to
Administrative Agent the applicable information as and when required under Section 5.1(d), the
Applicable Margin shall be determined as if the Company Leverage Ratio were in excess of 4.25:1.00
until such time as each failure is cured. Within one Business Day of receipt of the applicable
information under Section 5.1(d), Administrative Agent shall give each Lender telefacsimile or
telephonic notice (confirmed in writing) of the Applicable Margin in effect from such date.




          “Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan or a New
Credit Linked Deposit, the maximum rate, expressed as a decimal, at which reserves (including,
without limitation, any basic marginal, special, supplemental, emergency or other reserves) are
required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is
defined in Regulation D) under regulations issued from time to time by the Board of Governors of
the Federal Reserve System or other applicable banking regulator. Without limiting the effect of
the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of liabilities which includes
deposits by reference to which the applicable Adjusted Eurodollar Rate is to be determined, or (ii)
any category of extensions of credit or other assets which include Eurodollar Rate Loans. A
Eurodollar Rate Loan or a New Credit Linked Deposit shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve requirements without benefits of credit
for proration, exceptions or offsets that may be available from time to time to the applicable
Lender. The rate of interest on Eurodollar Rate Loans or a New Credit Linked Deposit shall be
adjusted automatically on and as of the effective date of any change in the Applicable Reserve
Requirement.




          “ARC Indenture” means that certain Indenture, dated as of May 1, 2003, between American
Ref-Fuel Company LLC and Wachovia Bank, National Association as supplemented by the First
Supplemental Indenture, dated as of May 1, 2003 between American Ref-Fuel Company LLC and Wachovia
Bank, National Association.




          “ARC LLC” means American Ref-Fuel Company LLC, a Delaware limited liability company.




          “ARC Notes” means the “Notes” as defined in the ARC Indenture.




          “ARC Refinancing Indenture” means a trust indenture in form and substance reasonably
satisfactory to Administrative Agent pursuant to which any ARC Refinancing Notes may be issued in
accordance with the terms of this Agreement, as such indenture may be further amended, restated,
supplemented, modified, extended, renewed or replaced from time to time in accordance with Section
6.15 of this Agreement.




          “ARC Refinancing Notes” as defined in Section 6.1(n).




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person (other than Company or any Guarantor Subsidiary), in one transaction or a





5









 







series of
transactions, of all or any part of Company’s or any of its Subsidiaries’ businesses, assets or
properties of any kind, whether real, personal, or mixed and whether tangible or intangible (other
than Cash), whether now owned or hereafter acquired, including, without limitation, the Capital
Stock of any of Company’s Subsidiaries, other than (i) inventory (or other assets) sold or leased
in the ordinary course of business, (excluding any such sales by operations or divisions
discontinued), and (ii) Excluded Asset Sales.




          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent and
Company.




          “Assignment Effective Date” as defined in Section 10.6(b).




          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chief executive officer, general counsel, chief financial officer, chief accounting officer or
treasurer.




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.




          “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.




          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.




          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans or New Credit Linked Deposit, the term “Business Day”
shall mean any day which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the London interbank market.




          “Calyon” as defined in the preamble hereto.




          “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.






6









 








          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing from the issuer thereof.




          “Cash” means money, currency or a credit balance in any demand or Deposit Account.




          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; (v) shares of any money market mutual
fund that (a) has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, and (b) has net assets of not less than $500,000,000;
(vi) any repurchase agreement having a term of 30 days or less entered into with any commercial
banking institution satisfying the criteria set forth in clause (iv) which is secured by a fully
perfected security interest in any obligation of the type described in clause (i), above, (vii)
securities and investments held by Foreign Subsidiaries pursuant to the requirements of Project
documents to which they are a party, (viii) other investment-grade instruments and securities held
by Foreign Subsidiaries, (ix) auction rate securities or auction rate preferred stock having a rate
reset frequency of less than ninety (90) days and having, at the time of the acquisition thereof, a
rating of at least A from S&P or from Moody’s and (x) such other securities and investments held by
Excluded Subsidiaries and Foreign Subsidiaries as Company and Administrative Agent may agree.




          “Cash Flow Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) the
sum of (A) Adjusted Company Operating Cash Flow (as calculated pursuant to the proviso below) plus
(B) transition costs of the type and maximum aggregate amount set out on Schedule 1.1(f) incurred
in connection with integration of the Acquired Business in such four Fiscal Quarter period to (ii)
Company Cash Interest Expense, in each case for the four Fiscal Quarters of Company ending on such
date taken as a single accounting period; provided that
Adjusted Company Operating Cash Flow for such four Fiscal Quarter period shall be calculated
by adding (1) Adjusted Company Operating Cash Flow for the Fiscal Quarter ending on such date to
the sum of (2) Adjusted Company Operating Cash Flow for each of the three Fiscal Quarters
immediately prior to the Fiscal Quarter measured in (1) above, as set forth in the





7









 







Compliance
Certificate for each such Fiscal Quarter; provided further that with respect to any
calculation period ending prior to the first anniversary of the Closing Date, the foregoing shall
be subject to adjustment as set forth in Schedule 1.1(a).




          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.




          “Change of Control” means, at any time, (i) Holding shall cease to beneficially own and
control, directly or indirectly on a fully diluted basis, all of the economic and voting interests
in the Capital Stock of Company; (ii) the majority of the seats (other than vacant seats) on the
board of directors (or similar governing body) of Company cease to be occupied by Persons who
either (a) were members of the board of directors of Company on the Closing Date or (b) were
nominated for election by the board of directors of Company, a majority of whom were directors on
the Closing Date or whose election or nomination for election was previously approved by a majority
of such directors; (iii) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under
the Exchange Act) other than SZ Investments, LLC, Third Avenue Trust, LLC, D.E. Shaw Laminar
Portfolios, LLC and EGI-FUND (05-07) Investors, L.L.C. or any of their Affiliates (a) shall have
acquired beneficial ownership of 40% on a fully diluted basis of the voting and/or economic
interest in the Capital Stock of Holding or (b) shall have obtained the power to control the board
of directors (or similar governing body) of Holding; or (iv) any “change of control” or similar
event under (a) the MSW Notes, the MSW Refinancing Notes, the ARC Notes, the ARC Refinancing Notes,
the New MSW Notes or the New ARC Notes that would require Company to tender for or otherwise give
rise to an accelerated repayment of any such notes (except in the case of the MSW Notes to the
extent directly resulting from the Acquisition) or (b) the Second Lien Credit Agreement or Second
Lien Notes Indenture.




          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Tranche C Term Loan Exposure, (b) Lenders having Revolving Exposure (including Swing
Line Lender), (c) Lenders having Funded Letters of Credit Exposure and (d) Lenders having Delayed
Draw Term Loan Exposure and (ii) with respect to Loans, each of the following classes of Loans: (a)
Tranche C Term Loans, (b) Revolving Loans (including Swing Line Loans) and (c) Delayed Draw Term
Loans.




          “Closing Date” means June 24, 2005, the date on which the Existing Term Loans and the Existing
Credit Linked Deposits were made.




          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G-1.




          “Closing Date Mortgaged Property” as defined in Section 3.1(h).




          “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.




          “Collateral Agent” as defined in the preamble hereto.






8









 








          “Collateral Documents” means the Pledge and Security Agreement, the Holding Pledge Agreement,
the Control Agreements, the Mortgages, the Intercreditor Agreement, and all other instruments,
documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the
other Credit Documents in order to grant to Collateral Agent, for the benefit of Lenders, a Lien on
any real, personal or mixed property of that Credit Party as security for the Obligations.




          “Commitment” means any Revolving Commitment, Tranche C Term Loan Commitment, Delayed Draw Term
Loan Commitment or Funded Letter of Credit Commitment.




          “Commodities Agreement” means any long-term or forward purchase contract or option contract to
buy, sell or exchange commodities or similar agreement or arrangement to which Company or any of
its Subsidiaries is a party unless, under the terms of such ordinary course, non-speculative
purchase contract, option contract agreement or arrangement Company expects to make or take
delivery of all of the commodities which are the subject thereof.




          “Company” as defined in the preamble hereto.




          “Company Cash Balance” means, for the end of any Fiscal Quarter and without duplication, an
amount determined for Company and its Subsidiaries in accordance with GAAP equal to (a) cash and
cash equivalents reflected on the consolidated balance sheet of Company and its Subsidiaries,
plus (b) Marketable Securities reflected on the consolidated balance sheet of Company and
its Subsidiaries, minus (c) cash and cash equivalents of Foreign Subsidiaries of Company,
minus (d) Marketable Securities of Foreign Subsidiaries of Company, minus (e) cash
and cash equivalents of Domestic Subsidiaries of Company constituting part of the Acquired
Business, minus (f) Marketable Securities of Domestic Subsidiaries of Company constituting
part of the Acquired Business, minus (g) cash and cash equivalents of all Other Domestic
Subsidiaries, minus (h) Marketable Securities of all Other Domestic Subsidiaries. For the
purposes of this definition, “cash and cash equivalents” in each of the above references shall be
determined in accordance with GAAP and as set forth on the balance sheet of Company for the
relevant period.




          “Company Cash Flow” means, for any Fiscal Quarter, (a) the Company Cash Balance for the end of
such Fiscal Quarter minus (b) the Company Cash Balance for the end of the immediately
preceding Fiscal Quarter.




          “Company Cash Interest Expense” means, for any period, the sum of (i) total interest expense
that was required to be paid in Cash by Company with respect to Company Total Debt during such
period whether or not paid in such period, including all commissions, discounts and other fees and
charges owed with respect to net costs under Interest Rate Agreements and (ii) other fees and
charges owed with respect to letters of credit; provided that
Company Cash Interest Expense shall not include Transaction Costs or Related Transaction
Costs.




          “Company Leverage Ratio” means, as of any date of determination, the ratio of (a) the
aggregate amount of Company Total Debt at such date (other than intercompany Indebtedness that
would be eliminated in consolidation) to (b) the Adjusted Company Operating




9









 







Cash Flow (as
calculated pursuant to the proviso below), plus transition costs of the type and maximum aggregate
amount set out on Schedule 1.1(f) incurred in connection with integration of the Acquired Business
for the four Fiscal Quarter period of Company ending on such date, taken as a single accounting
period (or if such date of determination is not the last day of a Fiscal Quarter, for the four
Fiscal Quarter period ending as of the last day of the most recently concluded Fiscal Quarter);
provided that Adjusted Company Operating Cash Flow for such four Fiscal Quarter period
shall be calculated by adding (i) Adjusted Company Operating Cash Flow for the Fiscal Quarter
ending on such date to the sum of (ii) Adjusted Company Operating Cash Flow for each of the three
Fiscal Quarters immediately prior to the Fiscal Quarter measured in (i) above, as set forth in the
Compliance Certificate for each such Fiscal Quarter; provided further that with respect to
any calculation period ending prior to the first anniversary of the Closing Date, the foregoing
shall be subject to adjustment as set forth in Schedule 1.1(a).




          “Company Total Debt” means, as of any date of determination, the aggregate stated balance
sheet amount (but excluding unamortized premiums) of all Indebtedness of Company of the type
identified in clauses (i) through (iv) of the definition of Indebtedness (other than Indebtedness
owed by Company to its Subsidiaries) determined in accordance with GAAP. For the avoidance of
doubt, Company Total Debt shall not include, without limitation, Performance Guarantees, Limited
Recourse Debt, the MSW Notes, the ARC Notes, the New MSW Notes, the New ARC Notes, the ARC
Refinancing Notes, the MSW Refinancing Notes and undrawn Letters of Credit.




          “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.




          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Company and its
Subsidiaries on a consolidated basis equal to (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) provisions for
taxes, (d) total depreciation expense, (e) total amortization expense, (f) changes in unbilled
service receivables, (g) minority interests, (h) non-Cash compensation expense from the issuance of
restricted stock and stock options, (i) all legal, accounting and other expenses incurred in
connection with the Transactions or the Related Transactions to the extent deducted in determining
Consolidated Net Income for such period and (j) other non-Cash items reducing Consolidated Net
Income (excluding any such non-Cash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item that was paid in a
prior period), minus (ii) other non-Cash items increasing Consolidated Net Income for such
period (excluding any such non-Cash item to the extent it represents the reversal of an accrual or
reserve for potential Cash item in any prior period); provided that with respect to any
calculation period ending prior to the first anniversary of the Closing Date, the foregoing shall
be subject to adjustment as set forth in Schedule 1.1(a).




          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Company and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “additions to plant, property and equipment” or
similar items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries. The following expenditures shall not constitute






10









 







Consolidated Capital Expenditures:
(i) expenditures that are to be reimbursed by the client (to the extent actually subsequently
reimbursed) of a Project under the principal lease, service or operating agreement relating to such
Project pursuant to a Contractual Obligation on the part of such client to reimburse such
expenditures, (ii) expenditures incurred for the development, construction or acquisition of
Projects after the Closing Date and expenditures on Projects existing on the Closing Date for the
purpose of increasing waste through-put or power output, in each case, to the extent financed with
the proceeds of Limited Recourse Debt expressly permitted pursuant to Section 6.1(p) or Investments
expressly permitted pursuant to Section 6.7(j), (iii) expenditures made with Net Asset Sale
Proceeds permitted to be retained by Company and its Subsidiaries for investment in long-term
productive assets under Section 2.14(a) and (iv) expenditures that are made or committed to be made
within three hundred sixty days of receipt of such proceeds from (or reimbursed through) Net
Insurance/Condemnation Proceeds.




          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of
Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed
with respect to letters of credit and net costs under Interest Rate Agreements, but excluding (to
the extent otherwise included), however, (x) any amounts referred to in Section 2.11(f) of this
Agreement or Section 2.11 of the Second Lien Credit Agreement payable on or before the Closing
Date, (y) interest that is capitalized in connection with construction financing and (z) all
Transaction Costs or Related Transaction Costs.




          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Company and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus, to the extent otherwise included and without
duplication, (ii) (a) the income (or loss) of any Person (other than the Acquired Business) accrued
prior to the date it becomes a Subsidiary of Company or is merged into or consolidated with Company
or any of its Subsidiaries or that Person’s assets are acquired by Company or any of its
Subsidiaries, (b) (or plus) any after-tax gains (or losses) attributable to Asset Sales or returned
surplus assets of any Pension Plan, and (c) (to the extent not included in clauses (a) and (b)
above) any net extraordinary gains or (plus) net extraordinary losses.




          “Continuing Lenders” means the Continuing Term Lenders and the Continuing Funded Letter of
Credit Participants.




          “Continuing Term Lender” means an Existing Term Loan lender under the Existing Credit
Agreement that has delivered a Lender Consent Letter.




          “Continuing Funded Letter of Credit Participant” means a Funded Letter of Credit Participant
under the Existing Credit Agreement that has delivered a Lender Consent Letter.




          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,




11









 







agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.




          “Contributing Guarantors” as defined in Section 7.2.




          “Control Agreements” means each control agreement to be executed and delivered by Collateral
Agent, a securities intermediary or depositary bank and Company or a Guarantor Subsidiary pursuant
to the terms of the Pledge and Security Agreement with such modifications as Collateral Agent may
reasonably approve.




          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Corporate Services Reimbursement Agreement” means the corporate services and expense
reimbursement agreement entered into by Holding and Company on March 10, 2004, as such agreement
may be amended, restated, supplemented or otherwise modified from time to time to the extent
permitted thereunder and under Section 6.14.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Subsidiary of Company pursuant to Section 5.10.




          “Covanta Warren Debt” as defined in the definition of Restricted Junior Payments.




          “Covanta Warren Entities” as defined in the definition of Affected Entities.




          “Credit Date” means the date of a Credit Extension.




          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any letter of credit applications or reimbursement agreements or other documents or certificates
requested by an Issuing Bank executed by Company in favor of an Issuing Bank relating to Letters of
Credit, and all other certificates, instruments or agreements executed and delivered by a Credit
Party for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith.




          “Credit Extension” means and includes the making (but not the conversion or continuation) of a
Loan, the funding of an Existing Credit Linked Deposit on the Closing Date, the funding of a New
Credit Linked Deposit on the Effective Date and the issuance, amendment, extension or renewal of a
Letter of Credit.




          “Credit Linked Deposit Account” means one or more operating and/or investment accounts
established by Administrative Agent that shall be used for the purposes set forth in Section 2.4.






12









 








          “Credit Party” means Company and each Guarantor and any other Subsidiary of Company which is a
party to a Credit Document.




          “Credit Suisse” means Credit Suisse, Cayman Islands branch.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Company’s and its
Subsidiaries’ operations and not for speculative purposes.




          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.




          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.




          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitments, and (iii) the date on which Company, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.




          “Defaulted Loan” as defined in Section 2.22.




          “Defaulting Lender” as defined in Section 2.22.




          “Delayed Draw Term Loan” means a Delayed Draw Term Loan made by a Lender to Company pursuant
to Section 2.1(b).




          “Delayed Draw Term Loan Commitment” means the commitment of a Lender to make or otherwise fund
a Delayed Draw Term Loan and “Delayed Draw Term Loan Commitments” means such commitments of all
Lenders in the aggregate. The amount of each Lender’s Delayed Draw Term Loan Commitment, if any,
as of the Effective Date is set forth on Appendix A-2 or in the applicable Assignment Agreement,
subject to any adjustment or
reduction pursuant to the terms and conditions hereof. The aggregate amount of the Delayed
Draw Term Loan Commitments as of the Effective Date is $140,000,000.





13









 








          “Delayed Draw Term Loan Commitment Period” means the time period commencing on the Effective
Date through and including the Delayed Draw Term Loan Commitment Termination Date.




          “Delayed Draw Term Loan Commitment Termination Date” means the earliest to occur of (i) the
date the Delayed Draw Term Loan Commitments are permanently reduced to zero pursuant to Section
2.13, (ii) the date of the termination of the Commitments pursuant to Section 8.1, and (iii) July
15, 2006.




          “Delayed Draw Term Loan Credit Date” means any date of funding of Delayed Draw Term Loans
after the Effective Date.




          “Delayed Draw Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, (i) at any time prior to the Delayed Draw Term Loan Commitment Termination Date, the
aggregate outstanding principal amount of such Lender’s Delayed Draw Term Loans plus the unfunded
portion of such Lender’s Delayed Draw Term Loan Commitment and (ii) at any time on or after the
Delayed Draw Term Loan Commitment Termination Date, the aggregate outstanding principal amount of
such Lender’s Delayed Draw Term Loans.




          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




          “Detroit Letters of Credit” means any Funded Letter of Credit as described on Schedule 1.1(e)
in an aggregate amount no greater than the amount set forth thereon, requested by Company to be
issued hereunder and having an expiration date no later than the date which is three years and
thirty-five days from the date of issuance.




          “Development Subsidiary” means, solely for the purpose of excluding such Subsidiary from
Company’s obligation to comply with Section 5.10 with respect to such Subsidiary, a Subsidiary
established by Company or any of its Subsidiaries for the sole purpose of bidding on a prospective
Project; provided that (i) any equity Investment in such Subsidiary by Company or another
Subsidiary of Company in aggregate when taken together with all other equity Investments in
Development Subsidiaries shall not exceed $1,000,000 at any one time outstanding; (ii) such
Subsidiary shall have no assets other than Cash pursuant to clause (i) of this definition and
intercompany Indebtedness permitted hereunder and the agreements to which it is party and which are
entered into in the ordinary course of business and are necessary for it to develop or bid on
prospective Projects and (iii) such Subsidiary’s sole business shall be limited to those actions
necessary to develop or bid on prospective Projects. At such time, if any, as such Subsidiary
shall incur any Indebtedness (other than intercompany Indebtedness permitted hereunder), grant any
Liens or make any Investment or Restricted Junior Payment or carry on any activity after then that
expressly permitted by sub-clause (iii) above, such Subsidiary shall cease to become a Development
Subsidiary.




          “Dollars” and the sign “$” mean the lawful money of the United States of America.





14









 








          “Domestic Subsidiary” means any Subsidiary of Company organized under the laws of the United
States of America, any State thereof or the District of Columbia.




          “Effective
Date” means May 26, 2006, the date on which the conditions to effectiveness set
forth in Section 3.3 are satisfied and the Tranche C Term Loans are made.




          “Effective Date Certificate” means an Effective Date Certificate substantially in the form of
Exhibit G-2.




          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans as one of its businesses; provided, that in the case of any
assignee of any Revolving Commitment, such Person extends credit on a revolving basis as one of its
businesses and provided, further, no Affiliate of Company or Holding shall be an
Eligible Assignee.




          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.




          “Environmental Claim” means any investigation, notice of violation, claim, action, suit,
proceeding, demand, abatement order or other order or directive, by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of
any Environmental Law; (ii) in connection with any Release or threatened Release of Hazardous
Material; or (iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.




          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Release or threatened
Release of Hazardous Materials; (ii) the generation, use, storage, transportation, treatment,
processing, removal, remediation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or animal health or
welfare, in any manner applicable to Company or any of its Subsidiaries or any Facility.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto.




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member;
and (iii) any member of an affiliated service group within the meaning of Section





15









 







414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or
any trade or business described in clause (ii) above is a member. Any former ERISA Affiliate of
Company or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
any such Subsidiary within the meaning of this definition with respect to the period such entity
was an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities arising after
such period for which Company or such Subsidiary could be liable under the Internal Revenue Code or
ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability to Company, any of its
Subsidiaries or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v)
the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Company, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential material liability therefore, or the receipt by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the imposition on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of
a material claim (other than routine claims for benefits) against any Employee Benefit Plan other
than a Multiemployer Plan or the assets thereof, or against Company, any of its Subsidiaries or any
of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.





16









 








          “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




          “Excess Cash Flow” means, for any Fiscal Year of Company, an amount equal to:





(a) Adjusted Company Operating Cash Flow for such Fiscal Year, (calculated
by adding Adjusted Company Operating Cash Flow for four Fiscal Quarters of
such Fiscal Year, as set forth in the Compliance Certificate for each such
Fiscal Quarter); less




(b) (to the extent otherwise reflected in (a) above) the sum (determined
without duplication) of:




(i) payments in respect of Company Cash Interest Expense made by
Company during the Fiscal Year;




(ii) any payment (other than voluntary prepayments, prepayments made
pursuant to Section 2.14(e), the repayment of Existing Term Loans on
the Effective Date and the repayment of the Second Lien Term Loans on
the Delayed Draw Term Loan Credit Date) of principal of Company Total
Debt; and




(iii) (A) Investments constituting intercompany loans permitted under
Sections 6.1(d), (e) (other than subsections (i)(A), (i)(B) and
(i)(D) thereof) and (t), and (B) Investments incurred pursuant to
Section 6.7(g), Section 6.7(j) (but only to the extent added back
pursuant to the definition of Adjusted Company Operating Cash Flow)
and Section 6.7(n)(ii).



          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.




          “Excluded Asset Sales” means the collective reference to (i) any sale or discount, in each
case without recourse, of notes or accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof or to resolve disputes that occur
in the ordinary course of business, (ii) any exchange of specific items of equipment between
Company and any of its Subsidiaries or among any Subsidiaries of Company, so long as the purpose of
each such exchange is to acquire replacement items of equipment which are the functional equivalent
of the item of equipment so exchanged, (iii) disposals of obsolete, worn out or surplus property in
the ordinary course of business, (iv) the sale, lease, license, transfer or other disposition of
equipment, materials and other tangible assets
by Company or any Subsidiary of Company to any Subsidiary of Company; provided,
however, that the aggregate fair market value of all such equipment, materials and other tangible
assets sold, leased, licensed, transferred or otherwise disposed of pursuant to this clause (iv)
does not





17









 







exceed $5,000,000 in any Fiscal Year or $10,000,000 in the aggregate since the Closing
Date, (v) sales of other assets for aggregate consideration of less than $500,000 with respect to
any transaction or series of related transactions and less than $2,000,000 in the aggregate and
(vi) any license (other than an exclusive license) of intellectual property owned by Company or its
Subsidiaries in the ordinary course of business at fair market value, if any.




          “Excluded Subsidiary” means each (i) Domestic Subsidiary of Company or of any Subsidiary of
Company for which becoming a Credit Party would constitute a violation of (a) a Contractual
Obligation existing on the Closing Date or thereafter, a bona fide Contractual Obligation (the
prohibition contained in which was not entered into in contemplation of this provision), in favor
of a Person (other than Company or any of its Subsidiaries or Affiliates) for which the required
consents have not been obtained or (b) applicable law affecting such Subsidiary, provided,
that any such Subsidiary of Company or of another Subsidiary shall cease to be covered under this
clause at such time as such Subsidiary’s becoming a Credit Party would no longer constitute a
violation of such Contractual Obligation or applicable law, whether as a result of obtaining the
required consents or otherwise and (ii) each Domestic Subsidiary of Company identified on Schedule
1.1(b)-1. The Excluded Subsidiaries, as of the Closing Date, by virtue of clause (i), above, are
listed on Schedule 1.1(b)-2.




          “Existing Credit Agreement” as defined in the recitals.




          “Existing Credit Linked Deposit” as defined in the recitals.




          “Existing First Lien Lenders” means each financial institution that is a “Lender” as defined
in the Existing Credit Agreement.




          “Existing Indebtedness” means the Indebtedness under (i) that certain Credit Agreement dated
as of March 10, 2004 among Covanta Energy Corporation, Bank of America, N.A., as Administrative
Agent, Deutsche Bank Securities, Inc., as Documentation Agent, Bank of America, N.A. and Deutsche
Bank Securities, Inc., as Co-Lead Arrangers, (ii) that certain Credit Agreement dated as of March
10, 2004 among Covanta Power International Holdings, Inc. and Deutsche Bank AG, New York Branch, as
Administrative Agent, (iii) that certain Credit Agreement dated as of March 10, 2004 among Covanta
Power International Holdings, Inc. and Bank of America, N.A., as Administrative Agent, Deutsche
Bank Securities, Inc., as Documentation Agent, Bank of America, N.A. and Deutsche Bank Securities,
Inc., as Co-Lead Arrangers, (iv) that certain Credit Agreement dated as of March 10, 2004 among
Covanta Energy Corporation and Bank One, N.A., as Administrative Agent, (v) that certain Indenture,
dated as of March 10, 2004, among Covanta Energy Corporation and the guarantors named therein and
U.S. Bank Trust National Association as Trustee in respect of the 8.25% Senior Secured Notes due
2011, (vi) the Indenture, dated as of March 10, 2004, between Covanta Energy Corporation and U.S.
Bank Trust National Association as Trustee in respect of the 7.5% Subordinated Unsecured Notes due
2012 and (vii) the Amended and Restated Credit Agreement dated as of May 1, 2003 among American
Ref-Fuel Company LLC and Citicorp North America, Inc, as Administrative
Agent and (viii) the Reimbursement Agreements relating to the ARC Equity Contribution
Agreement Letters of Credit with Hypobank.





18









 








          “Existing Funded Letters of Credit” means those letters of credit, listed on Schedule 1.1(c),
outstanding on the Effective Date (i) that are “Funded Letters of Credit” under the Existing Credit
Agreement , (ii) under that certain Credit Agreement dated as of March 10, 2004 among Covanta
Energy Corporation, JPMorgan Chase Bank, N.A., as successor by merger to Bank One, N.A., as
Administrative Agent, and (ii) under that certain Credit Agreement dated as of March 10, 2004 among
Covanta Energy Corporation, Bank of America, N.A., as Administrative Agent, Deutsche Bank
Securities, Inc., as Documentation Agent, Bank of America, N.A. and Deutsche Bank Securities, Inc.,
as Co-Lead Arrangers.




          “Existing Term Loans” as defined in the recitals.




          “Expansion” means, with respect to any Project related to Company’s and its Subsidiaries waste
disposal business in the United States of America in existence as of the date hereof, additions or
improvements to the existing facilities of such Projects.




          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Company or any of
its Subsidiaries or any of their respective predecessors or Affiliates of Company, any of its
Subsidiaries, or any such predecessors.




          “Fair Share Contribution Amount” as defined in Section 7.2.




          “Fair Share” as defined in Section 7.2.




          “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 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, (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 on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average of the quotations received by Administrative Agent from three federal funds broker of
recognized standing selected by Administrative Agent.




          “Financial Plan” as defined in Section 5.1(i).




          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



          “Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on December 31 of
each calendar year.







19









 









          “Flood Hazard Property” means any Real Estate Asset subject to a Mortgage in favor of
Collateral Agent, for the benefit of the Lenders, and located in an area designated by the Federal
Emergency Management Agency as having special flood or mud slide hazards.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary. The Foreign
Subsidiaries of Company, as of the Closing Date, are listed on Schedule 1.1(d).




          “Funded LC Issuing Bank” means initially each of JPMC and UBS and thereafter with respect to
any Funded Letter of Credit, any Lender (including any Person who is a Lender as of the Closing
Date but subsequently, after agreeing to become a Funded LC Issuing Bank, ceases to be a Lender)
which, at the request of Company, and with the consent of Administrative Agent (not to be
unreasonably withheld), agrees in such Lender’s sole discretion to become a Funded LC Issuing Bank
for the purposes of issuing such Funded Letter of Credit, together with its permitted successors
and assigns in such capacity.




          “Funded LC Participation Interests” means the right of any Funded Letter of Credit Participant
to receive any payments contemplated by this Agreement in respect of such Funded Letter of Credit
Participant’s Pro Rata Share of the New Credit Linked Deposits in accordance with this Agreement.




          “Funded Letter of Credit” as defined in Section 2.4(b).




          “Funded Letter of Credit Commitment” means the commitment of a Lender to make or otherwise
fund a New Credit Linked Deposit and “Funded Letter of Credit Commitments” means such commitments
of all Lenders in the aggregate. The amount of each Lender’s Funded Letter of Credit Commitment,
if any, is set forth on Appendix A-2 or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the
Funded Letter of Credit Commitments as of the Effective Date is $320,000,000.00.




          “Funded Letter of Credit Commitment Period” means the period from the Closing Date to but
excluding the Funded Letter of Credit Termination Date.




          “Funded Letter of Credit Exposure” means with respect to any Lender, at any time, the sum of
(a) the amount of any Unpaid Drawings in respect of which payments from such Lender’s New Credit
Linked Deposit have been made (or were required to be made) to a Funded LC Issuing Bank pursuant to
Section 2.4(f) at such time and (b) such Lender’s Pro Rata Share of the Funded Letters of Credit
Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of
which payments from such Lender’s New Credit Linked Deposit have been made (or were required to be
made) to a Funded LC Issuing Bank pursuant to Section 2.4(f)); provided that at any time when the
Funded Letters of Credit Outstanding is zero, the Funded Letter of Credit Exposure of any Lender
shall be equal to such Lender’s Funded Letter of Credit Commitment.




          “Funded Letter of Credit Fee” as defined in Section 2.11(b)(i).






20









 








          “Funded Letter of Credit Participant” means each Lender having a Funded Letter of Credit
Commitment (including, for the avoidance of doubt, each Continuing Funded Letter of Credit
Participant).




          “Funded Letter of Credit Participation” as defined in Section 2.4(h).




          “Funded Letter of Credit Termination Date” means the earliest to occur of (i) the seventh
anniversary of the Closing Date; (ii) the date on which the New Credit Linked Deposits have been
reduced to zero pursuant to Section 2.13(b)(iii); and (iii) the date of the termination of the
Funded Letter of Credit Commitments pursuant to Section 8.1.




          “Funded Letters of Credit Outstanding” means at any time, the sum of, without duplication, (a)
the aggregate Stated Amount of all outstanding Funded Letters of Credit and (b) the aggregate
amount of all Unpaid Drawings in respect of all Funded Letters of Credit.




          “Funding Default” as defined in Section 2.22.




          “Funding Guarantors” as defined in Section 7.2.




          “Funding Notice” means a notice substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.




          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.




          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality, political
subdivision or any entity or officer thereof exercising executive, legislative, judicial,
regulatory or administrative functions of any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign entity or government.




          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.




          “Grantor” as defined in the Pledge and Security Agreement.




          “GSCP” as defined in the preamble hereto.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means Holding and each Domestic Subsidiary of Company (other than Excluded
Subsidiaries).




          “Guarantor Subsidiary” means each Guarantor other than Holding.






21









 








          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.




          “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.




          “Hedge Agreement” means (i) an Interest Rate Agreement or a Currency Agreement entered into
with a Lender Counterparty in order to satisfy the requirements of this Agreement or otherwise in
the ordinary course of Company’s or any of its Subsidiaries’ businesses or (ii) a forward agreement
or arrangement designed to hedge against fluctuation in electricity rates pertaining to electricity
produced by a Project, so long as the contractual arrangements relating to such Project contemplate
that Company or its Subsidiaries shall deliver such electricity to third parties.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means (x) for the purposes of Section 1.2 hereof, the
audited financial statements of Holding and Company as at December 31, 2004, consisting of balance
sheets and the related consolidated statements of income, stockholders’ equity and cash flows for
such Fiscal Years then ended, together with such changes to accounting principles and policies as
Holding and Company may make during their 2005 Fiscal Year in connection with the consolidating of
the Acquired Business, which changes are concurred with by their independent public accountant and
(y) for all other purposes as of the Closing Date, (i) the audited financial statements of Holding
and Company for the immediately preceding three Fiscal Years, and the audited financial statements
of the Acquired Business for the fiscal year ending December 31, 2004 consisting of balance sheet
and the related consolidated statements of income, stockholders’ equity and cash flows for such
Fiscal Years, and (ii) the unaudited financial statements of Holding, Company and the Acquired
Business as at the most recently ended Fiscal Quarter (if any) ending after the date of the most
recent financial statements referenced in clause (i) hereof, consisting of a balance sheet and the
related consolidated statements of income, stockholders’ equity and cash flows for the three-,
six-or nine-month period, as applicable, ending on such date, and, in the case of clauses (i) and
(ii), (with respect to the financial statements of Holding and Company) certified by the chief
financial officer or chief accounting officer of Company that they fairly present, in all material
respects, the financial condition of Holding and Company and the Acquired Business at the dates
indicated and the results of their operations and their cash flows for the periods ended. as
indicated, subject to changes resulting from audit and year-end adjustments.




          “Holding” as defined in the preamble hereto.






22









 








          “Holding Pledge Agreement” means the Pledge Agreement executed by Holding in favor of the
Collateral Agent on the Closing Date substantially in the form of Exhibit I-2, as it may be
amended, supplemented or otherwise modified from time to time.




          “Holding Tax Sharing Agreement” means the tax sharing agreement among Holding, Company and
CPIH dated as of March 10, 2004, as amended by Amendment No. 1 thereto dated as of the Closing
Date, as such agreement may be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted thereunder and under Section 6.14.




          “Increased-Cost Lenders” as defined in Section 2.23.




          “Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding trade payables incurred in the ordinary course of business, having
a term of less than 12 months and payable in accordance with customary trade practices), which
purchase price is due more than six months from the date of incurrence of the obligation in respect
thereof; (v) all Indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the Indebtedness secured thereby shall have been assumed by that
Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit
issued for the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of another; (viii) any obligation of such
Person the primary purpose or intent of which is to provide assurance to an obligee that the
obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto
will be complied with, or the holders thereof will be protected (in whole or in part) against loss
in respect thereof; (ix) any liability of such Person for an obligation of another through any
agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital contributions or
otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under subclauses (a) or (b) of this
clause (ix), the primary purpose or intent thereof is as described in clause (viii) above; and (x)
all obligations of such Person in respect of any exchange traded or over the counter derivative
transaction, including, without limitation, any Interest Rate Agreement and Currency Agreement (and
Hedge Agreements that protect against fluctuations in electricity rates), whether entered into for
hedging or speculative purposes; provided, in no event shall obligations under any Interest
Rate Agreement and any Currency Agreement be deemed “Indebtedness” for any purpose under Section
6.8.




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
reasonable out-of-pocket costs (including the costs of any investigation,





23









 







study, sampling, testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or abate any Release or threatened Release of Hazardous
Materials), and reasonable out-of-pocket expenses of any kind or nature whatsoever (including the
reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or a potential party thereto, and any fees or
expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on or incurred by any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby or thereby
(including the Lenders’ agreement to make the Credit Extensions or the use or intended use of the
proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the enforcement of the
Guaranty)); (ii) the statements contained in the commitment letter delivered by any Lender to
Holding with respect to the transactions contemplated by the Existing Credit Agreement and the
engagement letter between GSCP and Holding with respect to the transactions contemplated by this
Agreement; or (iii) any Environmental Claim or any Release or threatened Release of Hazardous
Materials arising from any past or present activity, operation, land ownership, or practice of
Company or any of its Subsidiaries, except to the extent, in any such case, that any liability,
obligation, loss, damage, penalty, claim, costs, expense or disbursement results from the gross
negligence, willful misconduct or bad faith of such Indemnified Person.




          “Indemnitee” as defined in Section 10.3.




          “Installment” as defined in Section 2.12.




          “Installment Date” as defined in Section 2.12.




          “Insurance Deposit Amount” as defined in Section 3.1(o).




          “Insurance Premium Financers” means Persons who are non-Affiliates of Company that advance
insurance premiums for Company and its Subsidiaries pursuant to Insurance Premium Financing
Arrangements.




          “Insurance Premium Financing Arrangements” means, collectively, such agreements with Insurance
Premium Financers pursuant to which such Insurance Premium Financers advance insurance premiums for
Company and its Subsidiaries. Such Insurance Premium Financing Arrangements (i) shall provide for
the benefit of such Insurance Premium Financers a security interest in no property of Company or
any of its Subsidiaries other than gross unearned premiums for the insurance policies and related
rights, (ii) shall not purport to prohibit any portion of the Liens created in favor of Collateral
Agent (for the benefit of Secured Parties) pursuant to the Collateral Documents, and (iii) shall
not contain any provision or contemplate any transaction prohibited by this Agreement and shall
otherwise be in form and substance reasonably satisfactory to Administrative Agent.






24









 








          “Insurance Regulatory Account” as defined in Section 3.1(o).




          “Insurance Subsidiaries” means Danielson Indemnity Company and its Subsidiaries.




          “Intercompany Master Note” means a promissory note evidencing Indebtedness of Company and each
of its Subsidiaries which (a) to the extent the Indebtedness evidenced thereby is owed to any
Credit Party, is pledged pursuant to the Collateral Documents, and (b) to the extent the
Indebtedness evidenced thereby is owed by a Subsidiary of Company, is senior Indebtedness of such
Subsidiary (except to the extent that requiring such Indebtedness to be senior would breach a
Contractual Obligation binding on such Subsidiary), except that any such Indebtedness owed by any
Credit Party to any Subsidiary which is not a Credit Party shall be unsecured and subordinated in
right of payment to the payment in full of the Obligations pursuant to the terms of such note.




          “Intercreditor Agreement” means the Intercreditor Agreement dated as of the Closing Date, as
amended as of the date hereof, substantially in the form of Exhibit K, as it may be amended,
supplemented or otherwise modified from time to time.




          “Interest Payment Date” means with respect to (i) any Base Rate Loan, each March 31, June 30,
September 30 and December 31 of each year, commencing on the first such date to occur after the
Closing Date and the final maturity date of such Loan; and (ii) any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Loan; provided, in the case of each Interest
Period of longer than three months “Interest Payment Date” shall also include each date that is
three months, or an integral multiple thereof, after the commencement of such Interest Period.




          “Interest Period” means, (i) in connection with a Eurodollar Rate Loan, an interest period of
one-, two-, three- or six-months, as selected by Company in the applicable Funding Notice or
Conversion/Continuation Notice, (a) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day
on which the immediately preceding Interest Period expires and (ii) in connection with a New Credit
Linked Deposit, each period, the first commencing on or following the Closing Date in accordance
with Section 2.4(j)(ii) and thereafter commencing on the day on which the immediately preceding
Interest Period expires and ending on the numerically corresponding day in the calendar month that
is three months thereafter; provided that a single Interest Period shall at all times apply
to all New Credit Linked Deposits; provided, in each case (1) if an Interest Period would
otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day unless no further Business Day occurs in such month, in which case such
Interest Period shall expire on the immediately preceding Business Day; (2) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest Period) shall,
subject to clauses (3) and (4) of this definition, end on the last Business Day of a calendar
month; (3) no Interest Period with respect to any portion of Term Loan shall extend beyond the Term
Loan Maturity Date, and (4) no Interest Period with respect to any portion of the Revolving Loans
shall extend beyond the Revolving Commitment Termination Date.






25









 








          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Company’s and its Subsidiaries’ operations and not for speculative purposes.




          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the Closing
Date and from time to time thereafter, and any successor statute.




          “Investment” means (i) any direct or indirect purchase or other acquisition by Company or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement, purchase
or other acquisition for value, by any Subsidiary of Company from any Person (other than Company or
any Guarantor Subsidiary), of any Capital Stock of such Person; (iii) any direct or indirect loan,
advance (other than advances to employees for moving, relocation, business, entertainment and
travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other Person (other than Company
or any Guarantor Subsidiary), including all Indebtedness and accounts receivable from that other
Person but only to the extent that the same are not current assets or did not arise from sales to
that other Person in the ordinary course of business and (iv) Commodities Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.




          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.




          “Issuing Bank” means each of a Funded LC Issuing Bank and a Revolving Issuing Bank.




          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
partnership or other legal form.




          “JPMC” as defined in the preamble hereto.




          “Lead Arranger” as defined in the preamble hereto.




          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
each Continuing Lender and any other Person that becomes a party hereto pursuant to an Assignment
Agreement.




          “Lender Consent Letters” means the lender consent letters authorizing the Administrative Agent
to execute this Agreement on behalf of the Continuing Lenders.






26









 








          “Lender Counterparty” means Lead Arranger, each Lender or any Affiliate of a Lender
counterparty to a Hedge Agreement (including any Person who is a Lender (and any Affiliate thereof)
as of the Closing Date but subsequently, whether before or after entering into a Hedge Agreement,
ceases to be a Lender) including, without limitation, each such Affiliate that enters into a
joinder agreement with Collateral Agent.




          “Letter of Credit” means a Revolving Letter of Credit or a Funded Letter of Credit.




          “Lien” means any lien, mortgage, pledge, collateral assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease in the nature thereof) and any option, trust or
other preferential arrangement having the practical effect of any of the foregoing.




          “Limited Recourse Debt” means, with respect to any Subsidiary of Company, Indebtedness of such
Subsidiary with respect to which the recourse of the holder or obligee of such Indebtedness is
limited to (i) assets associated with the Project (which in any event shall not include assets held
by any Guarantor Subsidiary other than a Guarantor Subsidiary, if any, whose sole business is the
ownership and/or operation of such Project and substantially all of whose assets are associated
with such Project) in respect of which such Indebtedness was incurred and/or (ii) such Subsidiary
or the equity interests in such Subsidiary, but in the case of clause (ii) only if such
Subsidiary’s sole business is the ownership and/or operation of such Project and substantially all
of such Subsidiary’s assets are associated with such Project. For purposes of this Agreement,
Indebtedness of a Subsidiary of Company shall not fail to be Limited Recourse Debt solely by virtue
of the fact that the holders of such Limited Recourse Debt have recourse to Company or another
Subsidiary of Company pursuant to a contingent obligation supporting such Limited Recourse Debt or
a Performance Guaranty, so long as such contingent obligation or Performance Guaranty is unsecured
and permitted under Section 6.1.




          “Loan” means a Tranche C Term Loan, a Revolving Loan, a Swing Line Loan and a Delayed Draw
Term Loan.




          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.




          “Marketable Securities” means auction rate securities or auction rate preferred stock having a
rate reset frequency of less than ninety (90) days and having, at the time of the acquisition
thereof, a rating of at least A from S&P or from Moody’s.




          “Material Adverse Effect” means a material adverse effect on (i) the business, operations,
assets, liabilities or financial condition of Holding and its Subsidiaries taken as a whole; (ii)
the ability of the Credit Parties as a whole to perform their respective Obligations; (iii) the
rights, remedies and benefits available to, or conferred upon, the Secured Parties under any Credit
Document.




          “Material Contract” means any contract or other arrangement to which Company or any of its
Subsidiaries is a party (other than the Credit Documents, the Second Lien Credit Agreement and
Second Lien Notes Indenture, the MSW Indenture, the MSW Refinancing





27









 







Indenture, the New MSW Indenture, the ARC Indenture, the ARC Refinancing Indenture, the New
ARC Indenture and the principal agreements and instruments entered into in connection with any
refinancing thereof) for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.




          “Material Real Estate Asset’’ means any fee-owned Real Estate Asset having a fair market value
in excess of $2,000,000 as of the date of the acquisition thereof .




          “Material Subsidiary” means, with respect to any Person, any Subsidiary of such Person now
existing or hereafter acquired or formed by such Person which, on a consolidated basis for such
Subsidiary and all of its Subsidiaries, (i) for the most recent fiscal year of such Person
accounted for more than 2% of the consolidated revenues of such Person and its Subsidiaries, or
(ii) as at the end of such fiscal year, was the owner of more than 2% of the consolidated assets of
such Person and its Subsidiaries.




          “Modifications” as defined in Section 3.3(c)(i).




          “Moody’s” means Moody’s Investor Services, Inc.




          “Mortgage” means a Mortgage, substantially in the form of Exhibit J, as amended by the
Modifications, as it may be further amended, supplemented or otherwise modified from time to time.




          “MSW I” means MSW Energy Holdings LLC, a Delaware corporation, and MSW Energy Finance Co.,
Inc.




          “MSW II” means MSW Energy Holdings II LLC, a Delaware corporation, and MSW Energy Finance Co.
II, Inc.




          “MSW I Indenture” means that certain Indenture in respect of the Series A and Series B
81/2% Senior Secured Notes due 2010, dated as of June 25, 2003, among MSW
Energy Holdings LLC, MSW Energy Finance Co., Inc., the guarantors named therein and Wells Fargo
Bank Minnesota, National Association, as trustee, as such indenture may be further amended,
restated, supplemented, refinanced, replaced or modified from time to time in accordance with
Section 6.15.




          “MSW II Indenture” means that certain Indenture in respect of the Series A and Series B
73/8% Senior Secured Notes due 2010, dated as of November 24, 2003, among MSW
Energy Holdings II LLC, MSW Energy Finance Co. II, Inc., the guarantors named therein and Wells
Fargo Bank Minnesota, National Association, as trustee, as such indenture may be further amended,
restated, supplemented, refinanced, replaced or modified from time to time in accordance with
Section 6.15.




          “MSW I Notes” means the Series A and Series B 81/2% Senior Secured Notes
due 2010 of MSW I.




          “MSW II Notes” means the Series A and Series B 73/8% Senior Secured
Notes due 2010 of MSW II.






28









 








          “MSW Indentures” means the MSW I Indenture and the MSW II Indenture.




          “MSW Notes” means the MSW I Notes and the MSW II Notes.




          “MSW Put-Related Costs” means any principal, premium, accrued interest, fees, costs and
expenses (in each case to the date of redemption in respect of the notes redeemed) owed by MSW I
and/or MSW II to holders of the MSW Notes in connection with any valid exercise of the mandatory
redemption right arising from the Acquisition.




          “MSW Refinancing Indenture” means a trust indenture in form and substance reasonably
satisfactory to Administrative Agent pursuant to which any MSW Refinancing Notes may be issued in
accordance with the terms of this Agreement, as such indenture may be further amended, restated,
supplemented, modified, extended, renewed or replaced from time to time in accordance with Section
6.15 of this Agreement.




          “MSW Refinancing Notes” as defined in Section 6.1(n).




          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by Company or any of
its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in
connection with such Asset Sale (or if such costs have not then been incurred or invoiced,
Company’s good faith estimate thereof), including (a) income or gains taxes payable by the seller
as a result of any gain recognized in connection with such Asset Sale, (b) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness
(other than the Loans and, to the extent permitted under the Intercreditor Agreement, the Second
Lien Term Loans and the Second Lien Notes) that is secured by a Lien on the stock or assets in
question and that is required to be repaid under the terms thereof as a result of such Asset Sale,
(c) other taxes actually payable (to the extent actually subsequently so paid) upon or in
connection with the closing of such Asset Sale (including any transfer taxes or taxes on gross
receipts), (d) any taxes payable or reasonably estimated to be payable in connection with any
transactions effected (or deemed effected) to make prepayments (e.g., taxes payable upon
repatriation of funds from Subsidiaries), (e) actual, reasonable and documented out-of-pocket fees
and expenses (including legal fees, fees to advisors and severance costs that are due (pursuant to
a Contractual Obligation, or pursuant to a written employment policy applicable to terminated
employees generally, of Company or any of its Subsidiaries in effect prior to such Asset Sale or
pursuant to applicable law) and payable to employees of Company and its Subsidiaries that are
terminated as a result thereof) paid to Persons other than Company and its Subsidiaries and their
respective Affiliates in connection with such Asset Sale (including fees necessary to obtain any
required consents of such Persons to such Asset Sale), (f) a reasonable reserve for any
indemnification payments (fixed or contingent) attributable to seller’s





29









 







indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Company or any of its Subsidiaries in connection with such Asset Sale and (g) amounts
required to be paid to holders of “Allowed Class 6 Claims” (as such term is defined in the Plan of
Reorganization) and other entitled claimants with respect to the “CPIH Participation Interest” (as
such term is defined in the Plan of Reorganization) in an aggregate amount not to exceed
$4,000,000; provided, however, that Net Asset Sale Proceeds shall be reduced in an
amount equal to the amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to (i) agreements in effect on the Closing Date, or which were entered into after the
Closing Date with respect to the financing or acquisition of a Project, and/or (ii) the ARC
Indenture, ARC Refinancing Indenture, New ARC Indenture, the MSW Indentures, MSW Refinancing
Indentures or the New MSW Indentures to use for prepayment thereunder (including any premium,
penalty and interest due in connection with such prepayment).




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Company or any of its Subsidiaries (a) under any casualty insurance policy in
respect of a covered loss thereunder (other than payments for business interruption) occurring
after the Closing Date or (b) as a result of the taking of any assets of Company or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or
pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking,
minus (ii) (a) any actual and reasonable costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of Company or such
Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any
adjustment or settlement or any such sale as referred to in clause (i)(b) of this definition,
including income taxes payable as a result of any gain recognized in connection therewith and any
actual, reasonable and documented out-of-pocket fees and expenses (including legal fees, fees to
advisors and severance costs that are due (pursuant to a Contractual Obligation, or pursuant to a
written employment policy applicable to terminated employees generally, of Company or any of its
Subsidiaries in effect prior to such event or pursuant to applicable law) and payable to employees
of Company and its Subsidiaries that are terminated as a result thereof) paid to Persons other than
Company and its Subsidiaries and their respective Affiliates in connection with such event;
provided, that if any costs, fees or expenses that may be deducted under this clause (ii)
have not been incurred or invoiced at the time of any determination of Net Insurance/Condemnation
Proceeds, Company may deduct its good faith estimate thereof to the extent actually subsequently so
paid; provided, however, that Net Insurance/Condemnation Proceeds shall be reduced
in an amount equal to the amount of proceeds Subsidiaries of Company are legally bound or required,
pursuant to (i) agreements in effect on the Closing Date, or which were entered into after the
Closing Date with respect to the financing or acquisition of a Project, and (ii) the ARC Indenture,
ARC Refinancing Indenture, New ARC Indenture, MSW Indentures, MSW Refinancing Indentures or New MSW
Indentures to use for prepayment thereunder (including any premium, penalty and interest due in
connection with such prepayment).




          “New ARC Indenture” means a trust indenture in form and substance reasonably satisfactory to
Administrative Agent pursuant to which any New ARC Notes may be issued in accordance with the terms
of this Agreement, as such indenture may be further





30









 







amended, restated, supplemented, modified, extended, renewed or replaced from time to time in
accordance with Section 6.15 of this Agreement.




          “New ARC Notes” means the notes issued by ARC LLC in accordance with Section 6.1(n)(iii).




          “New Credit Linked Deposit” means with respect to each Lender, the cash deposit, if any, made
by such Lender pursuant to Section 2.4(j), as the same may be (a) reduced from time to time
pursuant to Sections 2.4(f) and (h) or 2.13(b)(iii) or (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.6.




          “New MSW I Indenture” means a trust indenture in form and substance reasonably satisfactory to
Administrative Agent pursuant to which any New MSW I Notes may be issued in accordance with the
terms of this Agreement, as such indenture may be further amended, restated, supplemented,
modified, extended, renewed or replaced from time to time in accordance with Section 6.15 of this
Agreement.




          “New MSW I Notes” means the notes issued by MSW I in accordance with Section 6.1(n)(ii).




          “New MSW II Indenture” means a trust indenture in form and substance reasonably satisfactory
to Administrative Agent pursuant to which any New MSW II Notes may be issued in accordance with the
terms of this Agreement, as such indenture may be further amended, restated, supplemented,
modified, extended, renewed or replaced from time to time in accordance with Section 6.15 of this
Agreement.




          “New MSW II Notes” means the notes issued by MSW II in accordance with Section 6.1(n)(ii).




          “New MSW Indentures” means the New MSW I Indenture and the New MSW II Indenture.




          “New MSW Notes” means the New MSW I Notes and the New MSW II Notes.




          “New Term Loans” as defined in Section 2.4(f).




          “Non-US Lender” means (a) each Lender (or Administrative Agent) and each Issuing Bank that is
a foreign person as defined in Treasury Regulations section 1.1441-1(c)(2) or (b) each Lender (or
Administrative Agent) and each Issuing Bank that is a wholly-owned domestic entity that is
disregarded for United States federal tax purposes under Treasury Regulations section
301.7701-2(c)(2) as an entity separate from its owner and whose single owner is a foreign person
within the meaning of Treasury Regulations section 1.1441-1(c)(2).




          “Nonpublic Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation D.




          “Note” means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.






31









 








          “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.




          “Obligations” means all obligations of every nature of each Credit Party from time to time
owed to the Agents (including former Agents), the Lenders or any of them, the Issuing Banks and
Lender Counterparties, under any Credit Document or Hedge Agreement (including, without limitation,
with respect to a Hedge Agreement, obligations owed thereunder to any person who was a Lender or an
Affiliate of a Lender at the time such Hedge Agreement was entered into), whether for principal,
interest (including interest which, but for the filing of a petition in bankruptcy with respect to
such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against
such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts
drawn under Letters of Credit, payments for early termination of Hedge Agreements, fees, expenses,
indemnification or otherwise.




          “Obligee Guarantor” as defined in Section 7.7.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.




          “Other Domestic Subsidiaries” means Domestic Subsidiaries of Company other than Subsidiaries
constituting part of the Acquired Business.




          “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.




          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.




          “Performance Guaranty” means any performance guaranty agreement entered into by Company or any
of its Subsidiaries under which Company or any such Subsidiary (i) guarantees the performance of a
Subsidiary of Company under a principal lease, service, construction or operating agreement
relating to a Project or (ii) is otherwise obligated to provide support in connection with
Projects.




          “Permitted Acquisition” means any acquisition by Company or any of its Subsidiaries, whether
by purchase, merger or otherwise, of all or substantially all of the assets of, all of the Capital
Stock of, or a business line or unit or a division of, any Person; provided,





          (i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;



32









 






          (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;




          (iii) to the extent a Guarantor Subsidiary is acquired, Company shall have taken, or
caused to be taken, as of the date such Person becomes a Guarantor Subsidiary of Company,
each of the actions set forth in Sections 5.10 and/or 5.11, as applicable, unless, following
a request by Company, such actions are not required by Administrative Agent;




          (iv) Company and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of
the last day of the Fiscal Quarter most recently ended;




          (v) Company shall have delivered to Administrative Agent (A) at least 10 Business Days
prior to such proposed acquisition, a Compliance Certificate evidencing compliance with
Section 6.8 as required under clause (iv) above, together with all relevant financial
information with respect to such acquired assets, including, without limitation, the
aggregate consideration for such acquisition and any other information required to
demonstrate compliance with Section 6.8; and




          (vi) any Person or assets or division as acquired in accordance herewith shall be in
the same business or lines of business in which Company and/or its Subsidiaries are engaged
as of the Closing Date or in which Company and/or its Subsidiaries are expressly permitted
hereunder to engage in.



          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.




          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.




          “Phase I Environmental Assessment” means, with respect to any Facility, a report that (i)
conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental
Site Assessment Process, E 1527-00, or, if reasonably requested by Administrative Agent, the
USEPA’s standards for all appropriate inquiry, (ii) was conducted no more than six months prior to
the date such report is required to be delivered hereunder, by one or more environmental
consulting firms reasonably satisfactory to Administrative Agent, and (iii) shall expressly
specify, or shall be accompanied by a letter stating, in form and substance reasonably satisfactory
to Administrative Agent, that the report may be relied on by Administrative Agent and the Lenders
or Administrative Agent shall have received a letter so stating in form and substance reasonably
satisfactory to Administrative Agent.




          “Plan of Reorganization” as defined in Section 6.2(t).




          “Plan of Reorganization Account” as defined in Section 3.1(p).






33









 








          “Plan of Reorganization Initial Deposit Amount” as defined in Section 3.1(p).




          “Platform” as defined in Section 5.1(m).




          “Pledge and Security Agreement” means the Pledge and Security Agreement executed by Company
and each Guarantor Subsidiary on the Closing Date substantially in the form of Exhibit I-1, as it
has been and may be amended, supplemented or otherwise modified from time to time.




          “Prime Rate” means the rate of interest quoted in The Wall Street Journal Money Rates Section
as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of
the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged to any
customer. Administrative Agent or any other Lender may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.




          “Principal Office” means, for each of Administrative Agent, Swing Line Lender and the Issuing
Banks, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Company, Administrative Agent and each Lender.




          “Project” means any waste-to-energy facility, waste disposal or collection facility and
facilities related or ancillary thereto, electrical generation plant, cogeneration plant, water
treatment facility or other facility for the generation of electricity or engaged in another line
of business in which Company and its Subsidiaries are permitted to be engaged hereunder for which a
Subsidiary or Subsidiaries of Company was, is or will be (as the case may be) an owner, operator,
manager or builder, provided, however, that a Project shall cease to be a Project
of Company and its Subsidiaries at such time that Company or any of its Subsidiaries ceases to have
any existing or future rights or obligations (whether direct or indirect, contingent or matured)
associated therewith.




          “Projections” as defined in Section 4.8.




          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Tranche C Term Loan of any Lender, the percentage obtained by dividing (a) the
Tranche C Term Loan Exposure of that Lender by (b) the aggregate Tranche C Term Loan Exposure of
all Lenders; (ii) with respect to all payments, computations and other matters relating to the
Revolving Commitment or Revolving Loans of any Lender or any Revolving Letters of Credit issued or
participations purchased therein by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that
Lender by (b) the aggregate Revolving Exposure of all Lenders; (iii) with respect to all payments,
computations and other matters relating to Funded Letters of Credit or New Credit Linked Deposit or
Funded Letter of Credit Participations of any Lender, the percentage obtained by dividing (a) the
Funded Letter of Credit Exposure of that Lender by (b) the aggregate Funded Letter of Credit
Exposure of all Lenders; and (iv) with respect to all payments, computations and other matters
relating to the Delayed Draw Term Loan of any Lender, the percentage obtained by dividing (a) the
Delayed Draw Term Loan Exposure of that





34









 







Lender by (b) the aggregate Delayed Draw Term Loan Exposure of all Lenders. For all other
purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing
(A) an amount equal to the sum of the Tranche C Term Loan Exposure, the Revolving Exposure, the
Funded Letter of Credit Exposure and the Delayed Draw Term Loan Exposure of that Lender, by (B) an
amount equal to the sum of the aggregate Tranche C Term Loan Exposure, the aggregate Revolving
Exposure, the aggregate Funded Letter of Credit Exposure, and the aggregate Delayed Draw Term Loan
Exposure of all Lenders.




          “Put Loans” means any proceeds under the Revolving Loan used to pay MSW Put-Related Costs in
an aggregate amount not to exceed $25,000,000.




          “Put-Related Equity Offering” means the offering of preferred stock (such securities having no
mandatory redemption, repurchase, repayment or similar requirements prior to the date which occurs
six (6) months after the Termination Date and upon which all dividends or distributions shall be
payable in additional shares of such securities) of Holding to all or any of its shareholders
within 120 days of the Closing Date.




          “Put-Related Equity Offering Agreement” means the subscription agreement, by and among Holding
and certain of its shareholders relating to the Put-Related Equity Offering, as it may be amended,
supplemented, restated or otherwise modified from time to time in accordance with the provisions of
Section 6.14 hereof.




          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by Company or any Guarantor Subsidiary in any real property.




          “Refinancing” means the refinancings of approximately $310,000,000 of the Existing
Indebtedness of Company and its Subsidiaries.




          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).




          “Register” as defined in Section 2.7(b).




          “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.




          “Reimbursement Date” as defined in Section 2.4(e).




          “Related Agreements” means, collectively, (i) the Stock Purchase Agreement; (ii) the MSW
Indentures, the MSW Refinancing Indentures, the ARC Indenture, the ARC Refinancing Indenture, the
New MSW Indentures and the New ARC Indenture; (iii) the Second Lien Credit Agreement and Second
Lien Notes Indenture and all collateral documents related thereto; (iv) the Rights Offering
Agreement; (v) the Corporate Services Reimbursement Agreement; (vi) Holding Tax Sharing Agreement;
and (vii) the Put-Related Equity Offering Agreement and the documents evidencing the terms of the
preferred stock related thereto.






35









 








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




          “Related Transaction Costs” means the fees, costs and expenses payable by Company or its
Subsidiaries in connection with the Related Transactions within 180 days of the Closing Date.




          “Related Transactions” means each of (i) the issuance of the Second Lien Notes within 120 days
of the Closing Date and the use of the proceeds thereof to prepay the Second Lien Term Loans, (ii)
the issuance of New MSW Notes, (iii) any refinancings of the MSW Notes in connection with the valid
exercise by holders of the MSW Notes of mandatory redemption rights caused by the Acquisition (and
any refinancing of any bridge loans incurred, or remarketing of securities undertaken, in
connection therewith), (iv) issuance of New ARC Notes and (v) the Put-Related Equity Offering.




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the environment (including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), including the movement of any Hazardous
Material through the air, soil, surface water or groundwater.




          “Replacement Lender” as defined in Section 2.23.




          “Requisite Class Lenders” means, at any time of determination, (i) for the Class of Lenders
having Tranche C Term Loan Exposure, Lenders holding more than 50% of the aggregate Tranche C Term
Loan Exposure of all Lenders; (ii) for the Class of Lenders having Revolving Exposure, Lenders
holding more than 50% of the aggregate Revolving Exposure of all Lenders, (iii) for the Class of
Lenders having Funded Letter of Credit Exposure, Lenders holding more than 50% of the aggregate
Funded Letter of Credit Exposure of all Lenders; and (iv) for the Class of Lenders having Delayed
Draw Term Loan Exposure, Lenders holding more than 50% of the aggregate Delayed Draw Term Loan
Exposure of all Lenders.




          “Requisite Lenders” means one or more Lenders having or holding Tranche C Term Loan Exposure,
Revolving Exposure, Funded Letter of Credit Exposure and Delayed Draw Term Loan Exposure and
representing more than 50% of the sum of (i) the aggregate Tranche C Term Loan Exposure of all
Lenders, (ii) the aggregate Revolving Exposure of all Lenders, (iii) the aggregate Funded Letter of
Credit Exposure of all Lenders, and (iv) aggregate Delayed Draw Term Loan Exposure of all Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Company now or hereafter outstanding, except a
dividend payable solely in shares of stock to the holders of that class; (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or hereafter outstanding; (iii) any
payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Company now or





36









 







hereafter outstanding; (iv) management or similar fees payable to Holding or any of its
Affiliates (other than Company or Guarantor Subsidiary); (v) any payment or prepayment of principal
of, premium, if any, or interest on, redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect to the MSW Notes,
the MSW Refinancing Notes, the New MSW Notes, any Indebtedness outstanding under the Second Lien
Credit Agreement, Second Lien Notes Indenture, ARC Notes, ARC Refinancing Notes and the New ARC
Notes and (vi) any payment or prepayment of principal of, premium, if any, or redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to any Indebtedness for
borrowed money of any Covanta Warren Entity (the “Covanta Warren Debt”).




          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Revolving Letters of Credit and Swing Line Loans
hereunder and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The
amount of each Lender’s Revolving Commitment, if any, is set forth on Appendix A-2 or in the
applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Revolving Commitments as of the Effective Date is
$100,000,000.




          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Revolving Commitment Termination Date” means the earliest to occur of (i) the sixth
anniversary of the Closing Date, (ii) the date the Revolving Commitments are permanently reduced to
zero pursuant to Section 2.13(b) or 2.14, and (iii) the date of the termination of the Revolving
Commitments pursuant to Section 8.1.




          “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of any Issuing Bank, the
aggregate Revolving Letter of Credit Usage in respect of all Revolving Letters of Credit issued by
that Lender (net of any participations by Lenders in such Revolving Letters of Credit), (c) the
aggregate amount of all participations by that Lender in any outstanding Revolving Letters of
Credit or any unreimbursed drawing under any Revolving Letter of Credit, (d) in the case of Swing
Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any
participations therein by other Lenders), and (e) the aggregate amount of all participations
therein by that Lender in any outstanding Swing Line Loans.




          “Revolving Issuing Bank” means with respect to any Revolving Letter of Credit, any Lender
(including any Person who is a Lender as of the Closing Date but subsequently, after agreeing to
become a Revolving Issuing Bank, ceases to be a Lender) which, at the request of Company, and with
the consent of Administrative Agent (not to be unreasonably withheld), agrees in such Lender’s sole
discretion to become a Revolving Issuing Bank for the purposes of issuing such Revolving Letter of
Credit, together with its permitted successors and assigns in such capacity. As of the Effective
Date, JPMC shall be a Revolving Issuing Bank.






37









 








          “Revolving Lender” means a Lender having a Revolving Commitment.




          “Revolving Letter of Credit” means a commercial or standby letter of credit issued or to be
issued by an Issuing Bank pursuant to Section 2.4(a) of this Agreement.




          “Revolving Letter of Credit Participant” as defined in Section 2.4(g).




          “Revolving Letter of Credit Sublimit” means the lesser of (i) $90,000,000 and (ii) the
aggregate unused amount of the Revolving Commitments then in effect.




          “Revolving Letter of Credit Usage” means, as at any date of determination, the sum of (i) the
aggregate Stated Amount of all outstanding Revolving Letters of Credit, and (ii) the aggregate
amount of all drawings under Revolving Letters of Credit honored by an Issuing Bank and not
theretofore reimbursed by or on behalf of Company.




          “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a) and/or
2.22.




          “Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, supplemented or otherwise modified from time to time.




          “Rights Offering” means the offering of common stock of Holding to its shareholders on the
Closing Date.




          “Rights Offering Agreement” means the subscription agreement, dated as of the Closing Date, by
and among Holding and certain of its shareholders relating to the Rights Offering, as it may be
amended, supplemented, restated or otherwise modified from time to time in accordance with the
provisions of Section 6.14 hereof.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.




          “Second Lien Credit Agreement” means the Second Lien Credit and Guaranty Agreement dated as of
the Closing Date, as amended as of the date hereof, among Company, Holding, GSCP as a joint lead
arranger, a joint bookrunner and co-syndication agent, Credit Suisse, as a joint lead arranger, a
joint bookrunner, co-syndication agent, administrative agent, paying agent and collateral agent and
the other agents and lenders party thereto, as it may be amended, modified, renewed, refunded,
replaced or refinanced from time to time in accordance with Section 6.16.




          “Second Lien Notes” means the Second Lien Notes to be issued under the Second Lien Notes
Indenture as they may be amended, modified, renewed, refunded, replaced or refinanced from time to
time in accordance with Section 6.16 to the extent the proceeds of such Second Lien Notes are used
solely to promptly prepay the Second Lien Term Loans in accordance with the provisions of the
Second Lien Credit Agreement.






38









 








          “Second Lien Notes Indenture” means the Indenture in respect of the Second Lien Notes, between
Company and the trustee thereunder as it may be amended, modified, renewed, refunded, replaced or
refinanced from time to time in accordance with Section 6.16.




          “Second Lien Term Loans” means the Second Lien Term Loans in an aggregate principal amount of
$400,000,000 as of the Effective Date under the Second Lien Credit Agreement.




          “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.




          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of Indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Series” as defined in Section 2.4(f).




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holding
substantially in the form of Exhibit G-3.




          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s and its Subsidiaries, present assets; (b) such
Credit Party’s capital is not unreasonably small in relation to its business as contemplated on the
Effective Date and reflected in the Projections or with respect to any transaction contemplated or
undertaken after the Effective Date; and (c) such Person has not incurred and does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due
(whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given
that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.
For purposes of this definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for accrual under Statement
of Financial Accounting Standard No. 5).




          “Stated Amount” of any Letter of Credit shall mean the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any conditions to drawing
could then be met.




          “Stock Purchase Agreement” means that certain Stock Purchase Agreement, dated as of February
1, 2005, among the Acquired Business, the sellers party thereto and





39









 







Holding, as it may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the provisions of Section 6.14 hereof.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding; and provided
further, that in no event shall any Affected Entity constitute a Subsidiary of Company or any of
its Subsidiaries for so long as such Person remains an Affected Entity, except that with respect to
the Covanta Warren Entities at any time after any payment is made pursuant to Section 6.5(h) such
Person shall be a Subsidiary.




          “Swing Line Lender” means GSCP in its capacity as Swing Line Lender hereunder, together with
its permitted successors and assigns in such capacity.




          “Swing Line Loan” means a Loan made by the Swing Line Lender to Company pursuant to Section
2.3.




          “Swing Line Note” means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.




          “Swing Line Sublimit” means the lesser of (i) $10,000,000, and (ii) the aggregate unused
amount of Revolving Commitments then in effect.




          “Syndication Agent” as defined in the preamble hereto.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income”
of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).




          “Term Loan” means a Tranche C Term Loan, a Delayed Draw Term Loan or a New Term Loan and “Term
Loans” means such loans of all Lenders in the aggregate.






40









 








          “Term Loan Commitment” means a Tranche C Term Loan Commitment or a Delayed Draw Term Loan
Commitment and “Term Loan Commitments” means such commitments of all Lenders in the aggregate.




          “Term Loan Maturity Date” means the earlier of (i) the seventh anniversary of the Closing
Date, and (ii) the date that all the Term Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise.




          “Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented or otherwise modified from time to time.




          “Termination Date” means the first date on which (i) each Commitment has expired or been
terminated, (ii) the principal amount of all Loans and all other Obligations then due and payable
have been paid in full, (iii) all Letters of Credit have been cancelled or have expired or have
been cash collateralized or otherwise secured to the satisfaction of the Issuing Bank thereof and
(iv) the Funded LC Issuing Banks have repurchased all outstanding Funded LC Participation Interests
with the remaining New Credit Linked Deposits and deposited such purchase price with the
Administrative Agent to be repaid to the Funded Letter of Credit Participants according to their
Pro Rata Shares of the New Credit Linked Deposits.




          “Terminated Lender” as defined in Section 2.23.




          “Tranche C Term Loan” means a Tranche C Term Loan made by a Lender to Company on the Effective
Date pursuant to Section 2.1(a) and a New Term Loan subsequently deemed made pursuant to Section
2.4(f).




          “Tranche C Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a
Tranche C Term Loan and “Tranche C Term Loan Commitments” means such commitments of all Lenders in
the aggregate. The amount of each Lender’s Tranche C Term Loan Commitment, if any, is set forth on
Appendix A-1 or in the applicable Assignment Agreement, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. The aggregate amount of the Tranche C Term Loan
Commitments as of the Effective Date is $229,312,500.00.




          “Tranche C Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Tranche C Term Loans of such Lender;
provided, at any time prior to the making of the Tranche C Term Loans, the Tranche C Term
Loan Exposure of any Lender shall be equal to such Lender’s Tranche C Term Loan Commitment.




          “Title Policy” as defined in Section 3.1(h)(iv).




          “Total Credit Linked Deposit” means, at any time, the sum of all New Credit Linked Deposits at
such time, as the same may be reduced from time to time pursuant to Section 2.4(f) or 2.13(b)(iii).




          “Total Funded Letter of Credit Commitment” means the sum of the Funded Letter of Credit
Commitments of all the Lenders.






41









 








          “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing an Issuing Bank
for any amount drawn under any Revolving Letter of Credit, but not yet so applied), (ii) the
aggregate principal amount of all outstanding Swing Line Loans, and (iii) the Revolving Letter of
Credit Usage.




          “Transaction Costs” means the fees, costs and expenses payable by Company in connection with
the Transactions within 180 days of the Closing Date.




          “Transactions” means the Acquisition, the Refinancing, the entering into the Existing Credit
Agreement, this Agreement, the Second Lien Credit Agreement (including the amendment thereto
entered into on the Effective Date) and the Rights Offering.




          “Treasury Regulations” means the final and temporary (but not proposed) income tax regulations
promulgated under the Internal Revenue Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).




          “Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.




          “UBS” as defined in the preamble hereto.




          “UBSS” as defined in the preamble hereto.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “Unadjusted Eurodollar Rate Component” means that component of the interest costs to Company
in respect of a Eurodollar Rate Loan that is based upon the rate obtained pursuant to clause (i) of
the definition of Adjusted Eurodollar Rate.




          “Unpaid Drawing” as defined in Section 2.4(e).




     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Company to Lenders pursuant
to Sections 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP (subject, in the case of
Section 5.1(b), to final year-end adjustments and the absence of footnotes) as in effect at the
time of such preparation (and delivered together with the reconciliation statements provided for in
Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the
definitions, covenants and other provisions used in Section 6.8 hereof shall utilize accounting
principles and policies in conformity with those used to prepare the Historical Financial
Statements. If at any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Credit Document, and Company or Administrative Agent shall so
request, Administrative Agent and Company shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such change in



42









 




GAAP (subject to the approval of Requisite Lenders), provided that, until so amended, such ratio
or requirement shall continue to be computed in accordance with GAAP prior to such change therein
and Company shall provide to Administrative Agent and Lenders reconciliation statements provided
for in Section 5.1(e).




     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not no limiting language
(such as “without limitation” or “but not limited to” or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. The use herein of
the word “issue” or “issuance” with respect to any Letter of Credit shall be deemed to include any
amendment, extension or renewal thereof. This Agreement restates and replaces, in its entirety,
the Existing Credit Agreement; any reference in any of the other Credit Documents to the Existing
Credit Agreement (however defined) shall mean this Agreement.



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. Tranche C Term Loans and Delayed Draw Term Loans.



          (a) Subject to the terms and conditions hereof, (i) each Continuing Term Lender severally
agrees that the Existing Term Loans made by such Continuing Term Lender under the Existing Credit
Agreement shall remain outstanding on and after the Effective Date as “Tranche C Term Loans” made
pursuant to this Agreement in the same pro rata amount of such Continuing Term Lender’s Pro Rata
Share of the Existing Term Loans and such Existing Term Loans shall on and after the Effective Date
have all of the rights and benefits of Tranche C Term Loans as set forth in this Agreement and the
other Credit Documents and (ii) each Lender (other than a Continuing Term Lender holding only
Existing Term Loans) severally agrees to lend to Company on the Effective Date, a Tranche C Term
Loan in an amount equal to such Lender’s Tranche C Term Loan Commitment (or, in the case of any
such Lender holding Existing Term Loans, an additional Tranche C Term Loan in an amount equal to
the excess of (A) such Lender’s Tranche C Term Loan Commitment over (B) the principal amount of its
Existing Term Loans).




          (b) Subject to the terms and conditions hereof, during the Delayed Draw Term Loan Commitment
Period, each Lender holding a Delayed Draw Term Loan Commitment severally agrees to make Delayed
Draw Term Loans, in accordance with Section 2.1 and subject to the requirements of Section 2.6, to Company in the aggregate amount up to but not exceeding
such Lender’s Delayed Draw Term Loan Commitment.



Company may make only one borrowing under the Tranche C Term Loan Commitment which shall be made
(or deemed made) on the Effective Date and Company may make only one





43









 






borrowing under the Delayed
Draw Term Loan Commitment. Any amount borrowed under this Section 2.1 and subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder
with respect to the Term Loans shall be paid in full no later than the Term Loan Maturity Date.
Each Lender’s Tranche C Term Loan Commitment shall terminate immediately and without further action
on the Effective Date after giving effect to the funding (or deemed funding) of such Lender’s
Tranche C Term Loan Commitment on such date. Each Lender’s Delayed Draw Term Loan Commitment shall
terminate immediately and without further action on the Delayed Draw Term Loan Commitment
Termination Date.




          (c) Borrowing Mechanics for Term Loans.





          (i) Company shall deliver to Administrative Agent a fully executed Funding Notice no later
than one day prior to the Effective Date or the Delayed Draw Term Loan Credit Date, as
applicable. Promptly upon receipt by Administrative Agent of such Certificate, Administrative
Agent shall notify each Lender of the proposed borrowing.




          (ii) Each Lender shall make its Tranche C Term Loan and/or its Delayed Draw Term Loan
available to Administrative Agent not later than 12:00 p.m. (New York City time) on the
Effective Date or the Delayed Draw Term Loan Credit Date, as applicable, by wire transfer of
same day funds in Dollars, at the Principal Office designated by Administrative Agent. Upon
satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall
make the proceeds of the Tranche C Term Loans available to Company on the Effective Date and the
proceeds of the Delayed Draw Term Loans available to Company on the Delayed Draw Term Loan
Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such
Loans received by Administrative Agent from Lenders to be credited to the account of Company at
the Principal Office designated by Administrative Agent or to such other account as may be
designated in writing to Administrative Agent by Company.



     2.2. Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Company in an
aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided, that
after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant
to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment Period. Each
Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all
Revolving Loans and all other amounts
owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid
in full no later than such date.




          (b) Borrowing Mechanics for Revolving Loans.





          (i) Except pursuant to Section 2.4(d), Revolving Loans that are Base Rate Loans shall be
made in an aggregate minimum amount of $500,000 and integral multiples of



44









 






$250,000 in excess of
that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate minimum
amount of $500,000 and integral multiples of $250,000 in excess of that amount.




          (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver to
Administrative Agent a fully executed and delivered Funding Notice no later than 10:00 a.m. (New
York City time) at least three Business Days in advance of the proposed Credit Date in the case
of a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit Date
in the case of a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein,
a Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound to make a
borrowing in accordance therewith.




          (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together with
the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable
interest rate, shall be provided by Administrative Agent to each applicable Lender by
telefacsimile or electronic transmission means with reasonable promptness, but (provided
Administrative Agent shall have received such notice by 10:00 a.m. (New York City time)) not
later than 2:00 p.m. (New York City time) on the same day as Administrative Agent’s receipt of
such Notice from Company.




          (iv) Each Lender shall make the amount of its Revolving Loan available to Administrative
Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire
transfer of same day funds in Dollars, at the Principal Office designated by Administrative
Agent. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Revolving Loans available
to Company on the applicable Credit Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be
credited to the account of Company as may be designated in writing to Administrative Agent by
Company.



     2.3. Swing Line Loans.



          (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to
Company in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided,
that after giving effect to the making of any Swing Line Loan, in no event shall the Total
Utilization of Revolving Commitments exceed the Revolving Commitments then
in effect. Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during
the Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall expire on the
Revolving Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder
with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later
than such date.




45









 








          (b) Borrowing Mechanics for Swing Line Loans.





          (i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral
multiples of $250,000 in excess of that amount.




          (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan, Company shall
deliver to Administrative Agent a Funding Notice no later than 12:00 p.m. (New York City time)
on the proposed Credit Date.




          (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit Date
by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office.
Except as provided herein, upon satisfaction or waiver of the conditions precedent specified
herein, Administrative Agent shall make the proceeds of such Swing Line Loans available to
Company on the applicable Credit Date by causing an amount of same day funds in Dollars equal to
the proceeds of all such Swing Line Loans received by Administrative Agent from Swing Line
Lender to be credited to the account of Company as may be designated in writing to
Administrative Agent by Company.




          (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to Section 2.13, Swing Line Lender may at any time in its sole and absolute
discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00 a.m.
(New York City time) at least one Business Day in advance of the proposed Credit Date, a notice
(which shall be deemed to be a Funding Notice given by Company) requesting that each Lender
holding a Revolving Commitment make Revolving Loans that are Base Rate Loans to Company on such
Credit Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line
Loans”) outstanding on the date such notice is given which Swing Line Lender requests Lenders to
prepay. Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds
of such Revolving Loans made by the Lenders other than Swing Line Lender shall be immediately
delivered by Administrative Agent to Swing Line Lender (and not to Company) and applied to repay
a corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans
are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to
be paid with the proceeds of a Revolving Loan made by Swing Line Lender to Company, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing
Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall
instead constitute part of Swing Line Lender’s outstanding Revolving Loans to Company and shall
be due under the Revolving Loan Note issued by Company to Swing Line Lender. Company hereby
authorizes Administrative Agent and Swing Line Lender to charge Company’s accounts with
Administrative Agent and Swing Line Lender (up to the amount available in each such account) in
order to immediately
pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent of the
proceeds of such Revolving Loans made by Lenders, including the Revolving Loans deemed to be
made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans.
If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be
recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so



46









 






recovered shall be ratably shared
among all Lenders in the manner contemplated by Section 2.17.




          (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding
Swing Line Loans on or before the third Business Day after demand for payment thereof by Swing
Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees
to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal
to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon.
Upon one Business Day’s notice from Swing Line Lender, each Lender holding a Revolving
Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in
the applicable unpaid amount in same day funds at the Principal Office of Swing Line Lender. In
order to evidence such participation each Lender holding a Revolving Commitment agrees to enter
into a participation agreement at the request of Swing Line Lender in form and substance
reasonably satisfactory to Swing Line Lender. In the event any Lender holding a Revolving
Commitment fails to make available to Swing Line Lender the amount of such Lender’s
participation as provided in this paragraph, Swing Line Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon for three Business Days at the
rate customarily used by Swing Line Lender for the correction of errors among banks and
thereafter at the Base Rate, as applicable.




          (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans
pursuant to the second preceding paragraph and each Lender’s obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any circumstance, including
without limitation (A) any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against Swing Line Lender, any Credit Party or any other Person for any reason
whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C) any adverse
change in the business, operations, properties, assets, condition (financial or otherwise) or
prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document by
any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that Swing Line Lender believed in good faith that all conditions under
Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line
Loans, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were
made, or the satisfaction of any such condition not satisfied had been waived by the Requisite
Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans
were made; and (2) Swing Line Lender shall not be obligated to make any Swing Line Loans
(A) if it has elected not to do so after the occurrence and during the continuation of a
Default or Event of Default or (B) at a time when a Funding Default exists unless Swing Line
Lender has entered into arrangements satisfactory to it and Company to eliminate Swing Line
Lender’s risk with respect to the Defaulting Lender’s participation in such Swing Line Loan,
including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding
Swing Line Loans.



47









 





     2.4. Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Revolving Letters of Credit. During the Revolving Commitment Period, subject to
the terms and conditions hereof, each Revolving Issuing Bank agrees to issue Revolving Letters of
Credit for the account of Company and for the benefit of Company or any of its Subsidiaries in the
aggregate amount up to but not exceeding the Revolving Letter of Credit Sublimit; provided,
(i) each Revolving Letter of Credit shall be denominated in Dollars; (ii) the Stated Amount of each
Revolving Letter of Credit shall not be less than $5,000 or such lesser amount as is acceptable to
the applicable Revolving Issuing Bank; (iii) after giving effect to such issuance, in no event
shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect; (iv) after giving effect to such issuance, in no event shall the Revolving Letter of Credit
Usage exceed the Revolving Letter of Credit Sublimit then in effect; (v) in no event shall any
standby Revolving Letter of Credit have an expiration date later than the earlier of (1) the date
that is five (5) Business Days prior to the Revolving Commitment Termination Date and (2) the date
which is one year from the date of issuance of such standby Revolving Letter of Credit; (vi) in no
event shall any commercial Revolving Letter of Credit (x) have an expiration date later than the
earlier of (1) the Revolving Loan Commitment Termination Date and (2) the date which is 180 days
from the date of issuance of such commercial Revolving Letter of Credit or (y) be issued if such
commercial Revolving Letter of Credit is otherwise unacceptable to the applicable Revolving Issuing
Bank in its reasonable discretion, and (vii) regarding Revolving Letters of Credit issued by JPMC,
the same shall be subject to the terms of letter of credit documentation executed by Company in
connection therewith (it being agreed and understood that in the event of any conflict or
inconsistency between the provisions of such documentation and the provisions of this Agreement,
the provisions of this Agreement shall govern and control in all respects). Subject to the
foregoing, a Revolving Issuing Bank may agree that a standby Revolving Letter of Credit will
automatically be extended for one or more successive periods each not to exceed one year each,
unless such Revolving Issuing Bank elects not to extend for any such additional period;
provided, a Revolving Issuing Bank shall not extend any such Revolving Letter of Credit if
it has received written notice from Administrative Agent not to do so and that an Event of Default
has occurred and is continuing at the time such Revolving Issuing Bank must elect to allow such
extension; provided, further, in the event a Funding Default exists, a Revolving
Issuing Bank shall not be required to issue any Revolving Letter of Credit unless Revolving Issuing
Bank has entered into arrangements reasonably satisfactory to it and Company to eliminate such
Revolving Issuing Bank’s risk with respect to the participation in Revolving Letters of Credit of
the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of
the Revolving Letter of Credit Usage.




          (b) Funded Letters of Credit. Subject to and upon the terms and conditions herein set
forth, at any time and from time to time on and after the Effective Date and during the
Funded Letter of Credit Commitment Period, Company may request that a Funded LC Issuing Bank
issue for the account of Company a commercial or standby letter of credit or letters of credit
under the Funded Letter of Credit Commitment (each, a “Funded Letter of Credit”), provided
that each Funded Letter of Credit shall be used by Company solely to support the obligations of
Company and its Subsidiaries under Projects and other Contractual Obligations of Company and its
Subsidiaries and for other general corporate uses of Company and its Subsidiaries. Notwithstanding
the foregoing, (i) each Funded Letter of Credit shall be denominated in Dollars; (ii) the Stated
Amount of each Funded Letter of Credit shall not be less





48









 







than $5,000 or such lesser amount as is
acceptable to such Funded LC Issuing Bank issuing the same; (iii) no Funded Letter of Credit shall
be issued the Stated Amount of which, (x) when added to all other Funded Letters of Credit
Outstanding at such time, would exceed the Total Funded Letter of Credit Commitment or the Total
Credit Linked Deposit then in effect (with such Funded LC Issuing Bank being entitled to rely on a
certificate from Company as to this item) or (y) when added to all other Funded Letters of Credit
Outstanding at such time issued by such Funded LC Issuing Bank, would exceed the amount
corresponding to such Funded LC Issuing Bank that is set forth in Schedule 1.1(c) (as each amount
may be adjusted pursuant to Section 2.4(n)) or the amount of the New Credit Linked Deposits held by
such Funded LC Issuing Bank at such time; (iv) in no event shall any standby Funded Letter of
Credit have an expiration date later than the earlier of (1) the date that is five (5) Business
Days prior to the Funded Letter of Credit Termination Date and (2) (other than in respect of
Detroit Letters Of Credit, which shall initially and upon each renewal thereof, each be available
for a term of up to three years and thirty-five days) the date which is one year from the date of
issuance of such standby Funded Letter of Credit; (v) in no event shall any commercial Funded
Letter of Credit (x) have an expiration date later than the earlier of (1) the Funded Letter of
Credit Termination Date and (2) the date which is 180 days from the date of issuance of such
commercial Funded Letter of Credit or (y) be issued if such commercial Funded Letter of Credit is
otherwise unacceptable to such Funded LC Issuing Bank in its reasonable discretion; (vi) the
Letters of Credit specified on Schedule 1.1(c)(1) shall in accordance with Section 2.4(m) be deemed
Funded Letters of Credit issued by JPMC and the Letters of Credit specified on Schedule 1.1(c)(2)
shall be deemed Funded Letters of Credit issued by UBS, each in its capacity as a Funded LC Issuing
Bank hereunder; and (vii) regarding Funded Letters of Credit issued by JPMC, the same shall be
subject to the terms of letter of credit documentation executed by Company in connection therewith
(it being agreed and understood that in the event of any conflict or inconsistency between the
provisions of such documentation and the provisions of this Agreement, the provisions of this
Agreement shall govern and control in all respects). Subject to the foregoing, a Funded LC Issuing
Bank may (but shall not be obligated to) agree that a standby Funded Letter of Credit will
automatically be extended for one or more successive periods not to exceed one year each (other
than in respect of Detroit Letters Of Credit), unless such Funded LC Issuing Bank elects not to
extend for any such additional period; provided, a Funded LC Issuing Bank shall not extend
any such Funded Letter of Credit if it has received written notice that an Event of Default has
occurred and is continuing at the time such Funded LC Issuing Bank must elect to allow such
extension. The Total Funded Letter of Credit Commitment shall terminate on the Funded Letter of
Credit Termination Date.




          (c) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit,
it shall deliver to Administrative Agent and to the relevant Issuing Bank, an Issuance Notice no
later than 12:00 p.m. (New York City time) at least three Business Days (in the case of
standby letters of credit) or five Business Days (in the case of commercial letters of
credit), or in each case such shorter period as may be agreed to by an Issuing Bank in any
particular instance, in advance of the proposed date of issuance. Upon satisfaction or waiver of
the conditions set forth in Section 3.2, an Issuing Bank shall issue the requested Letter of Credit
only in accordance with such Issuing Bank’s standard operating procedures. Upon the issuance of
any Revolving Letter of Credit or amendment or modification to a Revolving Letter of Credit, the
applicable Issuing Bank shall promptly notify each Revolving Lender of such issuance, which notice
shall be accompanied by a copy of such Revolving Letter of Credit or amendment or modification to a





49









 







Revolving Letter of Credit and the amount of such Revolving Lender’s respective participation in
such Revolving Letter of Credit pursuant to Section 2.4(g). Upon the issuance of any Funded Letter
of Credit or amendment or modification to a Funded Letter of Credit, the applicable Funded LC
Issuing Bank shall promptly notify the Administrative Agent of such issuance and the Administrative
Agent shall notify each Funded Letter of Credit Participant of such issuance, which notice shall
be accompanied by a copy of such Funded Letter of Credit or amendment or modification to a Funded
Letter of Credit and the amount of such Funded Letter of Credit Participant’s respective
participation in such Funded Letter of Credit pursuant to Section 2.4(h).




          (d) Responsibility of Issuing Banks With Respect to Requests for Drawings and
Payments. In determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, such Issuing Bank shall be responsible only to examine the documents delivered
under such Letter of Credit with reasonable care so as to ascertain whether they appear on their
face to be in accordance with the terms and conditions of such Letter of Credit. As between
Company and such Issuing Bank, Company assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by such Issuing Bank or by the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing, but subject to the first
sentence of this subsection (d), such Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of such Issuing Bank, including any
Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of such
Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and in furtherance
thereof, any action taken or omitted by such Issuing Bank under or in connection with the Letters
of Credit or any documents and certificates delivered thereunder, if taken or omitted in good
faith, shall not give rise to any liability on the part of such Issuing Bank to Company.
Notwithstanding anything to the contrary contained in this Section
2.4(d), Company shall retain any and all rights it may have against an Issuing Bank for any
liability arising solely out of the gross negligence or willful misconduct of such Issuing Bank.




          (e) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. (i)
In the event an Issuing Bank has determined to honor a drawing under a Letter of Credit (each such
amount so paid until reimbursed, an “Unpaid Drawing”), it shall promptly notify Company and
Administrative Agent, and Company may reimburse such Issuing Bank on or before the Business Day
immediately following the date on which such notice of such drawing is provided (the “Reimbursement
Date”) in an amount in Dollars and in same day




50









 







funds equal to the amount of such honored drawing;
provided, anything contained herein to the contrary notwithstanding, (i) unless Company
shall have notified Administrative Agent and such Issuing Bank prior to 10:00 a.m. (New York City
time) on or before the Business Day immediately following the date such drawing is honored that
Company intends to reimburse such Issuing Bank for the amount of such honored drawing with funds
other than the proceeds of Revolving Loans with respect to any Revolving Letter of Credit, Company
shall be deemed, in the case of any Revolving Letters of Credit, to have given a timely Funding
Notice to Administrative Agent requesting Lenders to make Revolving Loans that are Base Rate Loans
on the Reimbursement Date in an amount in Dollars equal to the amount of such honored drawing, and
(ii) provided no Event of Default under Sections 8.1(a), (f) or (g) shall have occurred and
be continuing, Lenders shall, on the Reimbursement Date, make Revolving Loans that are Base Rate
Loans in the amount of such honored drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Revolving Issuing Bank for the amount of such honored
drawing; and provided further, if for any reason proceeds of Revolving Loans are
not received by such Revolving Issuing Bank on the Reimbursement Date in an amount equal to the
amount of such honored drawing, Company shall reimburse such Revolving Issuing Bank, on demand, in
an amount in same day funds equal to the excess of the amount of such honored drawing over the
aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this Section
2.4(e) shall be deemed to relieve any Lender from its obligation to make Revolving Loans on the
terms and conditions set forth herein, and Company shall retain any and all rights it may have
against any Lender resulting from the failure of such Lender to make such Revolving Loans under
this Section 2.4(e).




          (f) Repayment by Funded Letter of Credit Participants of Amounts Drawn or Paid Under
Funded Letters of Credit. In the event that a Funded LC Issuing Bank makes any payment under
any Funded Letter of Credit and Company shall not have repaid such amount in full to such Funded LC
Issuing Bank pursuant to Section 2.4(e), such Funded LC Issuing Bank shall notify Administrative
Agent and Administrative Agent shall notify each Funded Letter of Credit Participant of such
failure, and such Funded LC Issuing Bank shall apply from the New Credit Linked Deposits held by
such Funded LC Issuing Bank toward the reimbursement of such payment each Funded Letter of Credit
Participant’s Pro Rata Share of such unreimbursed payment from the Credit Linked Deposit Account
held by such Funded LC Issuing Bank. In the event a Funded LC Issuing Bank applies the New Credit
Linked Deposits held by such Funded LC Issuing Bank to an unreimbursed disbursement under a Funded
Letter of Credit pursuant to the preceding sentence, Company shall have the right, one time only
following the Closing Date (provided no Default or Event of Default shall have occurred and be
continuing), within 5 Business Days of the Reimbursement Date, to pay over to Administrative Agent
in reimbursement thereof an amount equal to the full amount of such unreimbursed disbursement,
and such payment shall be applied by Administrative Agent in accordance with clause (ii) of
the immediately following sentence. Promptly following receipt by Administrative Agent of any
payment by Company in respect of any disbursement under a Funded Letter of Credit, Administrative
Agent shall distribute such payment (i) to the Funded LC Issuing Bank that issued such Funded
Letters of Credit or (ii) subject to the immediately preceding sentence, to the extent payments
have been made from the New Credit Linked Deposits, to the Credit Linked Deposit Account with
respect to such Funded Letter of Credit to be added to the New Credit Linked Deposits held by such
Funded LC Issuing Bank. Company acknowledges that each payment made pursuant to this paragraph in
respect of any unreimbursed payment is required to





51









 







be made for the benefit of the Funded LC Issuing
Bank indicated in the immediately preceding sentence. Provided no Event of Default under Section
8.1(f) or (g) shall have occurred and be continuing, any payment made from the Credit Linked
Deposit Account (except to the extent of a one-time repayment by Company within 5 Business Days of
the Reimbursement Date as expressly permitted above) pursuant to this paragraph to reimburse a
Funded LC Issuing Bank for any unreimbursed payment shall be deemed an extension of Tranche C Term
Loans made on such date by the Funded Letter of Credit Participants ratably in accordance with
their Pro Rata Share of the Total Credit Linked Deposit, and the amount so funded shall permanently
reduce the Total Credit Linked Deposit; any amount so funded pursuant to this paragraph shall, on
and after the funding date thereof, be deemed to be Tranche C Term Loans for all purposes hereunder
and have the same terms as other Tranche C Terms Loans hereunder (such deemed Tranche C Term Loan,
a “New Term Loan”). Any New Term Loans deemed made on the same day shall be designated a separate
series (a “Series”) of New Term Loans for all purposes of this Agreement. In the event that
Company is required to reimburse a Funded LC Issuing Bank for any disbursement under a Funded
Letter of Credit issued by such Funded LC Issuing Bank, for a period of 91 days following such
reimbursement payment by Company, the Funded Letter of Credit Exposures shall be deemed to include
(as if such Funded Letter of Credit were still outstanding) for purposes of determining
availability for the issuance of any new Funded Letter of Credit during such period, the amount of
such reimbursement payment until the end of such 91-day period.




          (g) Lenders’ Purchase of Participations in Revolving Letters of Credit. Immediately
upon the issuance of each Revolving Letter of Credit, each Lender having a Revolving Commitment
(each, a “Revolving Letter of Credit Participant”) shall be deemed to have purchased, and hereby
agrees to irrevocably purchase, from the applicable Revolving Issuing Bank a participation in such
Revolving Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s
Pro Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Company shall fail for any
reason to reimburse a Revolving Issuing Bank as provided in Section 2.4(e), such Revolving Issuing
Bank shall promptly notify each Revolving Letter of Credit Participant of the unreimbursed amount
of such honored drawing and of such Revolving Letter of Credit Participant’s respective
participation therein based on such Revolving Letter of Credit Participant’s Pro Rata Share of the
Revolving Commitments. Each Revolving Letter of Credit Participant shall make available to such
Revolving Issuing Bank an amount equal to its respective participation, in Dollars and in same day
funds, at the office of such Revolving Issuing Bank specified in such notice, not later than 12:00
p.m. (New York City time) on the first business day (under the laws of the jurisdiction in which
such office of such Revolving Issuing Bank is located) after the date notified by such
Revolving Issuing Bank. In the event that any Revolving Letter of Credit Participant fails to
make available to such Revolving Issuing Bank on such business day the amount of such Revolving
Letter of Credit Participant’s participation in such Revolving Letter of Credit as provided in this
Section 2.4(g), the applicable Revolving Issuing Bank shall be entitled to recover such amount on
demand from such Lender together with interest thereon for three Business Days at the rate
customarily used by such Revolving Issuing Bank for the correction of errors among banks and
thereafter at the Base Rate. Nothing in this Section 2.4(g) shall be deemed to prejudice the right
of any Revolving Letter of Credit
Participant to recover from a Revolving Issuing Bank any amounts
made available by such Revolving Letter of Credit






52









 







Participant to a Revolving Issuing Bank pursuant
to this Section in the event that it is determined that the payment with respect to a Revolving
Letter of Credit in respect of which payment was made by such Revolving Letter of Credit
 Participant constituted gross negligence or willful misconduct on the part of such Revolving
Issuing Bank. In the event a Revolving Issuing Bank shall have been reimbursed by other Revolving
Letter of Credit Participants pursuant to this Section 2.4(g) for all or any portion of any drawing
honored by such Revolving Issuing Bank under a Revolving Letter of Credit, such Revolving Issuing
Bank shall distribute to each Revolving Letter of Credit Participant which has paid all amounts
payable by it under this Section 2.4(g) with respect to such honored drawing such Revolving Letter
of Credit Participant’s Pro Rata Share of all payments subsequently received by such Revolving
Issuing Bank from Company in reimbursement of such honored drawing when such payments are received.
Any such distribution shall be made to a Revolving Letter of Credit Participant at its primary
address set forth below its name on Appendix B or at such other address as such Revolving Letter of
Credit Participant may request.




          (h) Funded Letter of Credit Participant’s Purchase of Participations in Funded Letters of
Credit. On the Effective Date, without any further action on the part of the Funded LC Issuing
Banks or the Lenders, the Funded LC Issuing Banks hereby grant to each Funded Letter of Credit
Participant, and each such Funded Letter of Credit Participant shall be deemed irrevocably and
unconditionally to have purchased and received from each Funded LC Issuing Bank that has issued any
Funded Letter of Credit, without recourse or warranty, an undivided interest and participation
(each, a “Funded Letter of Credit Participation”), in each Funded Letter of Credit that may be
issued pursuant to Section 2.4(b) or deemed issued pursuant to Section 2.4(m) equal to such Funded
Letter of Credit Participant’s Pro Rata Share of the aggregate amount available to be drawn under
each such Funded Letter of Credit and the Funded LC Participation Interests in respect thereof
together with rights to receive payments under Section 2.4(j)(iv). The aggregate purchase price
for the Funded Letter of Credit Participations of each Funded Letter of Credit Participant shall
equal the amount of the Funded Letter of Credit Commitment of such Funded Letter of Credit
Participant paid to the Administrative Agent on the Effective Date pursuant to the next sentence,
and, unless and until the Funded Letter of Credit Termination Date has occurred and all Funded
Letters of Credit issued by a Funded LC Issuing Bank have expired without draw, or to the extent of
any draws, have been reimbursed in full, or are cash collateralized by Company pursuant to Section
2.4(j)(iv), each such New Credit Linked Deposit held by a Funded LC Issuing Bank shall be the
property of such Funded LC Issuing Bank as the consideration paid by each such Funded Letter of
Credit Participant for such purchase price as it relates to any Funded Letters of Credit issued or
deemed issued by such Funded LC Issuing Bank. Each Funded Letter of Credit Participant shall pay
to Administrative Agent in full on the Effective Date an amount equal to such Funded Letter of
Credit Participant’s
Funded Letter of Credit Commitment, and Administrative Agent shall immediately transfer and
allocate such New Credit Linked Deposits to each Funded LC Issuing Bank in the amounts set forth on
Schedule 2.4(f). Each Funded Letter of Credit Participant hereby absolutely and unconditionally
agrees that if a Funded LC Issuing Bank makes a disbursement in respect of any Funded Letter of
Credit issued by such Funded LC Issuing Bank which is not reimbursed by Company on the date due
pursuant to Section 2.4(e), or is required to refund any reimbursement payment in respect of any
Funded Letter of Credit issued or deemed issued by such Funded LC Issuing Bank to Company for any
reason, the amount of such disbursement shall be satisfied, ratably as among the Funded Letter of
Credit Participants in accordance with their Pro Rata




53









 







Share (with the Administrative Agent having
the responsibility to determine and keep record of the Pro Rata Shares of the Funded Letter of
Credit Participants for this purpose and all other purposes hereunder) of the Total Credit Linked
Deposit from the New Credit Linked Deposit on deposit with the Funded LC Issuing Bank. Without
limiting the foregoing, each Funded Letter of Credit Participant irrevocably authorizes the
Administrative Agent and each Funded LC Issuing Bank, as applicable, to apply amounts of the New
Credit Linked Deposits as provided in this paragraph.




          (i) [Intentionally left blank].




          (j) Credit Linked Deposit Accounts.





          (i) Subject to the terms and conditions hereof, (i) each Continuing Funded Letter of Credit
Participant severally agrees that the Existing Credit Linked Deposit made by such Continuing
Funded Letter of Credit Participant under the Existing Credit Agreement shall remain outstanding
on and after the Effective Date as a “New Credit Linked Deposit” made pursuant to this Agreement
in the same pro rata amount of such Continuing Funded Letter of Credit Participant’s pro rata
share of the Existing Credit Linked Deposits and such Existing Credit Linked Deposits shall on
and after the Effective Date have all of the rights and benefits of New Credit Linked Deposits
as set forth in this Agreement and the other Credit Documents and (ii) each Funded Letter of
Credit Participant (other than a Continuing Funded Letter of Credit Participant holding only
Existing Credit Linked Deposits) severally agrees to make, on the Effective Date, a payment to
Administrative Agent in an amount equal to such Funded Letter of Credit Participant’s Funded
Letter of Credit Commitment (or, in the case of any such Funded Letter of Credit Participant
holding Existing Credit Linked Deposits, an additional New Credit Linked Deposit in an amount
equal to the excess of (A) such Lender’s Funded Letter of Credit Commitment over (B) the
principal amount of its Existing Credit Linked Deposit) and Administrative Agent shall use such
payments to establish a New Credit Linked Deposit Account at each Funded LC Issuing Bank and
deposit with each such Funded LC Issuing Bank an amount as set forth on Schedule 2.4(f). The
New Credit Linked Deposits paid to a Funded LC Issuing Bank shall be held by such Funded LC
Issuing Bank in its Credit Linked Deposit Account, and no party other than the Funded LC Issuing
Bank shall have a right of withdrawal from the Credit Linked Deposit Account, or any other
right, power or interest in or with respect to the New Credit Linked Deposits, except as
expressly set forth in Sections 2.4(f), (h), (j) and Section 2.13(b)(iii). Notwithstanding any
provision in this Agreement to the contrary, the sole funding obligation of each Funded Letter
of Credit Participant in respect of its Funded Letter of Credit
Commitment and Funded Letter of Credit Participation shall be satisfied in full upon the
payment of its purchase price on the Effective Date.




          (ii) Each of Company, Administrative Agent, each Funded LC Issuing Bank and each Funded
Letter of Credit Participant hereby acknowledges and agrees that each Funded Letter of Credit
Participant is making its payment (or deemed payment) on the Effective Date pursuant to Section
2.4(j)(i) to be paid into the Credit Linked Deposit Account for application in the manner
contemplated by Sections 2.4(f) and (h). Regarding the New Credit Linked Deposits to be held by
JPMC in its capacity as a Funded LC Issuing Bank, JPMC has agreed (except during periods when
such New Credit Linked Deposits, or funds



54









 






applied by or on behalf of JPMC against such New
Credit Linked Deposits, are used to cover Unpaid Drawings under Funded Letters of Credit) to
direct the investment of the New Credit Linked Deposits as follows: (1) Company shall advise
such Funded LC Issuing Bank (in writing copied at the same time to the Administrative Agent) at
least two Business Days prior to the commencement of each Interest Period of the first and last
Business Day of such Interest Period (it being understood, without the requirement for any
further notification, that the first Business Day of the first Interest Period shall be the
Closing Date; (2) on the first Business Day of each Interest Period, JPMC in its capacity as
Funded LC Issuing Bank shall invest the New Credit Linked Deposits held by it in a JPMC
Certificate of Deposit having a rate that is identified to the Administrative Agent by JPMC in
its capacity as Funded LC Issuing Bank on such Business Day for the period commencing on the
first day of such Interest Period and ending on the last day of such Interest Period and (3) on
the last Business Day of such Interest Period JPMC in its capacity as a Funded LC Issuing Bank
shall disburse to the Administrative Agent (for further distribution to the Funded Letter of
Credit Participants in accordance with their Pro Rata Shares) the amount of the earnings for
such Interest Period on the New Credit Linked Deposits held by it at the rate identified
pursuant to the foregoing clause (2) (the “JPMC Relevant Return”). Regarding the New Credit
Linked Deposits to be held by UBS in its capacity as a Funded LC Issuing Bank, UBS has agreed
(except during periods when such New Credit Linked Deposits, or funds applied by or on behalf of
UBS against such New Credit Linked Deposits, are used to cover Unpaid Drawings under Funded
Letters of Credit) to direct the investment of the New Credit Linked Deposits as follows: (1)
Company shall advise such Funded LC Issuing Bank (in writing copied at the same time to the
Administrative Agent) at least two Business Days prior to the commencement of each Interest
Period of the first and last Business Day of such Interest Period (it being understood, without
the requirement for any further notification, that the first Business Day of such Interest
Period shall be the Closing Date); (2) on the first Business Day of each Interest Period, UBS in
its capacity as Funded LC Issuing Bank shall invest the New Credit Linked Deposits held by it
in a UBS time deposit (or in respect of the first Interest Period from the Closing Date to June
27th in overnight time deposits) having a rate that is identified to the
Administrative Agent by UBS in its capacity as Funded LC Issuing Bank on such Business Day for
the period commencing or the first day of such Interest Period and ending on the last day of
such Interest Period and (3) on the last Business Day of each Interest Period UBS in its
capacity as a Funded LC Issuing Bank shall disburse to the Administrative Agent (for further
distribution to the Funded Letter of Credit Participants in accordance with their Pro Rata
Shares) the amount of the earnings for such Interest Period on the New Credit Linked Deposits
held by it (the “UBS Relevant Return” and together with the JPMC Relevant Return, the “Relevant
Return”). In addition to the foregoing payments
by or on behalf of Administrative Agent, Company agrees to make payments to each Funded
Letter of Credit Participant in accordance with its Pro Rata Share when payments of the Relevant
Return are made as above on the last day of each Interest Period (and made together with such
payments) in an amount equal to the amount by which the Relevant Return for such Interest Period
is less than the amount which would have been earned on the total aggregate New Credit Linked
Deposits held by all Funded LC Issuing Banks for such Interest Period had such New Credit Linked
Deposits earned a return equal to the Adjusted Eurodollar Rate for such Interest Period (such
Adjusted Eurodollar Rate shall be calculated as if in respect of a Eurodollar Rate Loan
hereunder for such Interest Period). The Adjusted



55









 






Eurodollar Rate for the New Credit Linked
Deposits that have been converted from Existing Credit Linked Deposits pursuant to Section
2.4(j)(i) on the Effective Date shall be determined in the same manner and with the same
Interest Periods as the Existing Credit Linked Deposits (for the avoidance of doubt, only the
Applicable Margin component of the interest rate shall change on the Effective Date). Each
Funded Letter of Credit Participant (whether a Continuing Funded Letter of Credit Participant or
a new Funded Letter of Credit Participant) shall be allocated its pro rata share of the New
Credit Linked Deposits set at the corresponding Adjusted Eurodollar
Rate and Interest
Periods as the Existing Credit Linked Deposits.




          (iii) Company shall have no right, title or interest in or to the New Credit Linked
Deposits and no obligations with respect thereto (except for the reimbursement obligations in
respect of Funded Letters of Credit provided in Sections 2.4(f) and (h)), it being acknowledged
and agreed by the parties hereto that the making of the New Credit Linked Deposits by the Funded
Letter of Credit Participants, the payments to the Funded Letter of Credit Participants
contemplated in Section 2.4(j)(ii), the provisions of this Section 2.4(j)(iii) and the
application of the New Credit Linked Deposits in the manner contemplated by Sections 2.4(f) and
(h) constitute agreements among Administrative Agent, the Funded LC Issuing Banks and the Funded
Letter of Credit Participants with respect to payments of each Funded Letter of Credit
Participant in respect of its Funded Letter of Credit Participation and do not constitute any
loan or extension of credit to Company.




          (iv) Following the occurrence of any of the events identified in clauses (i), (ii) or (iii)
of the definition of Funded Letter of Credit Termination Date (but solely in the case of clause
(ii), only to the extent at such time Company shall have paid all outstanding obligations then
due and payable under this Agreement), and subject to Company’s cash collateralization to the
extent of a Funded LC Issuing Bank’s outstanding Funded Letters of Credit, in an amount (but in
no event greater than 105% of the aggregate undrawn face amount) and manner reasonably
satisfactory to the Collateral Agent and the Funded LC Issuing Bank that issued such Funded
Letters of Credit (which cash collateralization is hereby expressly required of Company on any
Funded Letter of Credit Termination Date), each Funded LC Issuing Bank shall repurchase the
Funded Letter of Credit Participation Interests from the Funded Letter Credit Participants with
the remaining New Credit Linked Deposits held by it at such time according to each Funded Letter
of Credit Participant’s Pro Rata Share (whereupon such remaining amount that has been so paid
shall no longer be considered the property of the Funded LC Issuing Banks).



          (k) Obligations Absolute. The obligation of Company to reimburse each Issuing Bank
for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made
by Lenders pursuant to Section 2.4(e) and the obligations of Lenders under Sections 2.4(f) and (h)
shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms
hereof under all circumstances including any of the following circumstances: (i) any lack of
validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off,
defense or other right which Company or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting),
such Issuing Bank, Lender or any other Person or, in the case of a Lender, against Company, whether
in connection herewith, the transactions contemplated herein or any unrelated




56









 







transaction
(including any underlying transaction between Company or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by
such Issuing Bank under any Letter of Credit against presentation of a draft or other document
which substantially complies with the terms of such Letter of Credit; (v) any adverse change in the
business, operations, properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries; (v) any breach hereof or any other Credit Document by any party
thereto; (vi) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (vii) the fact that an Event of Default or a Default shall have occurred and be
continuing; provided, in each case, that payment by an Issuing Bank under the applicable
Letter of Credit shall not have constituted gross negligence or willful misconduct of such Issuing
Bank under the circumstances in question.




          (l) Indemnification. Without duplication of any obligation of Company under Section
10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby agrees to protect,
indemnify, pay and save harmless each Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, reasonable costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel) which such Issuing Bank may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing Bank,
other than as a result of (1) the gross negligence or willful misconduct of, such Issuing Bank
under the circumstances in question or (2) the wrongful dishonor by such Issuing Bank of a proper
demand for payment made under any Letter of Credit issued by it, or (ii) the failure of such
Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental
Act.




          (m) Existing Letters of Credit.1 On the Effective Date, (i) each Existing
Funded Letter of Credit, to the extent outstanding, shall automatically and without further action
by the parties thereto be deemed converted to Funded Letters of Credit issued pursuant to this
Section 2.4 for the account of Company and subject to the provisions hereof, and for this purpose
the fees payable with respect to such Funded Letters of Credit issued hereunder pursuant to Section
2.11(b)(i) and 2.11(c) shall be payable (in substitution for any fees set forth in the applicable
letter of credit reimbursement agreements or applications relating to such letters of credit,
except to the extent that such fees are of the type payable hereunder pursuant to Section
2.11(c)(iii), in
which event such fees shall be payable without duplication) as if such Funded Letters of
Credit had been issued on the Effective Date and (ii) each of the Issuing Banks listed on Schedule
1.1(c) with respect to its respective Existing Funded Letter of Credit shall be deemed to be a
Funded LC Issuing Bank hereunder with respect to its Funded Letters of Credit, but UBS shall not be
an Issuing Bank except as to the Detroit Letters of Credit. UBS and Company agree for the sake of
clarity that the references to the “Credit Agreement” in the Detroit Letters of Credit are intended
to mean the Credit Agreement under which the Detroit Letters of Credit are deemed issued (as such
Credit Agreement may be amended or replaced from time to time).






 




			
	1	 	Note: Information regarding LCs outstanding
on the proposed Effective Date to be provided.




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          (n) Upon the prior written consent of JPMC and at least 3 Business Days’ prior written notice
to Administrative Agent and UBS, Company may request the transfer of all or a portion of the New
Credit Linked Deposit held by UBS at such time from UBS to JPMC (each such institution in its
capacity as a Funded LC Issuing Bank) on the last day of any Interest Period relating to the New
Credit Linked Deposits (the date of such transfer being a “Transfer Date”) in an amount not to
exceed, at such time, the difference between (i) the New Credit Linked Deposits held by UBS at such
time minus (ii) the Funded Letters of Credit Outstanding at such time in respect of Funded Letters
of Credit issued by UBS (or, if greater, the amount to which such Funded Letters of Credit by their
terms permit the Stated Amount thereof to be increased to) (such difference being the “UBS Excess
Transfer Amount”). No later than 12:00 p.m. (New York City time) on such Transfer Date, UBS shall
transfer to such Credit Linked Deposit Account as JPMC may designate, an amount equal to the UBS
Excess Transfer Amount in immediately available funds. Upon such transfer (i) the New Credit
Linked Deposit held by JPMC, and (without further action) the amount corresponding to JPMC on
Schedule 1.1(c), shall each be increased in an amount equal to the UBS Excess Transfer Amount and
(ii) the New Credit Linked Deposit held by UBS, and (without further action) the amount
corresponding to UBS on Schedule 1.1(c), shall be reduced by an amount equal to the UBS Excess
Transfer Amount.




     2.5. Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans and New Credit Linked Deposits shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any default by any other
Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a
participation required hereby nor shall any Term Loan Commitment, Funded Letter of Credit
Commitment or any Revolving Commitment of any Lender be increased or decreased as a result of a
default by any other Lender in such other Lender’s obligation to make a Loan or New Credit Linked
Deposit requested hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit
Date. If such corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest thereon, for each day from such Credit Date until the date
such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for
the correction of errors among banks for three Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Base Rate Loans for




58









 







such Class of Loans. Nothing in this Section 2.5(b) shall be
deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving
Commitments hereunder or to prejudice any rights that Company may have against any Lender as a
result of any default by such Lender hereunder.




     2.6. Use of Proceeds. The proceeds of the Tranche C Term Loans shall be applied on the
Effective Date by Company to (a) repay in full the Existing Term Loans that are not converting to
Tranche C Term Loans on the Effective Date and (b) be deemed to repay in full the Existing Term
Loans that are converting to Tranche C Term Loans as of the Effective Date that shall remain
outstanding on and after the Effective Date as “Tranche C Term Loans” made pursuant to this
Agreement. The proceeds of the Delayed Draw Term Loans shall be applied on the Delayed Draw Term
Loan Credit Date by Company to prepay up to $140,000,000 in the aggregate of Second Lien Term Loans
and any premium related thereto. The proceeds of the Revolving Loans and Swing Line Loans made
after the Effective Date shall be applied by Company for working capital and general corporate
purposes of Company and its Subsidiaries, including permitted Consolidated Capital Expenditures,
Permitted Acquisitions and to (in an aggregate amount not to exceed $25,000,000) pay MSW
Put-Related Costs. The proceeds of the Funded Letters of Credit and Revolving Letters of Credit
shall be used by Company to support Company’s and its Subsidiaries’ obligations under the Projects
and other Contractual Obligations of Company and its Subsidiaries and other general corporate
purposes, but shall in no event be used to make or facilitate any Investment or Restricted Junior
Payment not otherwise permitted hereunder. No portion of the proceeds of any Credit Extension
shall be used in any manner that causes or might cause such Credit Extension or the application of
such proceeds to violate Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of Company to such Lender, including the amounts of
the Loans and the New Credit Linked Deposits made by it and each repayment and prepayment in
respect thereof. Any such recordation shall be conclusive and binding on Company, absent manifest
error; provided, that the failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in
respect of any applicable Loans or New Credit
Linked Deposits; and provided further, in the event of any inconsistency
between the Register and any Lender’s records, the recordations in the Register shall govern.




          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at the Principal Office a register for the recordation of the names and addresses of
Lenders and the Revolving Commitments, the Delayed Draw Term Loan Commitments, the Loans and the
New Credit Linked Deposits of each Lender from time to time (the “Register”). The Register, as in
effect at the close of business on the preceding Business Day, shall be available for inspection by
Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving
Commitments, the Delayed Draw Term Loan Commitments, the Loans and the New Credit Linked Deposits
in accordance with the provisions of Section 10.6,






59









 







and each repayment or prepayment in respect of
the principal amount of the Loans or the New Credit Linked Deposits, and any such recordation shall
be conclusive and binding on Company and each Lender, absent manifest error; provided, that
the failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or Delayed Draw Term Loan Commitments or Company’s Obligations in
respect of any Loan or the New Credit Linked Deposits. The Administrative Agent shall correct any
failures to record or errors in recording in the Register reasonably promptly after discovery of
such failure or error. Company hereby designates GSCP to serve as Company’s agent solely for
purposes of maintaining the Register as provided in this Section 2.7, and Company hereby agrees
that, to the extent GSCP serves in such capacity, GSCP and its officers, directors, employees,
agents, sub-agents and affiliates shall constitute “Indemnitees.” The Obligations are registered
obligations and the right, title and interest of any Lender or Issuing Bank and/or its assignees in
and to such Obligations shall be transferable only upon notation of such transfer in the Register.
This Section 2.7(b) shall be construed so that the Obligations are at all times maintained in
“registered form” within the meaning of sections 163(f), 871(h)(2) and 881(c)(2) of the Internal
Revenue Code and any related Treasury Regulations.




          (c) Notes. If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Effective Date, or at any time
thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Effective Date (or, if such notice is delivered after the Effective Date, promptly after
Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Tranche C Term Loan,
Delayed Draw Term Loan, Revolving Loan or Swing Line Loan, as the case may be. Each Continuing
Term Lender who has a Note evidencing its Existing Term Loan shall promptly deliver to Company such
Note in exchange for a Term Loan Note evidencing its Tranche C Term Loan.




     2.8. Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:





               (1) if a Base Rate Loan, at the Base Rate plus the Applicable
Margin; or




               (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus the Applicable Margin.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company and notified to Administrative
Agent pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may
be. The Base Rate and the Adjusted Eurodollar Rate for the Tranche C Term Loans of Continuing Term
Lenders that have been converted from Existing Term Loans pursuant to Section 2.1(a)(i) on the
Effective Date shall be determined in





60









 







the same manner and with the same Interest Periods as the
Existing Term Loans (for the avoidance of doubt, only the Applicable Margin component of the
interest rate shall change on the Effective Date). Each Tranche C Term Loan Lender (whether a
Continuing Lender or a new Lender having a Tranche C Term Loan Commitment) shall be allocated its
pro rata share of Tranche C Term Loans set at the corresponding Base Rate and the Adjusted
Eurodollar Rate and Interest Periods as the Existing Term Loans. Upon expiration of the
applicable Interest Period for such Tranche C Term Loans existing on the Effective Date, each
Eurodollar Rate Loan shall either be converted to a Base Rate Loan or continued as a Eurodollar
Rate Loan at Company’s option pursuant to Section 2.9 hereof. If on any day a Loan is
outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been
delivered to Administrative Agent in accordance with the terms hereof specifying the applicable
basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than eight (8) Interest
Periods outstanding at any time. In the event Company fails to specify between a Base Rate Loan or
a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Company and each Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or,
with respect to a Tranche C Term Loan, the last Interest Payment Date with respect to such
Tranche C Term Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may
be, shall be included, and the date of payment of such Loan or the expiration date of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case
may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is
made, one day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily
basis and shall be payable in arrears on each Interest Payment Date with respect to interest
accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable
in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the




61









 







extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in
arrears at maturity of the Loans, including final maturity of the Loans; provided,
however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest
shall instead be payable on the applicable Interest Payment Date.




          (f) Company agrees to pay to each Revolving Issuing Bank, with respect to drawings honored
under any Revolving Letter of Credit issued by such Revolving Issuing Bank, interest on the amount
paid by such Revolving Issuing Bank in respect of each such honored drawing from the date such
drawing is honored to but excluding the date such amount is reimbursed by or on behalf of Company
(including any such reimbursement out of the proceeds of any Revolving Loans), at a rate equal to
(i) for the period from the date such drawing is honored to but excluding the applicable
Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2% per annum in excess of the
rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate
Loans.




          (g) Company agrees to pay to such Funded LC Issuing Bank, with respect to drawings honored
under any Funded Letter of Credit issued by such Funded LC Issuing Bank, interest on the amount
paid by such Funded LC Issuing Bank in respect of each such honored drawing from the date such
drawing is honored to but excluding the date such amount is reimbursed by or on behalf of Company
or from New Credit Linked Deposits at a rate equal to the rate of interest otherwise payable
hereunder with respect to Term Loans that are Base Rate Loans.




          (h) Interest payable pursuant to Sections 2.8(f) or (g) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it accrues, and
shall be payable on demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full. Promptly upon receipt by an Issuing Bank of any payment
of interest pursuant to Section 2.8(f) or (g), such Issuing Bank shall distribute to each Letter of
Credit Participant, out of the interest received by such Issuing Bank in respect of the period from
the date such drawing is honored to but excluding the date on which such Issuing Bank is reimbursed
for the amount of such drawing (including any such reimbursement out of the proceeds of any
Revolving Loans), the amount that such Letter of Credit Participant would have been entitled to
receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of Credit for such period if no drawing had
been honored under such Letter of Credit. In the event an Issuing Bank shall have been reimbursed
by Letter of Credit Participants for all or any portion of such honored drawing, such Issuing Bank
shall distribute to each Letter of Credit Participant which has paid all amounts payable by it
under Section 2.4(h) with respect to such honored drawing such Letter of Credit Participant’s Pro
Rata Share of any interest received by such Issuing Bank in respect of that portion of such honored
drawing so reimbursed by Letter of Credit Participants for the period from the date on which such
Issuing Bank was so reimbursed by Letter of Credit Participants to but excluding the date on which
such portion of such honored drawing is reimbursed by Company.





62









 








     2.9. Conversion/Continuation.



          (a) Subject to Section 2.18 and (with respect to continuations of, or conversions into,
Eurodollar Rate Loans) so long as no Default or Event of Default shall have occurred and then be
continuing, Company shall have the option:





          (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$500,000 and integral multiples of $250,000 in excess of that amount from one Type of Loan to
another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on the
expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Company shall
pay all amounts due under Section 2.18 in connection with any such conversion; or




          (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $500,000 and integral multiples of $250,000 in
excess of that amount as a Eurodollar Rate Loan.



          (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or
telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or continuation in accordance
therewith.




     2.10. Default Interest. The principal amount of all Loans not paid when due and, to the
extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts
owed hereunder but not paid when due, shall thereafter bear interest (including post-petition
interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable
on demand at a rate that is 2% per annum in excess of the highest interest rate otherwise payable
hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts,
at a rate which is 2% per annum in excess of the highest interest rate otherwise then payable
hereunder
for Base Rate Loans); provided, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter
bear interest payable upon demand at a rate which is 2% per annum in excess of the highest interest
rate otherwise then payable hereunder for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this Section 2.10 is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of Administrative Agent or any Lender.



63









 





     2.11. Fees.



          (a) Company agrees to pay to Administrative Agent for the ratable benefit of each Lender
having Revolving Exposure:





          (i) commitment fees equal to (1) the average of the daily difference between (a) the
Revolving Commitments, and (b) the Total Utilization of Revolving Commitments (disregarding item
(ii) of the definition thereof), times (2) 0.50% per annum; and




          (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that are
Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to be
drawn under all such Revolving Letters of Credit (regardless of whether any conditions for
drawing could then be met and determined as of the close of business on any date of
determination).



          (b) Company agrees to pay to Administrative Agent for the ratable benefit of each Lender
having Funded Letter of Credit Exposure, a fee in respect of such Lender’s Pro Rata Share of the
New Credit Linked Deposits (the “Funded Letter of Credit Fee”), for the period from and including
the Effective Date to but excluding the date on which final payment made to such Lender pursuant to
Section 2.4(j)(iv), computed at the per annum rate for each date equal to (x) the Applicable Margin
for New Credit Linked Deposits then in effect for Funded Letters of Credit times (y) the average
daily amount of such New Credit Linked Deposit.




          (c) Company agrees to pay directly to each Issuing Bank, for its own account, the following
fees:





          (i) a fronting fee equal to 0.125%, per annum, times the average aggregate daily maximum
amount available to be drawn under all Revolving Letters of Credit issued by such Issuing Bank
(determined as of the close of business on any date of determination);




          (ii) a fronting fee equal to 0.125%, per annum, times the average aggregate daily maximum
amount available to be drawn under all Funded Letters of Credit issued by such Issuing Bank
(determined as of the close of business on any date of determination); and




          (iii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with such Issuing Bank’s standard schedule
for such charges and as in effect (and delivered to Company) at the time of such issuance,
amendment, transfer or payment, as the case may be.



          (d) Company agrees to pay to Administrative Agent for the ratable benefit of each Lender
having a Delayed Draw Term Loan Commitment commitment fees equal to the Delayed Draw Term Loan
Commitment times 0.50% per annum; and




          (e) All fees referred to in Sections 2.11(a), (b) and (c) shall be paid to Administrative
Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to
each Lender its Pro Rata Share thereof.





64









 








          (f) All fees referred to in Sections 2.11(a), (b), (c) and (d) shall be calculated on the
basis of a 360-day year and the actual number of days elapsed and shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year during the Revolving
Commitment Period, the Funded Letter of Credit Commitment Period or the Delayed Draw Term Loan
Commitment Period, as applicable, commencing on the first such date to occur after the Effective
Date, and on the Revolving Commitment Termination Date, the Funded Letter of Credit Termination
Date or Delayed Draw Term Loan Commitment Termination Date, as applicable, and with respect to
Section 2.11(b) on the date of return to any Funded Letter of Credit Participant of any of such
Funded Letter of Credit Participant’s New Credit Linked Deposits in respect of the amount so
returned, as applicable.




          (g) In addition to any of the foregoing fees, Company agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.




     2.12. Scheduled Payments. The principal amounts of the Term Loans (other than New Term Loans,
the repayment of which shall be governed by the proviso below) shall be repaid in consecutive
quarterly installments (each, an “Installment”) in the aggregate amounts set forth below on the
last day of each Fiscal Quarter (each, an “Installment Date”), commencing September 30, 2006:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Installments of	 	 	Installments of
	 	 	 	Tranche C	 	 	Delayed Draw 
	Installment
Dates     	 	 	 Term Loans	 	 	Term Loans
	September 30, 2006
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	December 31, 2006
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	March 31, 2007
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	June 30, 2007
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	September 30,
2007
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	December 31, 2007
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	March 31, 2008
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	June 30, 2008
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	September 30,
2008
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	December 31, 2008
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	March 31, 2009
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	June 30, 2009
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	September 30,
2009
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	December 31, 2009
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	March 31, 2010
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	June 30, 2010
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	September 30,
2010
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	December 31, 2010
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	March 31, 2011
	 	 	$	573,281.25	 	 	 	$	350,000.00	 
	June 30, 2011
	 	 	$	573,281.25	 	 	 	$	350,000.00	 






65









 






	 	 	 	 	 	 	 	 	 	 
	 	 	 	Installments of	 	 	Installments of
	 	 	 	Tranche C	 	Delayed Draw 
	Installment
Dates   	 	 	 Term Loans	 	Term Loans
	September 30,
2011
	 	 	$	54,461,718.71	 	 	$	33,250,000.00	 
	December 31, 2011
	 	 	$	54,461,718.71	 	 	$	33,250,000.00	 
	March 31, 2012
	 	 	$	54,461,718.71	 	 	$	33,250,000.00	 
	June 30, 2012
	 	 	$	54,461,718.71	 	 	$	33,250,000.00	 






;provided, that in the event any New Term Loans are deemed made, such New Term Loans
shall be repaid on each Installment Date occurring on or after the date on which such New Term
Loans are deemed made pursuant to Section 2.4(f) in an amount equal to (i) the aggregate principal
amount of such New Term Loans, times (ii) the ratio (expressed as a percentage) of (y) the amount
of all other Term Loans being repaid on such date and (z) the total aggregate principal amount of
all other Term Loans outstanding on such deemed date of making of such New Term Loans.



Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Term Loan in accordance with Sections 2.13, 2.14 and
2.15, as applicable; and (y) and the Term Loan, together with all other amounts owed hereunder with
respect thereto, shall, in any event, be paid in full no later than the Term Loan Maturity Date.



     2.13. Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.





          (i) Any time and from time to time:




          (1) with respect to Base Rate Loans, Company may prepay any
such Loans on any Business Day in whole or in part, in an aggregate
minimum amount of $500,000 and integral multiples of $250,000 in
excess of that amount;




          (2) with respect to Eurodollar Rate Loans, Company may prepay
any such Loans on any Business Day in whole or in part in an
aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount; and




          (3) with respect to Swing Line Loans, Company may prepay any
such Loans on any Business Day in whole or in
part in an aggregate minimum amount of $500,000, and in
integral multiples of $250,000 in excess of that amount.




          (ii) All such prepayments shall be made:




          (1) upon not less than one Business Day’s prior written or
telephonic notice in the case of Base Rate Loans;



66









 






          (2) upon not less than three Business Days’ prior written or
telephonic notice in the case of Eurodollar Rate Loans; and




          (3) upon written or telephonic notice on the date of
prepayment, in the case of Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified
in Section 2.15(a).




          (b) Voluntary Commitment Reductions.





          (i) Company may, upon not less than one Business Day’s prior written or telephonic notice
promptly confirmed in writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in whole or permanently reduce
in part, without premium or penalty, the Delayed Draw Term Loan Commitments and at any time from
time to time terminate in whole or permanently reduce in part, without premium or penalty, the
Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed
the Total Utilization of Revolving Commitments at the time of such proposed termination or
reduction; provided, any such partial reduction of the Delayed Draw Term Loan
Commitments or the Revolving Commitments shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $1,000,000 in excess of that amount.




          (ii) Company’s notice to Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Delayed Draw Term Loan Commitments or the Revolving Commitments
shall be effective on the date specified in Company’s notice and shall reduce the Revolving
Commitment or Delayed Draw Term Loan Commitments, as applicable, of each Lender proportionately
to its Pro Rata Share thereof.




          (iii) Upon at least one Business Day’s prior written notice (or telephonic notice promptly
confirmed in writing) to Administrative Agent at Administrative Agent’s
Principal Office (which notice Administrative Agent shall promptly transmit to each of the
Funded LC Issuing Banks and each of the Lenders), Company shall have the right, without premium
or penalty, on any day, permanently to reduce the New Credit Linked Deposits in whole or in
part, provided that (i) any partial reduction pursuant to this Section 2.13(b)(iii)
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in
excess of that amount, and shall be allocated among the New Credit Linked Deposits held by the
Funded LC Issuing Banks on a pro rata basis and (ii) after giving effect to such



67









 






reduction and
to any cancellation or cash collateralization of Funded Letters of Credit made on the date
thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Funded Letter of
Credit Exposures (after giving effect to any required increase in the Stated Amount of any
Funded Letters of Credit) shall not exceed the Total Credit Linked Deposit. In the event the
New Credit Linked Deposits shall be reduced as provided in the immediately preceding sentence,
each Funded LC Issuing Bank shall repurchase the Funded LC Participation Interests in respect of
such reduced New Credit Linked Deposits held by the Funded Letter of Credit Participants with
the New Credit Linked Deposits held by such Funded LC Issuing Bank in an amount that corresponds
to the portion of such reduction allocable to such Funded LC Issuing Bank (such repurchase price
to be deposited by such Funded LC Issuing Bank with Administrative Agent) and Administrative
Agent shall repay such amount to the Funded Letter of Credit Participants ratably in accordance
with their Pro Rata Shares of the Total Credit Linked Deposit (as determined immediately prior
to such reduction).



     2.14. Mandatory Prepayments/Commitment Reductions.



          (a) Asset Sales. No later than the fifth Business Day following the date of receipt
by Company or any of its Subsidiaries of any Net Asset Sale Proceeds (or, in the event such Net
Asset Sale Proceeds are subject to distribution limitations contained in the ARC Indenture, any ARC
Refinancing Indenture, any New ARC Indenture, either MSW Indenture, any MSW Refinancing Indenture,
any New MSW Indenture or any Project document or any instrument or agreement governing the terms of
any permitted refinancing thereof, no later than the fifth Business Day after the last of such
distribution limitations (as the same relates to such Net Asset Sale Proceeds) expires), Company
shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth
in Section 2.15(b) in an aggregate amount equal to 100% of such Net Asset Sale Proceeds;
provided, (i) so long as no Default or Event of Default shall have occurred and be
continuing on the date of the related Asset Sale, and (ii) to the extent that aggregate of such Net
Asset Sale Proceeds from the Closing Date through the applicable date of determination do not
exceed $5,000,000 in any Fiscal Year or $10,000,000 in the aggregate since the Closing Date
(excluding, but only for the purposes of calculating such cap and not the reinvestment provision
itself, Net Asset Sale Proceeds from the sale or other disposition of those assets identified on
Schedule 6.9-A), Company shall have the option, directly or through one or more of its
Subsidiaries, to invest such Net Asset Sale Proceeds within three hundred sixty days of receipt
thereof in long-term productive assets of the general type used in the business of Company and its
Subsidiaries; provided further, pending any such investment all such Net Asset Sale
Proceeds shall be applied to prepay Revolving Loans to the extent outstanding (without a reduction
in Revolving Commitments).




          (b) Insurance/Condemnation Proceeds. No later than the fifth Business Day following
the date of receipt by Company or any of its Subsidiaries, or Collateral Agent or Administrative
Agent as loss payee, of any Net Insurance/Condemnation Proceeds (or, in the event such Net
Insurance/Condemnation Proceeds are subject to distribution limitations contained in the ARC
Indenture, any ARC Refinancing Indenture, New ARC Indenture, either MSW Indenture, any MSW
Refinancing Indenture and New MSW Indenture or any Project document or any instrument or agreement
governing the terms of any permitted refinancing thereof, no later than the fifth Business Day
after the last of such distribution limitations (as the





68









 







same relates to such Net
Insurance/Condemnation Proceeds) expires), Company shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount
equal to such Net Insurance/Condemnation Proceeds; provided, so long as no Default or Event
of Default shall have occurred and be continuing on the date of such receipt, Company shall have
the option, directly or through one or more of its Subsidiaries to invest or commit to reinvest
such Net Insurance/Condemnation Proceeds within three hundred sixty days of receipt thereof in long
term productive assets of the general type used in the business of Company and its Subsidiaries,
which investment may include the repair, restoration or replacement of the applicable assets
thereof (or to reimburse Company and its Subsidiaries for costs incurred in respect of such loss);
provided further, pending any such investment all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay Revolving Loans to the extent outstanding
(without a reduction in Revolving Commitments).




          (c) Issuance of Equity Securities. On the fifth Business Day following date of
receipt by Company of any Cash proceeds from a capital contribution to, or the issuance of any
Capital Stock of, Company or any of its Subsidiaries (other than (i) the Rights Offering and any
equity contribution or investment made by Holding in Company with the proceeds thereof, (ii) the
Put-Related Equity Offering and any equity contribution or investment made by Holding in Company
with the proceeds thereof, (iii) an equity contribution from Holding to Company to occur within 120
days of the Closing Date in an aggregate amount not to exceed $25,000,000, the proceeds of which
are on-lent pursuant to Section 6.1(e) or invested pursuant Section 6.7(n)(iii) to pay MSW
Put-Related Costs, (iv) proceeds received by a Subsidiary of Company from Company or another
Subsidiary of Company, (v) pursuant to any employee and/or director stock or stock option
compensation plan and (vi) cash equity contributions from Holding to Company, the proceeds of which
are used by Company or its Subsidiaries to fund Permitted Acquisitions (such contribution being an
“Acquisition Holding Contribution”)), Company shall prepay the Loans and/or the Revolving
Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount
equal to 50% of such proceeds, net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and expenses
provided, that if any such commissions, costs or expenses have not been incurred or
invoiced at such time, Company may deduct its good faith estimate thereof to extent subsequently
paid; provided, further, that the amount of such proceeds required to be prepaid
shall be reduced in an amount equal to the amount of proceeds Subsidiaries of Company are legally
bound, or required, pursuant to the ARC Indenture, the ARC Refinancing Indenture, any New ARC
Indenture, the MSW Indentures, MSW Refinancing Indenture, MSW Refinancing Notes, any New MSW
Indenture or any refinancings thereof to use for prepayments thereunder.




          (d) Issuance of Debt. No later than the fifth Business Day following the date of
receipt by Company or any of its Subsidiaries of any Cash proceeds from the incurrence of any
Indebtedness for borrowed money of Company or any of its Subsidiaries (other than with respect to
any Indebtedness permitted to be incurred pursuant to Section 6.1), Company shall prepay the Loans
and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an
aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable legal fees and
expenses; provided, that if any such commissions, costs or expenses




69









 







have not been incurred
or invoiced at such time, Company may deduct its good faith estimate thereof to the extent
subsequently paid.




          (e) Excess Cash Flow. In the event that there shall be Excess Cash Flow for any
Fiscal Year (commencing with Fiscal Year 2005, but for Fiscal Year 2005 calculated solely for the
period from July 1, 2005 to the end of such Fiscal Year), Company shall, no later than ninety days
after the end of such Fiscal Year, prepay the Loans and/or the Revolving Commitments shall be
permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to 50% of such
Excess Cash Flow; provided, during any period in which the Company Leverage Ratio
(determined for any such period by reference to the most recent Compliance Certificate delivered
pursuant to Section 5.1(d) calculating the Company Leverage Ratio) shall be 4.00:1.00 or less,
Company shall only be required to make the prepayments and/or reductions otherwise required hereby
in an amount equal to 25% of such Excess Cash Flow. In calculating amounts owing under this clause
(e), credit shall be given for any voluntary prepayments of the Loans (excluding repayments of
Revolving Loans or Swing Line Loans except to the extent the Revolving Commitments are permanently
reduced in connection with such repayments) and, to the extent expressly permitted by the
Intercreditor Agreement, the Second Lien Term Loans made during the applicable Fiscal Year.




          (f) Revolving Loans and Swing Loans. Company shall from time to time prepay first,
the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then
in effect.




          (g) Prepayment Certificate. Concurrently with any prepayment of the Loans and/or
reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(e), Company shall
deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the
calculation of the amount of the applicable net proceeds or Excess Cash Flow, as the case may be.
In the event that Company shall subsequently determine that the actual amount received exceeded the
amount set forth in such certificate, Company shall promptly make an additional prepayment of the
Loans and/or the Revolving Commitments shall be permanently reduced in an amount equal to such
excess, and Company shall concurrently therewith deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the derivation of such excess.




          (h) Second Lien Debt Override. Notwithstanding anything to the contrary contained in
this Section 2.14, Company shall not be required to repay any of the Loans with proceeds, from any
source, that are required to be applied to a reduction of the loans under the
Second Lien Credit Agreement and/or the Second Lien Notes both under the terms thereof and the
Intercreditor Agreement.




          (i) Effective Date. Notwithstanding the foregoing, upon its receipt of the proceeds
of the Tranche C Term Loans, Company shall be deemed pursuant to Section 2.1(a) to apply a portion
of such proceeds sufficient to (i) prepay in full the Existing Term Loans, (ii) pay all accrued and
unpaid interest and fees, if any, on all Existing Term Loans and Existing Credit Linked Deposits
held by Existing First Lien Lenders that are not Continuing Term Lenders and (iii) pay to each
Existing First Lien Lender that is not a Continuing Lender all amounts then due





70









 







and owing as a
result of the prepayment of such Lender’s Existing Term Loans and (v) pay all other Obligations
then due and owing to (A) the Existing First Lien Lenders, in their capacity as such, under the
Existing First Lien Credit Agreement.




     2.15. Application of Prepayments.



          (a) Application of Voluntary Prepayments by Type of Loans. Subject to Section 4.1 of
the Intercreditor Agreement, any prepayment of any Loan pursuant to Section 2.13(a) shall be
applied as specified by Company in the applicable notice of prepayment; provided, in the
event Company fails to specify the Loans to which any such prepayment shall be applied, such
prepayment shall be applied as follows:





          first, to repay outstanding Swing Line Loans to the full extent thereof;




          second, to repay outstanding Revolving Loans to the full extent thereof; and




          third, to reduce the Tranche C Term Loans, any Delayed Draw Term Loans and any New Term
Loans on a pro rata basis (in accordance with the respective outstanding principal amounts
thereof).




          Any prepayment of any Term Loan pursuant to Section 2.13(a) shall be further applied to
reduce the next four scheduled Installments of principal on such Term Loan and thereafter on
a pro rata basis to the remaining scheduled Installments of principal on the Term Loans.



          (b) Application of Mandatory Prepayments by Type of Loans. Subject to Section 4.1(a)
of the Intercreditor Agreement and Section 2.14(h) hereof, any amount required to be paid pursuant
to Sections 2.14(a) through 2.14(e) shall be applied as follows:





          first, prepay Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and shall be further applied to prepay Term Loans on
a pro rata basis to the remaining scheduled Installments of principal of Term Loans;




          second, to prepay the Swing Line Loans to the full extent thereof and to permanently
reduce the Revolving Commitments by the amount of such prepayment;



          third, to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Commitments by the amount of such prepayment;




          fourth, to prepay outstanding reimbursement obligations with respect to Revolving
Letters of Credit and to further permanently reduce the Revolving Commitments by the amount
of such prepayment;



71









 






          fifth, to cash collateralize Revolving Letters of Credit and to further permanently
reduce the Revolving Commitments by the amount of such cash collateralization; and




          sixth, to further permanently reduce the Delayed Draw Term Loan Commitments to the full
extent thereof.




          seventh, to further permanently reduce the Revolving Commitments to the full extent
thereof.



          (c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in
each case in a manner which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.18(c).




     2.16. General Provisions Regarding Payments.



          (a) All payments by Company of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on
the date due at the Principal Office designated by Administrative Agent for the account of Lenders;
for purposes of computing interest and fees, funds received by Administrative Agent after that time
on such due date shall be deemed to have been paid by Company on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid.




          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including, without limitation, all fees payable with respect
thereto, to the extent received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender
makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans,
Administrative Agent shall give effect thereto in apportioning payments received thereafter.




          (e) Subject to the provisos set forth in the definition of “Interest Period” as they may apply
to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be
stated to be due on a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be
included in the computation of the payment of interest hereunder or of the Revolving Commitment
fees hereunder.




72









 








          (f) Company hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).




          (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.




          (h) If an Event of Default shall have occurred and not otherwise been cured or waived, and the
maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or
proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied in
accordance with the application arrangements described in Section 7.2 of the Pledge and Security
Agreement.




     2.17. Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the exercise of rights
with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through
the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of
Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall
(a) notify Administrative Agent and each other Lender of the receipt of such payment and (b)
apply a portion of such payment to purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously upon the receipt by such seller of its
portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided, if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Company or otherwise, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to such purchasing Lender ratably to the extent of
such recovery, but without interest. Company expressly consents to the foregoing arrangement and
agrees that



73









 




any holder of a participation so purchased may exercise any and all rights of banker’s
lien, set-off or counterclaim with respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the amount of the participation held by
that holder.




     2.18. Making or Maintaining Eurodollar Rate Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined in good faith (which determination shall be final and conclusive and
binding upon all parties hereto), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing) to Company and each
Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar
Rate Loans until such time as Administrative Agent notifies Company and Lenders that the
circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or
Conversion/Continuation Notice given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.




          (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have determined in good faith (which determination shall be final and
conclusive and binding upon all parties hereto but shall be made only after consultation with
Company and Administrative Agent) that the making, maintaining or continuation of its Eurodollar
Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any
law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such
treaty, governmental rule, regulation, guideline or order not having the force of law even though
the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a
result of contingencies occurring after the Closing Date which materially and adversely affect the
London interbank market or the position of such Lender in that market, then, and in any such event,
such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or
by telephone confirmed in writing) to Company and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the
obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn
by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to
a Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan
as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s
obligation to maintain its outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be
terminated at the earlier to occur of the expiration of the relevant Interest Periods, then in
effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, Company shall have the option, subject to the





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provisions of Section
2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by
giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of
such rescission on the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly transmit to each
other Lender). If Company does not rescind such Funding Notice or Conversion/Continuation Notice,
the Affected Lender’s Pro-Rata Share of such Loan shall constitute a Base Rate Loan. Except as
provided in the immediately preceding sentence, nothing in this Section 2.18(b) shall affect the
obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, Eurodollar Rate Loans in accordance with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Company shall
compensate each Lender and each Funded LC Issuing Bank, upon written request by such Lender or such
Funded LC Issuing Bank, as the case may be (which request shall set forth the basis for requesting
such amounts), for all reasonable losses, expenses and liabilities (including (x) the difference
between any interest paid by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans or make its New Credit Linked Deposits and the Adjusted Eurodollar Rate such
Lender would receive in connection with the liquidation or re-employment of such funds and (y) any
expense or liability sustained by such Lender in connection with the liquidation or re-employment
of such funds) which such Lender or such Funded LC Issuing Bank may sustain: (i) if for any reason
(other than a default by any such Lender or Funded LC Issuing Bank) a borrowing of any Eurodollar
Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request
for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion
or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of
its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable
to that Loan; (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company; (iv) if any New Credit Linked Deposit is
reduced prior to the last day of the Interest Period applicable thereto (including as a result of
an Event of Default) or any New Credit Linked Deposit is not reduced on the date specified in any
notice delivered pursuant hereto or (v) if any New Credit Linked Deposit held by such Funded LC
Issuing Bank is reduced in order to reimburse such Funded LC Issuing Bank pursuant to Sections
2.4(f) or 2.4(h); provided, Company shall not be obligated to compensate any Lender or
Funded LC Issuing Bank for any such losses, expenses or liabilities attributable to any such
circumstance occurring prior to the date that is 90 days prior to the date on which such
Lender or Funded LC Issuing Bank requested such compensation from Company.




          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.




          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under Section 2.18(c) shall be made as though such Lender had actually
funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a




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maturity
comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from
an offshore office of such Lender to a domestic office of such Lender in the United States of
America; provided, however, each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under Section 2.18(c).




     2.19. Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include each Issuing Bank for purposes of this Section 2.19(a)) shall
determine (which determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any
change therein or in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order), or any
determination of a court or governmental authority, in each case that becomes effective after the
Closing Date, or compliance by such Lender with any guideline, request or directive issued or made
after the Closing Date by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law): (i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the overall net income of such Lender) with
respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder
or thereunder or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable
any reserve (including any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or
other requirements with respect to Eurodollar Rate Loans or New Credit Linked Deposits that are
reflected in the definition of Adjusted Eurodollar Rate, or (iii) imposes any other condition
(other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market; and the result of any of the
foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans
or New Credit Linked Deposits hereunder or to reduce any amount received or receivable by such
Lender (or its applicable lending office) with respect thereto; then
(A) as necessary, the New Credit Linked Deposits shall be invested so as to earn a return
equal to the greater of the Federal Funds Effective Rate and a rate determined by Administrative
Agent in accordance with banking industry rules in interbank compensation and (B) in any such case,
Company shall promptly pay to such Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole discretion shall determine)
as may be necessary to compensate such Lender for any such increased cost or reduction in amounts
received or receivable hereunder; provided, Company shall not be obligated to pay such
Lender any compensation attributable to any period prior to the date that is 180 days prior to the
date on which such Lender gave notice to Company of the circumstances entitling such Lender to
compensation. Such Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the additional




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amounts owed
to such Lender under this Section 2.19(a) and in the calculation thereof, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include each Issuing Bank for purposes of this Section 2.19(b)) shall have determined that the
adoption, effectiveness, phase-in or change in applicability after the Closing Date of any law,
rule or regulation (or any provision thereof) regarding capital adequacy, or any change therein or
in the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans, Revolving Commitments, Delayed Draw Term Loan Commitments,
Letters of Credit or New Credit Linked Deposits, or participations therein or other obligations
hereunder with respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such adoption, effectiveness,
phase-in, change in applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy), then from time to
time, within five Business Days after receipt by Company from such Lender of the statement referred
to in the next sentence, Company shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis for such reduction;
provided, Company shall not be obligated to pay such Lender any compensation attributable
to any period prior to the date that is 180 days prior to the date on which such Lender gave notice
to Company of the circumstances entitling such Lender to compensation. Such Lender shall deliver
to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b)
and in the calculation thereof, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.




     2.20. Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and
under the other Credit Documents shall (except to the extent required by law) be paid free and
clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the
overall net income of any Lender (which term shall include each Issuing Bank for purposes of this
Section 2.20(a)) imposed, levied, collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf of any Credit Party.




          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender (which term shall include each Issuing Bank for
purposes of this Section 2.20(b)) under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such requirement reasonably
promptly after Company becomes aware of it; (ii) Company shall





77









 







pay or cause to be paid any such Tax
before the date on which penalties attach thereto; (iii) the sum payable by such Credit Party in
respect of which the relevant deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or payment been required or made;
and (iv) within thirty days after paying any sum from which it is required by law to make any
deduction or withholding, and within thirty days after the due date of payment of any Tax which it
is required by clause (ii) above to pay, Company shall deliver to Administrative Agent evidence
reasonably satisfactory to the other affected parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or other authority; provided, no such
additional amount shall be required to be paid to Administrative Agent or any Lender under clause
(iii) above except to the extent that any change in any applicable law, treaty or governmental
rule, regulation, or order or, or any change in the interpretation, administration or application
thereof, after the Closing Date (in the case of each Lender listed on the signature pages hereof on
the Closing Date) or after the effective date of the Assignment Agreement pursuant to which such
Lender became a Lender (in the case of each other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the Closing Date or at the date of such
Assignment Agreement, as the case may be, in respect of payments to Administrative Agent or such
Lender.




          (c) Evidence of Exemption From U.S. Withholding Tax. Each Non-US Lender shall deliver
to Administrative Agent and Company, on or prior to the Effective Date (in the case of each Lender
(which term shall include each Issuing Bank for purposes of this Section 2.20(c)) party hereto on
the Effective Date) or on or prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in
the determination of Company or Administrative Agent (each in the reasonable exercise of its
discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY
(including therewith any withholding certificates and withholding statements required under
applicable Treasury Regulations) (or any successor forms), properly completed and duly executed by
such Lender, and such other documentation required under the Internal Revenue Code and the
applicable Treasury Regulations and reasonably requested by Company to establish that such Lender
is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver Internal Revenue Service Form W-8ECI pursuant to clause (i) above, a
Certificate re Non-Bank Status together with two original copies of Internal Revenue Service Form
W-8BEN (or any successor form), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and the applicable Treasury Regulations and
reasonably requested by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
interest payable under any of the Credit Documents. Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.20(c) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or




78









 







other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly deliver to Administrative Agent and Company two
new original copies of Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including therewith
any withholding certificates and withholding statements required under applicable Treasury
Regulations), or a Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8BEN (or any successor form), as the case may be, properly completed and duly
executed by such Lender, and such other documentation required under the Internal Revenue Code and
the applicable Treasury Regulations and reasonably requested by Company to confirm or establish
that such Lender is not subject to deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent
and Company of its inability to deliver any such forms, certificates or other evidence. Each
Lender that is organized under the laws of the United States or any State or political subdivision
thereof and that is not an “exempt recipient” (as defined in Treasury Regulations section
1.6049-4(c)) with respect to which no backup withholding is required shall, on or prior to the
Closing Date (in the case of each Lender listed on the signature pages hereof on the Closing Date),
or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in
the case of each other Lender) provide Administrative Agent and Company with two original copies of
Internal Revenue Service Form W-9 (certifying that such Person is entitled to an exemption from
United States backup withholding tax) or any successor form, and each such Lender shall thereafter
provide Administrative Agent and Company with such supplements and amendments thereto and such
additional forms, certificates, statements or documents as may from time to time be required by
applicable law. Company shall not be required to pay any additional amount to any Lender under
Section 2.20(b)(iii) if such Lender shall have failed (1) to deliver the forms, certificates or
other evidence referred to in this Section 2.20(c), or (2) to notify Administrative Agent and
Company of its inability to deliver any such forms, certificates or other evidence, as the case may
be; provided, if such Lender shall have satisfied the requirements of the first sentence or
third sentence, as applicable, of this Section 2.20(c) on the Closing Date or on the date of the
Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last
sentence of this Section 2.20(c) shall relieve Company of its obligation to pay any additional
amounts pursuant to Section 2.20(b)(iii) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer legally entitled to
deliver forms, certificates or other evidence at a subsequent date establishing the fact that
such Lender is not subject to withholding as described herein.




          (d) If any Lender (which term shall include each Issuing Bank for purposes of this Section
2.20(d)) or Administrative Agent shall become aware that it is entitled to receive a refund in
respect of Taxes paid by Company or as to which it has received additional amounts under Section
2.20(b)(iii), it shall promptly notify Company of the availability of such refund and shall,
within ninety days after receipt of a request by Company, apply for such refund at Company’s
expense. If any Lender or Administrative Agent actually receives a refund in respect of any Taxes
paid by Company or as to which it has received additional amounts under Section 2.20(b)(iii), it
shall promptly notify Company of such refund and shall, within ninety days after receipt of a
request by Company (or promptly upon receipt, if Company has requested application for such refund
pursuant hereto), repay such refund to Company (to the extent of amounts that have been paid by
Company under Section 2.20(b)(iii) with respect to such refund plus interest that is received by
such Lender or Administrative Agent as part of the refund), net





79









 







of all reasonable out-of-pocket
expenses of such Lender or Administrative Agent and without additional interest thereon;
provided, that Company, upon the request of such Lender or Administrative Agent, agrees to
return such refund to such Lender or Administrative Agent in the event such Lender or
Administrative Agent is required to repay such refund. Nothing contained in this Section 2.20(d)
shall require any Lender or Administrative Agent to make available any of its tax returns (or any
other information relating to its taxes that it deems to be confidential).




     2.21. Obligation to Mitigate. Each Lender (which term shall include each Issuing Bank for
purposes of this Section 2.21) agrees that, as promptly as practicable after the officer of such
Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes
aware of the occurrence of an event or the existence of a condition that would cause such Lender to
become an Affected Lender or that would entitle such Lender to receive payments under Section 2.18,
2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and
any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may in good faith deem reasonable, if as a
result thereof the circumstances which would cause such Lender to be an Affected Lender would cease
to exist or the additional amounts which would otherwise be required to be paid to such Lender
pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such
Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving
Commitments, Delayed Draw Term Loan Commitments, Loans or Letters of Credit through such other
office or in accordance with such other measures, as the case may be, would not otherwise adversely
affect such Revolving Commitments, Delayed Draw Term Loan Commitments, Loans or Letters of Credit
or the interests of such Lender; provided, such Lender will not be obligated to utilize
such other office pursuant to this Section 2.21 unless Company agrees to pay all incremental
expenses incurred by such Lender as a result of utilizing such other office as described in clause
(i) above. A certificate as to the amount of any such expenses payable by Company pursuant to this
Section 2.21 (setting forth in reasonable detail the basis for requesting such amount) submitted by
such Lender to Company (with a copy to Administrative Agent) shall be conclusive absent manifest
error.



     2.22. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, other than at the direction or request of any regulatory agency or
authority, defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any
Revolving Loan, its portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e), to fund
its New Credit Linked Deposit, or to fund any Delayed Draw Term Loan (in each case, a “Defaulted
Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent
permitted by applicable law, until such time as the Default Excess with respect to such Defaulting
Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans or
Delayed Draw Term Loans shall, if Company so directs at the time of making such voluntary
prepayment, be applied to the Revolving Loans or the Delayed Draw Term Loans, as applicable, of
other Lenders as if such Defaulting Lender had no Revolving Loans or the Delayed Draw Term Loans,
as applicable, outstanding and the Revolving Exposure of such Defaulting Lender were zero, and (ii)
any mandatory prepayment of



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the Revolving Loans or the Delayed Draw Term Loans, as applicable,
shall, if Company so directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans or the Delayed Draw Term Loans, as applicable, of other Lenders (but not to the
Revolving Loans or the Delayed Draw Term Loans, as applicable, of such Defaulting Lender) as if
such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being
understood and agreed that Company shall be entitled to retain any portion of any mandatory
prepayment of the Revolving Loans or the Delayed Draw Term Loans, as applicable, that is not paid
to such Defaulting Lender solely as a result of the operation of the provisions of this clause (b);
(c)(i) such Defaulting Lender’s Revolving Commitment, Delayed Draw Term Loan Commitment,
outstanding Revolving Loans and outstanding Delayed Draw Term Loans and such Defaulting Lender’s
Pro Rata Share of the Revolving Letter of Credit Usage shall be excluded for purposes of
calculating the Revolving Commitment and such Defaulting Lender’s Pro Rata Share of the Delayed
Draw Term Loan Commitment fee payable to Lenders in respect of any day during any Default Period
with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive
any Revolving Commitment fee or Delayed Draw Term Loan Commitment fee pursuant to Section 2.11 with
respect to such Defaulting Lender’s Revolving Commitment or Delayed Draw Term Loan Commitment, as
applicable, in respect of any Default Period with respect to such Defaulting Lender and (ii) such
Defaulting Lender shall not be entitled to receive any Funded Letter of Credit Fees pursuant to
Section 2.11 with respect to such Lenders’ New Credit Linked Deposit in respect of any Default
Period with respect to such Default under; and (d) the Total Utilization of Revolving Commitments
as at any date of determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Loans of such Defaulting Lender. No Revolving Commitment, Delayed Draw Term Loan
Commitment or New Credit Linked Deposit of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this Section 2.22, performance by Company of its
obligations hereunder and the other Credit Documents shall not be excused or otherwise modified as
a result of any Funding Default or the operation of this Section 2.22. The rights and remedies
against a Defaulting Lender under this Section 2.22 are in addition to other rights and remedies
which Company may have against such Defaulting Lender with respect to any Funding Default and which
Administrative Agent or any Lender may have against such Defaulting Lender with respect to any
Funding Default.




     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect,
and (iii) such Lender shall fail to withdraw such notice within five Business Days after Company’s
request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender (or any Lender
at the direction or request or any regulatory agency or authority shall default in its obligation
to fund, for the purposes of this Section 2.23 only, such Lender also a “Defaulting Lender”), (ii)
the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting
Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within
five Business Days after Company’s request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have
been obtained, but the consent of one or



81









 




more of such other Lenders (each a “Non-Consenting
Lender”) whose consent is required shall not have been obtained; then, with respect to each such
Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”),
Company may, by giving written notice to Administrative Agent and any Terminated Lender of its
election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign all or any part of its outstanding Loans, its Revolving Commitments,
its Delayed Draw Term Loan Commitments and its New Credit Linked Deposits, if any, in full to one
or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of
Section 10.6 and Terminated Lender shall pay any fees payable thereunder in connection with such
assignment; provided, (1) on the date of such assignment, the Replacement Lender shall pay
to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans and New Credit Linked Deposits of the Terminated Lender,
(B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender,
together with all then unpaid interest with respect thereto at such time and (C) an amount equal to
all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11;
(2) on the date of such assignment, Company shall pay any amounts payable to such Terminated Lender
pursuant to Section 2.18(c), 2.19 or 2.20; and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Company may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued thereby to be cancelled, fully cash collateralized or
supported by a “back-to-back” Letter of Credit reasonably satisfactory to such Terminated Lender.
In connection with any such replacement, if the replaced Lender does not execute and deliver to the
Administrative Agent a duly completed Assignment and Acceptance reflecting such replacement within
a period of time deemed reasonable by the Administrative Agent, then such replaced Lender shall be
deemed to have executed and delivered such Assignment and Acceptance. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated Lender’s
Revolving Commitments, Delayed Draw Term Loan Commitments and New Credit Linked Deposits, if any,
such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided,
any rights of such Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.




SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of any Lender to make a Credit Extension on the Closing
Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Closing Date:



          (a) Credit Documents. Administrative Agent shall have received sufficient copies of
each Credit Document originally executed and delivered by Holding, Company and each of its
Subsidiaries, as applicable, for each Lender.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) sufficient copies of each Organizational Document of Holding, Company and each




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Guarantor
Subsidiary, as applicable, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, for each Lender, each dated the Closing Date or a recent date
prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; (iii) resolutions of the board of directors or similar
governing body of Holding, Company and each Guarantor Subsidiary approving and authorizing the
execution, delivery and performance of this Agreement and the other Credit Documents and the
Related Agreements to which it is a party or by which it or its assets may be bound as of the
Closing Date, certified as of the Closing Date by its secretary or an assistant secretary as being
in full force and effect without modification or amendment; (iv) a good standing certificate from
the applicable Governmental Authority (A) of the jurisdiction of incorporation, organization or
formation of Holding, Company and each Guarantor Subsidiary, (B), with respect to Company, of each
jurisdiction in which it is qualified as a foreign corporation or other entity to do business and
(C), with respect to Holding and each Guarantor Subsidiary, of each jurisdiction in which each such
entity has its principal assets, each dated a recent date prior to the Closing Date; and (v) such
other documents as Administrative Agent may reasonably request.




          (c) Organizational and Capital Structure. The organizational structure and capital
structure of Holding, Company and its Subsidiaries, both before and after giving effect to the
Transactions, shall be as set forth on Schedule 4.1.




          (d) Consummation of Transactions.





          (i) Company shall have received the gross proceeds from the borrowings of the Second Lien
Term Loan in an aggregate amount in cash of not less than $400,000,000;




          (ii) Company shall have delivered to Administrative Agent complete, correct and conformed
copies of the Second Lien Credit Agreement.




          (iii) Administrative Agent shall have received a fully executed or conformed copy of each
Related Agreement (except the Second Lien Notes Indenture, the MSW Refinancing Indentures, the
New MSW Indentures, the ARC Refinancing Indenture, the New ARC Indenture and the Put-Related
Equity Offering Agreement and all collateral documents related to each) executed on or prior to
the Closing Date and each such Related Agreement shall be in full force and effect.




          (iv) Since the date of execution thereof, there shall have been no amendment, restatement,
or other modification or waiver of the terms and conditions of the Stock Purchase Agreement
which, in the reasonable opinion of Administrative Agent, is in any manner materially adverse to
the Lenders without the prior written consent of Administrative Agent (which consent shall not
be unreasonably withheld).




          (v) Holding shall have completed the Rights Offering and Company shall have received at
least $399,000,000 from (i) the cash contribution to Company by Holding of the proceeds of the
Rights Offering, (ii) the cash contribution to Company by Holding of unrestricted cash on hand
at Holding and/or (iii) no more than $25,000,000 in cash from pro forma consolidated cash on
hand at Company.



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          (vi) There shall not exist, after giving effect to the Transactions, any default or
potential event of default under the Second Lien Credit Agreement, or any Credit Document or
(except to the extent expressly described as Schedule 3.1(d)) any material Indebtedness of
Holding and its Subsidiaries including, without limitation, the MSW Indentures and the ARC
Indenture.



          (e) Existing Indebtedness. On the Closing Date, Company and its Subsidiaries shall
have (i) repaid in full all Existing Indebtedness, (ii) terminated any commitments to lend or make
other extensions of credit under Existing Indebtedness, (iii) delivered to Administrative Agent all
documents or instruments necessary to release all Liens securing Existing Indebtedness or other
obligations of Company and its Subsidiaries thereunder being repaid on the Closing Date or
otherwise made arrangements reasonably satisfactory to Administrative Agent with respect thereto,
and (iv) made arrangements reasonably satisfactory to Administrative Agent with respect to the
cancellation of any letters of credit outstanding thereunder or the deemed issuance of such letters
of credit as Funded Letters of Credit under Section 2.4(m) or the issuance of Letters of Credit to
support the obligations of Company and its Subsidiaries with respect thereto.




          (f) Transaction Costs. On or prior to the Closing Date, Company shall have delivered
to Administrative Agent Company’s estimate of the Transactions Costs.




          (g) Governmental Authorizations and Consents. Each Credit Party shall have obtained
all Governmental Authorizations and all consents of other Persons, in each case that are necessary
in connection with the transactions contemplated by the Credit Documents and the Related Agreements
to be entered into on or prior to the Closing Date and each of the foregoing shall be in full force
and effect and in form and substance reasonably satisfactory to Administrative Agent. All
applicable waiting periods shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose adverse conditions on the
Transactions or the financing thereof and no action, request for
stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.




          (h) Real Estate Assets. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein,
perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall
have received from Company and each applicable Guarantor Subsidiary:





          (i) fully executed and notarized Mortgages, in proper form for recording in all appropriate
places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule
3.1(h) (each, a “Closing Date Mortgaged Property’’);




          (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) in each state in which a Closing Date Mortgaged Property is located with respect to the
enforceability of the Mortgages to be recorded in such state and such other matters as
Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent;



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          (iii) (a) ALTA mortgagee title insurance policies or unconditional commitments therefor
issued by one or more title companies reasonably satisfactory to Collateral Agent with respect
to each Closing Date Mortgaged Property (each, a “Title Policy”), in amounts not less than the
fair market value of each Closing Date Mortgaged Property or such other amount reasonably
required by Collateral Agent, together with a title report issued by a title company with
respect thereto, dated not more than thirty days prior to the Closing Date and copies of all
recorded documents listed as exceptions to title or otherwise referred to therein, each in form
and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to
Collateral Agent that Company or such Guarantor Subsidiary has paid to the title company or to
the appropriate governmental authorities all expenses and premiums of the title company and all
other sums required in connection with the issuance of each Title Policy and all recording and
stamp taxes (including mortgage recording and intangible taxes) payable in connection with
recording the Mortgages for each Closing Date Mortgaged Property in the appropriate real estate
records;




          (iv) evidence of flood insurance with respect to each Flood Hazard Property that is located
in a community that participates in the National Flood Insurance Program, in each case in
compliance with any applicable regulations of the Board of Governors of the Federal Reserve
System, in form and substance reasonably satisfactory to Collateral Agent; and




          (v) ALTA surveys of all Closing Date Mortgaged Properties, certified to Collateral Agent
with a form of certification reasonably satisfactory to Collateral Agent and dated not more than
thirty days prior to the Closing Date (each a “Survey”).



          (i) Personal Property Collateral. In order to create in favor of Collateral Agent,
for the benefit of Secured Parties, a valid, perfected First Priority security interest in the
personal property Collateral, Collateral Agent shall have received:





          (i) evidence satisfactory to Collateral Agent of the compliance by Holding with the Holding
Pledge Agreement and by Company or each Guarantor Subsidiary of their obligations under the
Pledge and Security Agreement and the other Collateral Documents (including, without limitation,
their obligations to execute and/or deliver UCC financing statements, originals of securities,
instruments and chattel paper and any agreements governing deposit and/or securities accounts as
provided therein);




          (ii) (A) the results of a recent search, by a Person reasonably satisfactory to Collateral
Agent, of the UCC filing offices in the jurisdictions specified by Company, together with copies
of all such filings disclosed by such search, and (B) UCC termination statements (or similar
documents) duly authorized by all applicable Persons for filing in all applicable jurisdictions
as may be necessary to terminate any effective UCC financing statements (or equivalent filings)
disclosed in such search (other than any such financing statements in respect of Permitted
Liens);




          (iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) with respect to the creation and perfection of the security interests in favor of
Collateral Agent in such Collateral and such other matters governed by the laws of each



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jurisdiction in which Company or any Guarantor Subsidiary is located as Collateral Agent may
reasonably request, in each case in form and substance reasonably satisfactory to Collateral
Agent; and




          (iv) evidence that Company or each Guarantor Subsidiary shall have taken or caused to be
taken any other action, executed and delivered or caused to be executed and delivered any other
agreement, document and instrument (including without limitation, any intercompany notes
evidencing Indebtedness permitted to be incurred pursuant to Section 6.1(b) including, without
limitation, the Intercompany Master Note) and made or caused to be made any other filing and
recording (other than as set forth herein) reasonably required by Collateral Agent to create or
perfect a First Priority Lien on the personal property Collateral, in each case except for
matters contemplated in Section 5.18 of the Existing Credit Agreement.



          (j) Environmental Reports. Administrative Agent shall have received reports and other
information, in form and substance satisfactory to Administrative Agent, regarding environmental
matters relating to the Facilities.




          (k) Financial Statements; Projections. Administrative Agent shall have received from
Holding, Company and Acquired Business (i) the Historical Financial Statements, (ii) pro forma
consolidated balance sheets of Holding, Company and Acquired Business as at December 31, 2004, and
reflecting the consummation of the Transactions, the related financings, which pro forma financial
statements shall be in form and substance reasonably satisfactory to Administrative Agent, and
(iii) the Projections.




          (l) Evidence of Insurance. Collateral Agent shall have received a certificate from
Company’s insurance broker or other evidence reasonably satisfactory to it that all insurance
required to be maintained pursuant to Section 5.5 is in full force and effect, together
with endorsements naming the Collateral Agent, for the benefit of Lenders, as additional
insured and loss payee thereunder to the extent required under Section 5.5.




          (m) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of (i) Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for Credit Parties, (ii) LeBoeuf, Lamb, Greene & MacRae LLP, and
(iii) Timothy Simpson as general counsel to Company, in the form of Exhibit D-1, Exhibit D-2 and
Exhibit D-3, respectively, dated as of the Closing Date and otherwise in form and substance
reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such
counsel to deliver such opinions to Agents and Lenders).




          (n) Chief Financial Officer Certificate. Company shall have delivered to
Administrative Agent and Lenders an originally executed chief financial officer certificate
certifying that the pro forma Consolidated Adjusted EBITDA of Company and its Subsidiaries for the
twelve-month period ended December 31, 2004 and for the latest twelve-month period for which
financial statements are available (which pro forma ratio shall be calculated reflecting the
Transactions on a pro forma basis and reflecting the methodology set forth in Exhibit 1 to the
commitment letter delivered by GSCP and Credit Suisse to Holding with respect to the transactions
contemplated by this Agreement) is not less than $485,000,000.





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          (o) Holding Restricted Account. Administrative Agent shall be satisfied that Holding
has funded a segregated account in an amount not less than $6,471,000 (the “Insurance Deposit
Amount”) for the sole purpose of funding any regulatory capital or other requirements relating to
the Insurance Subsidiaries of Holding (the “Insurance Regulatory Account”).




          (p) Plan of Reorganization Restricted Account. Administrative Agent shall be
satisfied that Company has established and funded a segregated account in an amount not less than
$4,000,000 (the “Plan of Reorganization Initial Deposit Amount”) for the sole purpose of satisfying
the “Class 4 Claims” (as such term is defined in the Plan of Reorganization) (the “Plan of
Reorganization Account”), and shall have paid to U.S. Bank Trust National Association as Trustee
under the Indenture dated as of March 10, 2004, between Company and U.S. Bank Trust National
Association in respect of the 7.5% Subordinated Unsecured Notes due 2012 an amount sufficient to
discharge all obligations under all notes issued under such indenture.




          (q) Fees. Company shall have paid to Co-Syndication Agents, Joint Lead Arrangers,
Administrative Agent and Co-Documentation Agents under the Existing Credit Agreement, the fees
payable on the Closing Date referred to in Section 2.11(f).




          (r) Solvency Certificate. On the Closing Date, Administrative Agent shall have
received a Solvency Certificate from Holding dated the Closing Date and addressed to Administrative
Agent and Lenders, and in the form of Exhibit G-3 hereto demonstrating that after giving effect to
the consummation of the Acquisition, the Refinancing, the Rights Offering and the borrowings under
this Agreement and the Second Lien Credit Agreement, Holding and its Subsidiaries on a consolidated
basis are Solvent.




          (s) Closing Date Certificate. Holding and Company shall have delivered to
Administrative Agent an originally executed Closing Date Certificate, together with all attachments
thereto.




          (t) Credit Rating. The credit facilities provided for under this Agreement shall have
been assigned a credit rating by each of S&P and Moody’s.




          (u) Closing Date. Lenders shall have made the Term Loans (as defined in the Existing
Credit Agreement) to Company.




          (v) No Litigation. There shall not exist any action, suit, investigation, litigation
or proceeding or other legal or regulatory developments, pending or threatened in any court or
before any arbitrator or Governmental Authority, singly or in the aggregate, that seeks to prohibit
the Transactions, the financing thereof or any of the other transactions contemplated by the Credit
Documents or that has had or could reasonably be expected to have a Material Adverse Effect.




          (w) Completion of Proceedings. All partnership, corporate and other similar
proceedings taken or to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto shall be reasonably satisfactory in form and substance to
Administrative Agent, and Administrative Agent shall have received all such counterpart originals
or certified copies of such documents as Administrative Agent may reasonably request.





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Each Lender, by delivering its signature page to the Existing Credit Agreement and funding a Loan
or funding a Credit Linked Deposit (as defined in the Existing Credit Agreement) on the Closing
Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit
Document and each other document required to be approved by any Agent, Requisite Lenders or
Lenders, as applicable on the Closing Date.




     3.2. Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan on any
Credit Date or fund its New Credit Linked Deposit on the Effective Date, or any Issuing Bank to
issue any Letter of Credit, on any Credit Date, including the Effective Date, are subject to the
satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:





          (i) Administrative Agent shall have received a fully executed and delivered Funding Notice
or Issuance Notice, as the case may be;




          (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;




          (iii) as of such Credit Date, the representations and warranties contained herein and in
the other Credit Documents shall be true and correct in all material respects on and as of that
Credit Date to the same extent as though made on and as of that date, except to
the extent such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;




          (iv) as of such Credit Date, no event shall have occurred and be continuing or would result
from the consummation of the applicable Credit Extension that would constitute an Event of
Default or a Default;




          (v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall
have received all other information required by the applicable Issuance Notice, and such other
documents or information as the Issuing Bank may reasonably require in connection with the
issuance of such Letter of Credit; and




          (vi) on the Delayed Draw Term Loan Credit Date, Company and its Subsidiaries shall be in
compliance with the financial covenants set forth in Section 6.8 on a pro forma basis after
giving effect to the incurrence of the Delayed Draw Term Loans as of the last day of the Fiscal
Quarter most recently ended.



          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative
Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or
issuance of a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or
before the applicable date of borrowing, continuation/conversion or





88









 







issuance. Neither
Administrative Agent nor any Lender shall incur any liability to Company in acting upon any
telephonic notice referred to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized on behalf of Company or for otherwise
acting in good faith.




     3.3. Effective Date. The amendments set forth herein shall be effective as of the date on which
each of the following conditions shall have been satisfied (or waived in accordance with Section
10.5 of the Existing Credit Agreement):



          (a) Credit Documents. Administrative Agent shall have received sufficient copies of
signature pages to this Agreement from (i) each Credit Party, (ii) the Administrative Agent on
behalf of each Tranche C Term Loan Lender and Delayed Draw Term Loan Lender and each Continuing
Lender that has executed and delivered a Lender Consent Letter; and (iii) the Administrative Agent
on behalf of Requisite Lenders (as defined in the Existing Credit Agreement), which have executed
and delivered Lender Consent Letters.




          (b) Organizational Documents; Incumbency. Administrative Agent shall have received
(i) sufficient copies of each Organizational Document of Holding, Company and each Guarantor
Subsidiary, as applicable, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, for each Lender, each dated the Effective Date or a recent date
prior thereto, provided that in lieu of delivering each Organizational Document, Company
may deliver a certificate of an Authorized Officer or its secretary or an assistant secretary
certifying that there have been no material amendments to those Organizational Documents
previously delivered to GSCP, as Administrative Agent, in connection with the Existing Credit
Agreement; (ii) signature and incumbency certificates of the officers of such Person executing the
Credit Documents to which it is a party; (iii) resolutions of the board of directors or similar
governing body of Company and each Guarantor Subsidiary approving and authorizing the execution,
delivery and performance of this Agreement and the other Credit Documents and the Related
Agreements to which it is a party or by which it or its assets may be bound as of the Effective
Date, certified as of the Effective Date by its secretary or an assistant secretary as being in
full force and effect without modification or amendment; (iv) a good standing certificate from the
applicable Governmental Authority of the jurisdiction of incorporation, organization or formation
of Holding, Company and each Guarantor Subsidiary; and (v) such other documents as Administrative
Agent may reasonably request.




          (c) Real Estate Assets. In order to reaffirm in favor of Collateral Agent, for the
benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein,
perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall
have received from Company and each applicable Guarantor Subsidiary:





          (i) fully executed and notarized modifications (“Modifications”) to all Mortgages (as
defined in the Existing Credit Agreement) delivered in connection with the Existing Credit
Agreement, in proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Closing Date Mortgaged Property;




          (ii) (A) endorsements to each Title Policy (as defined in the Existing Credit Agreement) or
unconditional commitments therefor issued by one or more title companies reasonably satisfactory
to Collateral Agent with respect to the Modifications filed against



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each Closing Date Mortgaged
Property, each in form and substance reasonably satisfactory to Collateral Agent and (B)
evidence satisfactory to Collateral Agent that Company or such Guarantor Subsidiary has paid to
the title company or to the appropriate governmental authorities all expenses and premiums of
the title company and all other sums required in connection with the issuance of each
endorsement to any such Title Policy and all recording and stamp taxes (including mortgage
recording and intangible taxes) payable in connection with recording the Modifications for each
Closing Date Mortgaged Property in the appropriate real estate records; and




          (iii) evidence of flood insurance with respect to each Flood Hazard Property that is
located in a community that participates in the National Flood Insurance Program, in each case
in compliance with any applicable regulations of the Board of Governors of the Federal Reserve
System, in form and substance reasonably satisfactory to Collateral Agent.



          (d) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall
have received originally executed copies of the favorable written opinions of (i) Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for Credit Parties and (ii) and Timothy Simpson as general
counsel to Company, in the form of Exhibit D1 and Exhibit D-2, respectively, dated as of the
Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent
(and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and
Lenders).




          (e) Fees. Company shall have paid to Syndication Agent, Lead Arranger and
Administrative Agent, the fees payable on the Effective Date referred to in Section 2.11(g).




          (f) Solvency Certificate. On the Effective Date, Administrative Agent shall have
received a Solvency Certificate from Holding dated the Effective Date and addressed to
Administrative Agent and Lenders, and in the form of Exhibit G-3 hereto demonstrating that after
giving effect to the consummation of the transactions contemplated herein, Holding and its
Subsidiaries on a consolidated basis are Solvent.




          (g) Effective Date Certificate. Holding and Company shall have delivered to
Administrative Agent an originally executed Effective Date Certificate.




          (h) Effective Date. Lenders shall have been deemed to have been made the Tranche C
Term Loans to Company.




          (i) Non-Continuing Lenders. The Administrative Agent shall have received written
verification acceptable to it that the Existing First Lien Lenders under the Existing Credit
Agreement that are not Continuing Lenders have been, or will be, paid in full all amounts required
to be paid to them pursuant to Section 2.14(i).




          (j) Simultaneous Amendments. Substantially simultaneously herewith, an amendment to
the Second Lien Credit Agreement and a consent to the Intercreditor Agreement, in each case in a
form acceptable to the Administrative Agent, shall have become effective.





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SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Banks to enter into this Agreement and to make each
Credit Extension to be made thereby, Company represents and warrants to each Lender and each
Issuing Bank, on the Closing Date, on the Effective Date and on each Credit Date, that the
following statements are true and correct (it being understood and agreed that the representations
and warranties made on the Closing Date are deemed to be made concurrently with the consummation of
the Transactions contemplated hereby):



     4.1. Organization; Requisite Power and Authority; Qualification. Each of Holding, Company and
its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Credit Documents, if any, to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do business and in good
standing in every jurisdiction where its assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions where the failure to be so qualified or in good
standing has not had, and could not be reasonably expected to have, a Material Adverse Effect.



     4.2. Capital Stock and Ownership. The Capital Stock of each of Company and its Subsidiaries
the shares of which are pledged under the Pledge and Security Agreement has been duly authorized
and validly issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as
of the date hereof, there is no existing option, warrant, call, right, commitment or other
agreement to which, Company or any of its Subsidiaries is a party requiring, and there is no
membership interest or other Capital Stock of Company or any of its Subsidiaries outstanding which
upon conversion or exchange would require, the issuance by Company or any of its Subsidiaries of
any additional membership interests or other Capital Stock of Company or any of its Subsidiaries or
other Securities convertible into, exchangeable for or evidencing the right to subscribe for or
purchase, a membership interest or other Capital Stock of Company or any of its Subsidiaries.
Schedule 4.2 correctly sets forth the ownership interest of Holding, Company and each of its
Subsidiaries in their respective Subsidiaries as of the Effective Date. Each Domestic Subsidiary
of Company which is not identified on Schedule 1.1(b)-1 or Schedule 1.1(b)-2 is a Guarantor as of
the Effective Date.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to Holding, Company or any of its Subsidiaries, any of the Organizational
Documents of Holding, Company or any of its Subsidiaries, or any order, judgment (other than de
minimis judgments) or decree of any court or other agency of government binding on Holding, Company
or any of its Subsidiaries; (b) conflict with, result in a breach of or constitute (with due notice
or lapse of time or both) a default under



91









 







any Contractual Obligation of Holding, Company or any of its Subsidiaries; (c) result in or
require the creation or imposition of any Lien upon any of the properties or assets of Holding,
Company or any of its Subsidiaries (other than any Liens created under any of the Credit Documents
in favor of Collateral Agent, on behalf of Secured Parties, and Liens securing the obligations
under the Second Lien Credit Agreement and the Second Lien Notes Indenture pursuant to Section
6.2(o)); or (d) require any material approval of stockholders, members or partners or any approval
or material consent of any Person under any material Contractual Obligation of Holding, Company or
any of its Subsidiaries, except for such approvals or consents which will be obtained on or before
the Closing Date or the Effective Date, as applicable, and disclosed to Administrative Agent.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except as contemplated in
Section 3.1 or as otherwise set forth in the Related Agreements, and except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
and to the agent under the Second Lien Credit Agreement and Second Lien Notes Indenture for filing
and/or recordation, as of the Closing Date.



     4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in
equity or at law).



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments and
the absence of foot notes. As of the Closing Date, none of Holding, Company or any of Company’s
Subsidiaries has any contingent liability or liability for taxes, long-term lease or unusual
forward or long-term commitment that is not reflected in the Historical Financial Statements or the
notes thereto and which in any such case is material in relation to the business, operations,
assets, liabilities or financial condition of Holding, Company and its Subsidiaries taken as a
whole.



     4.8. Projections. On and as of the Closing Date, the Projections of Company and its
Subsidiaries for the period Fiscal Year 2005 through and including Fiscal Year 2012 (the
“Projections”) are based on good faith estimates and assumptions made by the management of Company
believed by management to have been reasonable at the time made; provided, the Projections
are not to be viewed as facts and that actual results during the period or periods



92









 







covered by the Projections may differ from such Projections and that the differences may be
material.



     4.9. No Material Adverse Change. Since December 31, 2004, no event, circumstance or change
has occurred that has caused a Material Adverse Effect.



     4.10. No Restricted Junior Payments. Since December 31, 2004, and prior to the Closing Date
neither Company nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or
made, or set apart any sum or property for, any Restricted Junior Payment of the type identified in
clauses (i) through (iv) of the definition thereof in excess of $10,000,000 or agreed to do so.



     4.11. Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither Company
nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



     4.12. Payment of Taxes. Except as otherwise permitted under Section 5.3, all income and other
material tax returns and reports of Holding and its Subsidiaries required to be filed by any of
them have been timely filed, and all taxes shown on such tax returns to be due and payable and all
material assessments, fees and other governmental charges upon Holding and its Subsidiaries and
upon their respective properties, assets, income, businesses and franchises which are due and
payable have been paid when due and payable. Holding knows of no material tax assessment that has
been proposed in writing against Holding or any of its Subsidiaries as of the Closing Date which is
not being actively contested by Holding or such Subsidiary in good faith and by appropriate
proceedings; provided, such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.



     4.13. Properties.



          (a) Title. Each of Company and its Subsidiaries has (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leased personal property), and (iii) good title to or rights in (in the case of all other
personal property), all of their respective properties and assets reflected in their respective
Historical Financial Statements referred to in Section 4.7 and in the most recent financial
statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the
date of such financial statements in the ordinary course of business or as otherwise permitted
under Section 6.9. Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.




          (b) Real Estate. As of the Closing Date, Schedule 4.13 contains a true, accurate and
complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of




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leases (together with all amendments, modifications, supplements, renewals or extensions of
any thereof) affecting each Real Estate Asset of Company or any of its Guarantor Subsidiaries,
regardless of whether Company or such Guarantor Subsidiary is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease or assignment.




     4.14. Environmental Matters. Neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Release or threatened Release of Hazardous Materials that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Neither Company nor any of its
Subsidiaries has received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any
comparable state law, except, with respect to matters that either have been fully resolved or
matters that individually or in the aggregate could not reasonably be expected to have a Material
Adverse Effect. To Company’s and its Subsidiaries’ knowledge, there are and have been, no
conditions or occurrences, including any Release, threatened Release, use, generation, storage,
treatment, transportation, processing, disposal, removal or remediation of Hazardous Materials,
which could reasonably be expected to form the basis of an Environmental Claim against Company or
any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. Neither Holding nor any Subsidiary has been issued or required to
obtain a permit for the treatment, storage or disposal of hazardous waste for any of its currently
owned or operated Facilities, pursuant to the federal Resource Conservation and Recovery Act, 42
U.S.C. § 6901, et. seq. and its implementing regulations (“RCRA”), or any equivalent State law, nor
are any such Facilities regulated as “interim status” facilities required to undergo corrective
action pursuant to RCRA, except in either case to the extent that such Facilities’ obligations
pursuant to RCRA, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. Compliance with all current requirements of Environmental Law or, to
Company’s and its Subsidiaries’ knowledge reasonably likely future requirements arising from (i)
existing environmental regulations or (ii) environmental regulations that have been formally
proposed but have not been finalized could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.



     4.15. No Defaults. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except where the consequences, direct
or indirect, of such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.



     4.16. Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date, and except as described thereon, and to the
knowledge of Company as of the Closing Date all such Material Contracts are in full force and
effect and no defaults currently exist thereunder by Company and/or its Subsidiaries party thereto.



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     4.17. Governmental Regulation. Neither Company nor any of its Subsidiaries is subject to
regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable. Neither Company nor any
of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered
investment company” as such terms are defined in the Investment Company Act of 1940.



     4.18. Margin Stock. Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock. No part of the proceeds of the Loans or the New Credit Linked
Deposits made to such Credit Party will be used to purchase or carry any such Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any
purpose that violates, or is inconsistent with, the provisions of Regulation U or X of said Board
of Governors.



     4.19. Employee Matters. Neither Company nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against Company or any of its Subsidiaries, or to the
best knowledge of Company, threatened against any of them before the National Labor Relations Board
and no grievance or arbitration proceeding arising out of or under any collective bargaining
agreement that is so pending against Company or any of its Subsidiaries or to the best knowledge of
Company, threatened against any of them, (b) no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect, and (c) to the best knowledge of Company, no union representation question
existing with respect to the employees of Company or any of its Subsidiaries and, to the best
knowledge of Company, no union organization activity that is taking place, except (with respect to
any matter specified in clause (a), (b) or (c) above, either individually or in the aggregate) such
as is not reasonably likely to have a Material Adverse Effect.



     4.20. Employee Benefit Plans. Company, each of its Subsidiaries and each of their respective
ERISA Affiliates are in material compliance with all applicable provisions and requirements of
ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder
with respect to each Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan which the failure to perform would result in a Material Adverse Effect. Each
Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue
Code has received a favorable determination letter from the Internal Revenue Service indicating
that such Employee Benefit Plan is so qualified and, to the knowledge of Company, nothing has
occurred subsequent to the issuance of such determination letter which would cause such Employee
Benefit Plan to lose its qualified status. No liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under
Title IV of ERISA has been or is expected to be incurred by Company, any of its Subsidiaries or any
of their ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to occur. The
present value of the aggregate benefit liabilities under each Pension Plan sponsored, maintained or
contributed to by Holding, any of its Subsidiaries or any of their ERISA Affiliates, (determined as
of the end of the



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most recent plan year on the basis of the actuarial assumptions specified for funding purposes
in the most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current
value of the assets of such Pension Plan by more than $2,000,000. As of the most recent valuation
date for each Multiemployer Plan for which the actuarial report is available, the potential
liability of Holding, its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA is not greater than $5,000,000.
Company, each of its Subsidiaries and each of their ERISA Affiliates have complied with the
requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in
material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan.



     4.21. Certain Fees. Except as disclosed to Administrative Agent, no broker’s or finder’s fee
or commission will be payable with respect hereto or any of the transactions contemplated hereby.



     4.22. Solvency. Each Credit Party and its Subsidiaries on a consolidated basis, are Solvent
on the Effective Date, and Company and its Subsidiaries on a consolidated basis will, upon the date
of each Credit Extension, be Solvent.



     4.23. Related Agreements.



          (a) Delivery. Company has delivered to Administrative Agent complete and correct
copies of each Related Agreement and of all exhibits and schedules thereto as of the date hereof as
in effect on the date hereof.




          (b) Representations and Warranties. Except to the extent otherwise expressly set
forth herein or in the schedules hereto, and subject to the qualifications set forth therein, each
of the representations and warranties given by any Credit Party in the Stock Purchase Agreement and
in any other Related Agreement entered into on the Closing Date is true and correct in all material
respects as of the Closing Date (or as of any earlier date to which such representation and
warranty specifically relates).




          (c) Governmental Approvals. As of the Closing Date, Governmental Authorizations and
all other authorizations, approvals and consents of any other Person required by the Related
Agreements in effect on such date or to consummate the Transactions have been obtained and are in
full force and effect.




          (d) Conditions Precedent. On the Closing Date, (i) all of the conditions to effecting
or consummating the Transactions set forth in the Related Agreements in effect on such date have
been duly satisfied or, with the consent of Administrative Agent, waived, and (ii) the Transactions
being consummated on or prior to the Closing Date have been consummated in accordance with the
Related Agreements in effect on such date and all applicable laws.




     4.24. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to Lenders by or
on behalf of any Credit Party for use in connection with the transactions



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contemplated hereby contains, when taken as a whole with other representations, warranties,
documents, certificates and statements, any untrue statement of a material fact or omits to state a
material fact (known to the Credit Parties, in the case of any document not furnished by either of
them) necessary in order to make the statements contained herein or therein not misleading in light
of the circumstances in which the same were made. Any projections and pro forma financial
information contained in such materials are based upon good faith estimates and assumptions
believed by the Credit Parties to be reasonable at the time made, it being recognized by Lenders
that such projections as to future events are not to be viewed as facts and that actual results
during the period or periods covered by any such projections may differ from the projected results
and that such differences may be material. There are no facts known to the Credit Parties (other
than matters of a general economic nature) as of the Effective Date that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements furnished to Lenders
for use in connection with the transactions contemplated hereby.



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



     4.26. Financing Statements. Other than the financing statements filed in favor of the
Collateral Agent, no effective UCC financing statement, fixture filing or other instrument similar
in effect under any applicable law which is effective to perfect a security interest under the UCC
as in effect on the Closing Date in all or any part of the Collateral is on file in any filing or
recording office on the Closing Date or has been authorized by such Grantor at any time thereafter
except for (x) financing statements or other instruments similar in effect for which proper
termination statements or releases have been delivered to the Collateral Agent for filing and (y)
financing statements or other instruments similar in effect filed in connection with Permitted
Liens.



SECTION 5. AFFIRMATIVE COVENANTS




     Each of Company and each Guarantor Subsidiary covenants and agrees that until the Termination
Date each of Company and each Guarantor Subsidiary shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section.



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     5.1. Financial Statements and Other Reports. Company will deliver to Administrative Agent and
Lenders (which delivery to Lenders may be satisfied by the posting of relevant documents to
Intralinks or other similar service reasonably satisfactory to Administrative Agent):



          (a) Monthly Reports. As soon as available, and in any event within 30 days after the
end of each month ending after the Closing Date (commencing in respect of August 2005) (or, for any
month which is the end of a Fiscal Quarter or a Fiscal Year, no later than the date on which the
financial statements for any such Fiscal Quarter or Fiscal Year are due pursuant to Section 5.1(b)
or (c), as applicable), the unaudited consolidated balance sheet of Company and its Subsidiaries as
at the end of such month and the related unaudited consolidated statements of income and cash flows
of Company and its Subsidiaries for such month and for the period from the beginning of the then
current Fiscal Year to the end of such month (in each case, without footnotes), setting forth in
each case in comparative form the corresponding figures from the Financial Plan for the current
Fiscal Year (commencing in respect of January 2006); provided that any cash flow reports
delivered pursuant to this Section 5.1(a) shall be in a form consistent with the form presented to
the Lenders prior to the Closing Date with such non-material changes thereto as Company shall adopt
in connection with its internal board and management reporting and such other changes as to which
the Administrative Agent may consent;




          (b) Quarterly Financial Statements. As soon as available, and in any event within
forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year,
the unaudited consolidated balance sheets of Company and its Subsidiaries as at the end of such
Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of
Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter, (in each case, without footnotes)
setting forth in each case, commencing with the 2006 Fiscal Year, in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year all in reasonable
detail, together with a copy of Holding’s Form 10-Q for such period;




          (c) Annual Financial Statements. As soon as available, and in any event within ninety
(90) days after the end of each Fiscal Year, (i) the consolidated balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income
and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case,
commencing with the 2006 Fiscal Year, in comparative form the corresponding figures for the
previous Fiscal Year in reasonable detail, together with a copy of Holding’s Form 10-K for such
period; and (ii) with respect to such consolidated financial statements a report thereon of Ernst &
Young LLP or other independent certified public accountants of recognized national standing
selected by Company, and reasonably satisfactory to Administrative Agent (which report shall be
unqualified as to going concern and scope of audit) a written statement by the independent
certified public accountants stating that in connection with their audit, nothing came to their
attention that caused them to believe that Company failed to comply with the terms and provisions
of Section 6.8, insofar as they relate to accounting matters, or, if such a failure to comply has
come to their attention, specifying the nature and, if readily discernable from the information
gathered during the audit, period of existence thereof (it being understood that their audit is not
directed primarily toward obtaining knowledge of non-compliance and that such accountants shall not
be liable by reason of any failure to obtain knowledge of any such non-compliance that would not be
disclosed in the course of their audit);




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          (d) Compliance Certificate. Together with each delivery of financial statements of
Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed
Compliance Certificate;




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statement after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;




          (f) Notice of Default. Promptly upon any Authorized Officer of Company obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or that
notice has been given to Company with respect thereto; (ii) that any Person has given any notice to
Company or any of its Subsidiaries or taken any other action with respect to any event or condition
set forth in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any such Person and the nature of such
claimed Event of Default, Default, default, event or condition, and what action Company has taken,
is taking and proposes to take with respect thereto;




          (g) Notice of Litigation. Promptly upon any Authorized Officer of Company obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either (i) or (ii) could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated hereby, written notice
thereof together with such other non-privileged information as may be reasonably available to
Company to enable Lenders and their counsel to evaluate such matters;




          (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action Company,
any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii) with
reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all notices
received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;




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          (i) Financial Plan. As soon as practicable and in any event no later than 30 days
after the beginning of each Fiscal Year, the following projections (the “Financial Plan”) a
consolidated plan and financial forecast consisting of (i) a forecasted consolidated balance sheet
and forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for
the then current Fiscal Year, together with an explanation of the assumptions on which such
forecasts are based, (ii) a forecasted consolidated statement of income and (in a form consistent
with the form presented to the Lenders prior to the Closing Date with such non-material changes
thereto as Company shall adopt in connection with its internal board and management reporting and
such other changes as to which the Administrative Agent may consent) cash flows of Company and its
Subsidiaries for each month of such Fiscal Year, and (iii) forecasted consolidated annual
statements of income and cash flows of Company and its Subsidiaries for each Fiscal Year (or
portion thereof) after the current Fiscal Year through the final maturity date of the Loans, which
information shall be accompanied by a certificate from the chief financial officer of Company
certifying that the projections contained therein are based upon good faith estimates and
assumptions believed by Company to be reasonable at the time made;




          (j) Insurance Report. As soon as practicable and in any event by the thirtieth day of
each Fiscal Year, a report in form and substance reasonably satisfactory to Administrative Agent
outlining all material insurance coverage maintained for such Fiscal Year by Company and its
Subsidiaries; and




          (k) MSW Put-Related Costs Certificate. As soon as practicable and in no event later
than two (2) Business Days prior to payment in full of the MSW Put-Related Costs, a certificate in
form and substance reasonably satisfactory to Administrative Agent certifying as to the total
amount of the principal, interest and premiums comprised in the MSW Put-Related Costs and a good
faith estimate of the reasonable costs and expenses directly incurred in connection therewith.




          (l) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by
Holding to its security holders acting in such capacity or by any Subsidiary of Holding to its
security holders other than Holding or another Subsidiary of Holding (other than Project specific
information delivered to holders of Limited Recourse Debt or other Project participants), (ii) all
regular and periodic reports and all registration statements (other than on Form S-8 or similar
forms) and prospectuses, if any, filed by Holding or any of its Subsidiaries (other than Project
specific information) with any securities exchange or with the Securities and Exchange Commission
or any governmental or private regulatory authority, (iii) all press releases and other statements
made available generally by Holding or any of its Subsidiaries to the public concerning material
developments in the business of Holding or any of its Subsidiaries, and (B) such other information
and data promptly upon request with respect to Holding or any of its Subsidiaries (including,
without limitation, with respect to compliance with Sections 5.15 and 6.1) as from time to time may
be reasonably requested by Administrative Agent or any Lender.




          (m) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1 or otherwise delivered to
any Agent, Holding shall indicate in writing whether such document or notice contains

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Nonpublic Information. Any document or notice required to be delivered pursuant to this
Section 5.1 or is otherwise delivered to any Agent shall be deemed to contain Nonpublic Information
unless Holding specifies otherwise. Holding and each Lender acknowledges that certain of the
Lenders may be “public-side” Lenders (Lenders that do not wish to receive material non-public
information with respect to Holding, its Subsidiaries or their securities) and, if documents or
notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed
through IntraLinks/IntraAgency or another relevant website (the “Platform”), any document or notice
which contains Nonpublic Information (or is deemed to contain Nonpublic Information) shall not be
posted on that portion of the Platform designated for such public side Lenders.




     5.2. Existence. Except as otherwise permitted under Section 6.9, each of Holding, Company and
its Subsidiaries will at all times preserve and keep in full force and effect its existence and all
rights and franchises, licenses and permits material to its business; provided, neither
Company nor any Subsidiary of Company shall be required to preserve (a) any such existence of any
Subsidiary of Company if such Persons board of directors (or similar governing body) shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
such Person, and that the loss thereof is not disadvantageous in any material respect to such
Person or to Lenders or (b) any such rights franchises, licenses or permits except to the extent
that failure to do so could reasonably be expected to have a Material Adverse Effect, individually
or in the aggregate.



     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to pay all income and other material Taxes imposed upon it or any of its properties or
assets or in respect of any of its income, businesses or franchises before any penalty or fine
accrues thereon, and all claims (including claims for labor, services, materials and supplies) for
material sums that have become due and payable and that by law have or may become a Lien (other
than a Permitted Lien) upon any of its properties or assets, prior to the time when any penalty or
fine shall be incurred with respect thereto; provided, no such Tax or claim need be paid if
it is being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as (a) adequate reserve or other appropriate provision, as shall be required in
conformity with GAAP, shall have been made therefor, and (b) in the case of a Tax or claim which
has or may become a Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral (other than a de minimis portion of the
Collateral) to satisfy such Tax or claim. No Credit Party will, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income tax return with any
Person (other than Holding or any of its Subsidiaries).



     5.4. Maintenance of Properties. Each of Company and its Subsidiaries will, and will cause
each of their Subsidiaries to maintain or cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all material properties used or useful in the business
of Company and its Subsidiaries and from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof except that Company and its Subsidiaries shall not be
required to perform the foregoing obligations (i) with respect to Subsidiaries or assets to which
Persons other than Company and its Subsidiaries have recourse under Limited Recourse Debt owed to
such Persons where the amount of such Limited Recourse Debt exceeds the fair market value of such
property (ii) to the extent that failure to perform such



101









 







obligations, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



     5.5. Insurance. Company will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons except, in the case of Projects owned by Foreign
Subsidiaries, to the extent not commercially available at a reasonable cost. Without limiting the
generality of the foregoing, Company will maintain or cause to be maintained (a) flood insurance
with respect to each Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable regulations of the
Board of Governors of the Federal Reserve System, and (b) replacement value casualty insurance on
the Collateral under such policies of insurance, with such insurance companies, in such amounts,
with such deductibles, and covering such risks as are at all times carried or maintained under
similar circumstances by Persons of established reputation engaged in similar businesses. Each
such policy of insurance (other than business interruption insurance) shall with respect to Company
and each Guarantor Subsidiary (i) in the case of liability insurance name Collateral Agent, on
behalf of Lenders as an additional insured thereunder as its interests may appear, (ii) in the case
of each casualty insurance policy, contain a loss payable clause or endorsement, reasonably
satisfactory in form and substance to Collateral Agent, that names Collateral Agent, on behalf of
Lenders as the loss payee thereunder, and (iii) provides for at least thirty days’ prior written
notice to Collateral Agent of any cancellation or non-renewal of such policy except as the result
of non-payment of premiums, in which case ten days’ prior written notice will be provided.



     5.6. Inspections. Each of Company and its Subsidiaries will, and will cause each of their
Subsidiaries to permit any authorized representatives designated by (i) Administrative Agent (prior
to an Event of Default at Administrative Agent’s expense to the extent Administrative Agent visits
more than once per year) or (ii) any Lender (at such Lender’s expense) to visit and inspect any of
the properties of any of Company and its Subsidiaries and any of its respective Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and their officers and independent public
accountants (provided, that Company may, if it so chooses, be present and participate in any such
discussion), in each case all upon reasonable notice and at such reasonable times during normal
business hours and as often as may reasonably be requested.



     5.7. Lenders Meetings. Company will, upon the request of Administrative Agent or Requisite
Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year
to be held at Company’s corporate offices (or at such other location as may be agreed to by Company
and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent.



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     5.8. Compliance with Laws. Each Credit Party will comply, and shall use all reasonable
efforts to cause each of its Subsidiaries and all other Persons, if any, on or occupying any
Facilities to comply, with the requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority (including all Environmental Laws), noncompliance with which could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.



     5.9. Environmental.



          (a) Environmental Disclosure. Company will deliver to Administrative Agent and
Lenders:





          (i) as soon as practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants, governmental authorities or
any other Persons, with respect to environmental matters at any Facility or to any Environmental
Claims that could be reasonably expected to give rise to liability or expenses of Company or any
of its Subsidiaries in excess of $2,000,000;




          (ii) promptly upon the occurrence thereof, written notice describing in reasonable detail
(1) any Release required to be reported to any federal, state or local governmental or
regulatory agency under applicable Environmental Laws that could reasonably be expected to
result in Environmental Claims or other liability or expenses of Company or any of its
Subsidiaries in excess of $2,000,000, (2) any remedial action taken by Company or any other
Person in response to (A) any Release or threatened Release of Hazardous Materials, which has a
reasonable possibility of resulting in one or more Environmental Claims that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, and (3) Company’s discovery of any occurrence or condition
on any real property adjoining or in the vicinity of any Facility that could cause such Facility
or any part thereof to be subject to any material legal restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws;




          (iii) as soon as practicable following the sending or receipt thereof by Holding or any of
its Subsidiaries, a copy of any and all written communications with respect to either (1) any
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, or (2) any Release required to be reported to any federal,
state or local governmental or regulatory agency that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;




          (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition of
stock, assets, or property by Company or any of its Subsidiaries that could reasonably be
expected to (A) expose Company or any of its Subsidiaries to, or result in, Environmental Claims
that could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect or (B) affect the ability of Company or any of its Subsidiaries to maintain in full force
and effect all material Governmental Authorizations



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required under any Environmental Laws for their respective operations and (2) any proposed
action to be taken by Company or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Company or any of its Subsidiaries to any
additional material obligations or requirements under any Environmental Laws; and




          (v) with reasonable promptness, such other material and relevant documents and information
as from time to time may be reasonably requested by Administrative Agent in relation to any
matters disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each of Company and its Subsidiaries shall
promptly take, and shall cause each of its Subsidiaries promptly to take, any and all actions
necessary to (i) cure any violation of applicable Environmental Laws by such Company or its
Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim against
such Company or any of its Subsidiaries and discharge any obligations it may have to any Person
thereunder where failure to do so could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.




          (c) Right of Access and Inspection. With respect to any event described in Section
5.9(a), or if an Event of Default has occurred and is continuing, or if Administrative Agent
reasonably believes that Company or any Subsidiary has breached any representation, warranty or
covenant related to environmental matters (including those contained in Sections 4.11, 4.14, 5.8 or
5.9):





          (i) Administrative Agent and its representatives shall have the right, but not the
obligation or duty, to enter the Facilities at reasonable times for the purposes of observing
the Facilities. Such access shall include, at the reasonable request of Administrative Agent,
access to relevant documents and employees of Company and its Subsidiaries and to their outside
representatives, to the extent necessary to obtain necessary information related to the event at
issue. If an Event of Default has occurred and is continuing, the Credit Parties shall conduct
such tests and investigations on the Facilities or relevant portion thereof, as reasonably
requested by Administrative Agent, including the preparation of a Phase I Environmental
Assessment or such other sampling or analysis as determined to be necessary under the
circumstances by a qualified environmental engineer or consultant. If an Event of Default has
occurred and is continuing, and if a Credit Party does not undertake such tests and
investigations in a reasonably timely manner following the request of Administrative Agent,
Administrative Agent may hire an independent engineer, at the Credit Parties’ expense, to
conduct such tests and investigations. Administrative Agent will make all reasonable efforts to
conduct any such tests and investigations so as to avoid interfering with the operation of the
Facility




          (ii) Any observations, tests or investigations of the Facilities by or on behalf of
Administrative Agent shall be solely for the purpose of protecting the Lenders’ security
interests and rights under the Credit Documents. The exercise of Administrative Agent’s rights
under this Subsection (c) shall not constitute a waiver of any default of any Credit Party or
impose any liability on Administrative Agent or any of the Lenders. In no event will any
observation, test or investigation by or on behalf of Administrative Agent be a



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representation that Hazardous Materials are or are not present in, on or under any of the
Facilities, or that there has been or will be compliance with any Environmental Law and
Administrative Agent shall not be deemed to have made any representation or warranty to any
party regarding the truth, accuracy or completeness of any report or findings with regard
thereto. Neither any Credit Party nor any other party is entitled to rely on any observation,
test or investigation by or on behalf of Administrative Agent. Administrative Agent and the
Lenders owe no duty of care to protect any Credit Party or any other party against, or to inform
any Credit Party or any other party of, any Hazardous Materials or any other adverse condition
affecting any of the Facilities. Administrative Agent may, in its sole discretion, disclose to
the applicable Credit Party, or to any other party if so required by law, any report or findings
made as a result of, or in connection with, its observations, tests or investigations. If a
request is made of Administrative Agent to disclose any such report or finding to any third
party, then Administrative Agent shall endeavor to give the applicable Credit Party prior notice
of such disclosure and afford such Credit Party the opportunity to object or defend against such
disclosure at its own and sole cost; provided, that the failure of Administrative Agent
to give any such notice or afford such Credit Party the opportunity to object or defend against
such disclosure shall not result in any liability to Administrative Agent. Each Credit Party
acknowledges that it may be obligated to notify relevant Governmental Authorities regarding the
results of any observation, test or investigation disclosed to such Credit Party, and that such
reporting requirements are site and fact-specific and are to be evaluated by such Credit Party
without advice or assistance from Administrative Agent.



          (d) If counsel to Company or any of its Subsidiaries reasonably determines (1) that provision
to Administrative Agent of a document otherwise required to be provided pursuant to this Section
5.9 (or any other provision of this Agreement or any other Credit Document relating to
environmental matters) would jeopardize an applicable attorney-client or work product privilege
pertaining to such document, then Company or its Subsidiary shall not be obligated to deliver such
document to Administrative Agent but shall provide Administrative Agent with a notice identifying
the author and recipient of such document and generally describing the contents of the document.
Upon request of Administrative Agent, Company and its Subsidiaries shall take all reasonable steps
necessary to provide Administrative Agent with the factual information contained in any such
privileged document.




     5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Company
(other than an Excluded Subsidiary or a Development Subsidiary) or any Domestic Subsidiary of
Company ceases to be an Excluded Subsidiary or a Development Subsidiary, then in each case, Company
shall, within twenty days of such event (a) cause such Domestic Subsidiary to become a Guarantor
hereunder and a Grantor under the Pledge and Security Agreement by executing and delivering to
Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take all such actions
and execute and deliver, or cause to be executed and delivered, all such documents, instruments,
agreements, and certificates as are similar to those described in Sections 3.1(b), 3.1(h) (to the
extent applicable), 3.1(i), and 3.1(m). In the event that any Person becomes a Foreign Subsidiary
of Company, and the ownership interests of such Foreign Subsidiary are directly owned by Company or
by any Domestic Subsidiary thereof (other than an Excluded Subsidiary), Company shall or shall
cause such Domestic Subsidiary to, deliver all such documents, instruments, agreements, and
certificates as



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are similar to those described in Sections 3.1(b), and Company shall take, or shall cause such
Domestic Subsidiary to take, all of the actions referred to in Section 3.1(i)(i) necessary to grant
and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of Secured
Parties, under the Pledge and Security Agreement in 65% of such ownership interests. With respect
to each such Subsidiary, Company shall promptly send to Administrative Agent written notice setting
forth with respect to such Person (i) the date on which such Person became a Subsidiary of Company,
and (ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all
Subsidiaries of Company; provided, such written notice shall be deemed to supplement
Schedule 4.1 and 4.2 for all purposes hereof.



     5.11. Additional Material Real Estate Assets. In the event that Company or any Guarantor
Subsidiary acquires a Material Real Estate Asset and such interest has not otherwise been made
subject to the Lien of the Collateral Documents in favor of Collateral Agent, for the benefit of
Secured Parties, then Company or such Guarantor Subsidiary, as soon as practicable after acquiring
such Material Real Estate Asset, shall take all such actions and execute and deliver, or cause to
be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates similar to those described in Sections 3.1(h), 3.1(i) and 3.1(j) and a Phase I
Environmental Assessment with respect to each such Material Real Estate Asset that Collateral Agent
shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured
Parties, a valid and, subject to any filing and/or recording referred to herein, First Priority
Lien in such Material Real Estate Assets. In addition to the foregoing, Company shall, at the
request of Requisite Lenders, deliver, from time to time, to Administrative Agent such appraisals
as are required by law or regulation of Real Estate Assets with respect to which Collateral Agent
has been granted a lien



     5.12. Interest Rate Protection. No later than the earlier of (i) 90 days following the date
of the issuance of the Second Lien Notes and (ii) 270 days following the Closing Date and at all
times thereafter, Company shall maintain, or caused to be maintained, in effect one or more
Interest Rate Agreements for a term of not less than three (3) years and otherwise in form and
substance reasonably satisfactory to Administrative Agent, which Interest Rate Agreements shall
effectively limit the Unadjusted Eurodollar Rate Component of the interest costs to Company with
respect to an aggregate notional principal amount of not less than 50% of the aggregate principal
amount of the Tranche C Term Loans, Delayed Draw Term Loans and the Second Lien Term Loans, to a
rate reasonably acceptable to Administrative Agent.



     5.13. Further Assurances. At any time or from time to time at the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things, as Administrative Agent or Collateral Agent
may reasonably request in order to effect fully the purposes of the Credit Documents that do not
involve material expansion of any Credit Party’s obligations or duties under the Credit Documents
from those originally mutually intended or contemplated. In furtherance and not in limitation of
the foregoing, each Credit Party shall take such actions as Administrative Agent or Collateral
Agent may reasonably request from time to time to ensure that the Obligations are guarantied by the
Guarantors and are secured by the Collateral (subject to limitations contained in the Credit
Documents).



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     5.14. Miscellaneous Business Covenants. Unless otherwise consented to by Agents or Requisite
Lenders:



          (a) Non-Consolidation. Company will and will cause each of its Subsidiaries to: (i)
maintain entity records and books of account separate from those of any other entity which is an
Affiliate of such entity; (ii) not commingle its funds (other than consistent with Company’s cash
management requirements as permitted hereunder) or assets with those of any other entity which is
an Affiliate of such entity; and (iii) provide that its board of directors or other analogous
governing body will hold all appropriate meetings to authorize and approve such entity’s actions,
which meetings will be separate from those of other entities.




          (b) Filing of Agreement. No later than the earlier of the next filing of a quarterly
report on Form 10Q or annual report on Form 10K, provided that Holding or any of its
Subsidiaries is otherwise required to file periodic reports with the Securities and Exchange
Commission, Holding or such Subsidiaries shall file a copy of this Agreement and the schedules
hereto as a material contract with the Securities and Exchange Commission.




     5.15. Cash Management Systems. Company and its Subsidiaries’ cash management systems on the
Closing Date are outlined on Schedule 5.15. Company and its Subsidiaries may make such
modifications to its cash management system as it may deem appropriate (subject to the requirements
of this Section 5.15) provided that to the extent any such modification would (i) affect
attributes of the cash management system described in paragraphs 5, 6, 7, 8, 11, 12, 13, 14, 15 and
19 of Part A of Schedule 5.15 and paragraphs 3, 4 and 5 of Part B of Schedule 5.15 or (ii)
otherwise be material and adverse to the Secured Parties, such modifications shall have been
approved by Administrative Agent. Company and each of its Guarantor Subsidiaries shall at all
times after the Closing Date ensure that all Cash and Cash Equivalents held by it are subject to a
valid and perfected First Priority security interest in favor of the Collateral Agent for the
benefit of the Secured Parties; provided that (i) Cash and Cash Equivalents maintained in
the deposit accounts and investment accounts identified on Schedule 2.2 of the Pledge and Security
Agreement in respect of “Class 4 Claims” (as such term is defined in the Plan of Reorganization)
and or in payroll, trusts and similar accounts (ii) other Cash and Cash Equivalents of up to
$2,000,000 in the aggregate at any one time for Company and all Guarantor Subsidiaries shall not in
either case be required to be maintained in deposit accounts or investments accounts subject to
Control Agreements; provided further that Company and each of its Guarantor Subsidiaries
shall at all times thereafter ensure that no funds accumulate at any Excluded Subsidiary, except
(a) in the case of any Excluded Subsidiary owning an interest in a Project, funds required to be
accumulated pursuant to restrictions in effect on the date hereof or in respect of Indebtedness
permitted under Section 6.1(l), imposed under the documentation for the financing or operation of
such Project and required for such financing or operation, (b) as required by any applicable
requirement of law, (c) as required by Contractual Obligations in effect as of the date hereof or
entered into after the date hereof in accordance with the provisions of this Agreement, (d) until
the date that is six months after the Closing Date and in an amount (net of amounts held against
uncleared drafts or wire payments) not to exceed $35,000,000, funds on deposit on the Closing Date
in accounts in the name of Subsidiaries of Company constituting part of the Acquired Business, or
(e) in an amount (net of amounts held against uncleared drafts or wire payments and in addition to
amounts referred to in clause (d) above) not



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to exceed $5,000,000, funds in accounts in the name of Subsidiaries of Company constituting part of
the Acquired Business.



     5.16. Insurance Regulatory Account. Until the later of the fourth anniversary of the Closing
Date and such time as the net operating loss of Holding and its Subsidiaries is less than
$50,000,000, Holding shall maintain Cash and Cash Equivalents of not less than the Insurance
Deposit Amount (less amounts applied from such account to the capitalization of the Insurance
Subsidiaries) in the Insurance Regulatory Account.



     5.17. Plan of Reorganization Account. Until all “Class 4 Claims” (as such term is defined in
the Plan of Reorganization) have been satisfied and discharged as evidenced by a certificate
delivered to Administrative Agent by Company, Company shall maintain in the Plan of Reorganization
Account Cash of not less than the Plan of Reorganization Initial Deposit Amount minus the amount of
any “Class 4 Claims” (as such term is defined in the Plan of Reorganization) which have been
satisfied and discharged. Company shall maintain such account and shall not make distributions
from such account other than to make payments of amounts due with regard to Class 4 Claims in
accordance with the Plan of Reorganization until all Class 4 Claims have been satisfied and
discharged.



SECTION 6. NEGATIVE COVENANTS




     Each of Company and Guarantor Subsidiaries covenants and agrees that, until the Termination
Date, Company and its Guarantor Subsidiaries shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6.



     6.1. Indebtedness. Neither Company nor any Guarantor Subsidiary shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness, except:



          (a) the Obligations;




          (b) Indebtedness of any Guarantor Subsidiary to Company or to any other Guarantor Subsidiary,
or of Company to any Guarantor Subsidiary; provided, (x) all such Indebtedness shall be
evidenced by the Intercompany Master Note and (y) any payment by any such Guarantor Subsidiary
under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any
Indebtedness owed by such Guarantor Subsidiary to Company or to any of its Guarantor Subsidiaries
for whose benefit such payment is made;




          (c) Subject to continued compliance with Sections 5.15 and 5.1(k)(B) Indebtedness of any
Subsidiary of Company other than the Guarantor Subsidiaries to Company or any Guarantor Subsidiary
so long as the proceeds of such Indebtedness are applied to current requirements in respect of
working capital, maintenance capital expenditures, operation or payroll in the ordinary course of
business of such Subsidiary incurring such Indebtedness or to make payments of debt service in
connection with the Alexandria, Virginia and Fairfax, Virginia

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facilities to the extent that such obligor with respect to such debt service does not
otherwise have funds available to make such payments and lease payments in connection with the
Delaware County, Pennsylvania facility, in each case to the extent that the obligor with respect to
such debt service or lease payments is required to make such payments and payment of such debt
service or lease payments would not be prohibited under Section 6.5; provided, that
following the occurrence of and continuance of an Event of Default (without prejudicing or
impairing any of the Secured Parties’ rights, privileges, powers and remedies with respect thereto,
which rights, privileges, powers and remedies are reserved in full) no such Indebtedness may be
incurred to make maintenance capital expenditures other than those that, if not made, would
materially compromise the ability of a Subsidiary to operate and maintain one or more of the
Projects in compliance with law, all such intercompany Indebtedness shall be evidenced by the
Intercompany Master Note;




          (d) (i) Indebtedness of Subsidiaries of Company to Company or any Guarantor Subsidiary, the
proceeds of which are used solely to fund one or more Permitted Acquisitions, and (ii) Indebtedness
of Foreign Subsidiaries of Company to Company in an amount not to exceed (A) $3,000,000 incurred in
any Fiscal Year (with any unused amounts accumulating on a cumulative basis to each subsequent
Fiscal Year) or (B) $15,000,000 in the aggregate at any one time outstanding which is incurred
after the Closing Date (plus the principal amount of any Indebtedness repaid by a Foreign
Subsidiary to Company or any Guarantor Subsidiary after the Closing Date), provided, that
(1) the proceeds of such Indebtedness incurred in reliance on this clause (ii) are used to finance
the development, construction or capital improvements to renewable energy or waste-to-energy
Projects, and (2) no more than $2,000,000 of such Indebtedness incurred in any Fiscal Year in
reliance on this clause (ii) may be incurred with respect to Projects located in jurisdictions
outside of the United Kingdom or Europe, and provided, further, with regard to all
Indebtedness incurred in reliance on this subsection (d) (1) no such Indebtedness may be incurred
at any time that Company and its Subsidiaries are not in compliance with Section 6.8, (2) no such
Indebtedness may be incurred to make capital expenditures if after giving effect to such
expenditures Company and its Subsidiaries would not be in pro forma compliance with Section 6.8(d)
and (3) all such intercompany Indebtedness shall be evidenced by the Intercompany Master Note;




          (e) (i) Indebtedness of MSW I and/or MSW II to Company with respect to the on-lending of (A)
Put Loans in an aggregate principal amount not to exceed $25,000,000, (B) the proceeds of the
Put-Related Equity Offering (less the amount of any Investment made pursuant to Section 6.7(n)(i)),
(C) Cash and Cash Equivalents from Company’s operations, provided that after giving effect
to the incurrence of such Indebtedness and any Investment made pursuant to Section 6.7(n)(ii),
unrestricted Cash and Cash Equivalents of Company and the Acquired Business shall not be less than
$50,000,000 (provided that for the purposes of calculating such amount, no more than
$5,000,000 of Marketable Securities shall be included in such calculation) and/or (D) an equity
contribution from Holding to Company to occur within 120 days of the Closing Date in an aggregate
amount not to exceed $25,000,000 (less the amount of any equity Investment made pursuant to Section
6.7(n)(iii)), provided that the amounts on-lent to MSW I and/or MSW II pursuant to clauses
(A) through (D) immediately above shall be used to pay MSW Put-Related Costs and when added to the
equity Investments made pursuant to Section 6.7(n) shall not exceed in the aggregate the amount set
forth on the certificate delivered pursuant to Section 5.1(k), (ii) Indebtedness of MSW I and/or
MSW II to ARC LLC with respect to the

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on-lending of the proceeds of the New ARC Notes by ARC LLC to fund MSW Put-Related Costs,
(iii) Indebtedness of MSW I and/or MSW II to ARC LLC with respect to the on-lending of the proceeds
of the ARC Refinancing Notes by ARC LLC to redeem, refinance, replace, renew or extend the MSW
Notes in accordance with clause (n)(i) below, (iv) Indebtedness of ARC LLC to MSW I and/or MSW II
with respect to the on-lending of the proceeds of the MSW Refinancing Notes by MSW I and/or MSW II
to redeem, refinance, replace, renew or extend the ARC Notes in accordance with clause (n)(i)
below, and (v) additional Indebtedness of Excluded Subsidiaries to Company or any Guarantor
Subsidiary in an amount not to exceed (A) $10,000,000 incurred in any Fiscal Year (with any unused
amounts accumulating on a cumulative basis to each subsequent Fiscal Year) or (B) $30,000,000 in
the aggregate at any one time outstanding which is incurred after the Closing Date,
provided, that in each case (1) no such Indebtedness may be incurred at any time such that
Company and its Subsidiaries would not be in compliance with Section 6.8, (2) no such Indebtedness
may be incurred to make capital expenditures if after giving effect to such expenditures Company
and its Subsidiaries would not be in pro forma compliance with Section 6.8(d), and (3) all such
intercompany Indebtedness shall be evidenced by the Intercompany Master Note, and provided
further that notwithstanding anything to contrary in this Agreement, no Credit Party shall cancel
any Indebtedness owed to it by any Subsidiary of Company (other than among Credit Parties) except
(a) in connection with the Foreign Subsidiary restructuring disclosed on Schedule 6.9-B, (b) to the
extent such cancellation directly results in material savings (taking into consideration any tax
savings) to Company and its Subsidiaries on a group-wide basis and is not done in contemplation of
any event which would give rise to an Event of Default under Sections 8.1(f) or 8.1(g), or (c) for
adequate consideration and in the ordinary course of business;




          (f) Indebtedness of any Excluded Subsidiary to another Excluded Subsidiary which is its direct
or indirect parent or Subsidiary and Indebtedness for any Foreign Subsidiary to another Foreign
Subsidiary;




          (g) Indebtedness incurred by Company or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations incurred in
connection with Permitted Acquisitions;




          (h) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal, bid, payment (other than payment of Indebtedness) or similar obligations
(including any bonds or Letters of Credit issued with respect thereto and all reimbursement and
indemnity agreements entered into in connection therewith) incurred in the ordinary course of
business;




          (i) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




          (j) performance guaranties in the ordinary course of business and consistent with historic
practices of the obligations of suppliers, customers, franchisees and licensees of Company and its
Subsidiaries;




          (k) Indebtedness of any Subsidiary of Company to Company or any other Subsidiary of Company,
so long as the proceeds are used to fund capital expenditures relating to

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the modifications to Projects, to the extent required by applicable legal requirements;
provided that if and to the extent that such additional capital expenditures are estimated by
Company to exceed $40,000,000 in the aggregate during the term of this Agreement, and are not
otherwise reimbursable by third parties, Company shall provide such estimate to Administrative
Agent for its review, and shall not incur such capital expenditures in excess of $10,000,000 in
connection with any such modification until Administrative Agent has had an opportunity to review
and provide its comments, except to the extent failure to incur such capital expenditures would in
Company’s reasonable judgment either (i) materially compromise its present ability to continue to
operate and maintain one or more of its Projects in compliance with law or (ii) expose it or its
Affiliates to material liability;




          (l) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals, refinancings, replacements and extensions expressly
provided for in, or contemplated by, the agreements relating to any such Indebtedness (or the
related Projects) as the same are in effect on the date of this Agreement and (ii) refinancings,
renewals, replacements and extensions of any such Indebtedness in whole or in part at the then
prevailing market rates if the non-economic terms and conditions thereof are not less favorable to
the obligor thereon or to the Lenders than the Indebtedness being renewed, refinanced, replaced or
extended, taken as a whole (considering the economic benefits and disadvantages to Company and its
Subsidiaries from such refinancing, replacement, renewal or extension, as well as the economic
benefits and disadvantages to Company and its Subsidiaries of the Project to which such
Indebtedness relates); provided, that the average life to maturity of such Indebtedness is
greater than or equal to that of the Indebtedness being refinanced, replaced, renewed or extended
(unless the client with respect thereto undertakes to service such principal through the lease,
service or operating agreement of the applicable Project), and provided further,
that such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not
(A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness
being extended, renewed, replaced or refinanced, (B) exceed the principal amount of the
Indebtedness being renewed, extended, replaced or refinanced plus any reasonable and customary
transaction costs and fees and any premium on the Indebtedness required to be paid in connection
with such repayment unless the increase in the principal amount of such Indebtedness is permitted
under another subsection of this Section 6.1 (provided that such limitation shall not apply
with respect to Indebtedness that a client of a Project undertakes to service through the lease,
service or operating agreement of the applicable Project) or (C) be incurred, created or assumed if
any Default or Event of Default has occurred and is continuing or would result therefrom;




          (m) (i) Indebtedness of Company or its Subsidiaries with respect to Capital Leases entered
into after the Closing Date and (ii) purchase money Indebtedness of Subsidiaries of Company
(excluding any Indebtedness acquired in connection with a Permitted Acquisition) in an aggregate
amount in the case of (i) and (ii) together not to exceed $15,000,000 at any time; provided
that any purchase money Indebtedness (A) shall be secured only by the asset acquired in connection
with the incurrence of such Indebtedness, and (B) shall constitute not less than 85% of the
aggregate consideration paid with respect to such asset;




          (n) (i) any debt securities issued by MSW I, MSW II and/or ARC LLC in a combined aggregate
principal amount not to exceed $665,000,000 plus any accrued interest and

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senior subordinated debt securities or other indebtedness issued by MSW I, MSW II and/or ARC
LLC to redeem, refinance, replace, renew or extend any of the MSW I Notes, the MSW II Notes and/or
ARC Notes in full, in an amount of up to the then aggregate outstanding principal amount of the MSW
I Notes or the MSW II Notes (in each case, for the avoidance of doubt, after giving effect to any
redemption, refinancing or replacement thereof pursuant to the Indebtedness permitted under
6.1(n)(ii)), or ARC Notes, as applicable in each case, plus any reasonable and customary
transaction costs and fees and required premium and debt service reserve requirements in connection
therewith (any such debt securities issued by MSW I and/or MSW II, the “MSW Refinancing Notes” and
any such debt securities issued by ARC LLC, the “ARC Refinancing Notes”) and guaranties related
thereto; provided that the proceeds thereof are used in each case to prepay or redeem the
MSW Notes and/or ARC Notes so redeemed, refinanced, replaced, renewed or extended and reasonable
and customary fees, commissions, legal fees and other costs and expenses incurred in connection
with such issuance and redemption or prepayment; provided further that (A) (1) the
terms of such additional Indebtedness shall not contain any cross-default provisions (other than
for material non-payment, and may include a cross-acceleration provision), (2) the terms of such
additional Indebtedness shall not contain any financial maintenance covenants, (3) such additional
Indebtedness shall not be secured by any asset of Company or any of its Subsidiaries (other than
restricted Cash or Cash Equivalents allocated from the funds representing such Indebtedness
securing principal and interest payments to the extent required pursuant to the terms of such
additional Indebtedness) that do not, in the case of MSW Refinancing Notes, secure the MSW Notes
and in the case of ARC Refinancing Notes, secure the ARC Notes, (4) no portion of the principal of
such additional Indebtedness shall be scheduled to be redeemed, repurchased or otherwise repaid or
prepaid (other than as a result of a change of control, asset sales, receipt of equity and
indebtedness proceeds, condemnation and eminent domain, change of control events, acceleration or
such other provision as shall be customary for comparable high-yield debt securities) prior to the
earlier of (x) the date on which the corresponding portion of the refinanced Indebtedness would be
payable under, for MSW Refinancing Notes, the MSW Notes, or for ARC Refinancing Notes, the ARC
Notes, and (y) the date that is six months after the Term Loan Maturity Date, and (5) such
Indebtedness shall otherwise, taken as a whole, be on non-financial terms no less favorable to the
obligors thereon, in any material respects, than the terms of, for MSW Refinancing Notes, the MSW
Notes, or for ARC Refinancing Notes, the ARC Notes, taken as a whole (considering the economic
benefits and disadvantages of such refinancing, replacement, renewal or extension); and (B) after
giving effect to the incurrence of such Indebtedness, (1) Company and its Subsidiaries shall be in
pro forma compliance with the financial covenants set forth in Section 6.8 and (2) no Default or
Event of Default shall exist or would result therefrom, (ii) any debt securities issued by MSW I
and/or MSW II to finance MSW Put-Related Costs, in an aggregate amount up to $425,000,000, plus any
reasonable and customary transaction costs and fees and required premium in connection therewith
(the “New MSW Notes”); provided that the proceeds thereof are used to pay MSW Put-Related
Costs and reasonable and customary fees, commissions, legal fees and other costs and expenses
incurred in connection with such issuance and payment; provided further that (A)
(1) the terms of such additional In
debtedness shall not contain cross-default provisions to the MSW
Indentures, (2) such additional Indebtedness shall not be secured by any assets (other than Cash or
Cash Equivalents allocated from the funds representing such Indebtedness securing principal and
interest payments to the extent required pursuant to the terms of such additional Indebtedness)


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 that do not secure the MSW Notes, and (3) no portion of the principal of such additional
Indebtedness shall be scheduled to be redeemed, repurchased or otherwise repaid or prepaid (other
than as a result of a change of control, asset sales, receipt of equity and indebtedness proceeds,
condemnation and eminent domain, change of control events, acceleration or such other provision as
shall be customary for comparable high-yield debt securities) prior to the earlier of (x) the date
on which the corresponding portion of the Indebtedness would be payable under the MSW Notes and (y)
the date that is six months after the Maturity Date; and (B) after giving effect to the incurrence
of such Indebtedness, (1) Company and its Subsidiaries shall be in pro forma compliance with the
financial covenants set forth in Section 6.8 and (2) no Default or Event of Default shall exist or
would result therefrom, and (iii) any debt securities issued by ARC LLC to finance MSW Put-Related
Costs, in an amount up to $425,000,000, plus any reasonable and customary transaction costs and
fees and required premium in connection therewith (the “New ARC Notes”); provided that the
proceeds thereof are used to pay MSW Put-Related Costs and reasonable and customary fees,
commissions, legal fees and other costs and expenses incurred in connection with such issuance and
payment; provided further that (A) (1) the terms of such additional Indebtedness
shall not contain cross-default provisions to the ARC Indenture, (2) such additional Indebtedness
shall not be secured by any assets (other than Cash or Cash Equivalents allocated from the funds
representing such Indebtedness securing principal and interest payments to the extent required
pursuant to the terms of such additional Indebtedness) that do not secure the ARC Notes, and (3) no
portion of the principal of such additional Indebtedness shall be scheduled to be redeemed,
repurchased or otherwise repaid or prepaid (other than as a result of a change of control, asset
sales, receipt of equity and indebtedness proceeds, condemnation and eminent domain, change of
control events, acceleration or such other provision as shall be customary for comparable
high-yield debt securities) prior to the earlier of (x) the date on which the corresponding portion
of the Indebtedness would be payable under the ARC Notes and (y) the date that is six months after
the Maturity Date; and (B) after giving effect to the incurrence of such Indebtedness, (1) Company
and its Subsidiaries shall be in pro forma compliance with the financial covenants set forth in
Section 6.8 and (2) no Default or Event of Default shall exist or would result therefrom;




          (o) the Second Lien Term Loans owed under the Second Lien Credit Agreement in an aggregate
principal amount not to exceed $400,000,000 minus, following the Delayed Draw Term Loan Credit
Date, the principal amount of the Delayed Draw Term Loan and the Second Lien Notes owed under the
Second Lien Notes Indenture in an aggregate principal amount not to exceed $400,000,000 minus,
following the Delayed Draw Term Loan Credit Date, the principal amount of the Delayed Draw Term
Loan plus any accrued interest, and guaranties related thereto, and any Indebtedness incurred to
refinance, renew, extend or replace such Indebtedness in whole or in part at the then-prevailing
market rates, and guaranties related thereto; provided that, (i) the non-economic terms and
conditions of such Indebtedness, taken as a whole (considering the economic benefits and
disadvantages of such refinancing, replacement, renewal or extension), are no less favorable in any
material respect to the obligors thereon than the Second Lien Credit Agreement or Second Lien Notes
Indenture, as applicable, (ii) such refinancing, renewal, extension or replacement is incurred only
by the Person who is the obligor on the Second Lien Term Loans or Second Lien Notes, as applicable,
being refinanced, renewed, extended or replaced and guaranties related thereto and (iii) the
average life to maturity thereof is greater than or equal to that of the Second Lien Term Loans and
Second Lien Notes, as applicable;




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          (p) to the extent no Default or Event of Default shall have occurred and be continuing or
shall be caused thereby at the time of the incurrence thereof, Limited Recourse Debt, the proceeds
of which are applied to make Expansions, incurred after the Closing Date in an aggregate amount not
to exceed the greater of (i) $60,000,000 and (ii) 50% of the principal amount of Limited Recourse
Debt of Subsidiaries of Company outstanding as of the Closing Date which has been permanently
repaid (and not otherwise renewed, refinanced, replaced or extended pursuant to Section 6.1(l) or
otherwise) since the Closing Date (up to a maximum principal amount under this clause (p) of
$250,000,000;




          (q) Company and its Subsidiaries may become and remain liable with respect to their
obligations to pay for services rendered by Holding to them under and in accordance with the
Corporate Services Reimbursement Agreement;




          (r) Company and its Subsidiaries may become and remain liable with respect to usual and
customary contingent obligations incurred in connection with insurance deductibles or
self-insurance retentions required by third party insurers in connection with insurance
arrangements entered into by Company and its Subsidiaries with such insurers in compliance with
Section 5.5;




          (s) Company and its Subsidiaries may become and remain liable with respect to Performance
Guaranties supporting Projects, provided, that (a) the terms of any such Performance
Guaranty shall be generally consistent with past practice of Company and its Subsidiaries, (b) in
no event shall any such Performance Guaranty be secured by collateral, and (c) after the occurrence
and during the continuation of an Event of Default, neither Company nor any if its Subsidiaries
shall enter into any such Performance Guaranty or enter into a contractual commitment to provide
any such Performance Guaranty;




          (t) Indebtedness of any Covanta Warren Entity to Company or any of its Subsidiaries to the
extent the proceeds thereof are immediately used to make the Restricted Junior Payment expressly
permitted pursuant to Section 6.5(h) or to make the payments contemplated under Section 6.7(l)(ii);




          (u) Company may become and remain liable with respect to Indebtedness consisting solely of its
obligations under Insurance Premium Financing Arrangements, which obligations shall not exceed at
any time $40,000,000 in the aggregate;




          (v) Company and its Subsidiaries may become and remain liable with respect to Hedge Agreements
and with respect to long-term or forward purchase contracts and option contracts to buy, sell or
exchange commodities and similar agreements or arrangements, so long as such contracts, agreements
or arrangements do not constitute Commodities Agreements;




          (w) Company and its Subsidiaries may become and remain liable with respect to contingent
obligations incurred in exchange (or in consideration) for (a) the release of cash collateral
pledged by Company or its Subsidiaries or (b) the return and cancellation of undrawn letters of
credit for which Company or its Subsidiaries are liable for reimbursement;




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          (x) Indebtedness of any Subsidiary of Company to Company reflecting non-cash intercompany
allocations of overhead and other parent-level costs in accordance with its customary allocation
practices;




          (y) Limited Recourse Debt of any Subsidiary of Company assumed in connection with a Permitted
Acquisition of such Subsidiary existing at the time such Permitted Acquisition was consummated
provided that such Limited Recourse Debt was not incurred in connection with or in anticipation of
such Permitted Acquisition in an aggregate amount not to exceed at any time $50,000,000; and




          (z) Additional unsecured Indebtedness of Company and its Guarantor Subsidiaries in an amount
not to exceed $10,000,000 in the aggregate since the Closing Date.




     To the extent that the creation, incurrence or assumption of any Indebtedness could be
attributable to more than one subsection of this Section 6.1, Company may allocate such
Indebtedness to any one or more of such subsections and in no event shall the same portion of
Indebtedness be deemed to utilize or be attributable to more than one item.



     6.2. Liens. Neither Company nor any Guarantor Subsidiary shall, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any property or asset of any kind (including any document or instrument in
respect of goods or accounts receivable) of Company or any of its Subsidiaries, whether now owned
or hereafter acquired, or any income or profits therefrom, except:



          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;




          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA),
in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii)
for amounts that are overdue and that (in the case of any such amounts overdue for a period in
excess of ten days) are being diligently contested in good faith by appropriate proceedings, so
long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall
have been made for any such contested amounts;




          (d) Liens incurred and deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety, performance, bid, payment and appeal bonds,
bids, leases, government contracts, trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed money) so long as
no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof and Liens securing, or arising in connection with the establishment
of, required debt service reserve funds, provided that in the case of Liens securing debt
service reserve funds, completion obligations and similar accounts

115









 








and obligations (other than Indebtedness) of Subsidiaries of Company to Persons other than
Company and its Subsidiaries and their respective Affiliates, so long as (a) each such obligation
is associated with a Project, (b) such Lien is limited to (1) assets associated with such Project
(which in any event shall not include assets held by Company or any of its Subsidiaries other than
a Subsidiary whose sole business is the ownership and/or operation of such Project and
substantially all of whose assets are associated with such Project) and/or (2) the equity interests
in such Subsidiary, but in the case of clause (2) only if such Subsidiary’s sole business is the
ownership and/or operation of such Project and substantially all of such Subsidiary’s assets are
associated with such Project, and (c) such obligation is otherwise permitted under this Agreement;




          (e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere with the ordinary conduct
of the business of Company or any of its Subsidiaries;




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




          (g) Liens solely on any cash earnest money deposits made by Company or any of its Subsidiaries
in connection with any letter of intent or purchase agreement permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;




          (i) Lien on Cash or Cash Equivalents to the extent used to secure principal and interest
payments to the extent required pursuant to indentures otherwise permitted hereunder and funded
with the proceeds of the issuance of notes thereunder;




          (j) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;




          (k) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property, in each case which do not and will not
interfere with or affect in any material respect the use, value or operations of any Closing Date
Mortgaged Property or Material Real Estate Asset or the ordinary conduct of the business of Company
or any of its Subsidiaries;




          (l) licenses of patents, trademarks and other intellectual property rights granted by Company
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such Subsidiary;




          (m) Liens described in Schedule 6.2 or on a Title Policy delivered pursuant to Section
3.1(h)(iv);




          (n) Liens (i) arising under Capital Leases entered into after the Closing Date and (ii)
securing purchase money Indebtedness in an aggregate amount in the case of (i) and (ii)

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together not to exceed at any time $15,000,000; provided, any such Lien shall encumber
only the asset acquired with the proceeds of such Indebtedness;




          (o) Liens on the Collateral securing obligations under the Second Lien Credit Agreement and/or
Second Lien Notes and all collateral documents related to either of them including permitted
refinancings, renewals, extensions, refundings and replacements thereof; provided that such
Liens are subordinated to the Liens securing the Obligations in accordance with the terms of the
Intercreditor Agreement;




          (p) Liens on assets of any Subsidiary of Company and/or on the stock or other equity interests
of such Subsidiary, in each case to the extent such Liens secure Limited Recourse Debt of such
Subsidiary permitted by Section 6.1(p) and Liens on assets of any Foreign Subsidiary of Company
constituting equity interests in a Joint Venture to the extent such Liens secure Indebtedness of
such Joint Venture in respect of a Project;




          (q) Liens created pursuant to Insurance Premium Financing Arrangements otherwise permitted
under this Agreement, so long as such Liens attach only to gross unearned premiums for the
insurance policies and related rights;




          (r) Liens securing refinancing Indebtedness permitted by Section 6.1(l), provided that in each
case the Liens securing such refinancing Indebtedness shall attach only to the assets that were
subject to Liens securing the Indebtedness so refinanced;




          (s) Liens securing Indebtedness permitted by Section 6.1(m)(i) and Section 6.1(m)(ii) and
Liens secured only by the asset acquired in connection with the incurrence of such Indebtedness
permitted by Section 6.1(y);




          (t) rights and claims of creditors of Company and its Subsidiaries to the bankruptcy reserve
funds established in connection with the plan of reorganization in the bankruptcy cases of Company
and its Subsidiaries that became effective on March 10, 2004 (the “Plan of Reorganization”) and
held in the designated account permitted under Section 5.17 and indicated on Schedule 5.15 and paid
into such account prior to the Closing Date pursuant to such plan of reorganizations);




          (u) Liens on cash collateral of Company and its Subsidiaries securing insurance deductibles or
self-insurance retentions required by third party insurers in connection with (i) workers’
compensation insurance arrangements entered into by Company and its Subsidiaries with such insurers
and (ii) other insurance arrangements entered into by Company and its Subsidiaries with such
insurers in an amount not to exceed $2,000,000 in the aggregate;




          (v) Liens on assets acquired (or on the assets of Persons acquired) in a Permitted Acquisition
that existed at the time of such acquisition and that were not created in contemplation of such
acquisition; and




          (w) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $2,500,000 at any time outstanding.




     6.3. [Intentionally left blank].



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     6.4. No Further Negative Pledges. Except with respect to (a) property encumbered to secure
payment of particular Indebtedness or to be sold pursuant to an executed agreement with respect to
an asset sale permitted hereunder, (b) restrictions contained in the MSW Indentures, (c)
restrictions contained in leases and licenses that relate only to the property or rights leased or
licensed thereunder, (d) restrictions contained in the MSW Refinancing Indenture or the New MSW
Indentures and in any documents, instruments or agreements pursuant to which the MSW Refinancing
Notes or New MSW Notes may be refinanced or replaced that are no more restrictive than those
contained in the MSW Indentures or the New MSW Indentures, as applicable, (e) restrictions
contained in the Second Lien Credit Agreement and all collateral documents related thereto as of
the Closing Date and in Second Lien Notes Indenture, (f) restrictions contained in any documents,
instruments or agreements pursuant to which the Second Lien Notes or Second Lien Term Loans may be
refinanced or replaced that are no more restrictive than those contained in the Second Lien Credit
Agreement or the Second Lien Notes Indenture as applicable, (g) restrictions contained in the ARC
Indenture, (h) restrictions contained in any documents, instruments or agreements pursuant to which
the ARC Notes or the New ARC Notes may be refinanced or replaced (including any ARC Refinancing
Indenture) that are no more restrictive than those contained in the ARC Indenture, (i) restrictions
contained in any instrument, document or agreement to which any Person acquired by Company or a
Subsidiary in a Permitted Acquisition is a party, provided that such restrictions (A) were not
created in contemplation of such acquisition and (B) are not applicable to any Person, property or
assets other than the Persons so acquired (and its Subsidiaries), (j) restrictions by reason of
customary provisions restricting assignments, subletting or other transfers contained in leases,
licenses and similar agreements entered into in the ordinary course of business (provided
that such restrictions are limited to the property or assets secured by such Liens or the property
or assets subject to such leases, licenses or similar agreements, as the case may be) and (k)
provisions in the principal lease, service and operating agreements pertaining to Projects or the
partnership and financing agreements relating to Projects, or any extension, renewal or replacement
thereof so long as in each case such lease, service, operating, partnership or financing agreement
is in effect as of the Closing Date, is otherwise permitted to be entered into hereunder and, in
the case of any extension, renewal or replacement, such agreement contains no more restrictive
provisions relating to prohibiting the creation or assumption of any Lien upon the properties or
assets of the relevant Subsidiary than the lease, service, operating, partnership or financing
agreement so extended, renewed or replaced, Company and its Subsidiaries shall not, and shall not
permit any of their Subsidiaries to, enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned or hereafter
acquired.



     6.5. Restricted Junior Payments. Neither Company nor any Guarantor Subsidiary shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment except that (a) MSW I, MSW II and ARC LLC may
make regularly scheduled payments of interest in respect of the MSW Notes, any MSW Refinancing
Notes, the ARC Notes, any ARC Refinancing Notes, the New MSW Notes, the New ARC Notes and any
instrument or agreement in respect of any permitted refinancing thereof, and may make regularly
scheduled payments of principal, mandatory prepayments and redemptions (including payment of
premium) of, or repay at maturity, the MSW Notes, the ARC Notes, the New MSW Notes, the ARC
Refinancing Notes, the New ARC Notes and any instrument or agreement in respect of any permitted
refinancing thereof, all in accordance with



118









 







the terms of, and only to the extent required by, and subject to the subordination provisions,
if any, contained in the MSW Indentures, MSW Refinancing Indentures, the ARC Indentures, the ARC
Refinancing Indentures, the New MSW Indentures, the New ARC Indenture and any instrument or
agreement in respect of any permitted refinancing thereof; (b) Company may make required payments
of principal and interest in respect of the Indebtedness incurred under the Second Lien Credit
Agreement and Second Lien Notes Indenture and any refinancing thereof permitted hereunder and
thereunder and pursuant to the Intercreditor Agreement and Company may make a voluntary prepayment
of the Indebtedness incurred under the Second Lien Credit Agreement on the Delayed Draw Term Loan
Credit Date in an amount not to exceed the amount of the Delayed Draw Term Loan Commitment; (c) so
long as no Event of Default pursuant to Section 8.1(a) shall have occurred and be continuing,
Company may make payments to Holding to the extent required under the Corporate Services
Reimbursement Agreement and Company may reimburse Holding for the fees and reasonable costs and
expenses paid or payable by Holding within 180 days of the Closing Date in connection with the
Transactions and the Related Transactions; (d) Company and its Subsidiaries may make payments
required under the Holding Tax Sharing Agreement; provided, that in no event shall the amount paid
by Company and its Subsidiaries exceed the lesser of (i) the consolidated tax liabilities that
would be payable if Company and its Subsidiaries filed a consolidated tax return with Company as
the parent company and (ii) the consolidated tax liabilities of Holding and its Subsidiaries; (e)
Company may make Restricted Junior Payments to Holding in order to allow Holding to fund regulatory
capital or other requirements relating to the Insurance Subsidiaries of Holding in an aggregate
amount not to exceed $3,000,000 in any Fiscal Year; provided that (i) no Default or Event
of Default shall have occurred and be continuing or shall be caused thereby and (ii) Company and
its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.8 on a
pro forma basis after giving effect to such payment as of the last day of the Fiscal Quarter most
recently ended; (f) so long as no Default or Event of Default shall have occurred and be continuing
or would be caused thereby, Company may make additional Restricted Junior Payments to Holding, the
proceeds of which may be utilized by Holding to make additional Restricted Junior Payments, in an
aggregate amount not to exceed $10,000,000; provided, that notwithstanding the foregoing,
until (i) such time as the Company Leverage Ratio determined on a pro forma basis is less than
4.25:1.00 at any date of determination, (ii) no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, (iii) Company and its Subsidiaries shall be in compliance
with the financial covenants set forth in Section 6.8 on a pro forma basis after giving effect to
such payment as of the last day of the Fiscal Quarter most recently ended and (iv) at the time of
such payment and after giving effect thereto, the sum of (y) the amount, if any, by which (i) the
Revolving Commitment exceeds (ii) the sum of the Total Utilization of Revolving Commitments
plus (z) the aggregate amount of unrestricted Cash and Cash Equivalents of Company at such
time, shall not be less than $50,000,000; (g) so long as no Event of Default shall have occurred
and be continuing, Subsidiaries of Company may and (with respect to Second Lien Credit Agreement,
the Second Lien Notes Indenture and any refinancing thereof permitted thereunder) Company may, at
the time Indebtedness is refinanced or replaced as permitted under Section 6.1 by other
Indebtedness permitted under such section, pay principal, accrued interest and other amounts owing
on the Indebtedness being refinanced at such time, provided, that such payments may be made
with respect to Limited Recourse Debt during the continuance of an Event of Default so long as such
payments are from the proceeds of Limited Recourse Debt permitted to be incurred hereunder and such
proceeds are required to be applied



119









 







to make such payments under a binding Contractual Obligation to a third party and ARC LLC may
make regularly scheduled payments of interest in respect of the notes issued under the ARC
Indenture and under any Indebtedness incurred to refinance the same and in respect of principal of
such notes only mandatorily prepay or redeem (including payment of any premium) or repay at
maturity, all in accordance with the terms of the ARC Indenture and any Indebtedness incurred to
refinance the same, and only to the extent required by the ARC Indenture or terms of such
refinancing Indebtedness; and (h) so long as no Event of Default shall have occurred and be
continuing, Company or any of its Subsidiaries may repay the outstanding Covanta Warren Debt
pursuant to a confirmed plan of reorganization up to an aggregate amount not to exceed $18,000,000;
provided that each Covanta Warren Entity immediately thereafter ceases to be an Affected
Entity, becomes a Guarantor hereunder and a Grantor under the Pledge and Security Agreement and
complies with Section 5.10.



     6.6. Restrictions on Subsidiary Distributions. Except as provided herein, in the Second Lien
Credit Agreement, the Second Lien Notes Indenture, the ARC Indentures, the ARC Refinancing
Indenture, the New ARC Indenture, the MSW Indentures, MSW Refinancing Indentures or the New MSW
Indentures or any document, instrument or agreement entered into in connection with a replacement
or refinancing of any of the foregoing permitted hereunder, neither Company nor any Guarantor
Subsidiary shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary of Company to (a) pay dividends or make any other distributions on any of
such Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c)
make loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its
property or assets to Company or any other Subsidiary of Company other than restrictions (i) in
agreements evidencing Indebtedness permitted by Sections 6.1(j) or (m) that impose restrictions on
the property so acquired, (ii) by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses, joint venture agreements and similar
agreements, (iii) by reason of provisions in the principal lease, service or operating agreements,
partnership agreements and financing agreements pertaining to Projects, so long as such lease,
service or operating agreements, partnership agreements and financing agreements are extensions,
renewals or replacements of such agreements are in effect as of the Closing Date, are otherwise
permitted to be entered into hereunder and, in each case of any extensions, renewals or
replacements, contain no more restrictive provisions relating to the ability of the relevant
Subsidiary to take the actions described in clauses (a) through (d) than the agreement so extended,
renewed or replaced, (iv) that are or were created by virtue of any transfer of, agreement to
transfer or option or right with respect to any property, assets or Capital Stock not otherwise
prohibited under this Agreement (v) that are of the type set forth in clause (d) above contained in
agreements relating to an asset sale permitted hereunder (or to which Requisite Lenders have
consented) (provided that such restrictions only apply to the assets that are the subject of such a
sale), (vi) that are of the type set forth in clauses (a) through (d) above contained in
agreements relating the sale or disposition of all of the equity interests of a Subsidiary
permitted hereunder (or to which the Requisite Lenders have consented) (provided that such
restrictions only apply to the Subsidiary being sold or disposed of and its Subsidiaries), and
(vii) by reason of provisions in any instrument, document or agreement to which any Person acquired
by Company or a Subsidiary in a Permitted Acquisition is a party, provided that such restrictions
(A) were not created in



120









 







contemplation of such acquisition and (B) are not applicable to any Person, property or assets
other than the Person (and such Person’s Subsidiaries) so acquired and their respective properties
and assets. No Credit Party shall, nor shall it permit any of its Subsidiaries, to enter into any
immaterial Contractual Obligation on or after the Closing Date which would prohibit a Subsidiary of
Company becoming a Credit Party.



     6.7. Investments. Neither Company nor any Guarantor Subsidiary shall, nor shall it permit any
of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including
without limitation any Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents and, to the extent made in connection therewith,
Investments permitted or imposed under the terms of any cash collateral or debt service reserve
agreement (including pursuant to the terms of any Project bond indenture and the MSW Indentures)
permitted hereunder;




          (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments made
after the Closing Date in any wholly-owned Guarantor Subsidiaries of Company;




          (c) Investments (i) in any Securities or instruments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors, (ii) received in settlement of
disputes or as consideration in any asset sale or other disposition permitted hereunder and (iii)
constituting deposits, prepayments and other credits to suppliers made in the ordinary course of
business consistent with the past practices of Company and its Subsidiaries;




          (d) intercompany loans and advances to the extent permitted under Section 6.1(b), (c), (d),
(e), (f) or (k);




          (e) Investments by a Subsidiary of Company constituting Consolidated Capital Expenditures by
such Subsidiary permitted by Section 6.8(d);




          (f) Investments made in connection with Permitted Acquisitions permitted pursuant to Section
6.9;




          (g) Investments described in Schedule 6.7;




          (h) Company and its Subsidiaries may become and remain liable with respect to contingent
obligations consisting of long-term or forward purchase contracts and option contracts to buy, sell
or exchange commodities and similar agreements or arrangements, so long as such contracts,
agreements or arrangements do not constitute Commodities Agreements;




          (i) Foreign Subsidiaries may make equity Investments in other Foreign Subsidiaries (including
without limitation, Investments made in connection with the Foreign Subsidiary restructuring as
expressly set forth in Schedule 6.9-B) and Excluded Subsidiaries may make equity Investments in
other Excluded Subsidiaries which are their direct or indirect Subsidiaries;




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          (j) to the extent no Default or Event of Default shall have occurred and be continuing at the
time the same are made or shall be caused thereby, (i) equity Investments in Foreign Subsidiaries
and Excluded Subsidiaries by Company or any Guarantor Subsidiary to provide such Subsidiary with
equity capitalization necessary or advisable in connection with an Expansion of a Project of such
Subsidiary in an amount not to exceed 30% of the amount of Limited Recourse Debt that such
Subsidiary is permitted to incur under (or has already incurred in reliance on) Section 6.1(p) and
(ii) equity Investments in Subsidiaries by Company or any Subsidiary to provide such Subsidiary
with equity capitalization necessary or advisable in connection with the making of Permitted
Acquisitions substantially contemporaneously with such equity Investment;




          (k) Investments of Persons acquired in a Permitted Acquisition that existed at the time of
such acquisition;




          (l) (i) for so long as the Covanta Warren Entities remain Affected Entities, loans and
advances by Company to the Covanta Warren Entities in an aggregate principal amount not to exceed
$3,000,000 pursuant to debtor-in-possession financing provided to the Covanta Warren Entities by
Company and (ii) Investments made by Company in the Covanta Warren Entities, in an amount not
exceed $18,000,000 when aggregated with payments permitted under Section 6.5(h), on or after the
effective date of the confirmation of a plan of reorganization of the Covanta Warren Entities in
connection with such reorganization;




          (m) equity investments arising from or as a part of (i) the Foreign Subsidiary Restructuring
as expressly set forth in Schedule 6.9-B and (ii) the cancellation of intercompany indebtedness
described in clause (b) of the second proviso to Section 6.1(e)(v);




          (n) equity Investments in MSW I and/or MSW II; provided that such Investments shall be
made from





     (i) the proceeds of the Put-Related Equity Offering (less the amount of any
intercompany loans made pursuant to Section 6.1(e)(i)(B)),




     (ii) Cash and Cash Equivalents from Company’s operations; provided that
after giving effect to such Investment and any Indebtedness incurred pursuant to
Section 6.1(e)(i)(C) unrestricted Cash and Cash Equivalents of Company and the
Acquired Business shall not be less than $50,000,000 (provided further that
for the purposes of calculating such amount, no more than $5,000,000 of Marketable
Securities shall be included in such calculation), and




     (iii) the proceeds of an equity contribution from Holding to Company to occur
with 120 days of the Closing Date in an aggregate amount not to exceed $25,000,000
(less the amount of any intercompany loans made pursuant to Section 6.1(e)(i)(D));


provided further that Investments in MSW I and/or MSW II pursuant to clauses (i) through
(iii) immediately above shall be used to solely pay MSW Put-Related Costs and when added to
Indebtedness on-lent pursuant to Section 6.1(e)(i) shall not exceed in the aggregate the amount set
forth on the certificate delivered pursuant to Section 5.1(k);




122









 








          (o) a one-time Investment in Covanta ARC Holdings Inc. in an aggregate amount not to exceed
the difference between (x) $740,000,000 and (y) the amount paid in Cash by Company to purchase the
Acquired Business; provided that such Investment will be used solely to pay transition
costs of the type set out on Schedule 1.1(f) incurred in connection with integration of the
Acquired Business; and




          (p) other Investments in an aggregate amount not to exceed at any time $5,000,000.




     Notwithstanding the foregoing, in no event shall any of Company or any of its Subsidiaries
make any Investment which results in or facilitates in any manner any Restricted Junior Payment not
otherwise permitted under the terms of Section 6.5.



     To the extent that the making of any Investment could be deemed a use of more than one
subsection of this Section 6.7, Company may select the subsection to which such Investment will be
deemed a use and in no event shall the same portion of an Investment be deemed a use of more than
one subsection.



     6.8. Financial Covenants.



          (a) Cash Flow Coverage Ratio. Company shall not permit the Cash Flow Coverage Ratio
as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending September 30,
2005, to be less than the correlative ratio indicated:




	 	 	 	 	 
	 	 	Cash Flow
	Fiscal Quarter	 	Coverage Ratio
	September 30, 2005
	 	 	1.5:1.00	 
	 
	December 31, 2005
	 	 	1.5:1.00	 
	 
	March 31, 2006
	 	 	1.5:1.00	 
	 
	June 30, 2006
	 	 	1.5:1.00	 
	 
	September 30, 2006
	 	 	1.5:1.00	 
	 
	December 31, 2006
	 	 	1.5:1.00	 






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	 	 	Cash Flow
	Fiscal Quarter	 	Coverage Ratio
	March 31, 2007
	 	 	1.55:1.00	 
	 
	June 30, 2007
	 	 	1.55:1.00	 
	 
	September 30, 2007
	 	 	1.55:1.00	 
	 
	December 31, 2007
	 	 	1.55:1.00	 
	 
	March 31, 2008
	 	 	1.55:1.00	 
	 
	June 30, 2008
	 	 	1.55:1.00	 
	 
	September 30, 2008
	 	 	1.55:1.00	 
	 
	December 31, 2008
	 	 	1.55:1.00	 
	 
	March 31, 2009
	 	 	1.7:1.00	 
	 
	June 30, 2009
	 	 	1.7:1.00	 
	 
	September 30, 2009
	 	 	1.7:1.00	 
	 
	December 31, 2009
	 	 	1.7:1.00	 
	 
	March 31, 2010
	 	 	1.7:1.00	 
	 
	June 30, 2010
	 	 	1.7:1.00	 






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	 	 	Cash Flow
	Fiscal Quarter	 	Coverage Ratio
	September 30, 2010
	 	 	1.7:1.00	 
	 
	December 31, 2010
	 	 	1.7:1.00	 
	 
	March 31, 2011
	 	 	1.7:1.00	 
	 
	June 30, 2011
	 	 	1.7:1.00	 
	 
	September 30, 2011
	 	 	1.7:1.00	 
	 
	December 31, 2011
	 	 	1.7:1.00	 
	 
	Thereafter
	 	 	2.00:1.00	 






          (b) Company Leverage Ratio. Company shall not permit the Company Leverage Ratio as of
the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending September 30, 2005, to
exceed the correlative ratio indicated:




	 	 	 	 	 
	 	 	Company Leverage
	Fiscal Quarter	 	Ratio
	September 30, 2005
	 	 	6.00:1.00	 
	 
	December 31, 2005
	 	 	6.00:1.00	 
	 
	March 31, 2006
	 	 	6.00:1.00	 
	 
	June 30, 2006
	 	 	6.00:1.00	 






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	 	 	Company Leverage
	Fiscal Quarter	 	Ratio
	September 30, 2006
	 	 	6.00:1.00	 
	 
	December 31, 2006
	 	 	6.00:1.00	 
	 
	March 31, 2007
	 	 	5.50:1.00	 
	 
	June 30, 2007
	 	 	5.50:1.00	 
	 
	September 30, 2007
	 	 	5.50:1.00	 
	 
	December 31, 2007
	 	 	5.50:1.00	 
	 
	March 31, 2008
	 	 	5.25:1.00	 
	 
	June 30, 2008
	 	 	5.25:1.00	 
	 
	September 30, 2008
	 	 	5.25:1.00	 
	 
	December 31, 2008
	 	 	5.25:1.00	 
	 
	March 31, 2009
	 	 	5.00:1.00	 
	 
	June 30, 2009
	 	 	5.00:1.00	 
	 
	September 30, 2009
	 	 	5.00:1.00	 
	 
	December 31, 2009
	 	 	5.00:1.00	 






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	 	 	Company Leverage
	Fiscal Quarter	 	Ratio
	March 31, 2010
	 	 	4.75:1.00	 
	 
	June 30, 2010
	 	 	4.75:1.00	 
	 
	September 30, 2010
	 	 	4.75:1.00	 
	 
	December 31, 2010
	 	 	4.75:1.00	 
	 
	March 31, 2011
	 	 	4.75:1.00	 
	 
	June 30, 2011
	 	 	4.75:1.00	 
	 
	September 30, 2011
	 	 	4.75:1.00	 
	 
	December 31, 2011
	 	 	4.75:1.00	 
	 
	Thereafter
	 	 	4.00:1.00	 






          (c) Consolidated Adjusted EBITDA. Company shall not permit the Consolidated Adjusted
EBITDA as at the end of any Fiscal Quarter, beginning with the Fiscal
Quarter ending September 30, 2005, for the four Fiscal Quarter period then ended, taken as a
single accounting period, to be less than the correlative amount indicated:




	 	 	 	 	 
	 	 	Consolidated Adjusted
	Fiscal Quarter	 	EBITDA
	September 30, 2005
	 	$	425,000,000	 
	 
	December 31, 2005
	 	$	425,000,000	 






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	 	 	Consolidated Adjusted
	Fiscal Quarter	 	EBITDA
	March 31, 2006
	 	$	425,000,000	 
	 
	June 30, 2006
	 	$	425,000,000	 
	 
	September 30, 2006
	 	$	425,000,000	 
	 
	December 31, 2006
	 	$	425,000,000	 
	 
	March 31, 2007
	 	$	425,000,000	 
	 
	June 30, 2007
	 	$	425,000,000	 
	 
	September 30, 2007
	 	$	425,000,000	 
	 
	December 31, 2007
	 	$	425,000,000	 
	 
	March 31, 2008
	 	$	425,000,000	 
	 
	June 30, 2008
	 	$	425,000,000	 
	 
	September 30, 2008
	 	$	425,000,000	 
	 
	December 31, 2008
	 	$	425,000,000	 
	 
	March 31, 2009
	 	$	425,000,000	 
	 
	June 30, 2009
	 	$	425,000,000	 






128









 






	 	 	 	 	 
	 	 	Consolidated Adjusted
	Fiscal Quarter	 	EBITDA
	September 30, 2009
	 	$	425,000,000	 
	 
	December 31, 2009
	 	$	425,000,000	 
	 
	March 31, 2010
	 	$	425,000,000	 
	 
	June 30, 2010
	 	$	425,000,000	 
	 
	September 30, 2010
	 	$	425,000,000	 
	 
	December 31, 2010
	 	$	425,000,000	 
	 
	March 31, 2011
	 	$	425,000,000	 
	 
	June 30, 2011
	 	$	425,000,000	 
	 
	September 30, 2011
	 	$	425,000,000	 
	 
	December 31, 2011
	 	$	425,000,000	 
	 
	Thereafter
	 	$	425,000,000	 






          (d) Maximum Consolidated Capital Expenditures. Company shall not make or incur any
Consolidated Capital Expenditures at all after the Closing Date, and shall not permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated
below, in an aggregate amount for Subsidiaries of Company in excess of the corresponding amount set
forth below opposite such Fiscal Year; provided, such amount for any Fiscal Year shall be
increased by an amount (up to a maximum amount of $65,000,000), equal to 50% of the excess, if any,
of such amount for the previous Fiscal Year (after giving effect to any adjustment in accordance
with this proviso) over the actual amount of Consolidated Capital Expenditures for such previous
Fiscal Year:




129









 








	 	 	 	 	 
	 	 	Consolidated Capital
	Fiscal Year	 	Expenditures
	2005
	 	$	65,000,000	 
	 
	2006
	 	$	65,000,000	 
	 
	2007
	 	$	65,000,000	 
	 
	2008
	 	$	65,000,000	 
	 
	2009
	 	$	65,000,000	 
	 
	2010
	 	$	65,000,000	 
	 
	2011
	 	$	65,000,000	 
	 
	Thereafter
	 	$	65,000,000	 






     6.9. Fundamental Changes; Disposition of Assets; Acquisitions. Neither Company nor any
Guarantor Subsidiary shall, nor shall it permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or
any part of its
business, assets or property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, whether now owned or hereafter acquired, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials and equipment and
Consolidated Capital Expenditures in the ordinary course of business) the business, property or
fixed assets of, or stock or other evidence of beneficial ownership of, any Person or any division
or line of business or other business unit of any Person, except:



     (a) any Subsidiary of Company may be merged with or into Company or any Guarantor Subsidiary,
or be liquidated, wound up or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; provided, in the case of such a
merger, Company or such Guarantor Subsidiary, as applicable shall be the continuing or surviving
Person. In addition, any Subsidiary of Company that is not a Guarantor may be merged with or into
any other Subsidiary of Company that is not a Guarantor which is its



130









 







direct parent or Subsidiary,
or all or any part of its business, property or assets may be conveyed, sold, leased, transferred
or otherwise disposed of, in one transaction or a series of transactions, to any other Subsidiary
of Company that is not a Guarantor and which is its direct parent or Subsidiary;



          (b) sales or other dispositions of assets that do not constitute Asset Sales; and




          (c) Asset Sales, the Net Asset Sale Proceeds of which when aggregated with the proceeds of all
other Asset Sales made within the same Fiscal Year, do not exceed $7,500,000 and the sale or other
dispositions of those assets identified on Schedule 6.9-A; provided (1) the consideration
received for such assets shall be in an amount at least equal to the fair market value thereof
(determined in good faith by the board of directors of Company or the relevant Subsidiary (or
similar governing body)), (2) no less than 80% thereof shall be paid in Cash (which limitation
shall not apply to the sale or offer disposition of assets identified on Schedule 6.9-A), and (3)
the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a) to the extent
required thereby;




          (d) Excluded Asset Sales;




          (e) (i) Permitted Acquisitions to the extent the consideration does not exceed $75,000,000 in
the aggregate plus the amount of any Acquisition Holding Contributions from the Closing Date to the
date of determination and (ii) acquisitions by Company of assets contributed to it by Holding as
equity capital contributions;




          (f) acquisitions of real property that is contiguous to real property owned by Company or its
Subsidiaries at such time; so long as such acquisition is either (i) by Company or any Guarantor
Subsidiary, or (ii) if not within clause (i) of this provision, is either (A) financed with the
proceeds of Limited Recourse Debt and/or the proceeds of an Investment pursuant to Section 6.7(j)
or (B) consummated for consideration in an aggregate amount (together with any other acquisitions
made in reliance on this Section 6.9(f)(ii)(B) following the Closing Date) not to exceed
$3,000,000;




          (g) acquisitions and the Foreign Subsidiary restructuring in each case to the extent expressly
identified on Schedule 6.9-B; and




          (h) Investments permitted under Section 6.7.




     6.10. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9, and
except as provided in the Second Lien Credit Agreement or the Second Lien Notes Indenture and
related documentation (including permitted refinancings thereof), neither Company nor any Guarantor
Subsidiary shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any Capital Stock of any of its Guarantor
Subsidiaries, except to qualify directors if required by applicable law; or (b) directly or
indirectly to sell or otherwise dispose of any Capital Stock of any of its Subsidiaries, except to
Company or Guarantor Subsidiary (subject to the restrictions on such disposition otherwise imposed
hereunder), or to qualify directors if required by applicable law. Notwithstanding the foregoing,
(a) Excluded Subsidiaries may transfer Capital Stock in any of its Subsidiaries to



131









 







other
wholly-owned Excluded Subsidiaries, (b) Foreign Subsidiaries may transfer Capital Stock in any of
its Subsidiaries to other wholly-owned Foreign Subsidiaries and (c) Company and its Subsidiaries
may consummate the Foreign Subsidiary restructuring identified on Schedule 6.9-B.



     6.11. Prohibition on Sales and Lease-Backs. Neither Company nor any Guarantor Subsidiary
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease of any property
(whether real, personal or mixed), whether now owned or hereafter acquired, which any of Company or
its Subsidiaries has sold or transferred or is to sell or to transfer to any other Person (other
than Company or any of its Subsidiaries).



     6.12. Transactions with Shareholders and Affiliates. Neither Company nor any Guarantor
Subsidiary shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, enter
into or permit to exist any transaction (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with any Affiliate, on terms that are less favorable to
Company or that Subsidiary, as the case may be, than those that might be obtained at the time from
a Person who is not an Affiliate; provided, the foregoing restriction shall not apply to
(a) any transaction between Company and any Guarantor Subsidiary; (b) reasonable and customary fees
paid to members of the board of directors (or similar governing body) of Company and its
Subsidiaries; (c) compensation arrangements for officers and other employees of Company and its
Subsidiaries entered into in the ordinary course of business; (d) payments (and other transactions)
made in accordance with the terms of the Holding Tax Sharing Agreement, and the Corporate Services
Reimbursement Agreement; (e) the Rights Offering; (f) the Put-Related Equity Offering; (g)
transactions described in Schedule 6.12; (h) the Foreign Subsidiary restructuring identified on
Schedule 6.9-B and any Indebtedness, Investments, dispositions of assets and other transactions
permitted hereunder among Company and its Subsidiaries or among Subsidiaries of Company and (i)
reasonable and customary indemnifications and insurance arrangements for the benefit of Persons
that are officers or members of the boards of directors (or similar governing bodies) of Company
and its Subsidiaries, whether such Persons are current or former officers or members at the time
such indemnifications or arrangements are entered into, provided that such indemnifications
and
arrangements are entered into at arms’ length and on terms that are no less favorable to
Company or that Subsidiary, as the case may be, than those that would have been obtained at the
relevant time from Persons who are not Affiliates.



     6.13. Conduct of Business. From and after the Closing Date, neither Company nor any Guarantor
Subsidiary shall, nor shall it permit any of its Subsidiaries to, engage in any business other than
(i) the businesses engaged in by Company or such Subsidiary on the Closing Date and similar or
related businesses (including the establishment, construction, acquisition and operation of
Projects and ash recycling, scrap metal processing, waste haulings collection and landfills in
connection therewith) and (ii) such other lines of business as may be consented to by Requisite
Lenders.



     6.14. Amendments or Waivers of Certain Related Agreements. Except as set forth in Section
6.15 and Section 6.16, neither Company nor any Guarantor Subsidiary shall, nor shall it permit any
of its Subsidiaries to, agree to any material amendment, restatement, supplement or other
modification to, or waiver of, any of its material rights under any (i) Related Agreement or



132









 







(ii)
the principal documents relating to Limited Recourse Debt with respect to a Project after the
Closing Date if such amendment, restatement, modification or waiver under clauses (i) or (ii),
together with all other amendments, restatements, modifications and waivers made, would reasonably
be expected to have a Material Adverse Effect; without in each case obtaining the prior written
consent of Requisite Lenders to such amendment, restatement, supplement or other modification or
waiver.



     6.15. Amendments or Waivers with respect to MSW Notes, MSW Refinancing Notes, ARC Notes, ARC
Refinancing Notes, New MSW Notes and New ARC Notes. Company and its Subsidiaries shall not, and
shall not permit any of their Subsidiaries to, amend or otherwise change the terms of any MSW
Notes, MSW Refinancing Notes, ARC Notes, ARC Refinancing Notes, New MSW Notes or New ARC Notes, or
make any payment consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on such MSW Notes, MSW Refinancing Notes, ARC
Notes, ARC Refinancing Notes, New MSW Notes or New ARC Notes, change (to earlier dates) any dates
upon which payments of principal or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other than to eliminate any such event of
default or increase any grace period related thereto), change the redemption, prepayment or
defeasance provisions thereof or otherwise make such event of default or condition less restrictive
or burdensome on Company, or if the effect of such amendment or change, together with all other
amendments or changes made, is to increase materially the obligations of the obligor thereunder or
to confer any additional rights on the holders of such MSW Notes, MSW Refinancing Notes, ARC Notes,
ARC Refinancing Notes, New MSW Notes or New ARC Notes (or a trustee or other representative on
their behalf) which would be adverse to any Credit Party or Lenders; provided however, that
for the avoidance of doubt this Section 6.15 shall not prohibit the initial issuance of any of the
MSW Refinancing Notes, ARC Refinancing Notes, New MSW Notes or New ARC Notes, each in accordance
with the terms and conditions of Section 6.1(n).



     6.16. Amendments or Waivers of the Second Lien Credit Agreement and Second Lien Notes Indenture.
Company and its Subsidiaries shall not, and shall not permit any of their Subsidiaries to, amend or
otherwise change the terms of the Second Lien Credit Agreement or
Second Lien Notes Indenture or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest rate applicable
thereto, change (to earlier dates) any dates upon which payments of principal or interest are due
thereon, change any event of default or condition to an event of default with respect thereto
(other than to eliminate any such event of default or increase any grace period related thereto or
otherwise make such event of default or condition less restrictive or burdensome on Company),
change the prepayment provisions thereof, or change any collateral therefor (other than to release
such collateral), or if the effect of such amendment or change, together with all other amendments
or changes made, is to increase materially the obligations of the obligor thereunder or to confer
any additional rights on the lenders under the Second Lien Credit Agreement or Second Lien Notes
Indenture, as applicable, (or a representative on their behalf) which would be adverse to any
Credit Party or Lenders, in each case except as otherwise expressly permitted by the Intercreditor
Agreement.



     6.17. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31.



133









 





SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair
Share Contribution Amount” with
respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments”
means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to
(1) the aggregate amount of all payments and distributions made on or before such date by such
Contributing Guarantor in respect of this Guaranty (including, without limitation, in respect of
this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date
by such Contributing Guarantor from the other Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on
which the related payment or distribution is made by the applicable Funding Guarantor. The
allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder.
Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section
7.2.



     7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the



134









 







failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to
be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid,
accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for
Company’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Company for such interest in the
related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as
aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectibility. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence and during the
continuance of an Event of Default notwithstanding the existence of any dispute between Company and
any Beneficiary with respect to the existence of such Event of Default;




          (c) the obligations of each Guarantor hereunder are independent of the obligations of Company
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Company, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against Company or any
of such other guarantors and whether or not Company is joined in any such action or actions;




          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of
the Guaranteed Obligations;




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with




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respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under
the Credit Documents or the Hedge Agreements; and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of
the terms or provisions (including provisions relating to events of default) hereof, any of the
other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case
whether or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or
any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other than payments received
pursuant to the Credit Documents or any of the Hedge Agreements or from the proceeds of any
security for the Guaranteed Obligations, except to the extent such security also serves as
collateral for Indebtedness other than the Guaranteed Obligations) to the payment of Indebtedness
other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the
change, reorganization or termination of the corporate structure or existence of Holding or any of
its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which secures
any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Company may
allege or assert against any Beneficiary


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in respect of the Guaranteed Obligations, including
failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do
any other act or thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.




     7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held
from Company, any such other guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Company or
any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b)
any defense arising by reason of the incapacity, lack of authority or any disability or other
defense of Company or any other Guarantor including any defense based on or arising out of the lack
of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of Company or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (d) any defense based upon
any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal or equitable
discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that
any Beneficiary protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and notices of any
action or inaction, including acceptance hereof, notices of default hereunder, the Hedge Agreements
or any agreement or instrument related thereto, notices of any renewal, extension or modification
of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit
to Company and notices of any of the matters referred to in Section 7.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.



     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments and Delayed Draw Term Loan
Commitments shall have terminated and all Letters of Credit shall have expired or been cancelled,
each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor
now has or may hereafter have against Company or any other Guarantor or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including without limitation (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter have against Company
with respect to the Guaranteed Obligations, (b)



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any right to enforce, or to participate in, any
claim, right or remedy that any Beneficiary now has or may hereafter have against Company, and (c)
any benefit of, and any right to participate in, any collateral or security now or hereafter held
by any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly
paid in full and the Revolving Commitments and Delayed Draw Term Loan Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guaranteed Obligations, including, without limitation, any
such right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to
the extent the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of subrogation,
reimbursement or indemnification such Guarantor may have against Company or against any collateral
or security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Company,
to all right, title and interest any Beneficiary may have in any such collateral or security, and
to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to
any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly
paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.



     7.7. Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the
Obligee Guarantor after receipt of notice of an Event of Default
(which has occurred and is continuing) by Administrative Agent shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof.



     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments
and Delayed Draw Term Loan Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled. Each Guarantor hereby irrevocably waives any right to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.



     7.9. Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Company or the officers, directors or any agents
acting or purporting to act on behalf of any of them.



     7.10. Financial Condition of Company. Any Credit Extension may be made to Company or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the



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financial or
other condition of Company at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain information from
Company on a continuing basis concerning the financial condition of Company and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Company and
of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc. (a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
involuntary bankruptcy, reorganization or insolvency case or proceeding of or against Company or
any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Company or any other Guarantor or by any defense which Company or any other
Guarantor may have by reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.



          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above against Company (or, if interest on any portion of the Guaranteed Obligations ceases to
accrue by operation of law by reason of the commencement of such case or proceeding, such interest
as would have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that the Guaranteed
Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard
to any rule of law or order which may relieve Company of any portion of such Guaranteed
Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or similar person to pay Administrative Agent, or allow the
claim of Administrative Agent in respect of, any such interest accruing after the date on which
such case or proceeding is commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Company,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the



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Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such sale or disposition.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by Company to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to an
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five days after the date due; or




          (b) Default in Other Agreements. (i) Failure of any of Company or its Subsidiaries or
Holding to pay when due any principal of or interest on or any other amount payable in respect of
one or more items of Indebtedness (other than Indebtedness referred to in Section 8.1(a) and other
than Limited Recourse Debt permitted to be incurred hereunder and incurred in connection with one
or more Projects to which less than $5,000,000 in the aggregate of the operating income of Company
and its Subsidiaries (on a consolidated basis) is attributable for the 12-month period immediately
preceding the failure to pay such interest, principal or other amounts) in an individual principal
amount of $10,000,000 or more or with an aggregate principal amount of $10,000,000 or more, in each
case beyond the grace period, if any, provided therefor; or (ii) breach or default by any of
Company or its Subsidiaries or Holding with respect to any other material term of (1) one or more
items of Indebtedness in the individual or aggregate
principal amounts referred to in clause (i) above or (2) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the
grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or
holders), to cause, that Indebtedness to become or be declared due and payable (or redeemable), or
to require the prepayment, redemption, repurchase or defeasance of, or to cause Company or any of
its Subsidiaries or Holding to make any offer to prepay, redeem, repurchase or defease that
Indebtedness (other than an offer under the MSW Notes, MSW Refinancing Notes or the New MSW Notes
or as required under the ARC Indenture, the ARC Refinancing Indenture or the New ARC Indenture with
the proceeds of asset sales, debt and equity insurances and insurance casualty and condemnation and
to the extent required in connection with changes in control directly resulting from the
Acquisition), prior to its stated maturity or the stated maturity of any underlying obligation, as
the case may be; or (iii) any Event of Default (under and as defined in the MSW I Indenture, MSW II
Indenture, MSW Refinancing Indentures, New MSW I Indenture, New MSW II Indenture, ARC Indenture,
ARC Refinancing Indenture or the New ARC Indenture), shall occur; or (iv) any Event of Default (as
defined in the Second Lien Credit Agreement and the Second Lien Notes) shall occur; or





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          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.2, Section 5.15, Section 5.16 or
Section 6; or




          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other provision of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an Authorized
Officer becoming aware of such default or (ii) receipt by Company of notice from Administrative
Agent or any Lender of such default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holding, Company or any of its
Material Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order
is not stayed; or any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against Holding, Company or any of its Material
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Holding, Company or any of its Material Subsidiaries, or over
all or a substantial part of its property, shall have been entered; or there shall have occurred
the involuntary appointment of an interim receiver, trustee or other custodian
of Holding, Company or any of its Material Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have been issued against
any substantial part of the property of Holding, Company or any of its Material Subsidiaries, and
any such event described in this clause (ii) shall continue for sixty days without having been
dismissed, bonded or discharged; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc.. (i) Holding, any Company or
any of its Material Subsidiaries shall have an order for relief entered with respect to it or shall
commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case,
under any such law, or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or Holding, Company or
any of its Material Subsidiaries shall make any assignment for the benefit of creditors; or (ii)
Holding, Company or any of its Material Subsidiaries shall be unable, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become due; or the board of
directors (or similar governing body of Holding, Company or any of its Material

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Subsidiaries (or
any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any
of the actions referred to herein or in Section 8.1(f); or




          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in excess of $5,000,000 or (ii) in
the aggregate at any time an amount in excess of $10,000,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated insurance company has not
denied coverage) shall be entered or filed against Company or any of its Subsidiaries or any of
their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period
of sixty days (or in any event later than five days prior to the date of any proposed sale
thereunder); or




          (i) Dissolution. Any order, judgment or decree shall be entered against any Material
Subsidiary of Company decreeing the dissolution or split up of such Material Subsidiary and such
order shall remain undischarged or unstayed for a period in excess of thirty days; or




          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in excess of
$10,000,000 during the term hereof; or




          (k) Change of Control. A Change of Control shall occur; or




          (l) Net Operating Losses. If, based on (A) a final, non-appealable determination by a
court, (B) a closing agreement between Holding and/or any of its Subsidiaries and the Internal
Revenue Service or (C) a transaction or event occurring after the Closing Date (e.g., ownership
change or deconsolidation), the net operating losses available to Holding or Company to offset
taxable income are less than $315,000,000 (which amount shall be reduced by net operating losses
used by Holding to reduce taxable income of Holding or Company after
December 31, 2004); provided, that in determining the amount of net operating losses
available or used for purposes of this default, the principles applied in any final determination
or closing agreement shall be applied to any similar items in other open tax years that were not
the subject of such determination or closing agreement solely as a result of not being included in
the tax years at issue; or




          (m) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any de minimis portion of the Collateral purported to be covered by the
Collateral Documents with the priority required by the relevant Collateral Document, in each case
for any reason other than the failure of Collateral Agent or any Secured

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Party to take any action
within its control, or (iii) any Credit Party shall contest the validity or enforceability of any
Credit Document in writing or deny in writing that it has any further liability, including with
respect to future advances by Lenders, under any Credit Document to which it is a party, or (iv)
the Loans shall cease to constitute First Priority secured Indebtedness under the intercreditor
provisions of the Second Lien Term Loans or Second Lien Notes or the Intercreditor Agreement or, in
any case, such intercreditor provisions shall be invalidated or otherwise cease to be legal, valid
and binding obligations of the parties thereto, enforceable in accordance with their terms.



THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence and continuance of any other Event of Default, at the
request of (or with the consent of) Requisite Lenders, upon notice to Company by Administrative
Agent, (A) the Revolving Commitments, if any, of each Lender having such Revolving Commitments, the
obligation of an Issuing Bank to issue any Revolving Letter of Credit or Funded Letter of Credit
and the Delayed Draw Term Loan Commitments, if any, of each Lender having such Delayed Draw Term
Loan Commitments shall immediately terminate; (B) each of the following shall immediately become
due and payable, in each case without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal
amount of and accrued interest on the Loans, (II) an amount equal to the maximum amount that may at
any time be drawn under all Letters of Credit then outstanding (regardless of whether any
beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time
to present, the drafts or other documents or certificates required to draw under such Letters of
Credit), and (III) all other Obligations; provided, the foregoing shall not affect in any
way the obligations of Lenders under Section 2.3(b)(iv) or Section 2.4(e); (C) Administrative Agent
may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to
Collateral Documents; and (D) Administrative Agent shall direct Company to pay (and Company hereby
agrees upon receipt of such notice, or upon the occurrence and continuance of any Event of Default
specified in Section 8.1(f) and (g)(i) to pay) to Administrative Agent such additional amounts of
cash, to be held as
security for Company’s reimbursement Obligations in respect of Revolving Letters of Credit then
outstanding, equal to the Revolving Letter of Credit Usage at such time.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GSCP is hereby appointed Syndication Agent on the Effective
Date and at all times thereafter, and each Lender hereby authorizes Syndication
Agent to act as its agent in accordance with the terms hereof and the other Credit Documents. GSCP
is hereby appointed Administrative Agent hereunder and under the other Credit Documents and each
Lender hereby authorizes Administrative Agent to act as its agent in accordance with the terms
hereof and the other Credit Documents. GSCP is hereby appointed Collateral Agent hereunder and
under the other Credit Documents and each Lender hereby authorizes Collateral Agent to act as its
agent in accordance with the terms hereof and the other Credit Documents. Each of JPMC, UBS and
Calyon is hereby appointed Co-Documentation Agent hereunder, and each Lender hereby authorizes
Co-Documentation Agent to act as its agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the



143









 







express conditions contained herein and the
other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit
of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any
of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the Credit Parties. Syndication
Agent, without consent of or notice to any party hereto, may assign any and all of its rights or
obligations hereunder to any of its Affiliates. As of the Effective Date, GSCP, in its capacity as
a Syndication Agent, shall not have any obligations but shall be entitled to all benefits of this
Section 9.



     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.



     9.3. General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other documents furnished or made
by any Agent to Lenders or by or on behalf of any Credit Party, to any Agent or any Lender in
connection with the Credit Documents and the transactions contemplated thereby or for the financial
condition or business affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans or
Letters of Credit or the component amounts thereof.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection herewith or any of the
other Credit Documents or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent, in the case of any Agent other

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than Collateral
Agent, shall have received instructions in respect thereof from Requisite Lenders (or such other
Lenders as may be required to give such instructions under Section 10.5) or, in the case of
Collateral Agent, in accordance with the Pledge and Security Agreement, Intercreditor Agreement or
other applicable Collateral Document, and, upon receipt of such instructions from Requisite Lenders
(or such other Lenders, as the case may be), or in accordance with the Pledge and Security
Agreement, Intercreditor Agreement or other applicable Collateral Document, as the case may be,
such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions. Without prejudice to
the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by it to be genuine
and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled
to rely and shall be protected in relying on opinions and judgments of attorneys (who may be
attorneys for the Credit Parties), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of
such Agent acting or (where so instructed) refraining from acting hereunder or any of the other
Credit Documents, in the case of any Agent other than Collateral Agent, in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 10.5) or, in the case of the Collateral Agent, in accordance with the
Pledge and Security Agreement, Intercreditor Agreement or other applicable Collateral Document.




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative
Agent. All of the rights, benefits, and privileges (including the exculpatory and
indemnification provisions) of this Section 9.3 and of Section 9.6 shall apply to any such
sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective
activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding
anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent,
(i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such
rights, benefits and privileges (including exculpatory rights and rights to indemnification) and
shall have all of the rights and benefits of a third party beneficiary, including an independent
right of action to enforce such rights, benefits and privileges (including exculpatory rights and
rights to indemnification) directly, without the consent or joinder of any other Person, against
any or all of the Credit Parties and the Lenders, (ii) such rights, benefits and privileges
(including exculpatory rights and rights to indemnification) shall not be modified or amended
without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to
Administrative Agent and not to any Credit Party, Lender or any other Person and no Credit Party,
Lender or any other Person shall have any rights, directly or indirectly, as a third party
beneficiary or otherwise, against such sub-agent.





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     9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans and the
Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender
and may exercise the same as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend
money to, own securities of, and generally engage in any kind of banking, trust, financial advisory
or other business with the Credit Parties or any of their Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from Company for services
in connection herewith and otherwise without having to account for the same to Lenders.



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of the Credit Parties in connection with Credit Extensions
hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness
of the Credit Parties. No Agent shall have any duty or responsibility, either initially or on a
continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto, whether coming into
its possession before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.




          (b) Each Lender, by delivering its signature page to this Agreement or a Lender Consent Letter
(and funding (or having been deemed to have funded) its Tranche C Term Loan or New Credit Linked
Deposit on the Effective Date) shall be deemed to have acknowledged receipt of, and consented to
and approved, each Credit Document and each other document
required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the
Effective Date.




     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful
misconduct. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional indemnity is furnished;
provided, in no event shall this sentence require any Lender to indemnify any Agent against
any liability, obligation, loss, damage, penalty, action, judgment,



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suit, cost, expense or
disbursement in excess of such Lender’s Pro Rata Share thereof; and provided
further, this sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence.



     9.7. Successor Administrative Agent and Swing Line Lender Administrative Agent may resign at
any time by giving thirty days’ prior written notice thereof to Lenders and Company, and
Administrative Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and Administrative Agent and signed by
Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five Business Days’ notice to Company; provided that Company
shall have the right to approve (such approval not to be unreasonably withheld) any such successor
Administrative Agent unless an Event of Default then exists, to appoint a successor Administrative
Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall promptly (i) transfer to such
successor Administrative Agent all sums, Securities and other items of Collateral held under the
Collateral Documents, together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Administrative Agent under the
Credit Documents, and (ii) execute and deliver to such successor Administrative Agent such
amendments to financing statements, and take such other actions, as may be necessary or appropriate
in connection with the assignment to such successor Administrative Agent of the security interests
created under the Collateral Documents, whereupon such retiring or removed Administrative Agent
shall be discharged from its duties and obligations hereunder. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent hereunder. Any resignation or removal of GSCP or its successor
as Administrative Agent
pursuant to this Section shall also constitute the resignation or removal of GSCP or its
successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to this
Section shall, upon its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (a) Company shall prepay any outstanding Swing Line Loans
made by the retiring or removed Administrative Agent in its capacity as Swing Line Lender, (b) upon
such prepayment, the retiring or removed Administrative Agent and Swing Line Lender shall surrender
any Swing Line Note held by it to Company for cancellation, and (c) Company shall issue, if so
requested by successor Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to
the successor Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line
Sublimit then in effect and with other appropriate insertions.



     9.8. Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Lenders, to (i) be the agent for and representative of Lenders with respect to the
Guaranty, the Collateral and the Collateral Documents and (ii) enter into the Intercreditor

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Agreement, and each Lender agrees to be bound by the terms of the Intercreditor Agreement. Subject
to Section 10.5, without further written consent or authorization from Lenders, Administrative
Agent or Collateral Agent, as applicable may execute any documents or instruments necessary to (i)
release any Lien encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted hereby or to which Requisite Lenders (or such other Lenders as may
be required to give such consent under Section 10.5) have otherwise consented or (ii) release any
Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5) have otherwise
consented.




          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral
Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize
upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of
Lenders in accordance with the terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender
or Lenders in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.




SECTION 10. MISCELLANEOUS




     10.1. Notices.



          (a) Generally. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given to a Credit Party, the Syndication Agent,
Collateral Agent, Administrative Agent, Swing Line Lender, or an Issuing Bank, shall be sent to
such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in
the case of any Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing (which, in the case of
any Notice, shall include notice by electronic mail or other electronic means agreed to between
Company and Administrative Agent) and may be personally served, telexed or sent by telefacsimile or
United States mail or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile
or telex, or three Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided, no notice to any Agent shall be effective until received
by such Agent; provided further, any such notice or other communication shall at
the request of Administrative Agent be provided to any sub-agent appointed pursuant to Section
9.3(c) hereto as designated by Administrative Agent from time to time.





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          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Banks hereunder may be delivered or furnished by electronic communication (including e
mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the Issuing Banks pursuant
to Section 2 if such Lender or the Issuing Banks, as applicable, has notified Administrative Agent
that it is incapable of receiving notices under such Section by electronic communication.
Administrative Agent or Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or communications.
Unless Administrative Agent otherwise prescribes, (i) notices and other 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)
notices or 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.




     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses incurred by
each Agent of preparation of the Credit Documents and any consents, amendments, waivers or other
modifications thereto; (b) all the costs of furnishing all opinions by counsel for Company and the
other Credit Parties; (c) the reasonable fees, expenses and disbursements of counsel to
Administrative Agent and Collateral Agent, and JPMC in its capacity as a Funded LC Issuing Bank and
a Lender, in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or other
modifications thereto and any other documents or matters requested by Company; (d) all the actual
costs and reasonable expenses of creating and perfecting Liens in favor of Collateral Agent, for
the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of counsel providing any opinions required hereunder;
(e) all the actual costs and reasonable fees, expenses and disbursements of any auditors,
accountants, consultants or appraisers (prior to any Default or Event of Default subject to the
consent of Company); (f) all the actual costs and reasonable expenses (including the reasonable
fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or
retained by Collateral Agent and its counsel) in connection with the custody or preservation of any
of the Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in
connection with the syndication of the Loans and Commitments; and (h) after the occurrence of an
Event of Default and during its continuance, all costs and expenses, including reasonable
attorneys’ fees costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations
of or in collecting any payments due from any Credit Party hereunder or under the other Credit
Documents by reason of such Event of Default (including in connection with the sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in
connection with any refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a “work-out” or pursuant to any insolvency or



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bankruptcy cases or proceedings. The
agreements in this Section 10.2 shall survive repayment of the Loans and all other amounts payable
hereunder and the return of the New Credit Linked Deposits to the applicable Lenders.



     10.3. Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent, Lender and
Issuing Bank and the officers, partners, directors, trustees, employees, agents, sub-agents and
Affiliates of each Agent, each Lender and each Issuing Bank (each, an “Indemnitee”), from and
against any and all Indemnified Liabilities; provided, no Credit Party shall have any
obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise from the gross negligence, bad faith or willful misconduct of
that Indemnitee and, provided further, that neither Credit Suisse nor any of its
officers, partners, directors, trustees, employees, agents, sub-Agents or Affiliates shall be
entitled to any indemnification or contribution hereunder except to the extent of losses, claims,
damages or liabilities suffered as a result of Credit Suisse acting as a Lender hereunder. To the
extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section
10.3 may be unenforceable in whole or in part because they are violative of any law or public
policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against Lenders, Agents, Issuing Banks and their respective
Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by
any applicable legal requirement) arising out of, in connection with, arising out of, as a result
of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument
contemplated hereby or thereby or referred to herein or therein, the transactions contemplated
hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event
occurring in connection therewith, and each Credit Party hereby waives, releases and agrees not to
sue upon any such claim or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor provided, that Credit Suisse and it officers, partners,
directors, trustees, employees, agents, sub-agents and Affiliates shall be entitled to the benefits
of this paragraph for claims arising out of the Credit Documents or its acting as a Lender
hereunder.




     The agreements in this Section 10.3 shall survive repayment of the Loans and all other amounts
payable hereunder and the return of the New Credit Linked Deposits to the applicable Lenders.



     10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and during the continuance of any
Event of Default each Lender and each Funded LC Issuing Bank is hereby authorized by each Credit
Party at any time or from time to time subject to the consent of Administrative Agent



150









 







(such consent
not to be unreasonably withheld or delayed), without notice to any Credit Party or to any other
Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special, including Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by such Lender or Funded LC Issuing
Bank to or for the credit or the account of any Credit Party (other than Holding) against and on
account of the obligations and liabilities of any Credit Party to such Lender or Funded LC Issuing
Bank hereunder, the Letters of Credit and participations therein and under the other Credit
Documents, including all claims of any nature or description arising out of or connected hereto,
the Letters of Credit and participations therein or with any other Credit Document, irrespective of
whether or not (a) such Lender or Funded LC Issuing Bank shall have made any demand hereunder or
(b) the principal of or the interest on the Loans or any amounts in respect of the Letters of
Credit or any other amounts due hereunder shall have become due and payable pursuant to Section 2
and although such obligations and liabilities, or any of them, may be contingent or unmatured. The
Funded LC Issuing Banks agree that payments from the New Credit Linked Deposits shall be made only
to the extent expressly provided for under this Agreement.



     10.5. Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to Section 10.5(b) and 10.5(c), no amendment,
modification, termination or waiver of any provision of the Credit Documents, or consent to any
departure by any Credit Party therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other
than a Defaulting Lender) that would be directly affected thereby, no amendment, modification,
termination, or consent shall be effective if the effect thereof would:





          (i) extend the scheduled final maturity of any Loan or Note of such Lender;




          (ii) extend the date on which the Funded LC Participation Interests must be repurchased in
full from such Lender or any Lender’s Pro Rate Share of the New Credit Linked Deposits is
required to be paid to such Lender in full (it being acknowledged that any such repurchase or
payment is subject to the express provisions of Section 2.4);




          (iii) waive, reduce or postpone any scheduled repayment of principal on the Term Loans
under Section 2.12 due such Lender (but not prepayment);




          (iv) extend the stated expiration date of any Revolving Letter of Credit beyond the
Revolving Commitment Termination Date;




          (v) extend the stated expiration date of any Funded Letter of Credit beyond the Funded
Letter of Credit Termination Date;




          (vi) reduce the rate of interest on any Loan of such Lender (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to Section 2.10) or



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any fee or
other payment obligations (including without limitation with respect to Funded LC Participation
Interests) payable hereunder to such Lender;




          (vii) extend the time for payment of any such interest or fees to such Lender;




          (viii) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit due to such Lender or (except as expressly provided for herein) any New
Credit Linked Deposit funded by such Lender;




          (ix) amend, modify, terminate or waive any provision of this Section 10.5(b) or Section
10.5(c);




          (x) amend the definition of “Requisite Lenders” or “Pro Rata Share”; provided, with
the consent of Requisite Lenders additional extensions of credit pursuant hereto may be included
in the determination of “Requisite Lenders” or “Pro Rata Share” on substantially the same basis
as the Tranche C Term Loan Commitments, the Tranche C Term Loan, the Revolving Commitments, the
Revolving Loans, the Funded Letter of Credit Commitments, the Funded Letters of Credit, the
Delayed Draw Term Loans and the Delayed Draw Term Loan Commitments are included on the Effective
Date;




          (xi) release all or substantially all of the Collateral or all or substantially all of the
Guarantors from the Guaranty except as expressly provided in the Credit Documents; or




          (xii) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





          (i) increase any Revolving Commitment or Delayed Draw Term Loan Commitment of any Lender
over the amount thereof then in effect without the consent of such Lender; provided, no
amendment, modification or waiver of any condition precedent, covenant, Default or Event of
Default shall constitute an increase in any Revolving Commitment or Delayed Draw Term Loan
Commitment of any Lender;




          (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




          (iii) amend the definition of “Requisite Class Lenders” without the consent of Requisite
Class Lenders of each Class; provided, with the consent of the Requisite Lenders,
additional extensions of credit pursuant hereto may be included in the determination of such
“Requisite Class Lenders” on substantially the same basis as the Tranche C Term Loan
Commitments, the Tranche C Term Loans, the Revolving Commitments, the Revolving Loans, the
Funded Letter of Credit Commitments, the Funded Letters of Credit, the Delayed Draw Term Loans
and the Delayed Draw Term Loan Commitments are included on the Effective Date;




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          (iv) alter the required application of any repayments or prepayments as between Classes
pursuant to Section 2.15 without the consent of Requisite Class Lenders of each Class which is
being allocated a lesser repayment or prepayment as a result thereof; provided,
Requisite Lenders may waive, in whole or in part, any prepayment so long as the application, as
between Classes, of any portion of such prepayment which is still required to be made is not
altered;




          (v) amend, modify, terminate or waive any obligation of Lenders or Company (as the same
applies to its obligation to any Funded LC Issuing Bank) or any Funded LC Issuing Bank as
provided in Section 2.4 directly relating to Funded Letters of Credit and the New Credit Linked
Deposits (and definitions used in Section 2.4 that relate specifically to Funded Letters of
Credit and New Credit Linked Deposits) without the written consent of Company, Administrative
Agent and each Funded LC Issuing Bank;




          (vi) amend, modify, terminate or waive any provision of Section 9 as the same applies to
any Agent, or any other provision hereof as the same applies to the rights or obligations of any
Agent, in each case without the consent of such Agent;




          (vii) amend, modify or waive any condition precedent in Section 3.2 to the making of any
Revolving Loan without the consent of Requisite Class Lenders having Revolving Credit Exposure
(it being understood that no waiver of any Default or Event of Default by Requisite Lenders, nor
any waiver or amendment of any covenant, representation, or other provision not in Section 3.2
shall constitute an amendment, modification or waiver); or




          (viii) amend, modify or waive any condition precedent in Section 3.2 to the making of any
Delayed Draw Term Loan without the consent of Requisite Class Lenders having Delayed Draw Term
Loan Exposure (it being understood that no waiver of any Default or Event of Default by
Requisite Lenders, nor any waiver or amendment of any covenant, representation, or other
provision not in Section 3.2 shall constitute an amendment, modification or waiver).



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.



     10.6. Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written



153









 







consent
of all Lenders. No Lender may assign, sell, participate or otherwise transfer any of its rights
under the Credit Documents except as set forth in this Section 10.6 and the penultimate sentence of
Section 2.23. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.



          (b) Register. Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments, Loans and Funded Letter of Credit Participations listed therein for all purposes
hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each
case, unless and until recorded in the Register following receipt of an Assignment Agreement
effecting the assignment or transfer thereof, in each case, as provided in Section 10.6(d). Each
assignment shall be recorded in the Register on the Business Day the Assignment Agreement is
received by Administrative Agent, if received by 12:00 p.m. (New York City time), and on the
following Business Day if received after such time, prompt notice thereof shall be provided to
Company and a copy of such Assignment Agreement shall be maintained, as applicable. The date of
such recordation of a transfer shall be referred to herein as the “Assignment Effective Date.” Any
request, authority or consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Commitments or Loans.



          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment, Funded Letter of Credit Participations or Loans
owing to it or other Obligation (provided, however, that each such assignment shall
be of a uniform, and not varying, percentage of all rights and obligations under and in respect of
any Funded Letter of Credit Participations, Loan and any related Commitments):




          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Company and Administrative Agent; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee”, consented to by each of Company and Administrative Agent (such consent not
to be (x) unreasonably withheld or delayed or, (y) in the case of Company, required at any time
an Event of Default shall have occurred and then be continuing); provided, further each
such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less
than (A) $5,000,000 (or such lesser amount as may be agreed to by Company and Administrative
Agent (it being agreed that Company shall not unreasonably withhold its consent to assignments
in an amount of not less than $2,500,000) or as shall constitute the aggregate amount of the
Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the
assignment of the Revolving Commitments and Revolving Loans, (B) $1,000,000 (or such lesser
amount as may be agreed to by Company and Administrative Agent or as shall constitute the
aggregate amount of the Funded Letter of



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Credit Commitments and Funded Letter of Credit
Participations of the assigning Lender) with respect to the assignment of the Funded Letter of
Credit Commitments and Funded Letter of Credit Participations, and (C) $1,000,000 (or such
lesser amount as may be agreed to by Company and Administrative Agent or as shall constitute the
aggregate amount of the Term Loan of the assigning Lender) with respect to the assignment of
Term Loans.




Anything in the foregoing to the contrary notwithstanding, no assignment of any Revolving
Commitment (except in the case of an assignment to a Revolving Lender or an Affiliate thereof)
shall be effective unless and until consented to in writing by the Revolving Issuing Bank (such
consent not to be unreasonably withheld)



          (d) Mechanics. Assignments and assumptions of Loans, Commitments and New Credit
Linked Deposits shall only be effected by manual execution and delivery to Administrative Agent of
an Assignment Agreement. Assignments made pursuant to the foregoing provision shall be effective
as of the Assignment Effective Date. In connection with all assignments there shall be delivered
to Administrative Agent and Company such forms, certificates or other evidence, if any, with
respect to United States federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver pursuant to Section 2.20(c). Without the consent
of Company (which consent shall not be unreasonably withheld), each Funded LC Issuing Bank and
Administrative Agent, no New Credit Linked Deposit shall be released in connection with any
assignment by a Funded Letter of Credit Participant, but the Funded LC Participation Interests
shall instead be purchased by the relevant assignee and the New Credit Linked Deposits continue to
be held by the Funded LC
Issuing Banks for application (to the extent not already applied) in accordance with Sections
2.4(f) and (h).



          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Effective Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments, New Credit Linked Deposits or Loans, as
the case may be; and (iii) it will make or invest in, as the case may be, its Commitments, Funded
Letter of Credit Participations or Loans for its own account in the ordinary course of its business
and without a view to distribution of such Commitments, Funded Letter of Credit Participations or
Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws
(it being understood that, subject to the provisions of this Section 10.6, the disposition of such
Revolving Commitments, Delayed Draw Term Loan Commitments, Funded Letter of Credit Participations
or Loans or any interests therein shall at all times remain within its exclusive control).



          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations hereunder



155









 







(and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment
Effective Date; provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, (y) an assigning Issuing Bank shall continue to have all rights and obligations
thereof with respect to such Letters of Credit until the cancellation or expiration of such Letters
of Credit and the reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall
continue to be entitled to the benefit of all indemnities hereunder as specified herein with
respect to matters arising out of the prior involvement of such assigning Lender as a Lender
hereunder to the extent provided hereunder); (iii) the Commitments shall be modified to reflect the
Commitment of such assignee and any Revolving Commitment or Delayed Draw Term Loan Commitment of
such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any
Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon Company, at its expense, shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Commitments, Delayed Draw Term
Loan Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.



          (g) Participations. Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holding, any of its Subsidiaries or any of its Affiliates)
in all or any part of its Commitments, Funded Letter of Credit Participations, Loans or in any
other Obligation. The holder of any such participation, other than an Affiliate of the
Lender granting such participation, shall not be entitled to require such Lender to take or
omit to take any action hereunder except with respect to any amendment, modification or waiver that
would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Commitment Termination Date, Delayed Draw
Term Loan Commitment Termination Date or the Funded Letter of Credit Termination Date, as
applicable) in which such participant is participating, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof, or increase the
amount of the participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation, and that an increase
in any Commitment, Funded Letter of Credit Participations or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of the Collateral under
the Collateral Documents (except as expressly provided in the Credit Documents) supporting the
Loans and Funded Letter of Credit Participations hereunder in which such participant is
participating. Company agrees that each participant shall be entitled to the benefits of Sections
2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (c) of this Section; provided, (i) a participant shall not
be entitled to receive any greater payment under Sections 2.18(c), 2.19 or 2.20 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
participant, unless the sale of the participation to such participant is made with Company’s prior
written consent and (ii) a participant that would be a Non-US Lender (or that would otherwise be



156









 







required to deliver a form referred to in Section 2.20(c) to avoid deduction or withholding of
United States federal income tax with respect to payments made by a Credit Party under any of the
Credit Documents) if it were a Lender shall not be entitled to the benefits of Section 2.20 unless
Company is notified of the participation sold to such participant and such participant agrees, for
the benefit of Company, to be subject to Section 2.20 as though it were a Lender. To the extent
permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.17 as though
it were a Lender.



          (h) Certain Other Assignments. In addition to any other assignment permitted pursuant
to this Section 10.6, any Lender may assign and/or pledge all or any portion of its Loans, Funded
Letter of Credit Participations, the other Obligations owed by or to such Lender, and its Notes
(excluding in all instances the New Credit Linked Deposits, which shall be held as the property of
the Funded LC Issuing Banks as provided for in Section 2.4), if any, to secure obligations of such
Lender including, without limitation, any Federal Reserve Bank or any pledge or assignment to any
holders of obligations owed, or securities issued, by such Lender as collateral security for such
obligations or securities, or to any trustee for, or any other representative of, such holders as
collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any operating circular issued by such Federal Reserve Bank; provided, no Lender,
as between Company and such Lender, shall be relieved of any of its obligations hereunder as a
result of any such assignment and pledge, and provided further, in no event shall
the applicable Federal Reserve Bank, pledgee or trustee be considered
to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any
action hereunder.



     10.7. Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.



     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit, the reimbursement of any
amounts drawn thereunder, the final payment made to Lenders pursuant to Section 2.4(j)(iv), and the
termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of



157









 







any
statute or rule of law or in any of the other Credit Documents. Any forbearance or failure to
exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any
such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.



     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
Administrative Agent or Lenders enforce any security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.



     10.11. Severability. In case any provision in or obligation hereunder or any Note shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.



     10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and, subject to Section
9.8(b), each Lender shall be entitled to protect and enforce its rights arising out hereof and it
shall not be necessary for any other Lender to be joined as an additional party in any proceeding
for such purpose.



     10.13. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.



     10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT



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JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (e) AGREES AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.



     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY THE PARTY
AGAINST WHICH ENFORCEMENT IS SOUGHT), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



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     10.17. Confidentiality. Each Lender shall hold all non-public information regarding Company
and its Subsidiaries and their businesses identified as such by Company and obtained by such Lender
pursuant to the requirements hereof in accordance with such Lender’s customary procedures for
handling confidential information of such nature and in accordance with sound industry practice,
it being understood and agreed by Company that, in any event, a Lender may make (i) disclosures of
such information to Affiliates of such Lender and to their agents, employees, officers, directors,
trustees, attorneys, accountants and advisors (and to other persons authorized by a Lender or Agent
to organize, present or disseminate such information in connection with disclosures otherwise made
in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by
any bona fide or potential assignee, transferee or participant in connection with the contemplated
assignment, transfer or participation by such Lender of any Loans or any participations therein or
by any direct or indirect contractual counterparties (or the professional advisors thereto) in
Hedge Agreements (provided, such bona fide or potential assignee, transferee or Participant
and counterparties and advisors are advised of and agree to be bound by the provisions of this
Section 10.17), (iii) disclosure to any rating agency when required by it, provided that,
prior to any disclosure, such rating agency shall undertake in writing to preserve the
confidentiality of any confidential information relating to the Credit Parties received by it from
any of the Agents or any Lender, and (iv) disclosures required or requested by any governmental
agency or representative thereof or by the NAIC or pursuant to legal or judicial process;
provided, unless specifically prohibited
by applicable law or court order, each Lender shall make reasonable efforts to notify Company
of any request by any governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public information prior to
disclosure of such information. Notwithstanding anything to the contrary set forth herein, each
party (and each of their respective employees, representatives or other agents) may disclose to any
and all persons, without limitations of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions and
other tax analyses) that are provided to any such party relating to such tax treatment and tax
structure. However, any information relating to the tax treatment or tax structure shall remain
subject to the confidentiality provisions hereof (and the foregoing sentence shall not apply) to
the extent reasonably necessary to enable the parties hereto, their respective Affiliates, and
their and their respective Affiliates’ directors and employees to comply with applicable securities
laws. For this purpose, “tax structure” means any facts relevant to the federal income tax
treatment of the transactions contemplated by this Agreement but does not include information
relating to the identity of any of the parties hereto or any of their respective Affiliates.



     10.18. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due



160









 







hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, Company shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of Lenders and Company to conform strictly to any applicable
usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Company.



     10.19. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.20. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of
written, electronic or telephonic notification of such execution and authorization of delivery
thereof.



     10.21. Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies Company that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies Company, which information includes the name
and address of Company and other information that will allow such Lender or Administrative Agent,
as applicable, to identify Company in accordance with the Act.



     10.22. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement 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.



     10.23. Amendment and Restatement. It is the intention of each of the parties hereto that the
Existing Credit Agreement be amended and restated so as to preserve the perfection and priority of
all security interests securing indebtedness and obligations under the Existing Credit Agreement
and that all Indebtedness and Obligations of Company and its Subsidiaries hereunder and thereunder
shall be secured by the Collateral Documents and that this Agreement does not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement. The parties
hereto further acknowledge and agree that this Agreement constitutes an amendment of the Existing
Credit Agreement made under and in accordance with the terms of Section 10.5 of the Existing Credit
Agreement. In addition, unless specifically amended hereby, each of the Credit Documents, the
Exhibits and Schedules to the Existing Credit Agreement shall



161









 







continue in full force and effect and
that, from and after the Effective Date, all references to the “Credit Agreement” contained therein
shall be deemed to refer to this Agreement.



     10.24. Reaffirmation and Grant of Security Interests. Each (i) Guarantor has guarantied the
Obligations and (ii) Credit Party has created Liens in favor of Lenders on certain Collateral to
secure its obligations hereunder, under Article Seven hereof and the Pledge and Security Agreement,
respectively. Each Credit Party hereby acknowledges that it has reviewed the terms and provisions
of this Agreement and consents to the amendment and restatement of the Existing Credit Agreement
effected pursuant to this Agreement. Each Credit Party hereby (i) confirms that each Credit
Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will
continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance
with the Credit Documents, the payment and performance of the Obligations, as the case may be,
including without limitation the payment and performance of all such Obligations which are joint
and several obligations of each grantor now or hereafter existing, and (ii) grants to the
Collateral Agent for the benefit of the Lenders a continuing lien on and security interest in and
to such Credit Party’s right, title and interest in, to and under all Collateral (as defined in the
Pledge and Security Agreement) and all other Collateral as collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated maturity, by
acceleration or otherwise).



          Each Credit Party acknowledges and agrees that any of the Credit Documents to which it is a
party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired or limited by
the execution or effectiveness of the amendment and restatement of the Existing Credit Agreement.
Each Credit Party represents and warrants that all representations and warranties contained in the
Credit Documents to which it is a party or otherwise bound are true, correct and complete in all
material respects on and as of the Effective Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material respects on and as
of such earlier date.




[Remainder of page intentionally left blank]




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



	 	 	 	 	 
	 	COVANTA ENERGY CORPORATION, A

DELAWARE CORPORATION, AND EACH OF ITS

SUBSIDIARIES LISTED ON EXHIBIT A HERETO

 	 
	 	By:  	/s/ Anthony Orlando 	 
	 	 	Name:  	Anthony Orlando 	 
	 	 	Title: President	 
	 
	 	COVANTA HOLDING CORPORATION, A

DELAWARE CORPORATION 

 	 
	 	By:  	/s/ Anthony Orlando 	 
	 	 	Name:  	Anthony Orlando 	 
	 	 	Title: Chief Executive Officer and President	 
	 




APPENDIX A-1









 





	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger, Sole Book Runner, Sole

Syndication Agent, Administrative Agent, Collateral

Agent, and a Lender 

 	 
	 	By:  	/s/
Bruce H. Mendelsohn	 
	 	 	 	 
	 	 	          Authorized Signatory 	 
	 




S-2









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

as Co-Documentation Agent, Revolving Issuing 

Bank and a Funded LC Issuing Bank

 	 
	 	By:  	/s/ Curtis Reed 	 
	 	 	Name:  	Curtis Reed 	 
	 	 	Title:  	Vice President 	 
	 




S-3









 





	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH,

as a Funded LC Issuing Bank

 	 
	 	By:  	/s/
Richard L. Tavrow 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director, Banking
Products Services, US 	 
	 
	 	 	 
	 	By:  	
/s/ Irja R. Otsa 	 
	 	 	Name:  	Irja R. Otsa 	 
	 	 	Title:  	Associate Director Banking Products Services, US 	 
	 




S-4









 





	 	 	 	 	 
	 	CALYON NEW YORK BRANCH,

as Co-Documentation Agent

 	 
	 	By:  	/s/
Alexander Averbukh 	 
	 	 	Name:  	Alexander Averbukh 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	
/s/ Arme Le Goulven 	 
	 	 	Name:  	Arme Le Goulven 	 
	 	 	Title:  	Director 	 
	 




S-5









 





EXHIBIT A




Subsidiaries




	 	 	 
	 	 	Name
	2.

	 	8309 Tujunga Avenue Corp., a California corporation
	 
	 	 
	3.

	 	Amor 14 Corporation, a Delaware corporation
	 
	 	 
	4.

	 	Burney Mountain Power, a California corporation
	 
	 	 
	5.

	 	Covanta Acquisition, Inc., a Delaware corporation
	 
	 	 
	6.

	 	Covanta Bessemer, Inc., a Delaware corporation
	 
	 	 
	7.

	 	Covanta Cunningham Environmental Support, Inc., a New York corporation
	 
	 	 
	8.

	 	Covanta Energy Americas, Inc., a Delaware corporation
	 
	 	 
	9.

	 	Covanta Energy Construction, Inc.,a Delaware corporation
	 
	 	 
	10.

	 	Covanta Energy Group, Inc., a Delaware corporation
	 
	 	 
	11.

	 	Covanta Energy International, Inc.,a Delaware corporation
	 
	 	 
	12.

	 	Covanta Energy Resource Corp., a Delaware corporation
	 
	 	 
	13.

	 	Covanta Energy Services, Inc., a Delaware corporation
	 
	 	 
	14.

	 	Covanta Energy West, Inc., a Delaware corporation
	 
	 	 
	15.

	 	Covanta Engineering Services, Inc., a New Jersey corporation
	 
	 	 
	16.

	 	Covanta Geothermal Operations Holdings, Inc., a Delaware corporation
	 
	 	 
	17.

	 	Covanta Geothermal Operations, Inc., a Delaware corporation
	 
	 	 
	18.

	 	Covanta Haverhill Properties, Inc., a Massachusetts corporation
	 
	 	 
	19.

	 	Covanta Heber Field Energy, Inc., a Delaware corporation
	 
	 	 
	20.

	 	Covanta Hennepin Energy Resource Co., Limited Partnership,
a Delaware limited partnership

     By: Covanta Energy Resource Corp., its General
Partner






APPENDIX A-6









 






	 	 	 
	 	 	Name
	21.

	 	Covanta Hillsborough, Inc., a Florida corporation
	 
	 	 
	22.

	 	Covanta Honolulu Resource Recovery Venture, a Hawaii General
Partnership

     By: Covanta Oahu Waste Energy Recovery, Inc.,

            its General Partner

     By: Covanta Projects of Hawaii, Inc., its General Partner
	 
	 	 
	23.

	 	Covanta Huntsville, Inc., an Alabama corporation
	 
	 	 
	24.

	 	Covanta Hydro Energy, Inc., a Delaware corporation
	 
	 	 
	25.

	 	Covanta Hydro Operations West, Inc., Delaware corporation
	 
	 	 
	26.

	 	Covanta Hydro Operations, Inc., a Tennessee corporation
	 
	 	 
	27.

	 	Covanta Imperial Power Services, Inc., a California corporation
	 
	 	 
	28.

	 	Covanta Kent, Inc.,a Michigan corporation
	 
	 	 
	29.

	 	Covanta Lancaster, Inc., a Pennsylvania corporation
	 
	 	 
	30.

	 	Covanta Lee, Inc., a Florida corporation
	 
	 	 
	31.

	 	Covanta Long Island, Inc., a Delaware corporation
	 
	 	 
	32.

	 	Covanta Marion Land Corp., an Oregon corporation
	 
	 	 
	33.

	 	Covanta Marion, Inc., an Oregon corporation
	 
	 	 
	34.

	 	Covanta Mid-Conn, Inc., a Connecticut corporation
	 
	 	 
	35.

	 	Covanta Montgomery, Inc., Maryland corporation
	 
	 	 
	36.

	 	Covanta New Martinsville Hydroelectric Corporation, a Delaware corporation
	 
	 	 
	37.

	 	Covanta New Martinsville Hydro-Operations Corporation, a West Virginia corporation
	 
	 	 
	38.

	 	Covanta Oahu Waste Energy Recovery, Inc., a California corporation
	 
	 	 
	39.

	 	Covanta Onondaga Operations, Inc., a Delaware corporation
	 
	 	 
	40.

	 	Covanta Operations of Union, LLC, a New Jersey limited liability
company
	 
	 	 
	41.

	 	Covanta OPW Associates, Inc., a Connecticut corporation






APPENDIX A-7









 






	 	 	 
	 	 	Name
	42.

	 	Covanta OPWH, Inc., a Delaware corporation
	 
	 	 
	43.

	 	Covanta Otay 3 Company, a California corporation
	 
	 	 
	44.

	 	Covanta Pasco, Inc., a Florida corporation
	 
	 	 
	45.

	 	Covanta Plant Services of New Jersey, Inc., a New Jersey corporation
	 
	 	 
	46.

	 	Covanta Power Equity Corporation, a Delaware corporation
	 
	 	 
	47.

	 	Covanta Power International Holdings, Inc., a Delaware corporation
	 
	 	 
	48.

	 	Covanta Power Pacific, Inc., a California corporation
	 
	 	 
	49.

	 	Covanta Power Plant Operations, a California corporation
	 
	 	 
	50.

	 	Covanta Projects of Hawaii, Inc., a Hawaii corporation
	 
	 	 
	51.

	 	Covanta Projects, Inc., a Delaware corporation
	 
	 	 
	52.

	 	Covanta RRS Holdings, Inc., a Delaware corporation
	 
	 	 
	53.

	 	Covanta Secure Services, LLC, a Delaware limited liability company
	 
	 	 
	54.

	 	Covanta SIGC Energy II, Inc., a California corporation
	 
	 	 
	55.

	 	Covanta SIGC Energy, Inc., a Delaware corporation
	 
	 	 
	56.

	 	Covanta SIGC Geothermal Operations, Inc., a California corporation
	 
	 	 
	57.

	 	Covanta Systems, LLC, a Delaware limited liability company
	 
	 	 
	58.

	 	Covanta Tampa Bay, Inc., a Florida corporation
	 
	 	 
	59.

	 	Covanta Tampa Construction, Inc., a Delaware corporation
	 
	 	 
	60.

	 	Covanta Wallingford Associates, Inc., a Connecticut corporation
	 
	 	 
	61.

	 	Covanta Warren Energy Resources Co. Limited Partnership, a Delaware
limited partnership (DE)
	 
	 	 
	62.

	 	Covanta Warren Holdings I, Inc., a Virginia corporation
	 
	 	 
	63.

	 	Covanta Warren Holdings II, Inc., a California corporation
	 
	 	 
	64.

	 	Covanta Waste to Energy, LLC, a Delaware limited liability company






APPENDIX A-8









 






	 	 	 
	 	 	Name
	65.

	 	Covanta Water Holdings, Inc., a Delaware corporation
	 
	 	 
	66.

	 	Covanta Water Systems, Inc., a Delaware corporation
	 
	 	 
	67.

	 	Covanta Water Treatment Services, Inc., a Delaware corporation
	 
	 	 
	68.

	 	DSS Environmental, Inc., a New York corporation
	 
	 	 
	69.

	 	ERC Energy II, Inc., a Delaware corporation
	 
	 	 
	70.

	 	ERC Energy, Inc., a Delaware corporation
	 
	 	 
	71.

	 	Generating Resources Recovery Partners, L.P., a California limited
partnership
	 
	 	 
	72.

	 	Heber Field Energy II, Inc., a Delaware corporation
	 
	 	 
	73.

	 	Heber Loan Partners, a California
general partnership

By: ERC Energy, Inc., its General Partner

By: ERC Energy II, Inc., its General Partner
	 
	 	 
	74.

	 	LMI, Inc., a Massachusetts corporation
	 
	 	 
	75.

	 	Mammoth Geothermal Company, a California corporation
	 
	 	 
	76.

	 	Mammoth Power Company, a California corporation
	 
	 	 
	77.

	 	Michigan Waste Energy, Inc., a Delaware corporation
	 
	 	 
	78.

	 	Mt. Lassen Power, a California corporation
	 
	 	 
	79.

	 	Pacific Energy Operating Group, L.P., a California limited partnership
	 
	 	 
	80.

	 	Pacific Geothermal Company, a California corporation
	 
	 	 
	81.

	 	Pacific Oroville Power, Inc., a California corporation
	 
	 	 
	82.

	 	Pacific Recovery Corporation, a California corporation
	 
	 	 
	83.

	 	Pacific Wood Fuels Company, a California corporation
	 
	 	 
	84.

	 	Three Mountain Operations, Inc., a Delaware corporation
	 
	 	 
	85.

	 	Three Mountain Power, LLC, a Delaware corporation
	 
	 	 
	86.

	 	Covanta ARC Holdings Inc., a Delaware corporation






APPENDIX A-9









 






	 	 	 
	 	 	Name
	87.

	 	Covanta Ref-Fuel Corp. (f/k/a Ref-Fuel Corp.), a Delaware corporation
	 
	 	 
	88.

	 	Covanta Ref-Fuel LLC (f/k/a Ref-Fuel LLC), a Delaware limited liability company
	 
	 	 
	89.

	 	UAH Management Corp., a New York corporation







APPENDIX A-10









 







APPENDIX A-1

TO CREDIT AND GUARANTY AGREEMENT




Tranche C Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Tranche C Term Loan	 	Pro
	 Lender	 	Commitment	 	Rata Share
	Goldman Sachs Credit Partners L.P.
	 	$	[_____]	 	 	 	 	 
	 
	Total
	 	$	229,312,500.00	 	 	 	100.0	%






APPENDIX A-2

TO CREDIT AND GUARANTY AGREEMENT




Delayed Draw Term Loan Commitments




	 	 	 	 	 	 	 	 	 
	 	 	Delayed Draw Term Loan	 	Pro
	 Lender	 	Commitment	 	Rata Share
	Goldman Sachs Credit Partners L.P.
	 	$	140,000,000.00	 	 	 	 	 
	Total
	 	$	140,000,000.00	 	 	 	100.0	%






APPENDIX A-11














 








APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




	 	 	 
	COVANTA ENERGY CORPORATION
	 

	 	40 Lane Road
	 

	 	Fairfield, New Jersey 07004
	 

	 	Attention: Chief Financial Officer
	 

	 	CC: General Counsel
	 

	 	Telecopier: (973) 882-7357
	 
	 	 
	COVANTA HOLDING CORPORATION
	 

	 	40 Lane Road
	 

	 	Fairfield, New Jersey 07004
	 

	 	Attention: Chief Financial Officer
	 

	 	CC: General Counsel
	 

	 	Telecopier: (973) 882-7357
	 
	 	 
	CERTAIN SUBSIDIARIES OF COVANTA ENERGY

	CORPORATION, AS GUARANTORS:
	 

	 	Care of: Covanta Energy Corporation
	 

	 	40 Lane Road
	 

	 	Fairfield, New Jersey 07004
	 

	 	Attention: Chief Financial Officer
	 

	 	CC: General Counsel
	 

	 	Telecopier: (973) 882-7357
	 
	 	 
	GOLDMAN SACHS CREDIT PARTNERS L.P.,
	as Sole Lead Arranger, Sole Book Runner, Sole Syndication Agent
	Administrative Agent, Collateral Agent and a Lender
	 

	 	Goldman Sachs Credit Partners L.P.
	 

	 	85 Broad Street
	 

	 	New York, New York 10004
	 

	 	Attention: Pedro Ramirez
	 

	 	Telecopier: (917) 343-8319
	 
	 	 
	Administrative Agent’s Principal Office:
	 

	 	Goldman Sachs Credit Partners L.P.
	 

	 	85 Broad Street
	 

	 	New York, New York 10004
	 

	 	Attention: Lawrence Writer






Appendix B-1









 






	 	 	 
	 

	 	Telecopier: (212) 902-7862
	 
	Swing Line Lender’s Principal Office:
	 

	 	Goldman Sachs Credit Partners L.P.
	 

	 	85 Broad Street
	 

	 	New York, New York 10004
	 

	 	Attention: Pedro Ramirez
	 

	 	Telecopier: (917) 343-8319
	 
	 	 
	Administrative Agent’s Principal Office:
	 

	 	Goldman Sachs Credit Partners L.P.
	 

	 	85 Broad Street
	 

	 	New York, New York 10004
	 

	 	Attention: Lawrence Writer
	 

	 	Telecopier: (212) 902-7862
	 
	 	 
	JPMORGAN CHASE BANK,
	as Revolving Issuing Bank and a Funded LC Issuing Bank
	 

	 	JPMorgan Chase Bank
	 

	 	120 S. LaSalle
	 

	 	Chicago, IL 60603
	 

	 	Attention: Douglas P. Boersma
	 

	 	Telecopier: (312) 661-3566
	 
	 	 
	with a copy to:
	 

	 	JPMorgan Chase Bank
	 

	 	120 S. LaSalle
	 

	 	Chicago, IL 60603
	 

	 	Attention: Brady B. Bird
	 

	 	Telecopier: (312) 661-3566
	 
	 	 
	 

	 	JPMorgan Chase Bank
	 

	 	120 S. LaSalle
	 

	 	Chicago, IL 60603
	 

	 	Attention: Christina M. Lowe
	 

	 	Telecopier: (312) 661-1862
	 
	 	 
	UBS AG, STAMFORD BRANCH,
	as Funded LC Issuing Bank
	 

	 	UBS AG, Stamford Branch
	 

	 	677 Washington Boulevard
	 

	 	Stamford, CT 06901
	 

	 	Attention: Marie Haddad
	 

	 	Telecopier: (203) 719-3888







Appendix B-2